GemX Software

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Operating Terms

GemX Software Affiliate Operating Agreement

This Agreement contains the terms and conditions to apply to an individual's or an entity's participation in the GemX Software Affiliate Program (the "program"). As used in this Agreement, "we", "us","GemX" or "our" refers to GemX Software., "you" or "your" refer to the applicant. "Participant" shall mean an applicant which has been approved to be a participant with the Affiliate Program. "Sponsoring Web site" refers to the World Wide Web site from which you will link to GemX. "Product" refers to any item listed for sale in the GemX Web site. All dollars ($) shall mean United States dollars.

1. Enrollment in the Affiliate Program

To begin the enrollment process, you will submit a complete GemX Affiliate Program application form via our site. We will evaluate your application and will notify you if your application is approved or rejected. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the program. Unsuitable Web sites include sites that:

1. Promote violence 2. Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age 3. Promote unlawful activities 4. Promote the use of bulk e-mail or "Spam" 5. Promote the use of multi-level marketing (MLM) 6. Contain content that is threatening, defamatory, fraudulent, obscene or harassing 7. Violate intellectual property rights

If we reject your application, you are welcome to re-apply to the Affiliate Program after you have updated your site to remove content we have determined to be unsuitable for a GemX Affiliate.

2. Listing Software on Your Site

You will link to the GemX home page, but we reserve the right to expand your ability to link to additional pages on the GemX web site. You will be allowed to place a short description, review or reference to GemX products and other products developed and sold by us. Using a specially formatted link with a unique Affiliate ID, you will link to our site and Software application products contained within our website.

3. Order Processing

1. Order Processing: We will be responsible for processing every order placed by a customer who utilizes the special link from your sponsoring Web site to our Web site. Those responsibilities include order forms, payment processing, shipping, cancellations, returns and related customer service. Our rules, operating procedures and policies regarding customer orders and accounts apply to orders we receive through the special link from your sponsoring Web site. We reserve the right to reject any order for any reason, including any order that does not comply with our rules, operating procedures and policies or that violates applicable law.
2. Tracking of Sales: We will track sales made to customers who use the unique Affiliate ID from your sponsoring Web site. We track sales through the use of cookies. You will be responsible for ensuring that your special link includes your unique Affiliate ID and is formatted properly, a necessary prerequisite for us to track such sales. Statements of referral product sales activity will be provided to you. All statements after 30 days shall be deemed correct unless you give us notice of any error prior to that date. We shall not be responsible for any errors you or your customers make which result in any loss of any tracking information contained in the special link. We do not have any obligation or liability to pay referral fees for purchases made from which cookies are not reasonably traceable by us and our agents. To protect our customers' privacy, the names or other personal information about specific customers will not be provided to you.
3. GemX Policy Applies to All Orders: Every customer who buys a product through this program is deemed to be a customer of GemX. You do not have the authority to make or accept any offer of purchase on our behalf. All of our policies regarding customer orders, including product availability, pricing and problem resolution, will apply to these customers. We are not responsible for any representations you make which conflict with our policies.
4. Product Pricing: We will follow our pricing policies to determine the price of GemX and other products sold on the GemX web site. Product prices may vary from time to time, including software publishers' price increases and special discounts offered by us on products that may already be listed by you. Product prices change are subject to change without notice and we cannot guarantee product pricing.

4. Referral Fees

1. Referral Fee Amount: We will pay the owner of the sponsoring web site 60% on gross product sales of our products, for software delivered to an end-user by us that was initiated as a direct referral using the appropriate special link, including the unique Affiliate ID from the sponsoring Web site. Net product sales are gross product sales less returns and chargebacks. Gross product sales are revenue generated from all items for sale from the GemX web site, including third-party products, CDs and manuals, but not including shipping, handling and sales taxes. The referral fees only apply to the portion of revenues attributable to GemX.
2. Referral Fee Payment: We will send you a payment for the applicable referral fee and a statement of product sale activity within 30 days after the end of each calendar month. Amounts less than $25.00 will be held until the calendar month in which the referral fee due exceeds $25.00, or until this agreement is canceled. In order to protect GemX against possible frauds, we may hold new affiliates payments upto 6 months.
3. Returns and Cancellations: If a referral fee product is later returned by the customer, its referral fee will be deducted from the next monthly payment sent to you. If there is no next monthly payment, you will be billed for this amount which is owed to us.

5. Responsibility for Your Site

1. You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for: the technical operation of your site and all related equipment creating and posting product descriptions on your site and linking those descriptions to our Web site the accuracy and appropriateness of materials posted on your site (including, among other things, all product related materials) ensuring that materials posted on your site (except for the required logo under section 7(a), below) do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights) ensuring that materials posted on your site are not libelous or otherwise illegal.
2. We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance and contents of your site.
3. You agree to display a GemX logo on the sponsoring site homepage or other prominent location.

6. Linking to GemX

1. Use of special links to the GemX web site: Using a specially formatted link, which includes a unique Affiliate ID that we provide you, you will provide a special link to a GemX page. You may add or delete links from your sponsoring Web site at any time without our approval.
2. You can add or remove links at any time: You may select and link to additional pages, or remove such links, at any time and without our prior approval. However, you must use the correct special link format with the unique Affiliate in order to receive proper credit for your referrals.
3. You must link directly to the GemX web site and receive commissions on any products sold from GemX during that session provided you use the unique Affiliate ID and the correct special link.

7. Limited License

1. You must display the GemX Affiliate Program logo on your home page or other prominent area on your site, subject to the license below.
2. We grant you a non-exclusive, revocable right to use the icon and such other images for which we grant express permission, solely for the purpose of identifying your site as a program participant. You may not modify the icon or any of our images in any way. We reserve all of our rights in the icon, any other images, our trade names, trademarks and copyrights and all other intellectual property rights. We may revoke your license at any time by giving you written notice. You may not use such icon and other images in such a way that would harm our image. Upon cancellation or termination of this Agreement, you agree to cease all use of such icon and other images.

8. Restrictions on Personal Use

This program is intended for commercial use only, i.e., paying referral fees for products sold to third parties who follow a special link from your sponsoring Web site. Participants who use this program to purchase products for their own use are in violation of the agreement. GemX may, in its sole discretion, terminate this agreement and/or withhold payment of referral fees if we find that such personal use has occurred.

9. General Provisions

1. Web Site Service Interruption: GemX will make every effort to keep its Web site operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. You agree not to hold us liable for any of the consequences of such interruptions.
2. Term of the Agreement: You may only receive referral fee payments for orders that are properly placed during the term of this agreement. This term will begin on the date that we notify you that you have been pre-approved as a program participant and shall end when canceled or terminated by either party as provided below. Unless otherwise canceled or terminated, the agreement will be for one (1) year and renewed quarterly. Referral fees earned through the date of cancellation or termination of this agreement will remain payable only if the products are not returned or canceled from their orders. Payment of the final referral fee payment to you may be withheld for a reasonable time in order to ensure that the correct amount is paid.
3. Modifications: 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, 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.
4. Effect of Termination: Upon termination or expiration of this Agreement, Participant shall have no right or license to use the GemX trademarks, copyrights, etc. in any manner. GemX shall have no obligation to pay Participant any fees or charges, including Referral Fees, for services or products purchased after the expiration or termination of this Agreement for any reason. All provisions of this Agreement which by their nature are intended to service the expiration or termination of this Agreement shall survive and remain in full force and effect.
5. Cancellation of This Agreement: Either party may choose to cancel or terminate this agreement at any time and for any reason by written notice of cancellation or termination to the other.
6. WARRANTY DISCLAIMER: WE MAKE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS WITH REGARD TO THE PROGRAM OR ANY PRODUCTS SOLD THEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. 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.
7. LIMITATION OF DAMAGES: WE SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM SHALL IN NO EVENT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE BY US TO YOU UNDER THIS AGREEMENT.
8. Independent Contractors: You are an independent contractor and nothing in this agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship with us.
9. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the Netherlands, excluding its conflict of laws principles. Any lawsuit relating to this Agreement must be brought in the courts located in the Netherlands.
10. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreements.
11. Assignment. 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 enforceable against the parties and their respective successors and assigns.
12. Waiver: 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.
13. Free to Contract with Others: 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.
14. Independent Investigation: 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.

10. ACKNOWLEDGMENT AND ACCEPTANCE OF THE TERMS:

BY SUBMITTING THIS APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY AND AGREE TO ALL ITS TERMS AND CONDITIONS.