Terms & Conditions

AFFILIATE AGREEMENT 

THIS AFFILIATE AGREEMENT (the “Agreement”), together with any amendments, are entered into by and between PWNgames, inc (“PWN Games”), and the applying party submitting the Application For Affiliate Status (the “Affiliate”), also referred to herein jointly as the parties (“Parties”, each a “Party”). This Affiliate Agreement supplements all other Campaign Terms subsequently agreed to by the Affiliate.

WHEREAS, PWN Games and Affiliate desire to provide for the terms and conditions of this Affiliate Agreement as more specifically set forth herein;

THEREFORE, the Parties agree to be legally bound as follows:

 

  1.     Definitions.

1.1. “Opt-in” or “Opted-in” means that the consumer has made an active, affirmative choice to receive Ads from the Affiliate.

1.2. “User” means any person using the Internet.

1.3. “Action” means a User’s completion of an action (such as a click, sale, lead, or call) defined by the Advertiser or PWN Games.

1.4. “Network” means the advertising network operated by PWN Games, which is made up of Affiliates and Advertisers.

1.5. “Advertiser” means the advertiser, merchant or advertising agency providing advertisements to PWN Games for use by the Affiliate.

1.6. “Ad” means the advertisement in the form of graphics and/or text supplied to PWN Games for inclusion in the PWN Games Network and to be made available for Affiliate use.

1.7. “Spam” means unsolicited bulk email where recipients have not agreed in advance to receive Ads.

1.8. “Campaign Terms” means the specific guidelines for each Advertiser campaign as listed in the PWN Games network.

 

  1.     Amendments.

2.1. From time to time, PWN Games may amend, replace or supplement the Agreement, including but not limited to changing Advertiser payouts, by posting an updated Agreement or Campaign Terms on the PWN Games website, and it shall be deemed effective immediately unless otherwise noted, and Affiliate will be deemed to have consented to, and agreed to be bound by, the updated Agreement or Campaign Terms. It is the responsibility of the Affiliate to read and keep up to date with the Agreement and Campaign Terms with or without notice of change from PWN Games.

 

  1.     Affiliate Requirements.

3.1. Affiliate is subject to review and may be rejected for any reason, and at any time, by PWN Games.

3.2. Affiliate must submit valid and correct contact information, including but not limited to name, e-mail address, street address, and telephone number. Affiliate must ensure this information remains up-to-date at all times within the PWN Games Network. Affiliate must accurately, clearly and completely describe all promotional methods in their descriptions and provide additional information when necessary.

3.3. Affiliate websites must not be associated with or contain any illegal activity, or pornographic, obscene, racist, or hateful content, or deceptive advertising, piracy, libelous or defamatory statements.

3.4. Affiliate websites must not contain any mechanisms that could be downloaded on to a User’s computer without the User’s explicit knowledge and consent.

3.5. In its sole discretion, if at any time PWN Games deems the Affiliate’s website or advertising activities are contrary to the terms set out in the Agreement, the Affiliate shall be terminated from the Network and shall forfeit any and all commissions and earnings.

 

  1.     Affiliate Rules.

4.1. Failure to adhere to the following rules is a violation of the Agreement and will result in immediate termination of the Affiliate from the PWN Games Network with forfeiture of all monies due to Affiliate.

4.2. Affiliate must not load Advertiser’s website within a frameset or iframe unless prior written approval is obtained from PWN Games.

4.3. Affiliate must not modify the Ads supplied by PWN Games in any way unless prior written approval is obtained from PWN Games.

4.4. Affiliate must indicate whether he uses incentive traffic, and only offer incentives to Users to respond to Ads with permission from PWN Games and the Advertiser as indicated on the Network and Campaign Terms, or in writing. PWN Games reserves the right to define the term incentive.

4.5. Affiliate must not make misleading or disparaging statements, oral or written, about any Ad, Advertiser or PWN Games.

4.6. Affiliate must agree to receive periodic communications from PWN Games. This communication could be in the form of e-mail, instant message, postal mail, telephone or fax.

4.7. Affiliate must not display any Ad in third party newsgroups, social networks, message boards, blogs, link farms, counters, chatrooms or guestbooks without the consent of such third party entity.

4.8. Affiliate must comply with all Campaign Terms as outlined in Ads.

4.9. Affiliates must not use SMS/text messages to deliver Ads to Users.

4.10. Affiliate must not generate any Actions in bad faith or through fraudulent mechanisms. This includes, but is not limited to, generating own Actions using manual or automated processes, misrepresenting product or service offered by Advertisers, deceiving Users into obtaining product or service offered by Advertisers, and encouraging or educating Surfers to cancel any product purchase or service provided by Advertisers.

4.11. Affiliate must not share, lend, lease, sell or transfer their account to any third party unless prior written approval is obtained from PWN Games.

4.12. Any Affiliate engaged in the distribution of Ads via email must comply with all of the following rules:

4.12.1. Affiliate must distribute Ads only to those recipients who have Opted-in to receive such email from the Affiliate. PWN Games prohibits the use of Spam. Any use of Spam whatsoever by Affiliate will result in the forfeiture of Affiliate’s entire commission for all campaigns, and the termination of the Affiliate’s account. Affiliate will also be held liable for any and all damages resulting from a violation of this provision including reasonable court costs.

4.12.2. If requested by PWN Games, Affiliate must be able within 24 hours of such request, to supply the name, date, time, IP address and URL where the User gave permission to the Affiliate to receive such Ads through e-mail.

4.12.3. Affiliate must ensure each email recipient is provided with a valid opt-out mechanism within each email delivered in order for the recipients to “opt-out” of future mailings from Affiliate.

4.12.4. Affiliate must not use the Advertiser or PWN Games name (including any abbreviation thereof) in the originating email address line (“From” line) or subject line of any email transmission, unless specific permission is given otherwise.

4.12.5. Affiliate must not use falsified sender information or falsified IP Addresses.

4.12.6. Affiliate must use only pre-approved Advertiser subject lines and from lines as set out in Campaign Terms.

4.12.7. Affiliate must use only legitimate routing information.

4.12.8. Affiliate must use their own tracking links that redirect to the tracking links supplied by PWN Games.

4.12.9. Affiliate must have a proper privacy policy on their website, and it must be in compliance with all FTC guidelines, rules and regulations in respect to online privacy and shall warrant that email campaigns are conducted in accordance with that privacy policy, and in accordance with any applicable local or international laws.

4.12.10. Affiliate must ensure each email contains Advertiser’s unsubscribe mechanism as set out in Campaign Terms.

4.12.11. Affiliate must not send email to any email address or domain contained in an Advertiser’s suppression list as set out in Campaign Terms.

4.12.12. Affiliate must ensure each email clearly contains the Affiliate’s physical address, which cannot be a PO BOX.

4.12.13. Affiliate must comply with all campaign instructions from PWN Games and Advertiser as set out in Campaign Terms.

4.12.14. Affiliate must comply with any and all applicable rules, regulations and laws, specified or not within this Agreement, in respect to email distribution and advertising and relating thereto, including the CAN-SPAM Act of 2003.

 

  1.     Advertising Services and Warranties.

5.1. Provided that Affiliate complies with all provisions of this Agreement and Campaign Terms, PWN Games hereby grants to Affiliate a non-exclusive, limited, revocable license to market, display, perform, copy, transmit, and promote the Ad in connection with its obligations hereunder; and market display, perform, copy, transmit, and promote the Ad to third parties in connection with its obligations hereunder. Affiliate’s use of Ads or copyrighted materials in violation of this Agreement is strictly forbidden and will result in this limited license being immediately withdrawn and may further result in the termination of the Affiliate’s account and being held liable under applicable law.

5.2. PWN Games’s sole obligation to the Affiliate under this Agreement with respect to Ads shall be to provide such Ads for use in their advertising efforts. The advertising services provided by PWN Games are provided “as is”. PWN Games makes no warranties, guaranties, promises, or estimates, expressed or implied, oral, written or otherwise except as specifically set forth herein, AND does not guarantee, including but not limited to, demographic profiling of Users, click to Action conversion rates, response rates or conversion rates from Action to sale.

5.3. No additional warranties are provided.

 

  1.     Commission Earnings and Payments.

6.1. PWN Games shall send Affiliate’s commission payment approximately thirty (30) days from the last business day of each month in which earnings are accrued if the amount due to Affiliate exceeds either five hundred (500) dollars USD or the minimum payment amount requested by the affiliate, whichever is higher. Commissions will only be earned on Actions reported by the Advertiser, and only after PWN Games receives full payment from the Advertiser. PWN Games is under no obligation to pay Affiliates for Actions which are not paid by the Advertiser.

6.2. PWN Games may increase the payment frequency for Affiliate, provided Affiliate has received one previous payment from PWN Games and is setup to receive payments electronically. All other conditions and restrictions for payment as outlined in item 6.1 remain in force for accelerated payments terms. PWN Games in its sole discretion may disqualify any Affiliate from being eligible for accelerated payments terms.

6.3. In the event of non-payment by an Advertiser, and If PWN Games elects in its own discretion not to make payment to Affiliate, an Affiliate’s recourse for any earned commissions not paid shall be to make a claim against the relevant Advertiser(s), and PWN Games disclaims any and all liability for such payment.

6.4. PWN Games or the Advertiser may reverse any Action generated by the Affiliate. Circumstances for Action reversals include but are not limited to duplicate Actions, fraudulently generated Actions, non-payment, Affiliate’s failure to comply with the Agreement, invalid or incomplete data, or product returns. Reversals may be applied at any time, including for Actions during a period where payment has already been issued to the Affiliate.

6.5. In the event reversals are applied to Actions for which an Affiliate has already been paid, Affiliate is required to return payment for these Actions to PWN Games.

 

6.6. Important Information for Canadian Webmasters and Corporations using PWN Games Network

PWN Games Network is currently located in Montreal, Quebec, Canada. This means that we obligated to pay all legal business taxes to our Canadian Webmasters and Corporations. All Canadian Webmasters who are registered for the HST (Harmonized Sales Tax) or the GST (Goods and Services Tax) will have the applicable tax paid by PWN Games Network. Coincidentally, if you are located in Quebec, Canada, PWN Games Network will also have to pay the QST (Quebec Sales Tax) due to the fact that we are also located within the Province.

Due to the unique and special type of business we are in, it is not possible for us to calculate the taxes for all Canadian webmaster / corporation at the same time we send checks. In addition, we will need an invoice from all Canadian Webmasters that wish to receive their taxes, otherwise we will be unable to claim said taxes through the proper Taxation Agencies. In order to be able to pay out these taxes, we are going to need the following information from each one of our Canadian Webmasters/Corporations:

  • You will need to provide us with your registration number for all relevant taxes, in addition to one (1) invoice for each payout you receive.
  • Keep in mind that if we pay you the applicable taxes, they are going to be declared in order for us to get a refund from both the Federal and Provincial Government Tax Agencies. Consequently, these particular Agencies are then going to be looking to you to collect the taxes that you received from us.
  • In summary, if all the above applies to you and we are required to pay you any applicable taxes, you are obligated to produce an invoice after receiving a payment from us. This invoice should indicate the amount of taxes owed, and upon receipt we will then pay them.
  1.   Referral Program.

7.1. Affiliate shall earn a 3% referral fee on the commission payments made to any other new Affiliates (excluding bonuses, rewards, additional payouts, Affiliate earnings where the Affiliate is an advertising network, and referral income) who have been referred to PWN Games using the specified link code. Affiliate shall earn this fee on the commission payments of a referred Affiliate for a period of twelve (12) months after the referred Affiliate joins the PWN Games Network. Secondary accounts held by Affiliate are excluded from the referral program. PWN Games reserves the right to terminate an Affiliate referral program, in whole or in part, at any time for any reason, including but not limited to, fraud, questionable activity or breach of the terms set out in the Agreement or Campaign Terms.

 

  1.     Representations and Warranties.

8.1. Each Party represents and warrants they have full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it.

8.2. Each Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.

 

  1.     Non-Circumvention.

9.1. Affiliate shall not solicit or recruit, directly or indirectly, any Advertiser that is known to Affiliate to be an Advertiser of PWN Games, for purposes of offering products or services that are competitive with PWN Games, nor contact such Advertisers for any purpose, during the term of Affiliate’s membership in the PWN Games Network and for the twelve (12) month period following termination of Affiliate’s membership in the PWN Games Network.

 

  1.     Limitation of Liability.

10.1. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR COSTS, DIRECT OR INDIRECT, (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM AFFILIATE PARTICIPATION IN PWN Games’S NETWORK. PWN GAMES SHALL NOT IN ANY EVENT BE LIABLE TO AFFILIATE FOR MORE THAN THE AMOUNT PAID TO AFFILIATE HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST PWN GAMES MORE THAN ONE YEAR AFTER THE DATE OF SERVICE.

10.2. Affiliate agrees to not to hold PWN Games or Advertisers liable for any of the consequences of interruption or service.

 

  1.     Indemnification.

11.1. Affiliate hereto agrees to indemnify and hold harmless PWN Games, Advertiser, and each if its agents, officers, directors and employees against all liability to third parties resulting from the acts or failure to act of such indemnifying party, or any act of its customers or users. Affiliate is solely responsible for any legal liability arising out of or relating to the Affiliate’s website(s), any material to which Users can link through the Affiliate’s website(s) and/or any consumer and/or governmental/regulatory complaint arising out of any e-mail campaign or other advertising campaign conducted by Affiliate, including but not limited to any Spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer.

 

  1.     Confidentiality.

12.1. Affiliate agrees to refrain from disclosing PWN Games’s confidential information or the Advertiser’s confidential information (including but not limited to commission rates, conversion rates, email addresses, fees, identities of Advertisers) to any third-party without prior written permission from PWN Games.

 

  1.     Force Majeure.

13.1. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.

 

  1.     Relationship.

14.1. The Parties to the Agreement are independent non-exclusive contractors. Neither Party will have any right, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party, nor is either party an agent, representative, partner, employee, or joint venture of the other Party.

 

  1.     Remedies.

15.1. PWN Games reserves the right to withhold payment and take appropriate legal action to cover its damages against any Affiliate that violates the terms of this Agreement or breaches the representations and warranties set forth in this Agreement, or commits fraudulent activity against PWN Games. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.

  1.     Entire Agreement.

16.1. This Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein.

 

  1.     Governing Law.

17.1. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the Province of Quebec, Canada, without reference to conflict of laws principles.

 

  1.     Termination.

18.1. This Agreement may be terminated by either party. This Agreement may be terminated immediately upon notice for your breach of this Agreement.

18.2. An Advertiser may terminate Affiliate from the Advertiser’s program for any or no reason.

18.3. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and Affiliate must immediately remove all Ads and link to Advertiser(s).

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and binding upon Affiliate’s submission and PWN Games’s acceptance of Affiliate’s properly completed Affiliate network application without need for further action by PWN Games.

ADVERTISING AGREEMENT

THIS ADVERTISING AGREEMENT (“The Agreement”), effective as of the date of first login by client on the PWN Games Network platform, is made by and between PWN Games Network (PWN) and Client (hereinafter known as “Client” or “You”) and governs the terms under which PWN may place the Content provided pursuant to applicable IO.  This advertising agreement constitutes the entire contract between PWN and You for the subject matter of the agreement, and no other conditions, provisions or terms of any sort appearing in any writings, payments, or other communications to PWN will alter or supplement this agreement.  If You are an advertising agency or other agent acting on Client’s behalf, You represent and warrant that you have full authority bind Your principal to this agreement, and both You and Client agree to be jointly and severally liable for all of Your responsibilities set forth herein, including without limitation payment obligations.  

  1. Description of Service.  PWN will use commercially reasonable efforts to make media advertisements, provided by You and acceptable to PWN, available for distribution on websites in accordance with the terms set forth in this agreement.   PWN may elect to cap, throttle, or limit the number of Events generated through service for any account that is not prepaid.
  2. Creatives.  All submissions of advertisements and creative material (“Content”) must be submitted in the form and meeting those requirements specified by PWN from time to time.  PWN reserves the right to approve, omit, remove, or reject any Content for any or no reason and at any time.  In addition, PWN shall have the absolute right to reject any URL link embodied within any Content.  Time is of the essence with respect to Your provision of Content to PWN.  Failure to timely submit Content meeting applicable requirements may delay or prevent placement of your Content.  Any requests regarding placement of Content on the network, other than as expressly set forth in this agreement, may be honored solely at PWN’s discretion.  At its sole discretion, PWN may label any Content as an “advertisement” for clarity.  You and Client grant to PWN a non-exclusive, worldwide, fully paid license to permit the Content to be used, reproduced, modified, encoded, stored, archived, distributed, transmitted, translated, published, publicly displayed and publicly performed by PWN as necessary for PWN to perform its obligations under this agreement.
  3. Publicity PWN shall have the right to reference and refer to its work for, and relationship with, Advertiser for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual written consent of both parties.
  4. Non-Circumvent.  You agree not to directly solicit Affiliates away from the PWN network, and you agree not to use reverse engineering or tracing of Affiliate traffic for means to directly solicit Affiliates away from PWN.  Affiliates are defined as companies or individuals that have signed an agreement with PWN to carry advertising campaigns on their websites, newsletters, social media channels and/or any other digital medium, and are paid by PWN a commission generated from such advertising campaigns.
  5. Reporting and Tracking.  
    1. PWN’s reporting system will govern tracking and reporting of all impressions, click-throughs, leads, or sales (collectively, “Events”) unless this agreement specifically states that this agreement will be based on Client’s reporting referred to herein as “Import Tracking”.   
    2. If Imported Tracking is used, then PWN shall invoice You for the higher of (a) PWN tracked payable Events or (b) Client tracked payable Events, and Client shall deliver final monthly totals within 5 days from the close of the month.   This report shall contain an accounting of the number of Events received per PWN Affiliate.
    3. You agree that you will not remove or alter the location of the PWN pixel or alter any tracking method deployed thereby effecting the tracking of Events.   If Client does remove or move the pixel thereby causing the PWN system to not be able to track Events, Client will be invoiced based on Client tracked Events OR standard conversion rates for the time period tracking was not functioning at the fault of the Client, whichever is higher, as determined by PWN in its sole discretion.
    4. Advertiser agrees to notify PWN if there are any changes to the landing page for this campaign that materially changes, or may materially change, the offer or user experience.
    5. You may contest a campaign Event as fraudulent (e.g., resulting from fraudulent credit card, bad credit card data, scripted leads, automated bot, etc.) by providing PWN with notice contesting such Event within five (5) calendar days after the end of the period (month) where the Event occured, which notice must contain (i) Date/time of the Event; (ii) the IP address of the Event; (iii) the SubID of the Event; and (iv) the Campaign name/id connected with the Event (each such notice, an “Event Contest”).  PWN shall promptly review each Event Contest, and if PWN agrees that such Event was fraudulent, will notify the PWN Affiliate and will remove such Event from Your account.  Any failure by You to contest an Event by the 5th of the following month (for the previous month) will constitute your acceptance of such Event as legitimate and valid, and PWN shall be entitled to payment for such Event.  
  6. Payment.
    1. Amounts Owed.  You shall pay PWN monthly for all delivered clicks, impressions, leads, or sales per this agreement.  Leads and sales are not returnable.  
    2. Pre-Pay.  All prepayment amounts set forth in this agreement are due upon the date of this agreement.   On a monthly basis, PWN will apply Pre-paid amounts against delivered leads, clicks, sales, and/or impressions for the prior month.   
    3. Invoices.  If You are approved for billing on terms, payment is due to PWN no later than fifteen (15) calendar days after the receipt of the invoice if not otherwise agreed specifically on the terms set forth in the IO.  
    4. Late Payments.   In the event of any failure by Client to make payment required hereunder, or upon any Client chargeback, then in addition to any other rights PWN may have due to such failure or chargeback, Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by PWN in collecting such amounts plus interest at the rate of the lesser of one and one half percent (1.5%) per month or the highest rate permissible under applicable law for the actual number of days elapsed.  PWN may remove any Content from the network, and cancel this agreement, in the event of a failure to comply with the payment obligations under this agreement.
  7. Term.  this agreement is effective from the Effective Date above and shall continue until either canceled in accordance with the terms of this agreement, or the date on which PWN completes delivery of the requested Content, whichever occurs first.
  8. Termination.   Either party may terminate this agreement for any or no reason upon the provision of two (2) business days prior notice of termination to the other party.  In addition, PWN may terminate this agreement effective immediately if any of the following occurs:  (a) Client breaches this agreement, (b) Client is approved for Imports, and Client’s reported leads or sales numbers are found to be inaccurate, and/or (c) if PWN’s tracking pixel is removed or inoperable at the fault of the Client.  Client shall be responsible for all fees incurred through the date of termination.  The provisions of this agreement that, by their terms, require performance after the termination of this agreement, or have application to events that may occur after such termination, shall survive the termination of this agreement.
  9. Representations and Warranties; Indemnity.  You represent and warrant that (a) You have sufficient authority to enter into this agreement on behalf of You and the Client listed above, if applicable, and to provide the Content to PWN; (b) you are fully authorized to provide to PWN, and authorize PWN to publish, any Content (including without limitation text, graphics, URLs, sites to which URLs are linked, and products and services available through such sites); and (c) any Content (including without limitation text, graphics, URLs, and sites to which URLs are linked) (i) does not infringe the intellectual property or other proprietary rights of any third party, and (i) complies with all applicable laws, rules and regulations.  Client and You agree to defend, indemnify and hold harmless PWN, its affiliates, and their directors, officers, employees, contractors and agents from and against any and all claims, demands, actions, investigations, or other proceedings, including but not limited to any and all damages, losses, liabilities, judgments, fees, costs, and expenses of any kind (including without limitation reasonable attorneys’ fees) suffered or incurred by an indemnified party, arising out, resulting from or related to (a) the Content or any product or service appearing on any website directly linked to through the Content, or (b) any breach by You or Client of any representation, warranty, condition, or obligation to be performed hereunder, or (c) Your or Client’s business practices and/or advertising practices.
  10. Disclaimers and Limitations.  THE PWN GAMES NETWORK AND ANY MATERIALS OR OTHER SERVICES PROVIDED BY PWN ARE PROVIDED “AS IS” AND WITH ALL DEFECTS, AND PWN DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, RELATED TO THE PROVISION OF SERVICES HEREUNDER.  PWN IS NOT LIABLE FOR ACTIONS OF AFFILIATES. ANY LEGAL ACTIONS TAKEN BY ADVERTISER OR CLIENT DUE TO ACTIONS OF AN AFFILIATE WILL BE TAKEN TOWARD THE AFFILIATE AND NOT PWN, AND PWN IS HEREBY RELIEVED OF SUCH LIABILITY.  PWN WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF PWN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  PWN’S TOTAL CUMUPWNTIVE LIABILITY, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY PAID TO PWN PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY SUCH LIABILITY FIRST AROSE.  CLIENT ACKNOWLEDGES THAT THESE LIMITATIONS ARE REASONABLE, THAT THEY ARE AN ESSENTIAL ELEMENT HEREOF AND THAT ABSENT SUCH LIMITATIONS, PWN WOULD NOT ENTER INTO THIS AGREEMENT.

 

  1. Applicable Law.  this agreement shall be governed by and construed in accordance with the internal substantive laws of the Province of Quebec, Canada, without regard to conflicts of laws principles. Client submits to the jurisdiction and venue of the provincial and federal courts located in the Province of Quebec, Canada, and further agrees that any cause of action Client may bring arising under this agreement will be brought by Client exclusively in a provincial or federal court located in the Province of Quebec, Canada.  Client agrees to pay all legal expenses of PWN, including reasonable attorney’s fees, should Client be found in breach of this agreement.
  2. Confidentiality.  The terms and existence of this agreement, and any information exchanged hereunder marked “confidential” or “proprietary” is the confidential information of the other party (“Confidential Information”).  Each party may only use Confidential Information disclosed by the other party to perform its obligations hereunder and may not disclose Confidential Information to any third party.  “Confidential Information” does not include information to the extent such information (a) is already known to the receiving party at the time of disclosure, (b) becomes part of the public domain due to no act or omission of the receiving party, (c) is rightfully received by the receiving party from a third party without any restriction on use or disclosure; or (d) is required to be disclosed by law, rule, regulation or order (provided that the receiving party gives the disclosing party prompt written notice of such request and assistance in seeking protective treatment for any such Confidential Information to be disclosed).
  3. Miscellaneous.  this agreement is the complete and entire agreement between the parties with respect to the subject matter hereof and supersedes any and all agreements and understandings, whether written or oral, regarding the subject matter hereof.  No amendment or modification to this agreement will be binding unless made in writing and executed by an authorized representative of each party.  Client may not resell, assign, sublicense, transfer, encumber, or otherwise dispose of any of its rights under this agreement (whether directly or indirectly, by operation of law or otherwise) without PWN’s express prior written consent, and any attempt to do so will be void and will be considered an incurable material breach of this agreement.  The waiver of any breach or default of this agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.  Neither You nor Client may issue any press release or make any public announcement relating to this agreement, or the relationship established by this agreement, without PWN’s express prior written consent to do so; however, PWN may make information references to advertising on the network and Client’s participation therein without obtaining Your or Client’s consent.  this agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assign.