Terms of Service

This Agreement governs your participation in and/or use of certain services or features of the DomainSponsor™ program (the "Program", "We" or "Our") managed by the program manager ("Program Manager"). By participating in or using the services or features of the Program, you are agreeing to be bound by these terms of service ("Terms of Service").

These Terms of Service include the following:

Domain Monetization (applicable to publishers)
Buying & Selling Domains (applicable to those wishing to buy or sell domain names)
Additional Terms (applicable to ALL Users, including publishers and buyers and sellers of domains)

In order to participate in or utilize features of the Program you MUST agree to the applicable Terms of Service, which agreement can be achieved by clicking on the box "I accept" at the end of these Terms of Service.

1. Domain Monetization

DomainSponsor™ is a service that empowers domain name owners to generate earnings based on appropriate incoming traffic to their domains, as described herein. The term "Publisher" refers to any individual or entity participating in the "domain monetization" portion of the Program. "Publisher" is also included in the definition of "User". The terms set forth in Section 3 are also applicable to each Publisher.

1.1 Payment; Taxes and Withholding; Payment Disputes.

Payment. Publishers will be paid a commission of a minimum of 50% of Revenues (as defined herein). Commissions will be paid to Publisher in U.S. Dollars (USD), as near as possible to seven (7) days after a commission accounting which occurs at the end of each calendar month. In the event that the commission payable for a particular calendar month is less than $50, the Publisher will be paid as near as possible to seven (7) days after the end of the calendar month in which the total amount of commissions payable and unpaid to Publisher exceeds such amount. Any changes, including commission adjustments, terms of payment, payment dates and other payment related adjustments may be detailed in a separate contract or an additional agreement between Program Manager and the Publisher. Publisher acknowledges that Program Manager agrees to make commission payments to Publisher pursuant to these Terms of Service based on the mutual understanding that Program Manager will be able to monetize the traffic through agreements with its upstream advertiser partners. If Program Manager is unable to collect revenues from any such third party partners due to any failure of Publisher to comply with the terms of these Terms of Service, any breach of Publisher's representations, warranties or covenants contained herein or any other factor that would prevent Program Manager from earning Revenue on Publisher Sites, then commissions payable to Publisher hereunder shall be reduced accordingly. If the amount earned by Publisher hereunder is reduced to an amount less than the amount previously paid by Program Manager, then Publisher shall immediately pay the difference to Program Manager.
Taxes and Withholding. Publisher understands and agrees that taxes with respect to commissions or any other payments made by Program Manager to Publisher hereunder will not be withheld or paid directly or indirectly by Program Manager unless Program Manager determines in its sole discretion that Program Manager or its affiliates may be liable for any such taxes, in which case it shall withhold the estimated amount and notify Publisher of such withholding. Publisher understands and agrees that it is Publisher's responsibility to pay all local, state, federal, and/or foreign taxes on commissions and other income received from Program Manager pursuant to the terms of these Terms of Service. Publisher agrees to indemnify the Program Parties (as defined below) from, and promptly reimburse to the Program Parties through Program Manager and its affiliates, any claim or assessment of taxes by any foreign, United States, state, and/or local taxing authority, and any other costs and damages, arising from or in connection with the operation of this Section 1.1. All payments may occur only after Publisher supplies a valid and signed IRS Form W-9 for U.S. companies or an IRS Form W-8BEN for foreign residing companies. Address and contact information on these forms will be confirmed as correct, prior to any payouts. These forms will remain confidential and on file with Program Manager and only shown, by request and/or in accordance with US or California State law to a US or State government representative or to auditors. Please refer to our Privacy Policy for more details.
Payment Disputes. Publisher understands and agrees to address any questions Publisher may have with any payment of commissions under these provisions to Program Manager within thirty (30) days of the date of such payment, in writing or by e-mail to DSSupport@domainsponsor.com. Failure to so notify Program Manager within such period will constitute an acceptance of, and agreement with, the payment.

1.2 Restrictions and Rights

All of the following terms and conditions must be adhered to and are legally binding, immediately upon acceptance of these Terms of Service.

General Restrictions

Program Manager reserves the right to terminate Publisher's participation in the Program in its absolute and sole discretion.
Publishers may not generate traffic to their website or our links by any of the following methods: listings on newsgroups, bulk e-mailing, icq postings, IM messages, chatroom/irc postings, iframes, zero pixel frames, hitbots, clickbots, spiders, cgi-scripts, JavaScript, DNS hacking, spoofing or pharming, cache poisoning, any toolbar or downloading of any computer software application ("Downloadable App"), altering an End User's host file to point another domain to a Publisher's domain, PTC Programs, click forms, via cellphone messages, online viral media, other online incentives, media advertising of any type, any promotion of a domain, including, but not exclusively, communications or press release with a media outlet or organization capable of public communications with the intention to create an interest or drive traffic in a domain, or any other similar method.
Publishers are prohibited from monetizing domain names they do not own by all previously mentioned methods.
Publishers may not misrepresent their ownership of a domain name as being a different domain in any way.
Publishers may not beg, ask, entice, or incentivize End Users into clicking on our links.
Publishers may not mislead visitors into believing that he/she will receive anything, other than an internet search by clicking on a text link or search box or otherwise encourage End Users or other persons, either with or without their knowledge, to click on advertising results through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent, in the judgment of Program Manager.
Program Manager reserves the right to terminate your account if it is idle for more than a month. Program Manager will notify you 7 days in advance of such cancellation.

Additional Restrictions. Publisher shall not: (a) edit, modify, filter, alter, truncate, rearrange, add to, or change the look, feel or content of any Landing Page or Search Results Page; (b) host the Landing Page or Search Results Pages; (c) (i) redirect an End User away from the Search Results Page, (ii) provide a version of the Search Results Page different from the page served to an End User by or as directed by Program Manager, (iii) cache, capture, or store any search results or intersperse any content between the Search Results Page and destination page which would result from a Click on a link on the Search Results Page, including, without limitation, content framing (framing of landers or framing of the search results is prohibited without prior written permission by the Program Manager for all Landing Pages or Search Results Pages or (iv) display any Search Results Pages or Landing Pages, or the content thereof, in part or in total, to any third parties, including, without limitation, display on any Publisher Sites or anywhere else, (d) enter into any arrangement or agreement under which any third party pays Publisher fees or shares in any revenue payments and/or royalties for any search results displayed on the Publisher Site, except as permitted in these Terms of Service or (e) display graphical or text units in any form (including but not limited to pop-up, pop-under or exit windows, expanding buttons and animation) that block or otherwise inhibit the full and complete display to End Users of any Search Results Pages, landing Pages, and/or Web pages accessed by clicking on any part of a search result.

Search Results Pages accessed by End Users through the Program shall be solely through Program Manager's servers (or such other servers as Program Manager in its sole discretion may use, hosted on Program Manager's servers or domains, meaning that Program Manager shall host or on its behalf provide for hosting of all Search Results Pages in response to valid queries entered by End Users. No Publisher Site shall: (a) provide any interface for a Downloadable App, any marketing materials for any Downloadable App, or any hyperlinks to any of the foregoing; (b) be a downloadable or Internet accessible application, as determined by Program Manager in its sole reasonable discretion; (c) under any circumstances, be a competitor of any search engine company, as determined by Program Manager in its sole reasonable discretion; (d) place, display or use any unauthorized branding or attribution of any kind on such Publisher Site, including without limitation on any Landing Page, Search Results Page or framed in conjunction with any such pages, to indicate that any search engine is providing such results or for other promotional purposes, (e) contain any pornographic, hate-related or violent content or contain any other material, products or services that (i) violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights, or (ii) would otherwise give rise to civil liability or (f) include content above or below the Landing Page, unless that content is submitted for approval in writing to the Program Manager and pre-approval in writing is received from the Program Manager, prior to any such changes are made.

In the event that any domain name is blocked from use on the Program by Program Manager, such domain name may not participate, either directly or indirectly, in the Program without the express written consent of Program Manager. Accordingly, neither Publisher nor anyone acting on behalf of Publisher shall redirect or attempt to redirect the domain name to the Program through use of embedded redirection or other method intended to avoid the blocking of such domain name from participation in the Program. Any failure to comply with the terms of this policy may result in an immediate termination of Publisher's account and forfeiture of any commissions earned or to be earned by Publisher hereunder.

Domain Names & Intellectual Property Rights. Publisher shall not place with Program Manager or in any way through the Program a domain name (i) to which it does not have valid ownership, as determined by Program Manager in its sole discretion or (ii) which infringes on the intellectual property rights of a third party. In the event that any such name is provided for use in the Program, and such lack of rights or infringement is brought to the attention of Program Manager, then Program Manager shall have the right to cancel the participation of any such names in the Program, and, in appropriate situations, in the sole discretion of Program Manager, terminate Publisher from the account and seek legal recourse against Publisher and any others involved. Publisher hereby agrees to indemnify, defend and hold harmless the Program Parties from any claim that the domain name is owned by someone other than Publisher or that the domain name infringes on the intellectual property rights of a third party.

Additional Definitions. As used herein, the following capitalized terms shall have the meanings provided as follows:

"Clicks" means a click by an End User. "Clicks" do not include clicks which are invalid as determined by Program Manager's internal tracking system or for which Program Manager does not recognize revenue from its advertiser partners. Invalid Clicks may include clicks (1) generated by automated crawlers, robots or click generating scripts providing traffic which has no intent to sign-up, purchase or otherwise act upon a product or service offering; (2) multiple clicks on the same advertisement within a brief period of time, or (3) that an advertiser receives and rejects for a valid business purpose (e.g., a Click which was not generated by an End User).

"End User" means a bona fide living human Internet user. An "End User" excludes any person or any mechanical, artificial or fraudulent means (such as a so-called robot, spider, software or scraper) lacking an intention to purchase, sign up or otherwise act upon a product or service of the marketer contained on a Landing Page or Search Results Page.

"Landing Page" means an html page or a framed html page hosted by or on behalf of Program Manager displaying search links, search results and/or other content from Program Manager servers or such servers as Program Manager uses.

"Publisher Site" means any website associated with a domain name owned by a Publisher.

"Revenue" means estimated gross revenue to be received by Program Sponsor for a particular calendar month as a direct result of Clicks on an advertisement or other promotional link attributable to traffic from Landing Pages or Search Results Pages hosted on a Publisher Site pursuant to the Program as reported by Program Sponsor's upstream advertiser partners as of the end of such calendar month (plus or minus any bad debt, net credits or returns from previous periods) less any amount Program Manager determines, in its sole discretion, was the result of improper use of Publisher Sites and as such revenue is otherwise calculated or adjusted by Program Manager to take into account any exclusions set forth in these Terms of Service and any other adjustments made by Program Manager in its sole discretion. Program Manager may exclude from Revenue monies from traffic that originates from countries where traffic is, in the sole discretion of Program Manager, suspect or difficult to track in the normal course of business.

"Search Results Page" means an html page hosted by or on behalf of Program Manager displaying search results pulled from Program Manager servers (or such other servers as Program Manager elects to use), which has resulted from a typed in search or a keyword click from and only from a Landing Page.

Consequences of Non-Compliance. Publisher acknowledges that, in addition to any other remedies at law that Program Manager may have, failure by Publisher to comply with any or all of the terms in these Terms of Service will result in (i) the forfeiture by Publisher of any yet unpaid commissions and/or (ii) the obligation to pay additional compensation from future earnings, over time, to compensate for the monies paid out by Program Manager plus applicable interest, limited to 5% per annum of the principal, accrued monthly. Future earnings payment apply only if Publisher is a still existing client. Monies due will be based solely on payments made on such domain names with issues of violations for the time period that Publisher's domain names subject to the Program were in violation of the terms plus any applicable interest, as stated above. Interest will be for the principal only and is meant to compensate Program Manager for the interest accrued of such funds that have been kept by Publisher for payouts that were in violation of the terms of this agreement. Program Manager shall make the determination of length of time and value of any violation of the terms herein, solely and such determinations will be final. Publisher may present information to the contrary up to 15 calendar days after notification to Publisher of the beginning of the investigation. Publisher agrees to hereby accept Program Manager's decisions regarding such term violations as final and wave any litigation rights, whatsoever, of any issue, compensation or otherwise relating to the decision and/or term violations. Publisher agrees to accept repayment plans set by the sole discretion of Program Manager. However, such repayment plans will not exceed the date that this agreement is terminated by either party and such outstanding funds will not be pursued by Program Manager upon the termination of this agreement between Publisher and Program Manager, unless the terms violations are considered to be gross and of criminal intent, according to the laws of California. Publisher or Program Manager may terminate this agreement at any time. Program Manager reserves the right to access any outstanding balance payments, in its sole discretion, if Publisher, its subsidiary, or related company were to reapply to be a Publisher using the Program at any time in the future. Finally, such failures may also result in the termination of Publisher's account. Further legal courses of action may be considered to prosecute a violating Publisher.

2. Buying and Selling Domains

This feature of the Program, "Domain Offer Service", enables offers to be made, considered and negotiated for domain name purchases. Owners of certain domain names can make such domain names for sale and consider offers provided to them; others can make offers to purchase domain name. If you wish to make or receive any offers on domain names, then the terms in this Section 2 apply to your use of the Domain Offer Service, in addition to the other terms in this Terms of Service that have been identified as applicable to all users. Throughout this part of this Terms of Service "Domain Name Owner" refers to each person or entity owning domain names that may be available for purchase. "Bidder" refers to each person or entity expressing an interest in making an offer or who makes an offer to purchase a domain name though the Domain Offer Service. Together, Domain Name Owners and Bidders are referred to in this Section 2 as "Domain Offer Service Participants", which is also included in the definition of "User". Terms set forth in Section 3 also apply to each Domain Offer Service Participant.

2.1 Limits on the Role of Program Manager

Each Domain Offer Service Participant understands and acknowledges that Program Manager only manages the venue, Domain Offer Service, and that Program Manager: (1) does not serve as a broker or an auctioneer; (2) does not own any of the domains for sale; (3) does not serve as a representative of either party; and (4) does not get involved in any part of the transaction, including the actual sale, transfer of funds or transfer of any domain.

2.2 Other Acknowledgements

Each Domain Offer Service Participant also understands and acknowledges that:

Each Domain Offer Service Participant is responsible for the accuracy of the information he, she or it provides that is to be used in the Domain Offer Service. Program Manager has no involvement whatsoever.
Program Manager does not provide any assurances at all, including without limitations any assurances that any Bidder is capable of completing any transaction in whole or in part or that Domain Name Owner possesses any rights to be sold.
Each Domain Offer Service Participant grants Program Manager the right to release your e-mail contact information you provided for the purpose to exchange contact information with a potential buyer of a domain, to enable those making offers to communicate with you regarding the final terms. This grant does not alter other terms of our privacy policy, although Program Manager shall not be responsible for the use of e-mail or other information by any other Domain Offer Service Participant.
Program Manager shall not be liable for transactions or other acts of persons or entities using the Domain Offer Service.
Given the role of Program Manager, transfer of legal ownership does not involve Program Manager in any way at all. These terms do not modify the governing provisions of Ca. Com. Code §2401(2) and Uniform Com. Code §2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller.
Program Manager reserves the right to remove any domain name from being listed as available for persons to make offers. Program Manager can exercise this right at any time, without prior warning or explanation and as often as it deems in its sole discretion appropriate.
If a Bidder acquires any domain name through the Domain Offer Service it does not mean that you are automatically enrolled in any programs under DomainSponsor. Please make a direct application to that program.

2.3 Release and Indemnification

In addition to the indemnifications elsewhere in these terms, each Domain Offer Service Participant releases and forever discharges Program Manager from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you as a Domain Offer Service Participant is a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."

3. Additional Terms (applicable to all Users)

The following terms apply to all users whether Publishers or Domain Offer Service Participants (together, "Users").

3.1 Representations & Warranties

All of the following terms and conditions must be adhered to and are legally binding immediately upon agreement. Program Manager represents and warrants that it has full power and authority to enter into these Terms of Service. Publisher represents and warrants that (i) it has full power and authority to agree to these Terms of Service, (ii) it owns or has the right to use all necessary rights, including all Intellectual Property Rights, to the domain names and Publisher Sites and (iii) it will not place in the Program any domain names which would violate Section 1.2 above.

THE PROGRAM, THE PROGRAM MANAGER AND THEIR AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, ADVERTISERS AND AGENTS ("PROGRAM PARTIES") ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING ADVERTISERS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE PROGRAM PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PROGRAM REMAINS WITH USER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PROGRAM PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF THE PROGRAM, (B) THE NUMBER OF PERSONS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE PROGRAM, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE PROGRAM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROGRAM PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PROGRAM, EVEN IF PROGRAM MANAGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF ANY PROGRAM PARTY FOR ANY DIRECT DAMAGES SHALL NOT EXCEED FIVE DOLLARS ($5.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO USER.

3.2 Intellectual Property

As between Program Manager and User, Program Manager (or others it so designates in writing) shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), relating to the Program (and any derivative works or enhancements thereof), including but not limited to, all software, technology, materials, guidelines, documentation, relating in any way to the Program. For purposes of the Agreement, "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide. User shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to the Program or Program Manager; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Program, or any other technology, software, materials and documentation related to the Program or the Program Manager; (iii) crawl, index or in any non-transitory manner store or cache information obtained from the Program; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from the Program Manager, timesharing, service bureau or other unauthorized purposes any aspect of the Program or access thereto; (v) directly or indirectly access, launch and/or activate the Program through or from any software application or means other than the Publisher Site; or (vi) engage in any action or practice that reflects poorly on the Program, Program Manager or its vendors, or otherwise disparages or devalues the reputation or goodwill of the same.

3.3 Confidentiality

User agrees to safeguard and, except for the benefit of the Program, not to disclose to anyone outside the Program any proprietary or confidential information acquired which User has access to the Program. Such information includes, without limitation, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.

3.4 Modifications

Program Manager reserves the right to change any of these terms and conditions at any time without notice. User is responsible for complying with any changes to the terms and conditions within ten (10) days of the date of change.

3.5 Indemnification

User shall indemnify, defend, and hold harmless the Program Parties from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, attorney fees, accounting fees, and expert witness fees) incurred by the Program Parties ("Losses"), known or unknown, contingent or otherwise, directly or indirectly arising from User's breach of any term or provision of these Terms of Service or any way related to User's use of the Program.

3.6 Privacy Policy

Program Manager's Privacy Policy is hereby incorporated by reference into these Terms of Service. The Privacy Policy provides rights to the Users and the Program Manager's responsibilities with regard to Users' personal information. Program Manager shall not use information of a User in any way inconsistent with the purposes and limitations provided in the Privacy Policy.

3.7 Miscellaneous

Governing Law. These Terms of Service shall be governed by, and construed in accordance with, the laws of the State of California, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service.

Jurisdiction and Venue. Any litigation based hereon, or arising out of, under, or in connection with these Terms of Service, shall be brought and maintained exclusively in the courts of the State of California or in the United States District Court for the Central District of California. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the courts of the State of California and of the United States District Court for the Central District of California for the purpose of any such litigation as set forth above. The parties hereto further irrevocably consent to the service of process by personal service within or without the State of California. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.

Waiver of Jury Trial. Each of the parties hereto hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms of Service and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.

No Third Party Beneficiaries. These Terms of Service are made solely for the benefit of User and the Program Parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms of Service.

Prohibition of Assignment. User may not assign any of its rights or delegate any of its duties under these Terms of Service without the prior written consent of the Program Manager. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under these Terms of Service.

Successors and Assigns. Except as otherwise expressly provided in these Terms of Service, these Terms of Service shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties to these Terms of Service.

Independent Contractor. User is an independent contractor and in no way and under no circumstances that User should look to the Program for compensation and benefits as an employee.

Force Majeure. If any party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, government regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party's performance shall be excused.

Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms of Service shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Program Manager in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

Entire Agreement. Except as may be set forth in an written agreement signed between Program Manager and User, these Terms of Service constitute the final, complete, and exclusive statement of the terms of the use of the Program between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.

Severability. If a court or an arbitrator of competent jurisdiction holds any provision of these Terms of Service to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of these Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.

Attorneys Fees. If Program Manager prevails in any action, suit, or proceeding arising from or based upon these Terms of Service, Program Manager shall be entitled to recover from User Program Manager's reasonable attorneys' fees in connection therewith in addition to the costs of such action, suit, or proceeding.

Headings. The headings in these Terms of Service are included for convenience only and shall neither affect the construction or interpretation of any provision in these Terms of Service nor affect any of the rights or obligations of the parties these Terms of Service.