YouKey Inc (hereinafter referred to as “YouKey”) operates the sales platform located at www.youkey.lk (the “Sales Platform”), in which end consumers may purchase goods, services, software or other digital goods (“Products”) from Youkey. The Sales Platform also permits third-party advertisers (“Promoters”) to promote a third party vendor’s products. Vendors who offer products and services to end-users are referenced herein as “Vendor.” The program whereby Promoters promote the Products is referenced herein the “Promoter Program.”
The following General Terms and Conditions (hereinafter referred to as the “GTC”) govern the legal relationship between YouKey Inc and and Promoters who participate in the Promoter Program.
These GTC apply likewise to all future business relationships even if they are not again expressly agreed. Contrary confirmations by a Contractual Partner that refer to their own terms and conditions are hereby expressly rejected.
Use of the YouKey services is subject to the terms of this agreement if the Contractual Partner confirms that they have read the provisions of this agreement and consented to its terms by activating a check box or click “Agree” during the YouKey registration process. Pursuant to these terms and conditions, YouKey grants the Contractual Partner a non-exclusive, revocable license – which may not be sub-licensed – entitling the Contractual Partner to use the Sales Platform, including the web server, computers, and networks available at www.YouKey.lk, used to make such website available for purposes set out in these GTC.
1. PROMOTER PROGRAM
Promoters may advertise a product and thus promote sales of such product (“Promotion”) as part of the Promoter Program. For such activities, the Promoter will receive a commission from YouKey that is specified in each case for the product concerned.
Conducting a Promotion with the objective of receiving a portion of the sales price generated via the Promotion (“Commission”) and the use of YouKey services or another online or offline channel or other medium for such purposes, is subject to the following terms and conditions:
For the products subject to promotion by the Promoter, no services that exceed the YouKey return or cancellation terms and conditions shall be offered, whether explicitly or implicitly, without the prior written consent of YouKey.
2. PROMOTING PRODUCTS
If You promote, market or otherwise advertise ("Promote" or a "Promotion") any product which is registered for sale via the YouKey Services, either by You or by another YouKey user (each a "Product"), whether via the YouKey Services or via any other online or offline channel or medium, including for the purpose of earning a percentage of the sale price of any Product sold as a result of such Promotion ("Commissions"), You agree, acknowledge, represent and warrant that:
(a) You will abide by YouKey's Return and Cancellation Policy and You will establish Your Vendor Return Policy as set forth below.
(b) When You Promote a Product, You will use the applicable Vendor's trademarks, logos, trade names or service marks in accordance with such Vendor's trademark guidelines, which will either be supplied by YouKey or set forth in the Vendor Promotional Messaging Guidelines, if applicable. For purposes of this Agreement, "Vendor" is defined as any person or entity that submits one or more Products for sale via the YouKey Online Platform.
(c) You will not make any unlicensed or unauthorized use of, or otherwise infringe, violate or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right (collectively "IP Rights") of any entity or individual.
(d) You will not interfere with or manipulate rankings of YouKey's Online Platform (as defined below in Section 4(d)), tracking of Commissions, or the normal flow of traffic to, through, or from the YouKey Services.
(e) If You Promote Products or Brands in a high risk industry, You must be in compliance with YouKey's Additional Terms and Conditions provided to You, which are incorporated into this Agreement by this reference, at all times.
(f) You will not Promote violence, sexually explicit materials, Products from any website, blog, social network, forum or other medium that contain, host or promote illegal content or material, illegal activities, alcohol, tobacco or prescription drugs, discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age.
(g) You will not Promote any Products or services to children under the age of thirteen (13).
(h) You will not defame any person.
(i) You will not include any trademarks or other brand identifiers, or any copyrighted materials, other than as expressly permitted by this Agreement.
(j) You will not incorporate any variation of or misspell any third-party trademarks or other brand identifiers in any domain name, username or other identifier, including on any social networking site.
(k) You will not in any way copy the "look and feel" of any third party website, or otherwise imply that the Promotion is in fact a third party website.
(l) All communications and/or representations made by You in connection with any Promotions and/or in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false or deceptive. Such disclosures and disclaimers must be made in a clear and conspicuous manner, comply with laws, rules and regulations.
(m) YouKey reserves the right but is not obligated to review Your Promotions. You agree that YouKey, in its sole discretion and at any time, may require changes to Product Promotion and delivery pages, customer support or other items related to the content of Your Promotions.
(n) You will provide valid contact information, including but not limited to a working email address and phone number, where YouKey can send inquiries and receive a non-automated reply by end of the following business day.
(o) YouKey does not independently review, verify, guarantee, or assume any responsibility or liability for, the accuracy, completeness, efficacy, or timeliness of any information provided by Vendors, nor is it responsible for any bonuses, prizes or other incentives offered by Vendors in the "Vendor Spotlight," as described in this Agreement, or otherwise offered by Vendors via the YouKey Services. Your use of any information presented by a Vendor is voluntary, and Your reliance is at Your sole risk. You acknowledge and understand that YouKey does not verify statements, claims, incentives or Promotions made by Vendors in the Vendor Spotlight or otherwise made by Vendors via the YouKey Services.
(p) You will comply with all applicable laws, rules and regulations, and will not interfere with any other user’s business or use of the YouKey Services. YouKey reserves the right to take any action against you for violating this provision, including account suspension and/or termination, in accordance with Section 5(c) hereof.
3. MARKETING
Contractual Partners shall only conduct marketing services under this Agreement using the marketing channels permitted by YouKey.
All emails sent by Promoters and Vendors under this Agreement shall comply with the laws and regulations concerning email marketing, including but not limited to Cal. Bus. and Prof. Code 17529.5 et seq. Without limiting the foregoing, Contractual Partner shall comply with the following provisions when sending or initiating emails or conducting Promotions pursuant to this Agreement:
Before sending emails in connection with any Promotions or promoting the Products pursuant to this Agreement, Contractual Partner shall download the applicable “Suppression List” and remove all email addresses appearing on the Suppression List and shall only send emails to the remaining addresses on its email list. No emails shall be sent to any email address associated with any recipient on the Suppression List. Contractual Partner shall be responsible for any sending of email messages as well as proper usage of the Suppression List. The Suppression List shall constitute YouKey’s Confidential Information, as defined herein, and Contractual Partner shall not sell, lease, exchange, transfer, release, or use the Suppression List either directly or indirectly for business purposes whatsoever for any purpose other than to fulfill its obligations under this Agreement. Contractual Partner shall download the Suppression List at least every seven (7) days until this Agreement is terminated, and suppress all email addresses in the Suppression List before sending emails pursuant to this Agreement. Contractual Partner shall not transmit, initiate, or send any emails to any recipient who previously requested not to receive commercial email messages from or on behalf of YouKey or any sender of the email. Contractual Partner further agrees that it will not mail or market to any suppression files provided by YouKey.
Emails shall include a clear and conspicuous identification that the message is an advertisement or solicitation. Such an identification shall state “This is an advertisement” or words of identical meaning.
Emails shall include a clear and conspicuous notice of the recipient’s right to opt-out of receiving future emails from YouKey or the email sender and a functioning return email address or other Internet-based mechanism that a recipient may use to make such an “opt-out request.” The opt-out mechanism must remain active for at least thirty (30) days from the date the email is sent or the life of the Promotion, whichever is longer. Each email unsubscribe request shall be honored within ten (10) days from receipt of request. Contractual Partner shall maintain electronic or tangible records confirming the removal of each such email address from any applicable email lists for verification by YouKey. Within one (1) day of consumer’s opt-out request, Contractual Partner shall provide the unsubscribe request to YouKey.
Emails must have truthful, accurate, and non-misleading email header information (including source, destination, date and time, and routing information), subject lines and from lines. Emails shall not mask the email origin. The consumer or intended recipient address shall be posted in the “to” line.
Emails shall use only creatives provided or pre-approved by YouKey in writing. Contractual Partner shall not remove or alter creatives, subject lines, or from lines provided by YouKey or pre-approved by YouKey in writing. YouKey may request, prior to Contractual Partner sending emails under this Agreement, that Contractual Partner submit the final version of such email to YouKey for YouKey’s prior written approval.
All emails sent by Contractual Partner shall be delivered only to addresses on email lists owned or managed solely by Contractual Partner. Contractual Partner represents and warrants that the recipients of all email addresses used by Contractual Partner in connection with this Agreement have manifested affirmative, direct consent to receive commercial emails from Contractual Partner. Contractual Partner shall maintain at all times during the term of the Agreement, and for a period of four years thereafter, complete and accurate subscriber signup/registration data for every email address on each such list. Contractual Partner agrees that, within twenty-four (24) hours of YouKey’s request, Contractual Partner shall provide, at a minimum, the following subscriber sign-up and registration data for any email address to which any email is sent under this Agreement: (a) subscriber’s IP address; (b) date and time of subscriber’s sign-up/registration; (c) location and URL of website of subscriber’s sign-up and registration; and the email address and other information submitted by subscriber at the time of sign up.
Contractual Partner shall not send email messages to email addresses that have been improperly obtained, including addressees harvested from the Internet without consent, through scripts or other automated means of registering for multiple email accounts, “scraping” of websites, or by harvesting addresses from the Internet. Contractual Partner is responsible for knowing the source of its email list. Contractual Partner shall not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.
Contractual Partner shall not use email accounts or domain names that were created using information that falsifies the identity of the registrant, or domain names that are privately or proxy registered. Emails shall not include an originating email address, domain name, or IP address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses.
If Contractual Partner sends emails to Canadian or European Union email addresses or email addresses corresponding to Canadian or European Union users, Contractual Partner shall comply with all applicable international, federal, state and local laws, rules, and regulations including but not limited to Canada’s Anti-Spam Legislation and the General Data Protection Regulation 2016/679.
It is solely Contractual Partner’s obligation to ensure that all emails comply with all applicable laws, rules, and regulations, and this Agreement. Contractual Partner agrees not to rely upon YouKey’s approval of any email or portion thereof for compliance with applicable laws, rules, or regulations or assert any claim that Contractual Partner is in compliance with applicable laws, rules, and regulations based upon YouKey’s approval or non-objection. Contractual Partner shall not use mouse traps or windows that are in all cases only displayed by opening new windows or that cannot be closed; exploit security loopholes on users or servers; omit of clear, valid, and identifiable information regarding the sender and subject of the email; send or forward emails from a protected computer or network that is accessed without appropriate permission.
Contractual Partner shall not send or use text messages or telephone calls, SMS, MMS messages (including any telephone calls using prerecorded voice or sending “ringless voicemails”) to conduct services hereunder, unless YouKey provides its prior express written permission, in which case Contractual Partner shall comply with each of the following requirements:
Contractual Partner shall comply with all applicable state, and local laws, ordinances, rules, regulations and codes concerning telemarketing and text message marketing and all state “Do Not Call” laws, rules, and requirements.
Contractual Partner shall obtain “prior express written consent” from every recipient to which it places any telephone call or sending any text messages, as that term and decisions and orders issued by the interpreting courts.
Contractual Partner shall not place any calls to telephone numbers listed on the national Do Not Call list and all state Do Not Call lists, as well as any other lists that may be provided to Contractual Partner by YouKey.
Contractual Partner shall comply with all applicable laws, rules, and requirements concerning disclosures, opt-outs, and revocation of consent.
Contractual Partner shall implement written policies and procedures to comply with applicable laws, rules, and regulations concerning telemarketing.
Contractual Partner shall maintain an internal “Do Not Call” list of consumers who have requested not to receive telephone solicitations from or on behalf of Contractual Partner and shall not make any outbound calls or send outbound text messages to any telephone numbers or consumers listed on Contractual Partner’s internal “Do Not Call” list. Contractual Partner shall inform YouKey immediately, but in no less than 24 hours, after receiving any “do not call” request from a consumer or revocation of consent to receive telephone calls or text messages concerning YouKey, its products, or the services hereunder.
4. PROMOTER COMMISSION
The Commission paid to Promoter shall be specified on the Sales Platform for the corresponding Products and Promotions. Promoter’s Commission is based on the Product to be marketed and will be agreed upon individually and may be calculated on the basis of the Sales Price. With the exception of Promotions designated as “Cost Per Action,” if an end-consumer returns, requests a refund, or initiates a chargeback for a Product, YouKey shall deduct the corresponding amount from Promoter’s Commission. With the exception of Promotions designated as “Cost Per Action,” if a chargeback, refund, or return is initiated after the corresponding Commission has been paid to Promoter, YouKey reserves to deduct such amount from future Commissions to Promoter.
Promoter shall not receive a Commission if a Promoter is also a Vendor and buys its own Product. Also promoter who buys the product with his own link shall not receive a Commission.
5. SERVICE FEES
The margin for a sale is 10%. Earned commission less Youkey’s service fee will be available to withdraw after 14 days from the sale confirmation date.
6. TERMINATION / BLOCKING
At its own discretion, YouKey is entitled to temporarily block the Contractual Partner’s user account if there are grounds for the assumption that the Contractual Partner is participating in any of the following activities or there is such participation:
Consumer fraud, banking fraud, credit card fraud, sending unwanted advertising (spamming) or other illegal sales activities that violate applicable provisions of law, etc.;
Breach of third-party property rights;
False or misleading statements that violate consumer protection rights or competition law.
YouKey is entitled to terminate the contractual relationship with the Contractual Partner with immediate effect in the dispute of contractual partner breaches and may revoke the right to access YouKey services or to otherwise participate in any such services. In the event of such a termination, the Contractual Partner shall immediately cease use of all YouKey services.
7. INTELLECTUAL PROPERTY RIGHTS
Pursuant to these terms and conditions, YouKey grants the Contractual Partner a non-exclusive, non-sublicensable, revocable license entitling the Contractual Partner to use the Sales Platform, including the web server, computers, and networks available at www.YouKey.lk used to make such website available for purposes set out in these GTC, solely for the purpose of providing the Product to end-consumers. All rights not granted herein are reserved. Contractual Partner is not permitted to, and shall not, use the name, trademarks, service marks, or other rights to intellectual property belonging to YouKey in any form that creates the impression of being a part of or approved by YouKey without the express, advance, and written consent of YouKey. Any authorization granted by YouKey may be revoked at any time, for any reason. YouKey grants the Contractual Partner limited, revocable authorization to use the name “YouKey” and “YouKey.lk” exclusively as a watermark; in a descriptive text on a website as a key word; as a search term; as a seeding element for a web search engine; in metatext or in a hidden text; as a sub-domain or domain name at a secondary or tertiary level; and to identify products or in connection to advertisement.
Vendor grants YouKey a non-exclusive, irrevocable, sublicensable, worldwide right to use and exploit the Product and corresponding advertising material in a comprehensive manner, in particular for the purpose of commercial marketing. This grant expressly includes all forms of offering and promoting the products online, in particular the inclusion in fee-based or free online services, price search engines, blogs, and websites. To the extent the Product is a digital product, Vendor further grants YouKey the following additional rights of use: authorization to permit the end customer to permanently store the Product; the right of duplication, making publicly accessible and dissemination, i.e. the right to duplicate, make publicly available or publicly perform the Product with the aid of any available technical capabilities, in particular by means of digital integration into a website operated by YouKey; the right to make available on demand, i.e. the right to store the Product, to hold it ready for public access, to transfer it to one or more persons who seek access and to analogue or digital electronic databases, electronic data networks, and telecommunications services networks; the right to public performance; and the right to modify the Product itself or have it modified by third parties subject to preservation of author’s rights, to edit the Product, in particular for purposes of integrating the Product into the Sales Platform. In connection with the performance of this contract, Vendor grants YouKey the right to use the respective title of the Products as well as names, logos, images, trademarks, and business designations both of the Vendor and author of the Product including expressly for promotional purposes. Without limiting the foregoing, Vendor grants YouKey the right to sub-licenses the rights granted herein.
8. CONFIDENTIALITY
The Contractual Partner may be granted access to YouKey’s confidential information (“Confidential Information”) as part of this Agreement. Confidential Information shall include, but not be limited to: the identity of other contractual partners, information about buyers, information about physical security and data security, technical data, YouKey marketplace statistics and sales data, know-how, information about business processes, methods and marketing strategies, the existence and terms of this Agreement, YouKey’s business and financial information, data reports, research, product plans, email mailing lists, marketing plans, software developments, inventions, processes, designs, drawings, hardware configuration information, marketing or financial data customer and vendor lists, and pricing and sales information. Such Confidential Information shall also include YouKey’s trade secrets. Except as necessary to satisfy its obligations under this Agreement, Contractual Partner may not use or disclose Confidential Information to third parties without the prior express written consent of YouKey. Contractual Partner shall not disclose to any third party, or permit any other person or entity access to, the Confidential Information except as required by an employee, agent, officer, director, partner, or representative of Contractual Partner to perform its obligations under this Agreement. Contractual Partner shall use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third parties. Confidential Information may not be used to divert, advertise to, or market to YouKey customers with regard to products or services that directly or indirectly compete against YouKey or YouKey services including the function of the marketplace.
Contractual Partner shall immediately notify YouKey in writing of all circumstances surrounding any unauthorized possession, use, access, knowledge, or disclosure of Confidential Information. If Confidential Information is required to be disclosed by operation of law via a third party or court request, such as a subpoena requesting Contractual Partner to disclose such information, Contractual Partner shall immediately inform YouKey in writing sufficiently in advance of disclosure to allow YouKey to challenge disclosure, prior to the time commanded to produce or disclose such Confidential Information. Contractual Partner agrees to cooperate in whatever way YouKey requests to attempt to protect Confidential Information from disclosure by operation of law. Contractual Partner agrees that its obligations in this section are necessary and reasonable in order to protect YouKey and its business, and Contractual Partner agrees that the remedy of damages would be inadequate to compensate YouKey for any breach by Contractual Partner of its obligations set out under this section. Accordingly, in addition to any other remedies that might be available, YouKey shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Contractual Partner, without limiting any other rights and remedies to which YouKey may be entitled.
“Confidential Information” does not include suggestions, submissions, comments, ideas, concepts, informational materials and feedback (“Feedback”) sent to YouKey by the Contractual Partner. Contractual Partner grants YouKey and the licensees a global, perpetual, irrevocable, non-exclusive, royalty-free, and transferable license, which may be sub-licensed, to reproduce, present publicly, to distribute, perform, broadcast, edit, modify, alter and publish, as well as for the sale, commercial use, exploitation, and disclosure of such information for any purpose and in any form in any currently-known media. By transmitting any Feedback to YouKey, Contractual Partner represents and warrants that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that Contractual Partner has all rights necessary to convey to YouKey and enable YouKey to use such Feedback.
9. INDEMNIFICATION
Contractual Partner shall indemnify, defend, and hold harmless YouKey and its subsidiaries, Promoters, partners, and licensors, directors, officers, employees, shareholders, managers, successors, owners, related companies, agents, and assigns against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) (collectively “Claims”) based on, related to, or resulting from any act or omission by Contractual Partner, including but not limited to: (i) any breach or violations of this Agreement or any law, rule or regulation, by Contractual Partner, Third Party Promoter, or any other third party, including any representation, warranty, covenant, restriction, or obligation made by Promoter, Vendor, or third party herein, or any Promotion-or Product-specific terms; (ii) any misuse by Contractual Partner or a party under the reasonable control of Contractual Partner or obtaining access through Contractual Partner, of the Promotions, Products, or YouKey’s Confidential Information; (iii) the Promotion or Product; (iv) improper operation of a Promotion by Contractual Partner; (v) the negligence or willful misconduct of Contractual Partner, Third Party Promoter, or party within the reasonable control of Contractual Partner; (vi) a violation of any laws, rules, or regulations in the performance of Contractual Partner’s obligations under this Agreement; (vii) any claim relating to the violation or infringement of the intellectual property rights of any third party; (viii) fraud, and (ix) bodily injury or harm (including death) caused by the actions or omissions of Contractual Partner. This indemnity is specifically intended to operate and apply even if it is alleged or proven that all or some of the damages sought were caused as a whole or in part by any act, omission, negligence, gross negligence, breach of contract, intentional conduct, violation of statute or common law, breach of warranty, product defect, strict liability, or any other conduct whatsoever of YouKey. If any Claim is or shall be brought against YouKey, in respect to any allegation for which indemnity may be sought from Contractual Partner, YouKey shall notify Contractual Partner of any such Claim of which it becomes aware and shall: (a) provide reasonable cooperation Contractual Partner at Contractual Partner’s expense in connection with the defense or settlement of any such claim; and (b) be entitled to participate, including in the selection of legal counsel, in the defense of any such Claim. Notwithstanding anything in this Agreement to the contrary, YouKey may select legal counsel to represent it in any matter for which Contractual Partner is obligated to indemnify YouKey, and Contractual Partner shall pay all such counsel’s billed fees and costs. Contractual Partner shall not agree to any judgment or enter into any settlement that adversely affects YouKey’s rights or interests without the prior written consent of YouKey.
10. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
THE PROMOTER PROGRAM, SALES PLATFORM, PRODUCTS, AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOUKEY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. YOUKEY DOES NOT WARRANT THAT THE PRODUCTS, PROMOTIONS, SALES PLATFORM, OR ANY OTHER SERVICES PROVIDED BY YOUKEY WILL MEET CONTRACTUAL PARTNER’S SPECIFIC REQUIREMENTS, ARE ACCURATE, COMPLETE, OR CURRENT, OR THAT THEIR OPERATION WILL BE ERRORFREE OR UNINTERRUPTED. WITHOUT LIMITING THE FOREGOING, YOUKEY DOES NOT GUARANTEE THAT PROMOTER OR VENDOR WILL EARN ANY SPECIFIC AMOUNT OF MONEY, AND YOUKEY EXPRESSLY DISCLAIMS BENEFIT THAT CONTRACTUAL PARTNER MIGHT OBTAIN FROM THE PROMOTER PROGRAM, SALES PLATFORM, PRODUCTS, AND ANY OTHER SERVICES PROVIDED BY YOUKEY. IN NO EVENT SHALL YOUKEY BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SALES PLATFORM, PROMOTIONS, PRODUCTS, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. IN THE EVENT THAT YOUKEY PROVIDES SERVICES OR INPUT RELATED TO CONTRACTUAL PARTNER’S WEBSITE, WEB PAGES, TECHNICAL SYSTEMS, ADVERTISING, MARKETING, OR ANY OTHER ASPECT OF CONTRACTUAL PARTNER’S OPERATIONS, CONTRACTUAL PARTNER EXPRESSLY ACKNOWLEDGES AND AGREES THAT YOUKEY SHALL NOT BE LIABLE FOR ANY RELATED OR RESULTING DAMAGES OR CAUSES OF ACTION ARISING THEREUNDER.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOUKEY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT YOUKEY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. YOUKEY’S CUMULATIVE LIABILITY TO CONTRACTUAL PARTNER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNTS PAID TO CONTRACTUAL PARTNER BY YOUKEY TO CONTRACTUAL PARTNER DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM. CONTRACTUAL PARTNER EXPRESSLY ACKNOWLEDGES AND AGREES THAT YOUKEY SHALL NOT BE RESPONSIBLE FOR ANY ADVERTISING CLAIMS MADE ABOUT PRODUCTS PROMOTED ON THE YOUKEY WEBSITE, OR ANY DAMAGES ARISING OUT OF USE OF THE PRODUCTS.
11. MISCELLANEOUS
This Agreement shall be governed by the law and Parliament acts of Sri Lanka, notwithstanding its conflicts of law provisions. If any dispute arises under this Agreement, the parties agree to submit the dispute to binding arbitration in Sri Lanka, conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, YouKey may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in Florida or any other court where personal jurisdiction exists over Contractual Partner, at YouKey’s sole discretion. In the event that a dispute or proceeding arises hereunder, the parties agree that any required service of such dispute or proceeding may be affected by email, or facsimile, or delivered personally, or by registered or certified mail (return receipt requested) or recognized national overnight courier service. The parties expressly agree that notification and service (including service of process) by email, or facsimile, or delivered personally, or by registered or certified mail (return receipt requested) or recognized national overnight courier service, shall constitute sufficient service, regardless of any law, rule, or regulation to the contrary, and each party irrevocably waives its right to challenge service using any of these methods as insufficient under any applicable law, rule, or regulation.
Any modifications to this agreement must be made in writing. This written form requirement applies likewise to any waivers of this written form requirement. Contractual Partner may not assign all or any part of this Agreement without YouKey’s prior written consent. YouKey may assign this Agreement at any time with notice to Contractual Partner. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors, and valid assigns of the parties hereto. If any provision of this Agreement is held to be void, invalid, or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Nothing herein shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. This Agreement embodies the entire agreement between the parties hereto with respect to the subject matter herein. This Agreement may not be amended or modified except by a writing duly executed by the parties hereto. These GTC contains the entire agreement between YouKey and Contractual Partners with respect to the subject matter herein, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Contractual Partners agree that YouKey shall not be subject to or bound by any other agreement, insertion order, or online terms and conditions that amend, conflict with, or supplement these GTC, regardless of whether YouKey “clicks through” or otherwise indicates its acceptance thereof.
All notices pursuant to this Agreement to Contractual Partner shall be sent to the address or email address submitted by Contractual Partner to YouKey. All notices pursuant to this Agreement to YouKey, shall be sent via certified mail to: YouKey, No 31, Sri Soratha Mawatha, gangodawila, Nugegoda, Sri Lanka. Contractual Partner shall immediately inform YouKey of any changes in address, business name, or other contact information.
