LinkConnector Merchant Program Terms and Conditions
INTRODUCTION: LinkConnector, of 6501 Weston Parkway, Suite 330, Cary, North Carolina 27513, provides you access to our LinkConnector Affiliate Program subject to your compliance with the terms and conditions below (“Agreement”). Please read this Agreement carefully. By enrolling or participating as a LinkConnector merchant (“Merchant”) with LinkConnector whereby you agree to pay Affiliates, defined herein, a commission (“Commission”) for the promotion of goods and services and you, the Merchant, agree to be bound by these terms and conditions. As of May 25, 2016; and in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged; Merchant and LinkConnector agree as follows…
The following terms shall have the meanings set forth below:
“Account Detail” means Merchant name, Merchant Sites, Merchant’s contact information—including, but not limited to any contact name, email address, physical address, and telephone number.
“Affiliate” means a person or company that agrees to promote Merchant Services or the Merchant Site in accordance with Merchant Terms and Merchant Campaign Terms in exchange for a Commission.
“Affiliate Event” means an individual action by an End User; such as a Click Event, Lead Event, Sale Event, Call Event, Reward Event, or Go Event; within a Campaign that is tracked and recorded in a LinkConnector Transaction Table for which Commission is owed to an Affiliate by the Merchant unless invalidated in accordance with this Agreement.
“Affiliate Program” means a pay-for-performance program where an Affiliate receives a Commission for sending an End User to the Merchant Site which then generates an Affiliate Event.
“Affiliate Promotion” means any link, banner, and other creative used by an Affiliate on any electronic device (e.g., laptop, desktop, mobile phone, etc.) or printed material (e.g., magazine ad, signage, etc.) to promote a merchant’s product or services with the intention of receiving compensation from the merchant through their Affiliate Program.
“Call Event” is an Affiliate Event that allows the Merchant to credit Affiliates for completing a telephone call form by the End User and for End User Data obtained when an End User completes a telephone call in accordance with Merchant Campaign Terms. The minimum Commission payable to Affiliates for a Call Event is as listed in the LinkConnector Merchant Manager at the time the event is created.
“Campaign” means a logical grouping of Merchant Links and Events in the LinkConnector Affiliate Program through which a Merchant manages their program using the LinkConnector Merchant Manager. By way of example, a Campaign might be called ‘Book Sales’ and include Merchant Links which promote books and Events which record sales for books.
“Click Event” is an Affiliate Event that allows the Merchant to credit Affiliates for incoming clicks originating from an Affiliate Promotion to the Merchant Site. The minimum Commission payable to Affiliates for a Click Event is as listed in the LinkConnector Merchant Manager at the time the event is created.
“Closed Month” is any month for which Monthly Closeout has occurred.
“Co-Managed Account” is one of three merchant account types offered by LinkConnector. Generally, this type of merchant account is co-managed by Merchant and LinkConnector. This account type is selectable by Merchant at its discretion.
“Cookie Duration” is an Event property representing the period in which an End User can return to Merchant Site and an Affiliate might still receive a Commission.
“End User” means an Internet user who clicks to the Merchant Site using a Merchant Link.
“End User Data” means all information and data of an End User collected by Merchant, including, but not limited to, name, address, telephone number and email address.
“Expired Code” means any LinkConnector Merchant Code associated with an expired Campaign or no longer associated with an active Campaign.
“Event” is either an Affiliate Event or a Merchant Event.
“Event State” is an Affiliate Event designated as a Valid Event, Pending Event, or Invalid Event.
“Go Event” is an Affiliate Event that allows the Merchant to credit Affiliates for clicks originating on the Merchant Site. The minimum Commission payable to Affiliates for a Go Event is as listed in the LinkConnector Merchant Manager at the time the event is created.
“Inoperable Code” means any LinkConnector Merchant Code or Naked Link Code provided by LinkConnector to Merchant that is either modified by Merchant without LinkConnector approval or is missing from Merchant Site resulting in Affiliate Event(s) not being tracked or being tracked erroneously.
“Intellectual Property” means all industrial and intellectual property rights existing from time to time including any patents, design rights, registered designs, trademarks, service marks, copyrights, moral rights, trade secrets, know-how, and all applications and registrations therefore, and all goodwill associated therewith.
“Invalid Event” is an Affiliate Event that has been disapproved by Merchant or LinkConnector for Commission payment to Affiliate.
“Lead Event” is an Affiliate Event that allows the Merchant to credit Affiliates for End User Data obtained when an End User performs a specified action such as filling out a form, registering for a service, or downloading a file from the Merchant’s Site. The minimum Commission payable to Affiliates for a Lead Event is as listed in the LinkConnector Merchant Manager at the time the event is created.
“LinkConnector Merchant Manager” is the web-based interface that can be accessed through username and password which a Merchant uses to manage its Merchant Affiliate Program. The LinkConnector Merchant Manager is accessible on LinkConnector’s login page at Accout Login.
“LinkConnector Redirect Server” means the LinkConnector servers used to track redirect links used in Standard Link Campaigns or used when functionality selected by Merchant dictates tracking through redirect links in a Naked Link Campaign.
“LinkConnector Services” means the various related content, links, products and services provided by LinkConnector on or through the LinkConnector Site.
“LinkConnector Site” means the Internet World Wide Web presence operated by or for LinkConnector, located on the Internet through the http://www.LinkConnector.com URL (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“LinkConnector Transaction Table” means a table in LinkConnector’s online database that contains information about End User actions related to Merchant Links, Events, and related Affiliates.
“Marks” means logos, trademarks, trade names, service marks or other identifying emblems, words or designs of LinkConnector or Merchant, as the case may be, to designate and identify itself or the particular products or services its offers.
“Merchant Account” is either Merchant’s Self-Managed Account, Co-Managed Account or Premier Account.
“Merchant Affiliate Program” means all of the Merchant’s past and present Campaigns within the LinkConnector Services.
“Merchant Campaign Terms” are the terms set by the Merchant as conditions for participating in a particular Merchant’s Campaign. At a minimum they include this Agreement in its entirety, the Merchant’s Terms and any Campaign-specific terms reflected in the Merchant Campaign information available to an Affiliate online through the LinkConnector Affiliate Manager.
“Merchant Event” is any Tracking Event added by Merchant on which an End User clicks and for which the action is tracked and recorded in a LinkConnector Transaction Table.
“Merchant Link(s)” means an advertisement in the form of a banner, text link, or object (e.g., HTML creative, Flash creative, etc.) used in an Affiliate Promotion. When clicked, the link directs an End User to the Merchant Site.
“Merchant Service(s)” means the product(s) or service(s) offered by the Merchant through the Merchant Site.
“Merchant Site” means the Internet World Wide Web presence operated by or for Merchant, (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“Merchant Terms” are the terms set by the Merchant as conditions for participating in their Merchant Affiliate Program. At a minimum they include this Agreement in its entirety and any account-specific terms reflected in the Merchant Campaign information available to an Affiliate online through the LinkConnector Affiliate Manager.
“Merchant Transaction(s)” means any Event caused by the action of an End User which is recorded by LinkConnector and written to the LinkConnector Transaction Table.
“Monthly Closeout” occurs at midnight Pacific Time ten (10) days after the end of a month.
“Naked Link Campaign” is a type of Campaign where Affiliates send traffic directly to Merchant and LinkConnector tracks through LinkConnector’s proprietary Naked Link Code.
“Naked Link Code” is code placed on Merchant Site that records all visits by Affiliates approved on Merchant’s Naked Link Campaign.
“Pending Event” is an Affiliate Event that is being considered for approval as a Valid Event or disapproval as an Invalid Event by Merchant or LinkConnector.
“Premier Account” is one of three merchant account types offered by LinkConnector. Generally, this type of merchant account is co-managed by Merchant and LinkConnector. This account type is only available to Merchant at LinkConnector’s sole discretion.
“Replenishment Value” means the amount, as determined by the Merchant or LinkConnector, which shall be added to the Prepay Account, defined herein, when the Threshold Value is reached.
“Revenue Event” is an Affiliate Event that allows the Merchant to reward an Affiliate beyond any Commissions paid for individual Merchant Transactions.
“Sale Event” is an Affiliate Event that allows the Merchant to credit Affiliates for purchases by an End User of Merchant Services on the Merchant Site. The minimum Commission payable to Affiliates for a Sale Event is as listed in the LinkConnector Merchant Manager at the time the event is created.
“Self-Managed Account” is one of three merchant account types offered by LinkConnector. Generally, this type of merchant account is managed by Merchant with technical support provided by LinkConnector. This account type is selectable by Merchant at its discretion.
“Server Side Cookie” is information, stored by LinkConnector, about End User actions related to Affiliate Promotion. This information is stored in a LinkConnector Transaction Table at the time of a click from the End User to the Merchant Site.
“Service Level Guarantee” means the LinkConnector Site will be unavailable to the general public for no more than forty-eight (48) aggregate hours during any thirty (30) day period, excluding routine maintenance which shall occur during the hours of 2 a.m. to 7 a.m. Eastern Time no more than twice per month.
“Service Level Minimums” means industry standard service levels for like services, including, without limitation, standards for supporting online transactions, providing accurate and secure transmission of personal, credit card and other information, prevention of unauthorized access to End User Data, and availability of the Merchant Site to End Users.
“Source Checker” is a LinkConnector technology requiring most Affiliates to receive prior approval for their Internet World Wide Web presence operated by or for Affiliate.
“Standard Link Campaign” is a type of Campaign where Affiliates send traffic to a LinkConnector Redirect Server.
“Threshold Value” means the amount, as determined by the Merchant or LinkConnector, in the Prepay Account, defined herein, at which the account requires replenishment.
“Tracking Event” is an Event that allows the Merchant to track the arrival and activity of an Internet user on the Merchant Site.
“Valid Event” is an Affiliate Event that has been approved by Merchant or LinkConnector for Commission payment to Affiliate.
All other initially capitalized terms shall have the meanings assigned to them in this Agreement.
2. LICENSES/OWNERSHIP OF LINKCONNECTOR SITE.
2.1 Rights Granted by Merchant.
2.2 LinkConnector Ownership Rights. All content, writings, graphics, tables, sounds and other materials on the LinkConnector Site, the design, layout and general look and feel of the LinkConnector Site, and all Intellectual Property embodied therein or pertaining thereto, (other than Merchant supplied materials or Merchant Marks on the LinkConnector Site) shall remain the sole and exclusive property of LinkConnector or its licensors. LinkConnector will retain sole control and ownership over the look and feel, content, layout and design of the LinkConnector Site. Nothing under this Agreement shall be construed as granting to Merchant any license or right in or to any Intellectual Property of LinkConnector.
3. RIGHTS AND OBLIGATIONS OF THE PARTIES.
3.1 LinkConnector’s Rights and Obligations.
(a) LinkConnector shall meet the Service Level Guarantee.
3.2 Merchant’s Rights and Obligations.
4.1 The Merchant is not barred by this Agreement from participating in any other Affiliate Program offered by a LinkConnector competitor.
5.1 Initial Deposit. Merchant will make an initial deposit (“Initial Deposit”) with LinkConnector in the amount of the Network Access Fee, defined herein. If Merchant submits a valid credit card with the application, the Initial Deposit will be processed with the application and the Merchant Account will be immediately available to Merchant (“Activation Date”). If Merchant chooses on the application to pay the Initial Deposit either (i) by making a PayPal payment into LinkConnector’s PayPal account ([email protected]) or (ii) with a check in immediately available funds; the Activation Date, the first day the Merchant Account will be available to Merchant, will occur only after LinkConnector has received the Initial Deposit. The Initial Deposit will be used to pay the Network Access Fee.
5.2 Network Access Fee. Merchant will be charged a one-time, non-refundable fee “Network Access Fee” from the Initial Deposit on the Activation Date in the amount of (i) five hundred U.S. dollars ($500) for Self-Managed Accounts, (ii) two thousand U.S. dollars ($2,000) for Co-Managed Accounts, or (iii) three thousand U.S. dollars ($3,000) for Premier Accounts. The Network Access Fee provides Merchant with setup and launch of one or more Campaigns, if set up in accordance with the section 5.5(c), and access to LinkConnector Affiliates via LinkConnector’s Merchant Manager.
5.3 Transactional Fees. Transactional fees are recorded in the LinkConnector Transaction Table for each Merchant Transaction.
5.4 Monthly Minimum LinkConnector Fee. For any calendar month after an initial grace period, Merchant may be charged a minimum fee (“Monthly Minimum LinkConnector Fee”) each month as set forth below. Merchant is responsible for any Minimum LinkConnector Fee as set forth in this section. Co-Managed and Premier Accounts may be eligible for a discount to the Minimum LinkConnector Fee as listed in the LinkConnector Merchant Manager at the then-current discount amounts. A Monthly Minimum LinkConnector Fee is computed and charged on the first day of a month (“Status Day”) after the grace period (and then adjusted downward daily based on fees earned (“Funded Fees”) by the Merchant) as the greater of zero U.S. dollars ($0) and the difference between the Minimum LinkConnector Fee minus any applicable discount to the Minimum LinkConnector Fee minus any LinkConnector Transactional Fees charged in a calendar month.
5.5 Setup and Maintenance Fees. The following setup fees will apply for applicable services needed by Merchant.
5.6 Optional Account Management Services. Merchant may purchase additional Merchant Affiliate Program management services (“Optional Account Management Services”) through the LinkConnector Merchant Manager at the then-current pricing and this Agreement shall apply to those purchased services unless otherwise agreed upon by both parties.
5.7 Payment Terms. Merchant must establish a Prepay Account in accordance with section 3.2(k) and must keep a positive balance in the account unless specifically waived in writing by LinkConnector. LinkConnector reserves the right to set and negotiate specific payment terms on an individual basis. LinkConnector will use Merchant Prepay Account to pay all monies owed as described herein.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 By LinkConnector. LinkConnector represents, warrants and covenants that: (i) it has sufficient rights to grant Merchant the rights and licenses set forth herein; (ii) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site does not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the LinkConnector Services and the LinkConnector Site are not false or misleading; (viii) the LinkConnector Services and the LinkConnector Site do not produce, provide or are in any manner related to pornographic products or services (which LinkConnector shall have complete discretion to define); and (ix) the LinkConnector Services and the LinkConnector Site are neither defamatory, libelous, militant, hateful, slanderous or threatening.
6.2 By Merchant. Merchant represents, warrants and covenants that: (i) it has sufficient rights to grant LinkConnector the rights and licenses set forth herein; (ii) to the best of its knowledge, the Merchant Services and the Merchant Site does not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the Merchant Services and the Merchant Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the Merchant Services and the Merchant Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the Merchant Services and the Merchant Site are not false or misleading; (viii) the Merchant Services and the Merchant Site do not produce, provide or are in any manner related to pornographic products or services (which LinkConnector shall have complete discretion to define), or their subsidiaries or foundations funded by such companies whose function is to improve acceptance of such products by the public; and (ix) the Merchant Services and the Merchant Site are neither defamatory, libelous, militant, hateful, slanderous or threatening (which LinkConnector shall have complete discretion to define).
Merchant further represents that all information provided to LinkConnector for the purpose of enrolling as a merchant will be accurate, complete and current. Merchant is responsible for keeping contact information up to date, including but not limited to financial information and contact emails.
7. DISCLAIMERS; LIMITATION OF LIABILITY.
7.1 Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTIONS 3 AND 6, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANT SERVICE OR THE LINKCONNECTOR SERVICE INCLUDING, BUT NOT LIMITED TO, A WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
7.2 Limitation of Liability. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY AND PRIVACY PROVISIONS OF SECTION 9 AND INDEMNIFICATION OBLIGATIONS ARISING UNDER SECTION 10, IN NO EVENT SHALL EITHER PARTY, OR ITS RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENT COMPANIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, POTENTIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOST PROFITS OR LOST REVENUES) EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. FORCE MAJEURE.
8.1 A party shall not be considered to be in default in the performance of any obligations under this Agreement when a failure of performance is due to an uncontrollable force. The term “uncontrollable force,” as used in this Agreement, shall mean an unanticipated event which is not reasonably within the control of the affected party and which by exercise of reasonable due diligence, such affected party could not reasonably have been expected to avoid, overcome or obtain or cause to be obtained a commercially reasonable substitute therefor. Such causes may include, without limitation, the following: flood, earthquake, tornado, storm, fire, terrorist attack, explosion, public emergency, civil disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority (whether valid or invalid), and action or non-action by or inability to obtain or keep the necessary authorizations or approvals from any governmental agency or authority; however, no party shall be relieved of its obligations hereunder, if its failure of performance is due to removable or remediable causes which such party fails to remove or remedy using commercially reasonable efforts within a reasonable time period. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give prompt notice of such fact to the other, followed by written confirmation of that notice, and shall exercise due diligence to remove such inability with all reasonable dispatch.
9.1 By Merchant. Merchant agrees to indemnify, defend and hold harmless LinkConnector and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against LinkConnector: (i) alleging that Merchant’s Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; (ii) arising out of or relating to the Merchant Service or the Merchant Marks; or (iii) due to a breach by Merchant of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.
9.2 By LinkConnector. LinkConnector agrees to indemnify, defend and hold harmless Merchant and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against Merchant: (i) alleging that LinkConnector’s Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; (ii) arising out of or related to the LinkConnector Service or LinkConnector Marks; or (iii) due to a breach by LinkConnector of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.
9.3 Procedures. The Indemnified Party shall (i) promptly notify the Indemnifying Party in writing of such suit, claim, or proceeding; (ii) give the Indemnifying Party, at its expense, reasonable information, assistance and cooperation required to defend such suit, claim, or proceeding; and (iii) allow the Indemnifying Party to control the defense of any such action and all negotiations for its settlement or compromise. The Indemnified Party may be represented in the defense of any such claim, at the Indemnified Party’s expense, by counsel of the Indemnified Party’s selection. The Indemnifying Party shall have no liability for settlements or costs incurred without its consent. The Indemnifying Party shall not enter into any settlement that imposes liability or restrictions on the Indemnified Party without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld or delayed.
10. OWNERSHIP OF END USER DATA; CONFIDENTIALITY, AFFILIATE RELATIONSHIP.
10.1 Confidentiality. LinkConnector and Merchant agree that any and all information identified by the other as “Confidential” and/or “Proprietary”, or which, under all of the circumstances, ought reasonably to be treated as Confidential and/or Proprietary, will not be directly or indirectly disclosed to any third person without the express consent of the other party for a period of three (3) years following termination of this Agreement and that neither party will make use of Confidential Information except under the terms of this Agreement. These confidentiality obligations shall not apply to any information which: (i) is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) is already known to the receiving party before disclosure by the disclosing party; (iii) is developed through the independent efforts of the receiving party; (iv) the receiving party rightfully receives from a third party without restriction as to confidentiality or use; or (v) is requested pursuant to a subpoena; provided, that the party responding to such subpoena gives the other party reasonable notice and opportunity to intervene to quash such subpoena.
10.2 Privacy of Consumer Information. Notwithstanding anything in this Agreement to the contrary, if it is necessary for Merchant to disclose any End User Data to LinkConnector for any reason, LinkConnector agrees that at no time shall LinkConnector use or disclose any such End User Data that LinkConnector may obtain in connection with this Agreement, except as required by law; provided that nothing herein shall require Merchant to disclose End User Data to LinkConnector.
10.3 Affiliate Relationship. During the Term of this Agreement and for six (6) months thereafter, Merchant shall not knowingly solicit any Affiliate that is obtained through the LinkConnector Services, nor shall Merchant transfer any Affiliate obtained through the LinkConnector Services to any third party provider or to any in-house program substantially similar to the LinkConnector Services. Additionally, Merchant shall not encourage, including paying an Affiliate a higher Commission, any such Affiliate to so transfer. In the event Merchant does violate this provision, Merchant shall pay LinkConnector what LinkConnector would have otherwise earned had such a violation not occurred. Except as expressly set forth in this paragraph, nothing herein shall be deemed to restrict Merchant from entering into independent strategic partnerships or other agreements with Affiliates, or to prohibit Merchant from advertising, merchandising or promoting its products or services.
11. TERM OF AGREEMENT AND TERMINATION.
If Merchant is dissatisfied with Merchant Account in the LinkConnector Affiliate Program or with any of the terms and conditions contained herein, Merchant’s sole and exclusive remedy is to terminate Merchant account. Merchant may cancel participation in the LinkConnector Affiliate Program at any time after meeting Termination Requirements, in accordance with section 11.3.2, by sending notice in accordance with section 12.7.
11.1 Term. The term of this Agreement shall begin on the date the Merchant applies for an account (“Application Date ) and shall continue until terminated by any of the actions enumerated in section 11.2.
11.2 Termination. This Agreement will terminate in the event of any of the following:
11.3 Termination Requirements.
11.3.1 LinkConnector may terminate this Agreement once notice of termination has been sent to Merchant in accordance with section 12.7.
11.3.2 Merchant may terminate this Agreement only after satisfying all of the following requirements:
11.4 Effect of Termination. Upon termination of this Agreement, all licenses granted by Merchant hereunder shall automatically terminate. Merchant shall review all Merchant Transactions in LinkConnector’s Merchant Manager by the Monthly Closeout following Termination and mark, as appropriate, Merchant Transactions as valid or invalid. Any remaining amount in the Merchant’s Prepay account shall be returned to Merchant after the Monthly Closeout following such termination within 30 days after the applicable Monthly Closeout.
11.5 Survival. Sections 5 (to the extent the payment obligations accrue prior to termination), 7, 9, 10, 11.4 and 12 shall survive any expiration or termination of this Agreement.
11.6 Suspension. LinkConnector reserves the right, at its sole discretion to suspend the Merchant if it suspects a material breach of section 3.2. If LinkConnector takes action to suspend, LinkConnector may do so immediately, but LinkConnector is not relieved of its obligation to notify the Merchant per section 11.2(a).
12.1 Choice of Law. The Parties agree that this Agreement shall be governed by and interpreted in accordance with the laws of the State of North Carolina (including by not limited to the Uniform Electronic Transactions Act as enacted in North Carolina), without regard to conflict of laws provisions thereof. Furthermore, the parties agree that any dispute (including litigation) that arises between the parties shall have its venue in the state or federal courts of Wake County, North Carolina.
12.2 Assignment. Merchant may not assign all or any portion of this Agreement without the prior written consent of LinkConnector, which consent may be withheld at LinkConnector’s sole discretion.
12.3 Relationship of the Parties. No partnership, joint venture, employment, agency, franchise, or other form of agreement or relationship is intended by this Agreement. The parties shall be independent contractors for all purposes in connection with this Agreement.
12.4 Entire Agreement. The parties agree that this Agreement constitutes the entire agreement between the parties as of the date hereof with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, whether oral or written. The parties agree that this Agreement may be modified or amended from time to time hereafter by LinkConnector as it deems necessary and Merchant agrees (in consideration for LinkConnector agreeing to continue doing business with Merchant) to be bound by such amendments, however, no such modification or amendment shall act to increase any financial obligation which Merchant may otherwise have to LinkConnector pursuant to this Agreement.
12.5 Press Releases. Neither party shall issue any press release or announcement relating to the relationship contemplated by this Agreement without the prior written consent of the other party.
12.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
12.7 Notices. All notices, requests, consents, and other communications under this Agreement from Merchant shall be in writing and shall be deemed delivered (i) two business days after being sent by registered or certified mail, return receipt requested, postage prepaid; (ii) one business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery; or (iii) immediately if via electronic mail if the form available in LinkConnector’s Merchant Manager is used. If from LinkConnector to Merchant, immediately upon electronic mail to the primary contact email address is deemed an acceptable means of notification. In each case to the intended recipient as set forth below:
If to Merchant by electronic mail to the primary contact email address,
If to LinkConnector Corporation, at 6501 Weston Parkway, Suite 330, Cary, N.C. 27513, Attention: Choots Humphries, or via electronic mail using the form available at our Contact Us page or at such other address or addresses as may have been furnished in writing by LinkConnector to the other Party in the manner set forth in this section, with a copy to Richard Stephenson, Stephenson & Stephenson, LLP, 580 New Waverly Place, Suite 240, Cary, NC 27511 as deemed appropriate;
12.8 Section Headings. Section headings are for descriptive purposes only and shall not be used to interpret the meaning of this Agreement.
12.9 Attorneys’ Fees. If either party fails to pay any amounts due under this Agreement or otherwise breaches this Agreement and the non-breaching party retains an attorney to collect such amounts or remedy such breach, then the breaching party shall be obligated to pay any amounts due herein including said non-breaching party’s reasonable attorneys’ fees incurred in collecting such amounts and court costs.
12.10 Non-Waiver. No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver thereof. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver of any subsequent breach or default of any other term or condition of this Agreement.
12.11 Refund Policy. After completion of the Term, Merchant may request via written notice that LinkConnector refund any remaining Prepay Account balance. This refund will be issued in accordance with section 11.4.
12.12 Tax Status and Obligations. LinkConnector is not obligated to provide Merchant with tax and/or legal advice and nothing communicated by LinkConnector to Merchant shall be construed as such. Any Affiliate information provided to Merchant shall be provided accurately; however, LinkConnector is not responsible for verifying the accuracy of information provided to LinkConnector by an Affiliate.