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This Dunn-Edwards Affiliate Agreement (this “Agreement”) describes the terms and conditions for participation in the Dunn-Edwards Affiliate Program. BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN THE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
For purposes of this Agreement, the following terms (when capitalized) shall have the meanings indicated:
“AAA” means the American Arbitration Association.
“Affiliate, “You,” or “Your” means a business, individual, or entity applying for participation in the Program, or who is accepted into the Program and enters into this Agreement with Dunn-Edwards.
“Affiliate ID” means a special identifier that Dunn-Edwards assigns to an Affiliate who has been accepted into the Program.
The “Affiliate Page” means the portion of the Dunn-Edwards Site that is designated as follows: https://www.dunnedwards.com/about/affiliates.
“Affiliate Site” or “Your Site”” means Your website, social media user-generated content, or online software application.
“Application” means an Affiliate application in the form specified on the Affiliate Page whereby an Affiliate applies to be accepted into the Program.
“Approved Content” means data, images, text, link formats, widgets, links, marketing content, and other linking tools; application program interfaces; and other information that relates to the Program and/or to products offered for sale online through the ecommerce section of the Dunn-Edwards Site, in each case to the extent approved by Dunn-Edwards for use by Affiliates, as shown on the Affiliate Page.
“Commission” means an amount payable by Dunn-Edwards to an Affiliate under this Agreement in relation to a Qualifying Purchase of Dunn-Edwards’ products through the ecommerce section of the Dunn-Edwards Site.
“Confidential Information” means any information relating to Dunn-Edwards that We provide or make accessible to You in connection with the Program that is not known to the general public or that reasonably should be considered to be confidential.
“Customer” shall mean a person or entity that purchases products from Dunn-Edwards through the ecommerce section of the Dunn-Edwards Site.
“Dunn-Edwards,” “We,” “Our,” or “Us” means Dunn-Edwards Corporation, a Delaware corporation.
“Dunn-Edwards Marks” or “Our Marks” means Dunn-Edwards’ trademarks, trade names, logos, trade dress, service marks, corporate names, and any other distinctive names or brands related to Dunn-Edwards, whether registered or not.
“Dunn-Edwards Site” or “Our Site” means www.dunnedwards.com
The “FTC” means the Federal Trade Commission.
The “Program” means the Dunn-Edwards Affiliate Program described on the Affiliate Page. The Program permits You to monetize Your Site by placing Special Links on Your Site to the Dunn-Edwards Site. When Customers click through Special Links on Your Site and purchase products from the ecommerce section of the Dunn-Edwards Site, You can qualify to receive Commissions from Dunn-Edwards, subject to the terms and conditions of this Agreement.
A “Qualifying Purchase” occurs when a Customer clicks through a Special Link on Your Site to the Dunn-Edwards Site, and, during a Single Session, purchases a product from the ecommerce section of the Dunn-Edwards Site for which full payment is made and received.
“Service Offerings” means the Program, the Dunn-Edwards Site, any products or services offered on the Dunn-Edwards Site, any Special Links, link formats, Approved Content, Dunn-Edwards Marks, Dunn-Edwards domain names, technology, software functions, material, data, images, text, and other intellectual property rights, information, and content provided or used by or on behalf of Dunn-Edwards in connection with the Program.
A “Single Session” is measured as beginning when a Customer clicks through a Special Link on Your Site to the Dunn-Edwards Site and ending upon the first to occur of the following: (i) 24 hours elapses from that click; (ii) the Customer places an order for products on the ecommerce section of the Dunn-Edwards Site; or (iii) the Customer clicks through a Special Link to the Dunn-Edwards Site that appears on the website, social media user-generated content, or online software application of a Program participant that is not You.
“Special Link” means a link on the website, social media user-generated content, or online software of a Program participant to the Dunn-Edwards Site that uses a special “tagged” link format provided by Dunn-Edwards that is unique to the Program participant in question.
In order to participate in the Program, (i) You must be 18 years of age or older, (ii) Your Site must contain original content and be publicly available via the website address provided in Your Application, and (iii) You must be in good standing with the FTC and in compliance with all FTC guidelines and the terms and conditions of this Agreement. Dunn-Edwards reserves the unconditional right to accept or deny any applicant for the Program.
You agree and understand that if Your marketing, Site, emails, or any other communications associated with or for Your Site or the Program are considered unsuitable You will be deemed, at the sole discretion of Dunn-Edwards, ineligible to participate in the Program and disqualified from receiving any recognition, Commissions, rewards, or other compensation or communications from Dunn-Edwards. Unsuitable Sites include, without limitation, Affiliate Sites that (i) promote or contain sexually explicit or obscene materials; (ii) promote violence or contain violent materials; (iii) promote or contain false, deceptive, libelous, or defamatory materials; (iv) promote or contain materials or activities that are hateful, harassing, harmful, invasive of another’s privacy, abusive, or discriminatory; (v) promote or undertake illegal activities; (vi) are directed toward children or knowingly collect, use, or disclose personal information from children; (vi) contain any Dunn-Edwards Marks, or any marks that are confusingly similar to any Dunn-Edwards Marks (except as otherwise expressly permitted in this Agreement); or (vii) otherwise violate any intellectual property rights of Dunn-Edwards or others. Dunn-Edwards will determine suitability in its sole discretion.
To begin the enrollment process, You must submit a completed Application to Dunn- Edwards. The Application can be found on the Affiliate Page. You must identify Your Site in Your Application. We have sole discretion whether to approve or reject Your Application.
Dunn-Edwards will notify You by email within three to five business days after receiving Your completed Application whether or not You are accepted into the Program.
You must ensure that the information in Your Application, and information otherwise associated with Your account on the Affiliate Page, including, without limitation, Your email address, other contact information, and identification of Your Site, is at all time complete, accurate, and up-to-date. Dunn-Edwards may send notifications, approvals, and other communications relating to the Program and this 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.
Once You are accepted into the Program, Dunn-Edwards will assign You an Affiliate ID, which will be unique to You, and You will thereafter be permitted to display Special Links on Your Site. All Special Links You display must use Your Affiliate ID.
Special Links may be created by You or made available to You by Dunn-Edwards. You are solely responsible for the content, style, and placement of each Special Link that You place on Your Site and for ensuring that Special Links (whether created by You or made available to You by Dunn-Edwards) include the appropriate formatting necessary for Dunn-Edwards to properly track referrals of Customers from Your Site. You must not encourage Customers to bookmark Your Special Links. All Special Links must be accessed directly from Your Site. You must include Your Affiliate ID as a parameter in the URL of each Special Link You place on Your Site.
You may add or delete products (and related Special Links) from Your Site at any time without Our approval. Special Links must link to products listed in the ecommerce section of the Dunn-Edwards Site. When linking to products on the Dunn-Edwards Site, You must have additional original content on Your Site that is relevant to the Special Link in question.
You must remove from Your Site any Special Links and related references to limited time promotions as soon as those promotions on the Dunn-Edwards Site end. For example, if You include Special Links to outdoor paint and mention that there is a 20% discount on select types of outdoor paint, You must remove the reference to the 20% discount from Your Site as soon as the promotion ends.
You must not make inaccurate, overbroad, deceptive, or otherwise misleading claims about any product, the Dunn-Edwards Site, or any of Our policies, promotions, or prices.
Once You are accepted into the Program, You will be authorized to use the Approved Content, subject to the terms and conditions set forth in this Agreement. You may access the Approved Content through the Affiliate Page, using such passwords, protocols, etc., as Dunn-Edwards shall specify from time to time.
You agree that You will (i) use the Approved Content only in a lawful manner in accordance with and within the express scope of the terms of this Agreement; (ii) not use the Approved Content in connection with any site or application other than Your Site, or in any other manner that does not have the principal purpose of advertising and marketing the Dunn-Edwards Site and driving ecommerce sales of products on the Dunn-Edwards Site; (iii) link each use of product advertising to, and only to, the relevant page on the Dunn-Edwards Site, and not link any Approved Content to, or in conjunction with, any page of a site other than the Dunn-Edwards Site (however, parts of Your Site that are not closely associated with any Approved Content may contain links to sites other than the Dunn-Edwards Site); (iv) not interfere, or attempt to interfere, in any manner, with the functionality or proper working of the Approved Content or the Dunn-Edwards Site; (v) not remove, obscure, alter, or make invisible, illegible, or indecipherable, any notice, including, without limitation, any notice of intellectual property or proprietary right, appearing on or contained within any Approved Content; (vi) not modify, alter, tamper with, repair, or otherwise create derivative works of any Approved Content; (vii) ensure that all Approved Content that appears on Your Site is identical to Approved Content that You accessed on the Affiliate Page; and (viii) promptly remove from Your Site and delete or otherwise destroy any Approved Content that is no longer accessible on the Affiliate Page or that We notify You is no longer applicable for Your use.
Dunn-Edwards may make certain Dunn-Edwards Marks available to You for use as part of the Approved Content. You agree to follow the following guidelines in connection with Your use of same: (i) You are allowed to use Dunn-Edwards Marks only by display on Your Site with the purpose of advertising availability of products for purchase on the ecommerce section of the Dunn-Edwards Site; (ii) Your use of Dunn-Edwards Marks must comply with the provisions of this Agreement; (iii) You may not use or display any Dunn-Edwards Marks in any manner that implies sponsorship or endorsement by Us, to disparage Us, Our products, or services, or in any way that may, in Our discretion, diminish or otherwise damage Our goodwill in any Dunn-Edwards Marks; (iv) You will not alter any Dunn-Edwards Marks in any manner (e.g., proportion, color, or font) from the way they appear on (or are accessed from) the Affiliate Page; (v) each Dunn- Edwards Mark must appear by itself, in its entirety, with reasonable spacing between each side of the Dunn-Edwards Mark and other visual, graphic, or textual elements; (vi) under no circumstances can any Dunn-Edwards Mark be placed on a background that interferes with the readability or display of that Dunn-Edwards Mark; (vii) all rights to Dunn-Edwards Marks are Our exclusive property, and all goodwill generated through Your use of any Dunn-Edwards Mark will inure to Our exclusive benefit; (viii) You will not take any action that conflicts with Our rights in, or ownership of, any Dunn-Edwards Mark; and (ix) You cannot use or apply to register in any jurisdiction any trademark, domain name, subdomain, username, or app name that is confusingly similar to any Dunn-Edwards Mark.
Intellectual Property Rights
Subject to the terms of this Agreement and solely for the limited purposes of participation in the Program, Dunn-Edwards hereby grants You a limited, revocable, non-transferable, non-sublicensable, non-exclusive, and royalty-free license to (i) copy the Approved Content solely on Your Site; (ii) use only those of the Dunn-Edwards Marks as Dunn-Edwards makes available to You as part of the Approved Content, solely on Your Site and in accordance with the terms of this Agreement; and (iii) access the Approved Content on the Affiliate Page.
This license will immediately and automatically terminate if at any time You do not timely comply with any obligation under this Agreement, or otherwise upon termination of this Agreement. In addition, Dunn-Edwards may terminate such license in whole or in part at any time upon written notice to You. Upon any such termination, You will promptly stop using, and promptly remove from Your Site and delete or otherwise destroy, all of the Approved Content and Dunn-Edwards Marks with respect to which this license is terminated, or as Dunn-Edwards may otherwise direct.
Other than the limited licenses expressly set forth in this Agreement, Dunn-Edwards reserves all right, title, and interest (including, without limitation, all intellectual property and proprietary rights) in and to, and You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, the Special Links, the Approved Content, the Dunn-Edwards Marks, or any other intellectual property or technology that Dunn-Edwards provides or uses in connection with the Program. Forthwith upon any termination of this Agreement, You agree to cease all use of the foregoing.
Responsibility for Your Site
Subject to the limitations set forth below and elsewhere in this Agreement, You will be paid a Commission on all Qualifying Purchases of products made by Customers from the ecommerce section of the Dunn-Edwards Site during the term of this Agreement. Commissions will only be paid on sales that are made when the Customer clicks through a qualified, correctly structured, Special Link. Properly coding Your Special Links is Your responsibility. Commissions can be viewed on the dashboard for Your account on the Affiliate Page
Affiliates earn a standard Commission rate of 10% for all products, excluding sales tax and shipping costs. We reserve the right to reverse Commissions due to refunded payments and erroneously coded Special Links. Commissions are paid out via PayPal. It is Your responsibility to ensure that Your PayPal account details are accurate and up-to-date in order to receive Commission payments.
No Commissions shall be paid with respect to any purchases of products (i) that are effected in connection with any violation of this Agreement; (ii) that are effected at or through a Dunn-Edwards store, rather than through the ecommerce section of Our Site; (iii) that are effected by a Customer through the ecommerce section of Our Site, but not during a Single Session that commenced upon the Customer’s clicking through a Special Link on Your Site, even if that same Customer had previously accessed Our Site by clicking through a Special Link on Your Site; (iv) that are effected after the termination of this Agreement; (v) for which cancellations, returns, or refunds have been initiated; (vi) that are effected by a Customer who is referred to the Dunn-Edwards Site through any advertisement that You purchased through participation in bidding or auctions on keywords, search terms, or other identifiers that include any Dunn-Edwards Marks, or identifiers that are confusingly similar to any Dunn-Edwards Marks; (vii) that are effected by a Customer who is referred to the Dunn-Edwards Site by a link that is generated or displayed on a search engine (such as Google, Yahoo, or Bing); (viii) that are effected by a Customer who is referred to the Dunn-Edwards Site by a link that sends users indirectly to the Dunn-Edwards Site via an intermediate site, without requiring the Customer to click on a link or take some other affirmative action on that intermediate site; (ix) that are effected by a Customer that does not comply with the terms and conditions applicable to the Dunn-Edwards Site; or (x) that are not correctly tracked or reported because the Special Links from Your Site to the Dunn-Edwards Site are not properly formatted.
You can request a payment of Your Commissions when Your Commission balance reaches a minimum of $25 USD. You can request payment not more often than once every 30 days, and payments will be made not later than 60 days after request for payment is received. Payments are made via PayPal. It is Your responsibility to ensure that Your PayPal account details with Dunn-Edwards are accurate and up-to-date in order to receive payment.
In the event a Customer requests a refund for a transaction for which You were credited a Commission, any Commission applicable to the refund amount will be deducted from Your Commission account.
Representations, Warranties, and Covenants
You hereby represent, warrant, and covenant to Dunn-Edwards that (i) You will participate in the Program and create, maintain, and operate Your Site in accordance with this Agreement; (ii) this Agreement has been duly and validly executed and accepted by You and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; (iii) the execution and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate any provision of law, rule, or regulation to which You are subject; any order, judgment, or decree applicable to You or binding upon Your assets or properties; any provision of Your by-laws or certificate of incorporation; or any agreement or other instrument applicable to You or binding upon Your assets or properties; (iv) no consent, approval, or authorization of, or exemption by or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with Your execution, delivery, or performance of this Agreement or the taking by You of any action contemplated hereby; (v) there is no pending or, to the best of Your knowledge, threatened claim, action, or proceeding against You, or any affiliate of Yours, with respect to the execution, delivery, or performance of this Agreement; and, to the best of Your knowledge, there is no basis for any such claim, action, or proceeding; (vi) 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 Agreement; (vii) the information You provided (or will provide) in connection with the Program was (and will be) accurate and complete at all times; and (viii) You (if You are an individual) are at least 18 years of age.
Dunn-Edwards does not make any representation, warranty, or covenant regarding the amount of traffic or fees You can expect at any time in connection with the Program, and will not be liable for any actions You may undertake based on Your expectations.
Usage and Obligations
You must clearly state the following (or equivalent) on Your Site or any other location where Dunn-Edwards may authorize Your display or other use of any Special Links, Dunn-Edwards Marks, or Authorized Content: “As a Dunn-Edwards Affiliate, I earn from qualifying purchases.” Except for this disclosure, You will not make any public communication with respect to this Agreement or Your participation in the Program without Dunn-Edwards’ advance written permission.
You will not engage in any promotional, marketing, or other advertising activities on behalf of Dunn-Edwards, or in connection with the Dunn-Edwards Site or the Program, that are not expressly permitted under this Agreement.
You will not engage in any promotional, marketing, or other advertising activities using any Special Links, Dunn-Edwards Marks, or Approved Content in connection with any email, print, or other offline promotions.
The Program is designed for Affiliates to promote via their legitimate channels of influence only. You will not engage in any promotion via paid traffic (including, without limitation, any adword or pay per click campaign), re-targeting, discount and/or coupon site, or any other method that in the sole discretion of Dunn-Edwards is not in accordance with the letter and spirit of this Agreement.
You agree not to use cookie stuffing techniques that set Your tracking cookie without the Customer's knowledge.
Your use of Special Links, Dunn-Edwards Marks, and/or Approved Content must relate only to paint, the paint process, DIY projects, and/or home décor. Any other use of Special Links, Dunn-Edwards Marks, and/or Approved Content is prohibited.
You will never imply that You are acting on behalf of Dunn-Edwards, and will never advertise any Dunn-Edwards’ products directly.
Dunn-Edwards’ Customers are not, by virtue of Your participation in the Program, Your Customers. 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 Dunn-Edwards Site will apply to those Customers and may be changed at any time. You will not handle or address any contacts with any of Our Customers, and, if contacted by any of Our Customers for a matter relating to an interaction with the Dunn-Edwards Site, You will state that those Customers must follow directions on the Dunn-Edwards Site to address Customer service issues.
You will not directly or indirectly purchase any products through Special Links, whether for Your use or for the use of any other person or entity; and You will not permit, request, or encourage any of Your friends, relatives, employees, contractors, or business relations to directly or indirectly purchase any products through any Special Links, whether for their use, Your use, or the use of any other person or entity. Further, You will not purchase, or encourage the purchase, of any products through Special Links for resale or commercial use of any kind.
You must comply with all federal, state, and local regulations that are applicable to You, including, without limitation, the CAN-SPAM Act of 2003 or other laws or regulations governing marketing emails.
You may not engage in any activity that involves, facilitates, advocates, or promotes one or more of the following: (i) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age, national origin, or disability; ii) libelous, defamatory, obscene, pornographic, sexually explicit, or abusive activities; (iii) gambling or the use of illegal substances; (iv) sedition or illegal activities; (v) false or misleading advertising; or (vi) a conflict with or violation of any law, rule, or regulation, or the infringement of any intellectual property or other rights of any person or entity.
Upon Our request, You will provide Us with written certification that You have complied with this Agreement, generally or specifically with respect to any specified provision of this Agreement. Any failure to provide the certification in accordance with Our request will constitute a material breach of this Agreement.
Term and Termination
Either You or Dunn-Edwards may terminate this Agreement at any time, with or without cause, upon written notice given to the other.
No Commissions will be paid with respect to any Customer transactions effected after the date of termination; but any Commission balance with respect to past transactions will be paid to You within 60 days of termination, except that if the total Commission balance is less than $10.00, it will be forfeited.
Upon termination, You agree to discontinue all use of Dunn-Edwards links, logos, banners, and other materials, including, without limitation, all Special Links, Dunn-Edwards Marks, and Authorized Content.
No termination of this Agreement shall limit or affect any obligations of one party to the other that accrue prior to the date of termination, or obligations (such as obligations relating to confidentiality or the use of intellectual property) that, under the terms of this Agreement, are intended to survive termination.
This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of California.
All claims and disputes arising under or relating to this Agreement shall be settled by binding arbitration, except that You may assert claims in small claims court if Your claims qualify. The arbitration will be conducted by the AAA under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes, if applicable. 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. Dunn-Edwards will reimburse those fees for any claim totaling less than $10,000 unless the arbitrator determines the claim is frivolous. Likewise, Dunn-Edwards will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claim in question is 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. Any award in arbitration may be entered in any court of competent jurisdiction.
You and Dunn-Edwards 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, You and Dunn-Edwards each waive any right to a jury trial. You also both agree that We may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Dunn-Edwards may deduct or withhold any taxes that We may be legally obligated to deduct or withhold from any amounts payable to You under the Program. From time to time, We may request tax information from You. If we request tax information from You and You do not provide it to us, We reserve the right (in addition to any other rights or remedies available to Us) to hold Your Commissions until You provide this information or otherwise satisfy Us that You are not a person from whom We are required to obtain tax information.
Dunn-Edwards reserves the right to modify any of the terms and conditions contained in this Agreement at any time and in Our sole discretion by posting a change notice, revised Agreement, or revised policy on the Affiliate Page or by sending written notification to You by email to the primary email address then associated with Your Affiliate account. The effective date of such change will be the date specified, which will be no less than seven calendar days from the date the notice is provided. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH CHANGE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS.
Relationship of the Parties
Nothing in this Agreement shall be deemed to create a partnership, joint venture, agency, or employment relationship between You and Dunn-Edwards. You are participating as a fully-independent entity, and are responsible for any and all federal, state, local, and/or foreign income taxes or fees that may arise out of or relate to your operations under this Agreement, including, without limitation, income, withholding, and employment taxes. Under no circumstances will Dunn-Edwards be held liable for any of Your actions or results.
All Confidential Information shall remain Dunn-Edwards’ exclusive property. You will use Confidential Information only to the extent reasonably necessary for Your performance under this Agreement. You will not disclose Confidential Information to any third party, and You will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement.
THE SERVICE MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND DUNN-EDWARDS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. DUNN-EDWARDS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OT TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. DUNN-EDWARDS 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. DUNN-EDWARDS DOES NOT 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. DUNN-EDWARDS WILL NOT BE RESPONSIBLE FOR (I) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES OR SYSTEM FAILURES; OR (II) 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 SERVICE OFFERINGS, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, DUNN-EDWARDS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUES, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS; (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM; OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE PROGRAM. NOTHING IN THIS PARAGRAPH WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability
DUNN-EDWARDS SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE, OR OTHER EQUITABLE RELIEF.IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DUNN-EDWARDS WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR SITE (INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY SERVICE OFFERING) OR YOUR VIOLATION OF THIS AGREEMENT, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS DUNN-EDWARDS, AND ITS EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, AND AFFILIATES, FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND REASONABLE ATTORNEYS’ FEES) RELATING TO (I) YOUR SITE OR ANY MATERIALS THAT APPEAR ON YOUR SITE, INCLUDING, WITHOUT LIMITATION, THE COMBINATION OF YOUR SITE OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES; (II) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR SITE OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR SITE; (III) YOUR USE OF ANY SERVICE OFFERING, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW; (IV) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT; OR (V) YOUR OR YOUR EMPLOYEES’ OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.
Dunn-Edwards my send You emails relating to the Program from time to time. In addition, Dunn-Edwards may (i) monitor, record, use, and disclose information about Your Site and users of Your Site that We obtain in connection with Your display of Special Links, Dunn-Edwards Marks, and/or Approved Content; and (ii) review, monitor, crawl, and otherwise investigate Your Site to verify compliance with this Agreement.
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.
This Agreement is the entire agreement between You and Dunn-Edwards with respect to the subject matter hereof, and supersedes all prior agreements and discussions with respect to such subject matter.