Introduction
This Publisher Service Agreement (“Agreement”) is made by and agreed to between ZOT Zin Music, LLC., a California LLC, located at P.O. Box 2432, Hollywood, CA 90078, USA (“ZOT Zin Music”) and you (“You”). As an educational institution, ZOT Zin Music facilitates “Performance Marketing Programs” by providing services on the internet. A “Performance Marketing Program” (“Program”) is where a person, entity, affiliate or its agent, operating “Web site(s)” (internet domain, or a portion of a domain) and/or other promotional methods to drive traffic to another’s Web site or Web site content (“Publisher”) may earn financial compensation (“Payouts”) for “Transactions” (actions by Visitors as defined by the Advertiser) referred by such Publisher via an action made by a “Visitor” (any person or entity that is not the Publisher or the Publisher’s agent) through an Internet connection (“Link”) to a Web site or Web site content operated by another person or entity (“Advertiser”) from an Advertiser authorized promotional method used by such Publisher. The Advertiser compensates the Publisher, in accordance with this Agreement and the Program Payout specifications.
1. Participation in Programs.
(a) Acceptance by Advertiser. During this Agreement, You may apply to Advertiser Programs for the opportunity to earn Payouts by promoting Advertisers in accordance with the Advertiser’s Program terms and complying with this Agreement. Upon approval by the Advertiser for acceptance into its Program, You may display (and remove) Links to Advertiser’s Web site or Web site content in accordance with the Advertiser’s Program terms and this Agreement. An Advertiser’s acceptance of You extends only to the entity, or individual, that enters into this Agreement with ZOT Zin Music.
(b) Program Terms. The details of an Advertiser’s Program shall be available through the Network Service. Transactions qualifying for a Payout are defined by the Advertiser. Advertisers may change any Payout rate upon no less than 7 days written notice through the Network Service with effect from the 8th day (or such later date as specified by Advertiser).
(c) Additional Terms. Publishers and Advertisers may enter into direct contractual relationships through a click-through agreement hosted by ZOT Zin Music and/or other agreement(s) (“Click-through Agreement”). It is Your obligation to review and to either accept or decline such Click-through Agreement when one is presented to You. If accepted by You, compliance with the Click-through Agreement, as applicable, is solely Your responsibility. The terms and conditions of the Click-through Agreement, as applicable, shall apply only with respect to Your relationship with that particular Advertiser. Nothing contained in a Click-through Agreement, as applicable, may conflict with the terms and conditions contained in this Agreement. In the case of such conflict, this Agreement shall control.
(d) Prohibited Uses of Links.
(i) Locations. You may not place Links to an Advertiser’s Web site or Web site content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Publishers using IRC channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by the Advertiser.
(ii) Non-Bona Fide Transactions. You must promote Advertisers such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Advertiser from the Link. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Multiple Leads from the same individual, entity, or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bonafide Transactions.
(iii) Infringement. None of Your promotional activities may infringe an Advertiser’s proprietary rights (including but not limited to trademark rights), or a third party’s proprietary rights.
(e) Emails. You hereby understand, acknowledge, and accept that ZOT Zin Music, ZOT Zin Music systems, ZOT Zin Music partners’ systems, and/or third-party systems may and has/have the right granted by You to send emails and other communications to You on behalf of ZOT Zin Music, Advertisers, and other ZOT Zin Music partners and affiliates, including solicitation and service solicitation emails. You may have the ability to change some of Your email settings and preferences.
2. Publisher Obligations to ZOT Zin Music.
(a) Accurate, Up-to-Date Information. You agree to provide ZOT Zin Music and Advertiser with accurate information about You and Your promotional methods, and to maintain up-to-date “Account” information (such as contact information, Web sites used, etc.). In Your Account, You must accurately, clearly, and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as “special”. Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by the Advertiser. ZOT Zin Music reserves the right to define any program as special.
(b) Use of Links. You represent and warrant that all promotional means used by You will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services, or activities) and that You will not mislead others. You agree to (i) use ethical and legal business practices, (ii) comply with the Advertisers’ Program terms and this Agreement, (iii) maintain a privacy policy on Your Web site and for any non-Web site based promotional method made available to Visitors, and (iv) designate Your Publisher Account as “special” if You promote an Advertiser(s) by any means other than displaying a Link to the Advertiser on Your Web site. ZOT Zin Music must approve all of Your promotional activities and may deem Your promotional activities inappropriate and a material breach of this Agreement at ZOT Zin Music’s sole discretion. Our network quality department reviews publisher conduct and any suspected fraudulent, abusive, or otherwise illegal content or activity by You through Your promotional methods, or that is perpetrated through the use of the Network Service, is grounds for immediate termination of this Agreement or deactivation of Your Account.
(c) Promotional Methods. You represent and warrant that You will not engage in and/or facilitate spamming, indiscriminate advertising, or unsolicited commercial email or otherwise fail to comply with the CAN-SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications. You represent and warrant that You will not engage in pop-up or pop-under advertising using any means involving third-party properties and/or services (software). Pop up/unders are acceptable on a first-party basis only when triggered by Your site content /site visit or by downloadable software applications for which You are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/under must honor the ZOT Zin Music Publisher Code of Conduct requirements (as such requirements may be modified from time to time), including but not limited to: (i) installation requirements, (ii) end-user agreement requirements, (iii) afsrc=1 requirements, (iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payout to another Publisher (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and (v) non-interference with competing advertiser/ publisher referrals.
(d) Personally Identifiable Information of Visitors. You represent and warrant that You will not enable the Tracking Code to collect personally identifiable information of Visitors that would allow ZOT Zin Music to personally identify Visitors.
(e) Privacy. You must conspicuously post Your privacy policy on Your Web site and otherwise make it available to all Visitors. Your privacy policy must comply with all laws and regulations regarding the privacy of Visitor information, be commercially reasonable, and fully and accurately disclose Your collection and use of Visitor information. You must fully and accurately disclose Your use of third-party technology, including ZOT Zin Music’s tracking technology, use of cookies, and options for discontinuing the use of such cookies.
(f) Applicable Codes and Code Maintenance. In order for ZOT Zin Music to record the tracking of Visitors’ Transactions resulting from clicks on Links to Advertisers promoted by You, You must include and maintain a ZOT Zin Music “Tracking Code” within the Advertiser’s Links. All Advertiser Links and all advertisements (“Ad Content”) must be in a Network Service compatible format.
(g) Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft, or unauthorized disclosure of Your password (other than through ZOT Zin Music’s negligent or willful conduct or omission). You shall provide ZOT Zin Music with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
3. ZOT Zin Music’s Services.
(a) Tracking Transactions and Payouts. Payouts will not be made for transactions made by You through Your own referral links. ZOT Zin Music shall determine (where possible) actual Payouts that should be credited to Your Account. ZOT Zin Music may, in ZOT Zin Music’s sole discretion, apply an estimated amount of Payouts, if: (i) You are referring Visitors to Advertiser as verified by clicks through Links to Advertiser with ZOT Zin Music Tracking Code, (ii) where there is an error in Advertiser’s transmission of Tracking Code data to ZOT Zin Music, and (iii) where ZOT Zin Music is able to utilize a historical analysis of Your promotion of Advertiser to determine an equitable amount of estimated Payouts.
(b) Charge-backs. An Advertiser may apply, or ZOT Zin Music may apply, a debit to Your Account in an amount equal to a Payout previously credited to Your Account in circumstances of (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or (v) Publisher failure to comply with Advertiser’s Program terms or other agreement with Advertiser (“Charge-back”). Charge-backs may be applied to Your Account at any time, including previous payment cycles.
(c) Access to Tracking and Reporting Tools. ZOT Zin Music shall provide You with access to tracking and reporting tools, and to support services. From time to time ZOT Zin Music may offer optional services for a fee. Fees for such optional services are at ZOT Zin Music’s then-current published rates or as may be quoted by ZOT Zin Music, and are payable in advance or may be offset against Your positive Account balance (at ZOT Zin Music’s discretion).
(d) Support. Support for your program is available online through the “Contact Us” area of the ZOT Zin website(s), which allows You to describe Your issue. Phone support may also be available during operating hours, except holidays.
(e) Facilitating Payment of Payouts. Subject to other provisions in this Agreement, ZOT Zin Music shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Advertiser’s Payout rate and Program terms for the relevant Transaction. On or about the 20th day of each calendar month, ZOT Zin Music will issue to You any positive balance in Your Account for Transactions reported for the previous month, provided Your Account balance exceeds the required “Minimum Account Balance.” ZOT Zin Music shall have no obligation to make payment of any Payouts for which ZOT Zin Music has not received payment from the relevant Advertiser of all monies due to ZOT Zin Music (including for all Payouts owed by such Advertiser to all of such Advertiser’s Publishers). If ZOT Zin Music elects, in its own discretion, not to make payment to You for amounts not received from an Advertiser, those amounts shall not be included in the Minimum Balance Amount. Your recourse for any earned Payouts not paid to You shall be to make a claim against the relevant Advertiser(s), and ZOT Zin Music disclaims any and all liability for such payment. You may elect to receive payment in any of the currencies that ZOT Zin Music supports (as may be amended by ZOT Zin Music). The conversion rate shall be determined in accordance with ZOT Zin Music’s operating standards using the rates prevailing upon the date that payment is made to You, or upon the basis of historical conversion rates if rates are unavailable. The number or amount of Transactions, credits for Payouts, and debits for Charge-backs, as calculated by ZOT Zin Music, shall be final and binding on You.
(f) Dormant Accounts. If Publisher’s Account has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period (“Dormant Account”), a dormant account fee at ZOT Zin Music’s then-current rate shall be applied to Publisher’s Account each calendar month that Publisher’s Account remains an open yet Dormant Account or until Your Account balance reaches a zero balance, at which time the Account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Charge-back.
(g) Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to ZOT Zin Music in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.
4. Proprietary Rights.
(a) Linking to Advertisers. Your use of the Link signifies Your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files, or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between ZOT Zin Music and Publisher, ZOT Zin Music owns all rights in and to all information regarding the Visitors that You refer to Advertisers through ZOT Zin Music.
(b) ZOT Zin Music’s Use of Your Marks. You authorize ZOT Zin Music to utilize Your trademarks, service marks, tradenames, and/or copyrighted material that You provide to ZOT Zin Music through Your Account to promote Your participation in the Network Services.
(c) Your Use of ZOT Zin Music’s Proprietary Rights. You agree that Your use of any ZOT Zin Music Web site (such as zotzinguitarlessons.com) and Your use of any ZOT Zin Music trademarks, service marks, tradenames, and/or URLs is subject to the license and terms of use that are available from such Web site (“Terms of Use”). You explicitly agree not to adopt or use in any manner any trademarks, service marks, tradenames, and/or URLs that are the same or confusingly similar to or are combined with, those of ZOT Zin Music.
(d) Retention of Rights. All proprietary rights of You, and ZOT Zin Music, and all goodwill arising as a result of such rights, inure to the benefit of such owner.
(e) No Challenge to ZOT Zin Music ‘s/Advertiser’s Proprietary Rights. You acknowledge that You obtain no proprietary rights in ZOT Zin Music’s trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agree not to challenge ZOT Zin Music’s proprietary rights. You acknowledge that You obtain no proprietary rights in Your Advertisers’ proprietary rights, and agree not to challenge such Advertiser’s proprietary rights.
(f) Data Ownership. You understand that all personally identifiable information if any, provided by Visitors through the Tracking Code or in response to an advertisement or request for information and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by ZOT Zin Music from such data is the sole and exclusive property of ZOT Zin Music, ZOT Zin Music Companies (defined below) and is considered ZOT Zin Music’s Confidential Information pursuant to this Agreement. ZOT Zin Music and any divisions and subsidiaries (the “ZOT Zin Music Companies”) and/or its Advertisers, in their sole discretion, shall have the right to use, market, and re-market any Visitors and/or data without further obligation to You. You shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or Visitors, or any portion thereof, to any third-party.
5. Confidentiality.
(a) Obligations. You or ZOT Zin Music may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to ZOT Zin Music any Confidential Information provided by ZOT Zin Music to You under this Agreement.
(b) Provision of Info to Advertisers/Third Parties. You agree that ZOT Zin Music may, but is not obligated to, provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, Web site name, the date the website or subscription email first entered into operation, and visitor demographics) to Advertisers. ZOT Zin Music may provide any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in ZOT Zin Music’s sole discretion, including but not limited to all regulatory, legislative, and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement.
6. Term, Termination, Deactivation, and Notices.
(a) Term. This Agreement shall commence upon Your indication that You have accepted this Agreement by providing the required information and ‘clicking through’ the acceptance button on the ZOT Zin Music Web site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days’ notice. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated and/or Payouts may be withheld during an investigation of a breach of this Agreement. If this Agreement is terminated based upon Your breach, You shall not be eligible to enter into a new click-through Publisher Service Agreement with ZOT Zin Music, and any attempt to do so shall be null and void.
(b) Termination by Advertiser. An Advertiser may terminate You, one of Your Web sites, or Your ability to use a promotional method, from the Advertiser’s Program for any or no reason, upon 7 days written notice with effect from the 8th day. Additionally, Advertiser may terminate You from the Advertiser’s Program for breach of a third party’s proprietary rights, and/or diluting, tarnishing, or blurring an Advertiser’s trademarks, tradenames, and/or service marks, or for Your material breach of the Advertiser’s Program terms or of this Agreement.
(c) Termination or Deactivation by ZOT Zin Music. ZOT Zin Music may terminate You, one of Your Web sites, or Your use of a promotional method, from an Advertiser’s Program, at any time at ZOT Zin Music’s sole discretion. Breach of any Section of this Agreement is cause for immediate termination from an Advertiser’s Program and/or termination of this Agreement and may result in Chargeback of one or more Payouts. ZOT Zin Music may temporarily deactivate or terminate Your Account if: (i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 30 day period; (iii) You maintain a negative balance in Your Account; (iv) ZOT Zin Music determines You are diluting, tarnishing or blurring ZOT Zin Music’s proprietary rights; (v) You begin proceedings to challenge ZOT Zin Music’s proprietary rights; or (vi) a third party (including a ZOT Zin Music Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Web site, or through any of Your promotional means. Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.
(d) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
(e) Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for ZOT Zin Music, via registered mail, return receipt requested, or via an internationally recognized express mail carrier to ZOT Zin Music, LLC., Attn: Vreny Van Elslande., P.O. Box 2432 , Hollywood, CA 90028 USA (effective upon actual receipt); and, (ii) for You, at the email or physical address listed on Your Account (effective upon sending as long as ZOT Zin Music does not receive an error message regarding the delivery of the email) or five (5) days after mailing).
(f) Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by ZOT Zin Music to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to ZOT Zin Music within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party’s rights under this Agreement that accrued prior to termination.
7. Representations, Warranties, Disclaimers, and Limitations.
(a) Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. ZOT Zin Music may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
(b) Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party’s behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
(c) Non-infringement Warranties. You represent and warrant that: (i) You have all appropriate authority to operate, and to any and all content on, Your Web site(s); (ii) You have all appropriate authority in any promotional method you may choose to use; (iii) Your Web site(s) and Your promotional methods do not and will not infringe a third party’s, a ZOT Zin Music Advertiser’s, or ZOT Zin Music’s, proprietary rights; and (iv) You shall remain solely responsible for any and all Web sites owned and/or operated by You and all of Your promotional methods. ZOT Zin Music may or may not review all content on Your Web site or used by You in Your promotional methods.
(d) Compliance with Laws. You are responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory and warrant that no promotion method used by You or the content of Your Web site(s) will render ZOT Zin Music liable to any proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF ZOT Zin Music UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY ZOT Zin Music UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT ZOT Zin Music SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
(f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ZOT Zin Music DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT ZOT Zin Music ‘S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER’S INFORMATION OR WEB SITE. ALL ‘INFORMATION’ AND ‘COMPUTER PROGRAMS’ PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. ZOT Zin Music IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER’S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER’S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
(g) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
(h) Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
8. Publisher’s Indemnification Obligations. Publisher shall defend, indemnify and hold ZOT Zin Music and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher’s breach of or non-compliance with this Agreement, (b) Publisher’s violation of any law, or an alleged violation of law by ZOT Zin Music, that is a direct or indirect result of Publisher’s use of the Network Service, (c) Publisher’s use of the Network Service, (d) Publisher’s participation in any Program, (e) any content, goods or services offered, sold or otherwise made available by Publisher to any person, (f) Publisher’s acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to Publisher’s use of internet links via email distribution, (g) any claim that ZOT Zin Music is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement and/or any Advertiser’s Program, and (h) any violation or alleged violation by Publisher of any rights of another, including breach of a person’s or entity’s intellectual property rights (each (a)-(h) individually is referred to hereinafter as a “Claim”). Should any Claim give rise to a duty of indemnification under this Section 8, ZOT Zin Music shall promptly notify Publisher, and ZOT Zin Music shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher’s obligations to indemnify or hold ZOT Zin Music harmless. Publisher shall not settle any Claim without ZOT Zin Music s prior written consent. Publisher also shall indemnify for any reasonable attorneys’ fees or other costs incurred by an indemnified party in investigating or enforcing this Section 8. In the context of this Section 8 only, the term “ZOT Zin Music” shall include officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors.
9. Miscellaneous.
(a) Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
(b) Third Party Disputes. In the event of a third-party claim against either: (a) ZOT Zin Music’s intellectual property; or (b) against ZOT Zin Music’s right to offer any service or good on ZOT Zin Music’s Web site(s) or if, in ZOT Zin Music’s opinion, such a claim is likely, ZOT Zin Music shall have the right, at its sole option and in its sole discretion, to (i) secure the right at ZOT Zin Music’s expense to continue using the intellectual property or good or service; or (ii) at ZOT Zin Music’s expense replace or modify the same to make it non-infringing or without misappropriation.
(c) Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of an independent contractor. You agree that Your consent is not necessary to modify any Advertiser Service Agreement.
(d) Choice of Law/Attorneys’ Fees. This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorney’s fees and costs. ZOT Zin Music controls and operates its Web site from its offices in the USA and access or use where illegal is prohibited.
(e) Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
(f) Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void, or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
(g) Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by ZOT Zin Music (1) due to operation of law, or (2) to an entity that acquires substantially all of ZOT Zin Music’s stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Your use of the Network Service is irrefutable acknowledgment by You that You have read, understood, and agreed to each and every term and provision of this Agreement. ZOT Zin Music may establish from time to time rules and regulations regarding the use of the Network Service as published on the Network Service and incorporated herein.
(h) Marketing. Publisher agrees that ZOT Zin Music may identify it as a ZOT Zin Music Publisher in client lists and may use Publisher’s name and/or logo solely for such purpose in its marketing materials. Any other uses of Publisher’s name and/or logo not otherwise described or contemplated herein shall require Publisher’s prior written consent.
(i) Tax Status and Obligations. ZOT Zin Music is not obligated to and shall not provide You with tax and/or legal advice. ZOT Zin Music undertakes no duty to investigate or research Your tax status and/or obligations, and such research and investigation is solely Your responsibility. You are obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Visitors. If ZOT Zin Music provides You with information regarding a particular Advertiser or Publisher, the information shall not be deemed tax or legal advice, and ZOT Zin Music shall not be responsible for the accuracy of such information. Any Publisher or Advertiser addresses provided to You are addresses provided by the relevant Advertiser or Publisher, and such addresses may not necessarily indicate the location or presence of the Publisher or Advertiser in such location or elsewhere.
(j) Entire Agreement, Assignment, and Amendment. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties, or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended, or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a “click-through” acknowledgment of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, ZOT Zin Music shall have the right to change, modify or amend (“Change”) this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. Your continued use of the Network Service after the effective date of such Change shall be deemed Your acceptance of the revised Agreement.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
Contact Information:
ZOT Zin Music, LLC.
19913 Egret Pl
Santa Clarita, CA 91351
(310) 902-0993
sales@zotzinmusic.com