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Terms Of Use

Terms of Sale & Affiliate Agreement

TERMS OF SALE


Last Update Date: February 24, 2022

1. SCOPE & APPLICATION

1.1 THESE TERMS OF SALE (“TERMS”) APPLY TO ALL OFFERS, SALES AND PURCHASES OF PRODUCTS (“PRODUCTS”) OR SERVICES (“SERVICES”) WHICH ARE SOLD THROUGH THE WEBSITE ON WHICH WE POST THESE CONDITIONS (“SITE”) BY: UPCLICK MALTA LIMITED, 48/4 AMERY STREET, SLIEMA, MALTA SLM 1701 AND/OR 6785719 CANADA INC, DBA UPCLICK INC, 7075 PLACE ROBERT-JONCAS, SUITE 142, MONTREAL, QC, CANADA, H4M 2Z2 (REFERENCES TO “US”, “WE” OR “OUR” BEING CONSTRUED ACCORDINGLY) THE SELLER, TO YOU, THE PURCHASER (REFERENCES TO “YOU” OR “YOUR” BEING CONSTRUED ACCORDINGLY).



2. OFFER, ACKNOWLEDGMENT AND ACCEPTANCE

2.1 Any prices, quotations and descriptions made or referred to on this Site are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express acceptance of your order (as described below).
2.2 While we make every effort to ensure that items appearing on the Site are available, we cannot guarantee that all items are in stock or immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment that you have made for that item.
2.3 An order submitted by you constitutes an offer by you to us to purchase Products or Services on these Terms and is subject to our subsequent acceptance.
2.4 Prior to such acceptance, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement does not constitute a formal acceptance of your order.
2.5 Our acceptance of your order takes effect and the contract concluded at the point where such offer is expressly accepted by us dispatching your order/commencing Services and accepting your credit card or other payment (“Acceptance“).
2.6 We may keep records of orders received, acknowledgements, acceptances and other contract records for a reasonable period after Acceptance. We may be able to provide you with copies on written request; however you must make sure you print a copy of all such documents and these Terms for your own records.



3. YOUR REPRESENTATIONS

3.1 You represent that information provided by you when placing your order is up-to-date materially accurate and is sufficient for us to fulfill your order.
3.2 You are responsible for maintaining and promptly updating your account information with us for accuracy and completeness and keeping such information (and any passwords given to you for the purposes of accessing the Site and/or purchasing Products) secure against unauthorized access.
3.3 Unless agreed otherwise or required by applicable law, any warranties provided in relation to Products or Services only extend to you on the understanding that you are a user and not a reseller of those Products or Services.
3.4 No warranty, commitment or any other obligation should ever be assumed by you on our behalf or on behalf of a Product manufacturer, licensor or supplier without our express prior written consent.



4. PRICE AND TERMS OF PAYMENT

4.1 Prices payable for Products or Services are those in effect at the time of dispatch or delivery, unless otherwise expressly agreed. Prices may be indicated on the Site or an order acknowledgement but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance.
4.2 We have the right at any time prior to our Acceptance to withdraw any discount and/or to revise prices to take into account increases in costs including (without limitation) costs of any materials, carriage, labor or the increase or imposition of any tax, duty or other levy and any variation in exchange rates. We also reserve the right to notify you of any mistakes in Product descriptions or errors in pricing prior to product dispatch. In such event if you choose to continue with fulfillment of the order, you acknowledge that the Product or Service will be provided in accordance with such revised description or corrected price.
4.3 The places that we deliver to are listed on the Site (“Territory“). Unless otherwise specified, prices quoted are
4.3.1 exclusive of the costs of shipping or carriage to the agreed place of delivery within the Territory (charges for which are stated on the Site). You agree to pay for shipping or carriage of Products as such costs are specified by us on the Site when you submit your purchase order.
4.4 Payment shall be made prior to delivery and by such methods as are indicated on the Site (and not by any other means unless we have given our prior agreement).
4.5 Except as expressly provided elsewhere in these Terms or the Site, payment may be taken in full notwithstanding any claim for short delivery or defects.
4.6 We will charge credit or debit cards on dispatch of the Product or commencement of Services. We reserve the right to verify credit or debit card payments prior to Acceptance.
4.7 Where the payment is invoiced, each invoice shall be due on and made in full within thirty (30) days of the date of relevant invoice. If at any time you fail to pay any amount due on the relevant due date, we may by notice declare all invoiced amounts unpaid at that date to be immediately due and payable.
4.8 No counterclaim or set-off may be deducted from any payment due without our written consent. We may also take action against you for the price of Products at any time after payment has become due even though property in those Products may not yet have passed to you.
4.9 In the scenario where the goods are sold under a payment plan (such as recurring or installments), you:
4.9.1 Consent to have the payment (credit card) information, provided at the time of the purchase, collected and stored in order to facilitate future transactions (recurring or initiated by you). Your information will not be used without your consent beyond the scope of purchased subscription nor will it be shared with a third party.
4.9.2 Acknowledge that you will be notified via email of any changes to the present agreement including, but not limited to: cancellation of subscription or purchase, changes to billing interval, frequency or price, update of payment information.
4.9.3 Request that your Product license, rather than expiring at the end of your subscription, automatically renews for 1 (one) more term, until the Service is terminated by you or by the provider and authorize UPCLICK (official billing partner of the provider) to charge, at the end of your subscription, the credit card or debit card account provided by you with the then-current renewal amount.
4.9.4 This authorization will remain in effect until the Service expires or gets cancelled.
4.10 Prior to your product expiration date, UPCLICK will notify you by email to remind you that your product license will expire and give you the ability to extend it or to cancel it. Doing nothing when you receive your notification email will automatically extend your subscription, using the billing information originally provided.
4.11 If you do not want your subscription to be renewed, you may cancel it at any time by following the instructions provided to you in the reminder email or by contacting our Customer Service. In the situation where you did cancel the Service (following the above mentioned instructions), but we failed to disable the automatic renewal, we will refund the amount charged by applying a credit to your credit card or debit card account.
4.12 Your Product license renewal may also be declined if the charge to your credit card or debit card is rejected due to card expiration, insufficient funds or other reasons. If you are covered by the Service and by the time of your Product expiration have not received your new license key, please contact our Customer Service to renew your license manually.



5. TERMINATION

5.1 If you commit an act of bankruptcy or enter into a deed of arrangement with creditors or a court order for winding-up is made against you or you take or suffer any similar action in consequence of debt or we have cause to believe that you are unable to pay your debts as they fall due; or you fail to pay any amount by the due date or breach any of these Terms then, without prejudice to any of our other rights, we may:-
5.1.1 stop any Products in transit; and/or
5.1.2 suspend further Product deliveries; and/or
5.1.3 stop or suspend provision of Services; and/or
5.1.4 by written notice to terminate your order and all or any other contracts between us and you.



6. PRODUCT REPLACEMENT GUARANTEE

6.1 The Product Replacement Guarantee (The Service) is an UPCLICK provided service that guarantees that you will get a replacement copy of your purchased products and license keys (activation codes, serial numbers) from UPCLICK at any moment during their lifetime. Note that similar services might or might not be also provided by the product developer for free or for a fee.
6.2 When you purchase a digital product through UPCLICK, we give you the opportunity to access your purchased products and license keys during the first 30 days from the purchase date. By adding The Service on your purchase, we guarantee that a replacement copy of all your purchased products and license keys will be available to you for their entire lifetime. If you ever need to download your products again, and/or need to replace your license keys, during the lifetime of your products, The Service enables you to do so. In the absence of The Service, we do not guarantee the replacement of your purchased products and license keys past these 30 days.
6.3 We recommend The Service, as this enables you to re-access your products and license keys, in scenarios such as:
– A PC crash in which you lost all your programs and data
– A stolen or damaged PC
– An installation on a new PC that you bought
– Any other situation that requires you to have a fresh new install of our software



7. DELIVERY AND RISK

7.1 Delivery timescales/dates specified on the Site, in any order acknowledgement, acceptance or elsewhere are estimates only. While we endeavor to meet such timescales or dates, we do not undertake to dispatch Products and/or commence Services by a particular date or dates and shall not be liable to you in respect of delays or failure to do so.
7.2 Delivery shall be to a valid address within the Territory submitted by you and subject to Acceptance (“Delivery Address“). You must check the Delivery Address on any acknowledgement or acceptance we provide and notify us without delay of errors or omissions. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
7.3 If you refuse or fail to take delivery of Products provided in accordance with these Terms, any risk of loss or damage to the Products shall nonetheless pass and without prejudice to any other rights or remedies we have:-
7.3.1 We shall be entitled to immediate payment in full for the Products or Services delivered and either to effect delivery by whatever means we consider appropriate or to store Products at your risk;
7.3.2 You shall be liable pay on demand all costs of Product storage and any additional costs incurred as a result of such refusal or failure to take delivery;
7.3.3 We shall be entitled 30 days after the agreed date for delivery to dispose of Products in such manner as we determine and may set off any proceeds of sale against any sums due from you.
7.4 Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you shall not be entitled to reject the Products in whole or in part by reason of short delivery and shall pay in full notwithstanding short delivery or non-delivery unless you notify us in writing of any claim within 7 days of the latest of the date of receipt of the relevant invoice or delivery whereupon you shall pay for the quantity actually delivered.
7.5 Where we deliver Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle you to repudiate the contract as a whole nor to cancel any subsequent installment.
7.6 Save as otherwise provided in these Terms, risk of loss of or damage to the Products passes to you on delivery or when placed in your possession or that of any carrier or transport provided by you, whichever shall occur first.



8. REJECTION, DAMAGE OR LOSS IN TRANSIT

8.1 Except as set out above or under any applicable Returns Policy and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
8.1.1 we shall not be liable and you shall not be entitled to reject Products or Services, except for:
(a) damage to or loss of Products or any part thereof in transit (where the Products are carried by our own transport or by a carrier on our behalf) where notified to us within 5 working days of receipt of the Products;
(b) defects in Products (not being defects caused by any act, neglect or default on your part) notified in writing to us within 30 days of receipt of the Products.
(c) defective performance of Services (not being defects caused by any act, neglect or default on your part) where notified in writing to us within 5 days of such defect becoming apparent.
8.1.2 we shall not be liable for any damage or losses arising from defective installation of the Products; from the use of the Products in connection with other defective, unsuitable or defectively installed equipment; your negligence; improper use or use in any manner inconsistent with the manufacturer’s specifications or instructions.
8.1.3 where these is a shortage or failure to deliver, or any defect in or damage to a Product or Service, we may at our option:
(a) (in the case of Product shortage or non-delivery) make good any such shortage or non-delivery and/or
(b) in the case of failure to perform or defective performance of a Service, make good such failure or defective performance; and/or
(c) in the case of damage or any defect(s) in the Product and in accordance with any applicable Returns Policy:
(i) Replace or repair the Product upon you returning the Product; or;
(ii) Refund the price paid in respect of any Products found to be damaged or defective.



9. SOFTWARE

9.1 Where any Product supplied is or includes software (“Software“), this Software is licensed by the relevant licensor/owner subject to the relevant end-user license agreement or other license terms included with Software (“License Terms“) and/or the Product. In addition:
9.1.1 Such Software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that
(i) this is permitted in the License Terms, or
(ii) applicable law expressly mandates such a right which cannot legally be excluded by contract.
9.1.2 Except to the extent expressly provided by us in writing or under relevant License Terms, Software is provided ‘as is’ without any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to Software installation, configuration or error/defect correction. You are advised to refer to any License Terms with regards to determining your rights against a manufacturer, licensor or supplier of the Software.



10. LIABILITY LIMITATION

10.1 TO THE MAXIMUM EXTENT LEGALLY PERMITTED, WHETHER OR NOT WE WERE AWARE OR ADVSED OF THE POSSIBILITY OF DAMAGES, AND WETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE (1) OUR AGGREGATE LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE COST OF THE PRODUCTS YOU ORDERED AND THAT ARE MOST CLOSELY RELATED TO YOUR DAMAGES AND (2) WE SHALL NOT BE LIABLE FORSPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, OR COST OF COVER.



11. THIRD PARTY RIGHTS

11.1 To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, we shall have no liability to you in the event of the Products or Services infringing or being alleged to infringe the proprietary rights of any third party. In the event that the Products are or may be the subject of patent, copyright, database right, registered design, trade mark or other rights of any third party, you should refer to the relevant terms of the Product manufacturer and/or licensor/owner. We shall be obliged to transfer to you only such right or title as we have.



12. WARRANTY “AS IS” IN GENERAL – WITHOUT REGARD TO SEPARATE WARRANTY STATEMENTS PACKAGED BY THE MANUFACTURER WITH THE PRODUCTS

12.1 All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the Site or made available by us are intended to represent no more than a general illustration of the Products and do not constitute a warranty or representation by us that the Products will conform with the same. You must refer to the manufacturer’s specifications or warranty documentation to determine your rights and remedies in this regard.
12.2 You will have the benefit of the manufacturer’s, licensor’s or supplier’s warranty with the Products supplied and should refer to the relevant documentation supplied with the Product in this regard. (If applicable, a Returns Policy may also set out procedures applicable to repairs or replacement of defective Products delivered.)
12.3 Your rights of repair or replacement of any Products or any part or parts thereof which are found to be defective will (except where agreed otherwise) be negated or rendered void where:
12.3.1 Products have been repaired or altered by persons other than the manufacturer, us or any authorized dealer; and/or
12.3.2 defective Product or Products have not been returned together with full details in writing of the alleged defects within 30 days from the date on which such Products were delivered; and/or
12.3.3 defects are due (wholly or partially) to mistreatment, improper use or storage or maintenance or installation, or failure to observe any manufacturers’ instructions or other directions issued or made available by us in connection with the delivered Products.
12.4 EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS SECTION 11, WE MAKE NO EXPRESS WARRANTIES OR REPRESENTATIONS AND WE DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THESE TERMS STATE YOUR SOLE AND EXCLUSIVE REMEDIES.



13. CONSENTS, CUSTOMS DUTIES & EXPORT

13.1 If any license or consent of any government or other authority is required for the acquisition, carriage or use of the Products by you, you shall obtain such license or consent at your own expense and if necessary produce evidence to us on demand. Failure to do so shall not entitle you to withhold or delay payment of the price. Any additional expenses or charges incurred by us resulting from such failure shall be met by you.
13.2 Products licensed or sold to you under these Terms may be subject to export control laws and regulations in the Territory or other relevant jurisdiction where you take delivery or use them. You shall be responsible for complying with those laws and will not do anything to breach them.
13.3 Items entering the European Economic Area (EEA) from outside over a certain value may be subject to customs charges (e.g. where costs are in excess of your personal import allowance). You may be subject to customs charges, import duties and taxes, levied when the Product reaches your specified destination. Any such additional charges for customs clearance or import duties or taxes must be met by you, since we have no control over what these charges are. You should contact the local customs office in the relevant jurisdiction for further information on customs policies or duties.



14. NOTICES

14.1 Any notice or other communications in relation to our contract may be given by sending the same by hand delivery, pre-paid post, fax or e-mail to the latest address and contact that one party has notified in writing to the other. This will also be the address for service of legal proceedings in the manner prescribed by law. Except as set out above in relation to cancellation of consumer orders, such notices or communications (where properly addressed) shall be considered received:
14.1.1 In relation to hand delivery, on the date of delivery at the relevant address (or, if this is not a working date, the first working date thereafter);
14.1.2 If posted, 5 working days after the date of posting;
14.1.3 If by fax, on the date of the transmission as evidenced by a successful transmission contact report (or, if this is not a working date, the first working date thereafter).
14.1.4 If sent by email, on the earliest of
(i) the email being acknowledged by the recipient as received;
(ii) receipt by the sender of an automated message indicating successful delivery or the email having been opened; or
(iii) the expiry of 48 hours after transmission, provided that the sender has not received notification of unsuccessful transmission.



15. PERSONAL INFORMATION AND YOUR PRIVACY

15.1 We will observe applicable data protection laws and will not use information that does or can be used to personally identify you (“Personal Data“) you other than as set out in our Privacy Policy (“Privacy Policy“). By submitting your Personal Data in relation to your order, you consent to such Personal Data being processed to fulfill your order and in accordance with such Privacy Policy.
15.2 In relation to security of orders that you place with us:
15.2.1 Our secure-server software encrypts all your Personal Data including credit or debit card number and name and address. This means that the characters that you enter are converted into pieces of code that are then securely transmitted over the Internet.



16. GENERAL

16.1 You shall not assign, transfer, charge or make over or purport to assign transfer charge to make over your rights under these Terms
16.2 We shall not be liable to you nor held in breach of contract for any loss or damage which may be suffered as a direct or indirect result of us being prevented, hindered or delayed in the performance by reason of any circumstances beyond our reasonable control including (but not limited to) any act of God, war, riot, civil commotion, government action, explosion, fire, flood, storm, accident, strike, lock-out, trade dispute or labor disturbance, breakdown of plant or machinery, interruption in the supply of power or materials and in such event we may elect to cancel your order and refund any payments made.
16.3 You acknowledge that these Terms supersede and cancel all previous contracts, agreements and working arrangements whether oral or written, express or implied, between us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. To the fullest extent permitted under applicable law, we reserve the right to modify these Terms upon prior written notice to you with effect for the future – subject to your right to reject, by way of written notice, our modifications to these Terms with respect to any orders for which Acceptance, but not yet fulfillment, has occurred.
16.4 No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers.
16.5 No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition.
16.6 If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction:
16.6.1 these Terms will not be affected in other jurisdictions to the extent that such determination or finding has no application; and
16.6.2 in the relevant jurisdiction, the remainder of these Terms (to the fullest extent permitted by law) will continue in full force and effect.



17. GOVERNING LAW

17.1 For purchase by residents of Canada from 6785719 Canada Inc., this Agreement shall be deemed to be governed and enforced in accordance with the laws of Quebec, Canada whose courts shall have exclusive jurisdiction over disputes arising hereunder. For purchase by residents of the European Economic Area or other regions outside of Canada, from Upclick Malta Limited, unless your local legislation or applicable law states otherwise, these Terms of Sale are governed by the Law of of Malta, to the exclusion of any conflict of laws, whose courts shall have exclusive jurisdiction over disputes arising hereunder;
17.2 We prefer to solve your requests directly with you. If you would like to bring a matter to our attention, please reach out to us as follows:
  • For any transaction related questions (including online purchase matters), please contact us using our support site.
  • To inquire about how your personal data is used, contact our Data Protection Officer at: dpo@upclick.com.
  • For platform compliance related questions contact us at: compliance@upclick.com.
17.3 In the event that we are unable to resolve a complaint with you directly, and in the event that your dispute relates to an online purchase, you may choose to use the online dispute resolution (ODR) platform of the EU Commission, as an Alternative Dispute Resolution (ADR) avenue.
17.4 The language of any dispute resolution procedure or any proceedings will be English.

UPCLICK AFFILIATE AGREEMENT


This is a legally binding Agreement by which you (the "Affiliate") agree to refer potential customers (each a "Customer") to us ("Upclick") through the internet. Please read this Agreement carefully as it describes all of your rights and obligations in your relationship with Upclick.

Upclick is in the business of producing, marketing and promoting various online affiliate management and reseller services (the "Service") on the Internet.


1. Appointment of Affiliate

1.1. Appointment of Affiliate.

Upclick grants the Affiliate the non-exclusive, non-transferable right and license to advertise, market and promote the Service in accordance with the terms and conditions hereof. All other rights and licenses not expressly granted to the Affiliate herein are reserved by Upclick.



2. Obligations of Upclick

2.1. Services.

Upclick shall provide the Services, subject to the terms hereof. Upclick can change or terminate any part of the Service, at any time and in any manner at its sole discretion and without prior notice to the Affiliate.



2.2 Commissions.

Upclick shall pay to Affiliate commissions (the "Commissions") at the rates set out for merchant affiliate offers by each merchant visible in the Affiliate's account through www.upclick.com (the "Site"), such as they may be from time to time. Commissions shall be paid only when the Affiliate refers a valid sale to such merchants through the Site.




3. Obligations of the Affiliate

3.1. Promotion.

The Affiliate shall use its best efforts to actively and effectively advertise, market and promote the Service.



3.2. Marketing.

The Affiliate shall engage only in advertising, marketing and promotional efforts which do not violate any law, and which reflect positively upon the business reputation of Upclick and merchants who resell products through Upclick. Upclick shall have the right to review and approve the manner and methods of advertising, marketing and promotion used by the Affiliate in connection with the Service. Affiliate shall send to Upclick a copy of any and all promotional material used in performing hereunder. Whether or not Upclick reviews or comments on such material shall not affect the obligations of Affiliate hereunder. Affiliate shall cease any promotional campaign that Upclick deems inappropriate.



3.3 Costs.

The Affiliate shall bear all costs and expenses incurred in connection with the advertising, marketing and promotion of the Service; including without limitation, all costs directly related to marketing. UNDER NO CIRCUMSTANCES SHALL Upclick BE LIABLE HEREUNDER FOR ANY AMOUNTS OTHER THAN THE FEES.



3.4 Valid information.

The Affiliate shall provide a valid and public e-mail address as well as an accurate postal address (no mailboxes) for Upclick or potential merchants to contact the Affiliate.




4. Compensation

4.1. Commissions.

Upclick shall pay the Commissions as per the terms hereof. No Commissions shall be paid unless Affiliate is owed at least $100 during the then current Commission payment cycle.



4.2. Offset Right.

Upclick shall have the right to withhold any and all Commissions if Affiliate or any of its affiliates are in breach of this Agreement any other agreement with Upclick or any of its affiliates. To the extent that any chargebacks of transactions occur in respect of customers referred to Upclick by Affiliate, Affiliate shall be obliged to refund both the Commissions earned in respect of such transactions together with a share of the fees incurred by Upclick in respect of the chargeback which corresponds to the share of the Commissions on the transaction earned by the Affiliate. By way of example only, if Affiliate was to earn 35% on the transaction in Commissions and the fee to Upclick for the chargeback is $50, then the Affiliate shall be liable to reimburse Upclick for any Commissions received in respect of the transaction, plus $17.50, being 35% of $50.00. In the event of any inconsistency between these terms and the posted Commissions, the latter shall prevail.



4.3 Reserve Account.

Upclick shall withhold ten percent (10%) of Commissions on a rolling period of three (3) months from when they would otherwise be payable in a non-interest bearing reserve account (the "Reserve Account") which account shall be used to offset liabilities (including, but not limited to, charge backs and refunds) of the Affiliate to Upclick hereunder. In case of termination amounts that accumulate in the Reserve Account shall be paid to Affiliate within one (1) year of the termination hereof, unless this Agreement is terminated for breach in which case the Affiliate forfeits its rights in the amounts held in the Reserve Account. The Reserve Account is not insured in the event of a bankruptcy of Upclick.




5. Term and Termination

5.1 Term.

The term of this Agreement shall begin as of the date on which the Affiliate has agreed to the terms hereof either through the Site or on paper and shall end one (1) year thereafter after which it shall automatically renew for additional and successive one (1) year terms until terminated pursuant to the terms hereof.



5.2 At Will.

Either party may terminate this Agreement on notice to the other party either via the Site or as provided below.



5.3. Default.

Upclick may terminate this Agreement with immediate effect if the Affiliate is in breach of the terms of this Agreement. Such breach includes, but is not limited to, situations when the Affiliate engages in advertising, marketing, distribution and promotional efforts that would impair the goodwill and business reputation of Upclick or would expose Upclick to legal liability.

Upclick may terminate this Agreement with immediate effect if the Affiliate shall become insolvent or make a bulk sale of its assets or if the Affiliate makes a general assignment for the benefit of creditors, or any proceeding or filing is instituted or made by the Affiliate seeking relief, or to adjudicate it a bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its assets or takes any action to authorize or in furtherance of any of the foregoing;



5.4. Effect of Termination.

Upon any termination hereof, the Affiliate shall immediately return to Upclick any and all materials, over which Upclick has a proprietary right, that are in the Affiliate's possession and/or in the possession of the Affiliate's agents and employees. The Affiliate shall also immediately remove any hyperlinks and materials, over which Upclick has a proprietary right, from the Affiliate's web site and/or the web sites of the Affiliate's agents.



5.5. Upclick Information.

Any and all information concerning Upclick resellers, merchants, customers and other affiliates shall remain the sole and exclusive property of Upclick and may not be used or disclosed by Affiliate without the prior express written consent of Upclick.



5.6 Commissions Following Termination.

In the event that this Agreement is terminated without default by Affiliate, Upclick shall continue to pay Commissions to Affiliate for one month after such termination after which Upclick shall not be liable for any Commissions to the Affiliate. In the event that this Agreement is terminated on account of a default by Affiliate, Upclick shall not be liable for any Commissions not already paid to the Affiliate from the time that said default occurred.




6. Fee Statements

6.1. Fee Statements.

Payment of Commissions shall be accompanied by a statement that specifies the calculation of the sum to be paid to the Affiliate. Affiliate shall not be entitled to any Commissions on referrals of customers who subsequently chargeback, return or obtain a refund in respect of their purchases through Upclick. Fee statements will therefore be adjusted by Upclick from time to time to reflect overpayments, customer chargebacks and/or credits or underpayments to customers by Upclick. To the extent that Affiliate is liable to refund Commissions pursuant to this provision, Upclick shall deduct the amount of such Commissions from future Commissions payable hereunder. Upclick may also offset any liability of Affiliate to Upclick by withholding Commissions that would be otherwise payable.



6.2 Online Monitoring.

Affiliate shall be granted, during the term hereof, the right to monitor the Commissions to which it is entitled, from time to time, via its online login at the Site.



6.3 Upclick Reporting Definitive.

In the event of any dispute as to the amount of Commissions payable, Upclick reports concerning such Commissions shall be authoritative and shall supersede any other tracking that may have been carried out by Affiliate or any third party.




7. Exclusivity and Non-Competition

7.1. Non-Exclusive.

The Affiliate agrees, understands and acknowledges that Upclick may enter into agreements of this type with third parties to promote the Service or a similar version thereof.



7.2. Names.

The Affiliate has not paid for the use of the trademarks, logos, copyrights, trade names or designations belonging to Upclick, and nothing contained in this Agreement shall give the Affiliate any right to, title to or interest in any of them.



7.3. Software.

The Affiliate acknowledges that Upclick owns and retains all copyrights and other proprietary rights, as well as any software supplied by Upclick, whether through the Site or otherwise. The Affiliate shall not assert any claim or interest in any trademark, trade name, copyright, service mark or logo belonging or licensed to Upclick, or do anything to adversely affect their validity or enforceability. This includes any act or assistance in any act that may infringe upon, or lead to the infringement of, any software copyright.



7.4. Registration of Names.

Without limiting the generality of the foregoing terms, the Affiliate shall not itself attempt, or assist any third party in attempting, to register any trademark, trade name or other proprietary right with any governmental agency (federal, provincial, local or otherwise) or with any other entity or authority without the express, unequivocal and unambiguous prior written consent of Upclick. The Affiliate shall not affix a trademark, logo or trade name of Upclick to any non-Upclick product. The Affiliate shall not alter, erase, deface or overprint any notice of proprietary rights on anything provided by Upclick.




8. Confidentiality and Non-Disclosure

8.1 Confidential Information.

The Affiliate and Upclick each agree that each may have access to, and become acquainted with, confidential information of the other. The Affiliate and Upclick each specifically agree not to misuse, misappropriate or disclose any such confidential information, directly or indirectly, to any third party.




9. Representations and Warranties

9.1 Compliance

The Affiliate warrants, represents and covenants to Upclick: (i) that it has all necessary rights, licenses, permissions and business permits, and will comply with all applicable laws, rules and regulations in connection with promoting the Service; (ii) that its practices hereunder shall not consist of use of SPAM, bulk e-mails, fax blasting for any illegal or distasteful business practices; and (iii) that it shall not make any misrepresentations concerning Upclick or any products or services sold through Upclick.




10. Indemnification and Limitation of Liability

10.1 Indemnification.

Each party shall defend, indemnify and hold harmless the other and its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys' fees and expenses) arising out of or resulting from (i) the indemnifying party’s performance under this Agreement including, without limitation, performance, nonperformance, or defect in performance, any statement, misstatement, representation or misrepresentation made by the indemnifying party; (ii) the negligent or willful acts or omissions of the indemnifying party or the indemnifying party’s agents and/or employees; and (iii) any statements, claims, representations or warranties made by the indemnifying party or the indemnifying party’s agents and/or employees, relating to the Products.



10.2 No Warranties.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES PROVIDED BY EITHER PARTY OR THAT THE OPERATION OF THE SERVICES WILL BE INTERRUPTION OR ERROR FREE.



10.3 Limitations of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER PARTY, NOR ITS AFFILIATES, AGENTS OR LICENSORS, SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF THE PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL EACH PARTY'S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE AFFILIATE IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID TO THE AFFILIATE DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.



10.4 Force Majeure.

Upclick shall use its commercially reasonable efforts to perform its obligations hereunder, however, Upclick, its affiliates, agents or licensors shall not be liable for any loss resulting from the activities of the Affiliate, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Upclick's reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. Upclick's obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by the Affiliate.




11. General

11.1 Notices.

Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested (i) to Upclick at the postal address provided therefor on the Site; (ii) to the Affiliate at the address provided therefor upon registration with the Site; or (iii) to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.



11.2 On-Line or Written Formation of Contract.

By acceptance of the terms hereof on-line by the Affiliate or by execution of a written acceptance of the terms hereof by the Affiliate, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.



11.3 Amendments.

None of the terms of this Agreement shall be amended by either party unless such an amendment specifically references this Agreement and is agreed to by both parties.



11.4 Assignment.

None of the Affiliate or any of its successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Upclick which consent may be withheld for any reason, at Upclick's sole discretion.



11.5 Successors.

This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.



11.6 Enforcement.

The Affiliate shall be liable for and shall indemnify and reimburse Upclick for any and all reasonable attorneys' fees and other costs and expenses paid or incurred by Upclick in the enforcement of this Agreement, or in collecting any amounts due from the Affiliate hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.



11.7 Remedies.

All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.



11.8 Severability.

If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.



11.9 Governing Law and Choice of Forum.

This Agreement shall be deemed to be governed and enforced in accordance with the laws of the City of Sliema, Malta whose courts shall have exclusive jurisdiction over disputes arising hereunder.



11.10 Whole Agreement.

References to "this Agreement" include any schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Upclick and furnished to the Affiliate from time to time.