Revised August 8, 2016
This agreement will begin upon our acceptance of your affiliate application and will end when terminated by either party. Termination may happen at any time, with or without cause, by giving the other party written notice of termination.
By posting a Change Notice or a new or revised agreement on this site, we may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. These modifications may include, but not limited to changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. If any of the modifications are UNACCEPTABLE TO YOU, your only recourse is to terminate this Agreement. If you CONTINUE PARTICIPATION IN THE PROGRAM following the posting of a Change Notice or new or revised agreement, it will be considered as your acceptance of the change.
LIMITATION OF LIABILITY
HigginsPublishing.com or subsidiaries of HigginsPublishing.com shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether HigginsPublishing.com was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, or other performance of services under this Agreement.
This User Agreement (“Agreement”) is an agreement between Higgins Publishing, a California company, and the party set forth in the related order form incorporated herein by reference (together with any subsequent order forms submitted by Customer, the “Order Form”), and applies to the purchase of all services (collectively, the “Services”) ordered by Customer on the Order Form. Such party is referred to in this Agreement as “Customer” or “you”. PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING Higgins Publishing’s USAGE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. Higgins Publishing reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Higgins Publishing. Activation of the Services shall indicate Higgins Publishing’s acceptance of this Agreement. Subject to the terms and conditions of this Agreement, Higgins Publishing will provide to Customer the Services selected by Customer set forth on the Order Form.
- Usage Policy
Under this Agreement, Customer shall comply with Higgins Publishing’s then current “Usage Policy”, as amended, modified or updated from time to time by Higgins Publishing and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the Usage Policy and that the terms of the Usage Policy are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the Usage Policy, the terms of the Usage Policy shall govern. Higgins Publishing does not intend to systematically monitor the content which is submitted to, stored on or distributed or disseminated by Customer via the Service (the “Customer Content”). Customer Content includes content of Customer’s customers and/or users of Customer’s website. Accordingly, under this Agreement, you will be responsible for your customers content and activities on your website. Notwithstanding anything to the contrary contained in this Agreement, Higgins Publishing may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the Usage Policy. In the event Higgins Publishing takes corrective action due to a violation of the Usage Policy, Higgins Publishing shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that Higgins Publishing shall have no liability to Customer or any of Customer’s customers due to any corrective action that Higgins Publishing may take (including, without limitation, disconnection of Services).
Higgins Publishing may amend, modify or update this Agreement or the Usage Policy at any time in its sole discretion, and Customer shall be bound by any such amendment, modification or update. Higgins Publishing will provide notice of any amendment, modification or update of this Agreement or the Usage Policy. Any modification is effective on the earlier of two days after posting on Higgins Publishing’s website or two days after the sending of a notice by Higgins Publishing to Customer by e-mail or conventional mail. If any material modification to this Agreement or the Usage Policy is unacceptable to you, you may terminate your subscription as provided in Section 3. However, if you do not terminate the Agreement, or if you continue to use the Services following effectiveness of the modification, your continued use will mean that you have accepted that modification. Higgins Publishing reserves the right to amend its service offerings and add, delete, suspend or modify the terms and conditions of the Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
- Term; Termination; Cancellation Policy
The initial term of this Agreement shall be as set forth in the Order Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or cancelled by either party as provided in this section. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”.
This Agreement may be terminated (i) by either party by giving the other party 30 days prior written notice (subject to an early cancellation fee as provided below), (ii) by Higgins Publishing in the event of nonpayment by Customer, (iii) by Higgins Publishing at any time, without notice, if, in Higgins Publishing’s judgment, Customer is in violation of any term or condition of the Usage Policy or Customer’s use of the Service disrupts or, in Higgins Publishing’s judgment, could disrupt, Higgins Publishing’s business operations and (iv) by Higgins Publishing.
- Billing and Payment
All fees for the Services shall be in accordance with Higgins Publishing fee schedule then in effect, the terms of which are incorporated herein by reference, and shall be due at the times provided therein. In addition, in the event that any amount due Higgins Publishing remains unpaid twenty (20) days after such payment is d ue, Higgins Publishing, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services.
Customer agrees that Higgins Publishing may charge Customer’s fees for the Services to the credit card supplied by Customer during registration. Customer agrees that all payments for memberships, digital downloads are non-refundable. Customer also agrees that publishing services, and physical product payments are non-refundable; due to online processing and order fulfillment procedures. However, a credit may be issued at the sole discretion of Higgins Publishing.
- Property Rights
Higgins Publishing owns all right, title and interest in and to the Services and Higgins Publishing’s trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems (“Marks”). Nothing in this Agreement constitutes a license to Customer to use or resell the Marks.
- Disclaimer of Warranty
Customer agrees to use all Services and any information obtained through or from Higgins Publishing, at Customer’s own risk. Customer acknowledges and agrees that Higgins Publishing exercises no control over and accepts no responsibility for, the content of the information passing through Higgins Publishing’s host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF Higgins Publishing, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN “Higgins Publishing PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT Higgins Publishing PROVIDES. NO Higgins Publishing PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. Higgins Publishing IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S CUSTOMERS VIA THE SERVICES PROVIDED BY Higgins Publishing. NO ORAL ADVICE GIVEN BY ANY Higgins Publishing RepresentativeWILL CREATE A WARRANTY; NOR MAY CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.
Customer agrees to indemnify, defend and hold harmless Higgins Publishing and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer’s use of the Services, (ii) any violation by Customer of the Usage Policy, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
- Limitation of Liability
Customer agrees that no Higgins Publishing Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Higgins Publishing at the time) which may exist in the Services or Higgins Publishing’s equipment used to provide the Services.
Under no circumstances, including negligence, shall any Higgins Publishing Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Higgins Publishing has been advised of the possibility of such damages. No Higgins Publishing Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Higgins Publishing’s records, programs, equipment or services.
Notwithstanding anything to the contrary in this Agreement, Higgins Publishing’s maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
Customer understands, acknowledges and agrees that if Higgins Publishing takes any corrective action under this Agreement because of an action of Customer or one if its customer or a Reseller Customer, that corrective action may adversely affect other customers of Customer or other Reseller Customers, and Customer agrees that Higgins Publishing shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by Higgins Publishing.
This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.
- Force Majeure
Higgins Publishing shall not be liable for failure or delay in performing it obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
- Governing Law; Jurisdiction; Arbitration
This Agreement shall be governed in all respects by California law without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in California. Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the American Arbitration Association (“AAA”) in accordance with its then existing Commercial Arbitration Rules (collectively, the “AAA Rules”) and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Oakland, CA, or any other place selected by mutual agreement of the parties.
An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in persona jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees. The terms of this section shall survive any termination of this Agreement.
Customer shall not have the right to assign this Agreement without the prior written consent of Higgins Publishing. This Agreement shall be binding upon and inure to the benefit of Customer and Higgins Publishing and their successors and permitted assigns.
- Entire Agreement; Severability
This Agreement, together with the Order Form and any other documents or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supersedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.