terms of service

last updated: may 29, 2011

These terms of service (this ‘Agreement’), constitute a legal agreement between famos llc. (‘famos*’) and you. this Agreement governs your use of the Software and Service (as defined below). by clicking ‘accept,’ you agree to all terms and conditions of this Agreement. if you are entering into this Agreement on behalf of a company or other organization, you hereby warrant and represent that you are authorized to enter into this Agreement on behalf of such company or other organization.


definitions.
for purposes of this Agreement, the following terms have the following meanings: 
’Commissions’ means monetary payments made to you in relation to sales by Customers from Merchants. 
’Customer’ means a user of the Website that is referred to a Merchant via the Service and/or interacts with Merchants by purchasing goods and/or services. 
’Merchant’ means a party that supplies goods and/or service to Customers and which has an affiliate program. 
’Service’ means the provision to you of the Software and access to Merchants. 
’Software’ means the famos* software that facilitates the automated and online referral by you of a Customer to a Merchant and records the sales activity between such referral and Merchant.

Registration. you do not need to register with famos* in order to start earning commissions, however so that we may know where to send the check, at some point you will need to provide your email address and complete a registration process similar to the one at http://www.famos.com/getfamos.

License. famos* hereby grants you a non-exclusive, non-transferable license to use the famos* Software and Service during the term of this Agreement. You will not and will not permit any third party to (i) reverse engineer, decompile or otherwise attempt to discover the source code of the Software, (ii) interfere with the operation of the Software or Service; or (iii) use the Software or Service in any way other than as expressly set forth herein. famos* retains all right, title and interest in and to the Software and Service, all improvements and derivative works thereof, together with all Intellectual Property Rights embodied therein. You will have no rights with respect to the foregoing except for the limited license expressly set forth herein.

Responsibility of Authors and Publishers. You are solely responsible for the content you author, publish and share using the Software and Service  including, but not limited to, ensuring that your published content does not infringe or misappropriate any third party intellectual property rights; and ensuring that such content is not defamatory or otherwise illegal. You represent and warrant that you shall comply with all rules, regulations and guidelines applicable to your  use of the Service and Software.

Merchants.  You acknowledge that famos* uses various Affiliate Marketing Networks (“AMN”) to aggregate Merchant links, and that pursuant to their agreements with those AMN Merchants set their own Commission structures and may change their Commission structures or terminate their relationship with a given AMN at any time, and that famos* will have no control over or liability in connection with any Merchant’s decision to do so. Merchants may at any time send famos* notice requesting that you remove links or references to Merchants’ brands, products, services or trademarks and famos* will communicate this notice to you. 

Commissions and Payments.   You hereby acknowledge and agree that famos* is the ‘publisher of record’ for all Commissions, and will collect and aggregate all Commissions due to you from Merchants. famos* will pay you a Commission equal to a percentage of revenues that famos* receives from Merchants derived of referrals from your media less all Commissions due to any other party similarly associated with the referral; such Commissions may not always have a cash equivalent,  and, in certain instances, non-cash value “points” may be allocated in lieu of Commissions, and in accordance to a weighted system.  Commission percentages may be revised by famos* from time to time without notice to you. Payment will be issued to you at the end of each month for all commissions earned by you that famos* has received up to that point. There is no minimum payment, however you are solely responsible for any third party fees that may be incurred in the payment of Commissions . famos* will collect all relevant details for tax purposes as necessary and specified by the tax code. A Merchant may determine, in its sole discretion, that any sale was not a bonafide transaction, whether goods are returned by the Customer or otherwise (a ‘Chargeback’), and may make a Chargeback claim requesting certain Commissions be cancelled or reversed to reflect the fact that the Merchant’s business never benefitted from the transaction. Chargebacks are communicated to famos* as they occur. Commissions are conditional for a period of sixty (60) days from the applicable sale. Upon expiration of this sixty (60) day period, Chargebacks cannot be claimed by Merchants and Commissions are unconditional.

Indemnity. You will indemnify, defend and hold harmless famos* and its officers, directors, shareholders, employees and agents from and against any and all liabilities, losses, damages and expenses (including reasonable attorneys’ fees and disbursements) resulting from or based upon (i) any claim of infringement  or misappropriation of any third party intellectual property rights; (ii) your breach of any representations or warranties made by you in this Agreement or of any other obligation of yours set forth in this Agreement, or (iii) any claim by any Customer or other third party arising from our use of the Service or Software, unless due to famos*’s negligence or willful misconduct.

Privacy. famos* will protect all information collected from your use of the Software and the Service in accordance with the famos* Privacy Policy. You acknowledge and agree that it is your responsibility to disclose to users of the Website and Customers your privacy practices and policies with respect to information collected from such users and Customers through the Website.

Disclaimer of Warranties. THE SOFTWARE AND THE SERVICE ARE PROVIDED ‘AS IS.’ FAMOS* DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE SOFTWARE, THE SERVICE, THE MERCHANTS ACCESSIBLE THROUGH THE SERVICE, THE OPERATION OF THE SOFTWARE OR THE SERVICE BEING UNINTERRUPTED OR ERROR-FREE, OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. FAMOS* EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT FAMOS* MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY SUCH WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED BY APPLICABLE LAW.

Limitation of Liability. IN NO EVENT WILL FAMOS* BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, ANY CUSTOMER) FOR ANY LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE SERVICE OR OTHERWISE WITH RESPECT TO THIS AGREEMENT. IN NO EVENT WILL FAMOS*’S LIABILITY FOR DAMAGES OR ALLEGED DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE COMMISSIONS PAID TO YOU BY FAMOS* UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM, OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS.

Term and Termination. This Agreement will commence upon its execution and will continue until terminated by either you or, in the instance of a breach of Agreement, famos*.  In the event of termination of this Agreement for any reason other than your breach of this Agreement, famos* will pay outstanding Commissions due to you in accordance with the terms of this Agreement. Upon termination of this Agreement for any reason, you will immediately cease use of the Software and Services.

Miscellaneous. In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion will be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement will remain in full force and effect. The paragraph headings herein are provided only for reference and will have no effect on the construction or interpretation of this Agreement. No waiver will be effective unless in writing. This Agreement will be governed by and construed in accordance with the laws of the State of California. Except for proceedings commenced by us to protect our intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder will be resolved exclusively by state or federal courts located in Los Angeles, California. famos* reserves the right to update or modify this Agreement at any time and from time to time. When famos* makes changes to this Agreement, the ‘last updated’ date at the top of this Agreement will be revised. If there are material changes to this Agreement, we will notify you of any such modifications by posting a message on the famos*s website. You should periodically review this Agreement. Your continued use of the Software and Service after any changes or revisions to this Agreement will indicate your agreement with the terms of this Agreement. You may not assign this Agreement without the prior written consent of famos*. This Agreement contains the entire agreement of the parties concerning the subject matter hereof and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter.