1. RESTRICTIONS ON USE OF MATERIALS
All of the trademarks on this site are trademarks of Kevin Birch (“Kevin Birch”) or of other owners used with their permission. Materials on any Kevin Birch website are copyrighted and all rights are reserved. Text, graphics, databases, HTML code, and other intellectual property are protected by US and International Copyright Laws, and may not be copied, reprinted, published, reengineered, translated, hosted, or otherwise distributed by any means without explicit permission.
2. ONLINE RESOURCES, LICENSE AND USE
Kevin Birch warrants, and you accept, that Kevin Birch is the owner of the copyright of the websites, content, databases, links, videos, audio clips, articles and other resources made available from time to time from Kevin Birch. Kevin Birch and its contributors reserve all rights, and no intellectual property rights are conferred by this agreement.
Kevin Birch grants you a non-exclusive, non-transferable license to use the online materials accessible to you subject to the terms herein. The online materials may be used only for viewing information or for extracting information to the extent described in this paragraph.
You agree to use information obtained from Kevin Birch online resources only for your own private use or the internal purposes of your home or business, provided that is not the selling or broking of information, and in no event cause or permit to be published, printed, downloaded, transmitted, distributed, reengineered or reproduced in any form any part of the online resources (whether directly or in condensed, selective or tabulated form) whether for resale, republishing, redistribution, viewing or otherwise.
On an occasional limited basis, you may download or print out individual pages of information that have been individually selected, to meet a specific, identifiable need for information which is for your personal use only, or for use internally in your business, on a confidential basis. You may make such limited number of duplicates of any output, both in machine-readable or hard copy form, as may be reasonable for these purposes only. Nothing herein shall authorize you to create or duplicate any online resource or hard copy publication for internal or external distribution.
Materials made available by Kevin Birch are provided “as is” and without warranties of any kind either express or implied. Kevin Birch disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Kevin Birch does not warrant that the functions contained in the materials will be uninterrupted or error-free, that defects will be corrected, or that the site or server that makes it available are free of viruses or other harmful components. Kevin Birch does not warrant or make any representations regarding the use or the results of the use of the materials in this site in terms of their correctness, accuracy, reliability, or otherwise. You (and not Kevin Birch) assume the entire cost of all necessary servicing, repair or correction. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
Under no circumstances, including, but not limited to, negligence, shall Kevin Birch be liable for any special or consequential damages that result from the use of, or the inability to use, the materials in this site, even if Kevin Birch or a Kevin Birch authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no event shall Kevin Birch’s total liability to you for all damages, losses, and causes of action (whether in contract, tort, including but not limited to, negligence or otherwise) exceed the amount paid by you, if any, for accessing the site.
Facts and information at any Kevin Birch website are believed to be accurate at the time they were placed on the website(s). Changes may be made at any time without prior notice. Any data provided on this website(s) is to be used for information purposes only. The information contained on the website(s) and pages within, is not intended to provide specific legal, financial or tax advice, or any other advice, whatsoever, for any individual or company and should not be relied upon in that regard. The services described on the website(s) are only offered in jurisdictions where they may be legally offered. Information provided on our website(s) is not all-inclusive, and is limited to information that is made available to Kevin Birch and such information should not be relied upon as all-inclusive or accurate.
4. LINKS AND MARKS
Kevin Birch is not necessarily affiliated with websites that may be linked to any Kevin Birch website, and Kevin Birch is not responsible for their content. The linked sites are for your convenience only and you access them at your own risk. Links to other websites or references to products, services or publications other than those of Kevin Birch and its subsidiaries and affiliates, do not imply the endorsement or approval of such websites, products, services or publications by Kevin Birch or its subsidiaries and affiliates.
Certain names, graphics, logos, icons, designs, words, titles or phrases on Kevin Birch’s websites may constitute trade names, trademarks or service marks of Kevin Birch or of other entities. The display of trademarks on a Kevin Birch website does not imply that a license of any kind has been granted. Any unauthorized downloading, re-transmission, or other copying of modification of trademarks and/or the contents herein may be a violation of federal common law trademark and/or copyright laws and could be subject to legal action.
5. CONFIDENTIALITY OF CODES, PASSWORDS AND INFORMATION
You agree to treat as strictly private and confidential any subscriber code, username, user ID, or password which you may have received from Kevin Birch, and all information to which you have access through password-protected areas of Kevin Birch’s websites and will not cause or permit any such information to be communicated, copied or otherwise divulged to any other person whatsoever.
6. OTHER LEGAL STUFF
To the extent you have in any manner violated or threatened to violate the intellectual property rights of Kevin Birch and/or its affiliates, Kevin Birch and/or its affiliates may seek injunctive or other appropriate relief in any state or federal court in the State of Connecticut, and you consent to exclusive jurisdiction and venue in such courts.
Any other disputes will be resolved as follows:
If a dispute arises under this agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Fairfield County. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.
If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration at the following location: Fairfield County, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.
If any provision of this agreement is void or unenforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby.
7. COMPENSATION & AFFILIATION AFFIDAVIT
As per mandates from the Federal Trade Commission, 16 CFR Part 255 — Guides Concerning the Use of Endorsements and Testimonials in Advertising, the purpose of this paragraph is to establish the possible compensatory affiliation with Kevin Birch and any testimonialists or endorsers found on various website pages. Any or all endorsements from testimonialists used in our promotional materials may be affiliated with Kevin Birch as marketing affiliates and therefore might have an established connection with Kevin Birch in the form of commissions paid on sales resulting from referrals from those testimonialists that might lead some readers to believe that the testimonial reviews on the pages of Kevin Birch products might be biased. However, the reviews and comments on the pages of this Site are to the best of our knowledge the true statements and beliefs of the endorsement givers and any claims made on the pages of this Site can be substantiated upon request. Some of the testimonialists whose endorsements were used in promotion of Kevin Birch products have received complimentary promotional copies of Kevin Birch products for the purposes of reviewing products to help generate endorsement-type testimonials.
8. EARNINGS DISCLAIMER & FORWARD-LOOKING STATEMENTS
We have made absolutely every effort to accurately represent our products and services and their potential. Despite this, there is no guarantee that you will earn any money using the techniques and ideas in these materials. Examples in these materials are not to be interpreted as a promise or guarantee of earnings. Earning potential is entirely dependent on the person using our products, ideas and techniques. We do not purport any of our products and services as get rich quick schemes – the techniques are proven but their capacity to generate wealth is based purely on the determination, commitment and willingness of the individual concerned.
As with any business, your results may vary, and will be based on your individual capacity, business experience, expertise, and level of desire. There are no guarantees concerning the level of success you may experience. The testimonials, if any, and examples used are exceptional results, which do not apply to the average purchaser, and are not intended to represent or guarantee that anyone will achieve the same or similar results. Each individual’s success depends on his or her background, dedication, desire and motivation.
There is no assurance that examples of past earnings can be duplicated in the future. We cannot guarantee your future results and/or success. There are some unknown risks in business and on the Internet that we cannot foresee which can reduce results. We are not responsible for your actions.
Materials in our products and our websites may contain information that includes or is based upon forward-looking statements within the meaning of the Securities Litigation Reform Act of 1995. Forward-looking statements give our expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historical or current facts. They use words such as “anticipate”, “estimate”, “expect”, “project”, “intend”, “plan”, “believe” and other words and terms of similar meaning in connection with a description of potential earnings or financial performance.
The use of our information, products and services should be based on your own due diligence and you agree that our company is not liable for any success or failure of your business that is directly or indirectly related to the purchase and use of our information, products and services.
If you have elected to become an affiliate, this Agreement contains the complete terms and conditions which you (the “Affiliate”) agree to be bound by as a participant in Kevin Birch (“Kevin Birch”) affiliate program (the “Program”) and which shall apply once your application to participate in the Program has been accepted by Kevin Birch.
ARTICLE 1. INTRODUCTION
1.01 Kevin Birch is the sole and exclusive owner of all right, title and interest including all intellectual property rights in and to the contents, logos, style, design, look and feel, trade names, trademarks to all literary works, computer software programs, products, goods and services (including and all future versions thereof) currently entitled the (“Products”). Products refers to the singular as well as the plural.
1.02 Kevin Birch intends to sell and distribute the Products electronically and/or physically using, in part, third-party affiliates who will establish links to Kevin Birch websites where the Products will be offered for sale.
1.03 If, in the future, Kevin Birch sells and distributes any other goods or services through the Internet, it shall offer to its Affiliates at that time the opportunity to become Vendor-Affiliates of such goods or services. Such goods or services shall be included in the defined term “Products” and this Agreement shall then also apply to such goods or services.
ARTICLE 2. PARTICIPATION & REPRESENTATION
2.01 Kevin Birch hereby grants to the Affiliate the non-exclusive and revocable right to market and advertise the Products and to establish links to Kevin Birch websites, in accordance with this Agreement.
2.02 The Affiliate shall diligently and continuously market and advertise the Products through the Internet and shall develop, operate and maintain links from its site to Kevin Birch’s site at its sole cost and expense.
2.03 The Affiliate represents and warrants to Kevin Birch that this Agreement has been duly and validly executed and constitutes and shall continue to constitute a legal obligation, enforceable in accordance with its terms.
ARTICLE 3. AFFILIATE SALES COMMISSIONS
3.01 If, as a result of a direct advertising effort of the Affiliate, a referred customer of the Affiliate or of a member of the Affiliate’s team (as defined) orders and pays for the Products or other goods or services sold by Kevin Birch in the future, Kevin Birch shall pay the Affiliate a sales commission determined in accordance with the Affiliate Compensation Schedule which follows this Agreement and which forms an integral part of it. The commission is based upon the paid selling price of the purchased goods or services before tax and excluding returns (“Sales Commission”).
3.02 AN AFFILIATE SHALL NOT RECEIVE A SALES COMMISSION FOR A PRODUCT PURCHASE MADE, DIRECTLY OR INDIRECTLY, BY HIMSELF/HERSELF. Kevin Birch, in its sole and complete discretion may create multiple level compensation plans. In the case of a multiple level compensation plan, an Affiliate’s Team means all Affiliates introduced to the Program by the Affiliate in question. In the event that more than one Affiliate claims the same commission for a sale, Kevin Birch shall select the Affiliate which shall receive the compensation.
3.03 The Affiliate shall be responsible for all taxes and other similar levies applicable to the Sales Commission pursuant to any law or regulation. The Affiliate shall report the Sales Commission to its taxation authorities as required by law.
3.04 Kevin Birch shall post and maintain, on a current basis, a designated password-protected Web page for each Affiliate showing the Affiliate’s participation in the Program including number of potential customers referred by it and an estimate of the Sales Commission owing to it. Kevin Birchshall, on or about the 15 of each month, mail or otherwise transmit the Sales Commission representing the amount payable for the sales completed in the previous month. Sales statistics of the referred transactions, supporting the amount paid, shall be made available on the Affiliate’s private site. Affiliates will receive the Sales Commission in US funds. For administrative convenience, if the Sales Commission is less than 50.00 dollars in a month, it shall be mailed during a future month. The Affiliate may receive the Sales Commission where the amount in question is less than 50.00 dollars by advising Kevin Birch and assuming Kevin Birch’s cost of making the payment. If an Affiliate maintains a balance of less than 50.00 dollars of Sales Commission in a period of 12 consecutive months without asking for payment during that time, the Sales Commission shall be forfeited. Sales Commission overpayments may be deducted from future payments or shall be reimbursed by the Affiliate.
3.05 Upon written request and at the Affiliate’s expense, the Affiliate may cause Kevin Birch’s books and records to be examined by an independent firm of accountants to ensure compliance with this Agreement. In the event that the examination reveals an underpayment error of more than 5%, the underpayment and the reasonable cost of the examination to a maximum of 250.00 dollars shall be paid by Kevin Birch. If the examination does not reveal an underpayment as aforesaid, the Affiliate shall compensate Kevin Birch for its reasonable cost to a maximum of 250.00 dollars. The firm of accountants utilized shall limit the scope of their examination to the relevant information regarding the Sales Commission and shall keep private and confidential all information obtained in the course of the said examination.
ARTICLE 4. AFFILIATE SITES AND PROMOTION METHODS
4.01 The Affiliate shall be solely responsible for all materials that appear on its site. It shall strictly adhere to all applicable laws and regulations in conducting its business and more specifically in marketing and advertising the Products. Without restricting the generality of the foregoing, the Affiliate shall not send unsolicited e-mail and shall not send e-mail or any other communication to a recipient if the recipient has requested that it discontinue such communication, nor shall it send or display on its websites any material that may be considered to be harassing, libelous, defamatory, legally obscene or pornographic, threatening, abusive or hateful.
4.02 Kevin Birch shall have the right, but not the obligation, to pre-approve the graphics and logos used on any website which is linked to its site. Furthermore, the Affiliate shall annotate its site with appropriate copyright, trademark and other similar notices, which shall be approved by Kevin Birch. If the Affiliate specifies a price point for the Products in its marketing and advertising, it shall ensure that it is updated regularly to reflect all price changes.
4.03 Kevin Birch shall have the right to monitor the Affiliate’s website at any time and from time to time to determine if it is in compliance with the terms and conditions on this Agreement.
4.04 The Affiliate agrees not to use any predatory advertising methods designed to generate traffic from sites that they have not contracted with in the online promotion of Kevin Birch’s products, services or affiliate program. Predatory advertising is defined as any method that creates or overlays links or banners on websites, spawns browser windows, or any method invented to generate traffic from a website without that website owner’s, knowledge, permission, and participation. Examples include, but are not limited to, keyword parsing, browser plugins such as TopText and Surf+, banner replacement technology such as Gator, browser spawning technology that is not website dependent. Participation in predatory advertising programs will be cause for the affiliate’s immediate termination.
ARTICLE 5. ORDER PROCESSING
5.01 Kevin Birch shall establish the procedures of selling the Products including, without limitation, the placement of orders, pricing, payment terms, processing, delivery, returns etc. Without restricting the generality of the foregoing, Kevin Birch shall have the right to cancel, suspend or delay any order for the Products, including the right to discontinue selling the Products at any time.
ARTICLE 6. LICENSES AND GOODWILL PRESERVATION
6.01 Kevin Birch shall have the right, but not the obligation, to approve, in its sole and absolute discretion and with due regard to the protection and preservation of the goodwill of the Products any promotional, advertising or marketing item used by the Affiliate. The Affiliate shall make all deletions and modifications suggested by Kevin Birch on any site where the Products is mentioned.
6.02 The Affiliate shall acknowledge and clearly identify and respect that all proprietary information, trademarks, copyrights and all other similar rights in and arising out of the Products are, and shall continue to be, the exclusive property of Kevin Birch. In the event the Affiliate learns of any claim or allegation that the Products infringe upon or violates any intellectual property or proprietary rights of a third party, or contains any unlawful, libelous, or untrue statement, he/she shall immediately notify Kevin Birch so as to enable Kevin Birch to defend, settle or otherwise resolve the claim or allegation in a manner that Kevin Birch deems appropriate in its sole discretion.
6.03 Customers who purchase the Products through the Program shall be deemed to be customers of Kevin Birch, and the Affiliate shall refer all Product-related questions, requests or queries to Kevin Birch. Kevin Birch shall have the right to utilize the Affiliate’s name and logo to advertise, market, promote and publicize the Products in any manner.
6.04 The Affiliate shall not make or give to a customer or a potential customer any warranty, representation or other statement concerning the Products without first obtaining the written consent of Kevin Birch.
ARTICLE 7. RELATIONSHIP OF PARTIES
7.01 While the parties shall work hand-in-hand for the benefit of both, the parties acknowledge and agree that the Affiliate shall, from a legal perspective, act as and shall be an independent contractor and not an employee or agent of Kevin Birch. Nothing in this Agreement shall create a partnership, joint venture, agency, or franchise between the parties in the legal sense of these terms. The Affiliate shall not sign any document in the name of or on behalf of Kevin Birch nor shall it hold itself out as being an agent of Kevin Birch or as having apparent authority to contract for or bind Kevin Birch.
ARTICLE 8. LIMITATION OF LIABILITY
8.01 In no event shall Kevin Birch be liable for special, incidental, consequential or punitive damages, including, without limitation, any damages resulting from loss of profits, loss of business or loss of goodwill arising out of or in connection with this Agreement or the Products, whether or not such party has been advised of the possibility of such damages. Kevin Birch shall not be liable for any damages if, for any reason whatsoever, its website(s) fail or is non-operational for any reason whatsoever.
ARTICLE 9. TERM OF THE AGREEMENT
9.01 In the event that the Affiliate breaches any of the undertakings or obligations set forth in this Agreement and does not remedy same within 7 days notice from Kevin Birch, it shall automatically forfeit the Sales Commission then receivable or receivable at any time in the future. Kevin Birch shall, in addition, have the right to terminate this Agreement and shall retain all other rights and remedies available to it at law or in equity.
9.02 This Agreement shall automatically terminate if the Affiliate ceases to actively market the Products for a period of 90 days. Kevin Birch shall have the right but not the obligation to terminate this Agreement with an Affiliate whose Sales Commission in a calendar year was in the bottom 20 percent of Sales Commission of all Affiliates in the calendar year in question, by giving the Affiliate 90 days notice of termination. In such cases the Sales Commission owing, representing the sums earned shall be paid even after termination of this Agreement. The Affiliate shall have the right to terminate this Agreement at any time upon written notice to Kevin Birch.
9.03 As soon as notice of termination of this Agreement is given or upon termination as herein provided, the Affiliate shall immediately cease its marketing and advertising of the Products and shall forthwith eliminate all mention and references to the Products and all links to Kevin Birch. Pending the completion of the foregoing, Kevin Birch may hold in abeyance the Sales Commission.
ARTICLE 10. MODIFICATION AND APPLICATION OF AGREEMENT
10.01 Kevin Birch may, in good faith, modify any of the terms and conditions contained in this Agreement (including the Affiliate Compensation Schedule), at any time and in its sole discretion, by posting the modified agreement on its website(s). If any modification to this Agreement is not acceptable to the Affiliate, he/she may terminate this Agreement as the only recourse. The Affiliate’s continued participation in the Program following the modification shall constitute binding acceptance by the Affiliate of the change.
10.02 If any of the provisions of this Agreement are determined by a court to be unenforceable, they shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
10.03 The Affiliate shall not assign, transfer or convey this Agreement or any part thereof to any other party without Kevin Birch’s consent which shall not be unreasonably refused.
10.04 This Agreement shall endure to the benefit of and be binding upon the parties hereto and their respective heirs, legatees, executors, legal representatives, successors and assigns.
10.05 This Agreement represents the entire agreement between the parties and supersedes all prior negotiations, agreements and understandings, if any. For greater certainty but without restricting the aforementioned, information contained in any of the following shall not form part of this Agreement, namely:
a. Descriptions of the Program (including the descriptions of Sales Commission payable to the Affiliates) on Kevin Birch’s website(s);
b. E-mail communications from Kevin Birch or from any of its employees, officers or directors;
c. Information in the Products, or in marketing/informational documents.
ARTICLE 11. INDEPENDENT INVESTIGATION
11.01 The Affiliate acknowledges that it has reviewed this Agreement and agrees to all its terms and conditions. The Affiliate understands that Kevin Birch may at any time solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with the Affiliate’s website(s). The Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representation, guarantee or statement other than as set forth in this Agreement.
ARTICLE 12. MISCELLANEOUS PROVISIONS
12.01 Any reference in this Agreement to gender includes all genders and words importing the singular number only shall include the plural and vice versa.
12.02 The insertion of headings and the division of this Agreement into Articles and Sections are for convenience reference only and are not to affect its interpretation.
12.03 Each of the parties hereto covenants and agrees that it shall execute and deliver such additional agreements and documents and do such acts and things as may be reasonably necessary fully and effectually to carry out the intent and purpose of this Agreement.
12.04 Time shall be of essence of this Agreement.
12.05 All notices, requests and other communications shall be deemed to have been received when posted by Kevin Birch on its website(s). It shall also be deemed to have been received on the next business day if transmitted by Telecopier, e-mail or any other form of electronic mail to the last known electronic address of the intended recipient.
12.06 If a dispute arises under this agreement, we agree to first try to resolve it with the help of a mutually agreed-upon mediator in the following location: Fairfield County. Any costs and fees other than attorney fees associated with the mediation will be shared equally by each of us.
12.07 If it proves impossible to arrive at a mutually satisfactory solution through mediation, we agree to submit the dispute to binding arbitration at the following location: Fairfield County, under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitration may be entered in any court with jurisdiction to do so.
12.08 The parties have required that this Agreement and related documents be drafted in English.
AFFILIATE COMPENSATION SCHEDULE
Gold Affiliates: 50% Commissions, Platinum Affiliates: 50% Commissions, Diamond Affiliates: 50% Commissions + 10% 2nd-Tier Commissions NOTE: Commission amounts and percentages may vary based on products, and the above details are for standard offers only.
We will reject anyone who uses marketing techniques that…
Exploit sex to sell
Are hateful in any way
Are harassing or use spam in any way, shape, or form
Are libelous or defamatory
Are threatening or abusive
Are illegal or on the borderline
Violate the copyrights or trademarks of others
Are in such poor taste that we do not want the association