HITLAB PROMOTER INC.
IMPORTANT – READ CAREFULLY
The use of this site and the participation in the Compensation Plan is not intended for children under eighteen (18) years of age. If you are less than eighteen (18) years of age please DO NOT register any Top Promoter account or otherwise use this Website.
This Agreement constitutes a binding legal agreement between you and Hitlab Promoter Inc. (hereinafter referred to as “Hitlab”) governing your use of www.toppromoter.com (hereinafter the “Website”), which includes, but is not limited to, online or electronic documentation, Internet-based services or components, associated media and/or printed materials. By using and/or visiting the Website, or any other Websites owned or operated by Hitlab, you signify your assent to this Agreement. Hitlab reserves the right to modify, alter, amend or update this Agreement at any time, without notice to you. Your continued use of the Website and/or participation in Visitor Activities, Customer Activities or Promoter Activities (hereinafter defined) constitutes your acceptance to, and duty to abide by, this Agreement as it may otherwise be modified, altered, amended or updated.
PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THIS WEBSITE YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL APPLICABLE LAWS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR CANNOT COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT USE THIS WEBSITE.
BY USING THIS WEBSITE, YOU HEREBY AGREE AS FOLLOWS:
1.1. Hitlab operates both an online retail outlet and a distribution platform that allows Users to engage in direct selling by operating private online retail outlets (hereinafter “Personally Replicated Websites”) and affiliate networks (hereinafter “Downlines”).
1.2. Each person visiting the Website is hereby characterized, and hereinafter referred to, as a “Visitor”. Each Visitor using the Website as a consumer is characterized, and hereinafter referred to, as a “Customer”. Each Customer will have access to the Website and will be able to browse or purchase products from the product offering including but not limited to any given artist’s (hereinafter a “Hitlab Artist”) songs or individual musical recordings. The download price or selling price is solely the decision of Hitlab. PLEASE NOTE: Hitlab reserves the right to change and/or alter the sale price, from time to time, as it may deem advisable.
1.3. Each and every Customer is strongly encouraged to promote Hitlab Artists and/or products and to become a Top Promoter Team Member (hereinafter sometimes referred to as a “Promoter”) and in doing so be given the opportunity to earn commissions and/or other rewards based on sales to Customers and/or other Promoters he recruits. There are countless ways to promote, market and/or sell artist songs including, but not limited to, the use of the Internet, Email services or street level marketing. While no one method is preferred over another, Promoters are free to customize their user page as they see fit, so long as the Promoter abides by the terms and conditions of this Agreement, in addition to all applicable laws, rules, and regulations including any and all direct selling legislation.
1.4. This Agreement, the Compensation Plan and all related material, including promotional materials that can be found at the Website or otherwise provided by Hitlab or approved by Hitlab in writing, constitutes the Top Promoter Program (hereinafter the “Program”).
2.1. With respect to the Website, Hitlab only acts as a facilitator by providing a forum for promoting, selling and distributing songs created by Hitlab and others.
2.2. Hitlab authorizes the Visitor to use the Website, or any associated website, provided that (i) the use is solely for lawful means, (ii) the Visitor will not copy or distribute any part of the Website, (iii) the Visitor will not modify or otherwise change the Website, except for any reasonable means necessary to use the Website for its intended purpose(s), and (iv) the Visitor will otherwise comply with the terms and conditions of this Agreement, including those applicable to Customers and/or Promoters, as the case may be.
2.3. You may not, in connection with the Website:
2.3.1. upload, post, Email or otherwise transmit any User Content (as defined hereunder) that is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized;
2.3.2. provide false or deceptive information;
2.3.3. do that which infringes or violates any patent, copyright, trademark, trade secret or other property right;
2.3.4. do that which breaches a duty of confidentiality by which you may be bound due to a contractual or fiduciary relationship (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
2.3.5. do that which a reasonable person would consider harassing, abusive, threatening, harmful, vulgar, profane, obscene, excessively violent, racially, ethnically or otherwise objectionable or offensive in any way;
2.3.6. do that which constitutes a breach of any person’s privacy or publicity rights, a misrepresentation of facts, or hate speech;
2.3.7. do that which violates or encourages others to violate any applicable law, statute, ordinance or regulation;
2.3.8. do that which promotes software or services that contains viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful programming routines;
2.3.9. decompile, reverse engineer or disassemble any software or other products or processes accessible through the Website; or
2.3.10. do that which allows usage by others in such a way as to violate this Agreement.
2.4. Links to Third-Party Sites; Search Results. The Website may provide the Promoter with links to or automatically produce search results for third-party sites or resources. In providing links to third party sites Hitlab is offering the Promoter a convenience; however, Hitlab has no control over such third-party sites and resources, and the Promoter acknowledges and agrees that Hitlab is not responsible for the content or information contained therein. Hitlab cannot and does not guarantee, represent, or warrant that the content or information contained in such third-party sites and resources is accurate, legal, non-infringing or inoffensive. Hitlab does not endorse the content or information of any third-party site or resource, and, further, Hitlab does not warrant that such third-party sites or resources will not contain viruses or other malicious code or will not otherwise affect the Promoter’s computer. Hitlab is not responsible for webcasting or any other form of transmission received from any third party sites. By using the Website to search for or link to a third-party site, you agree and understand that Hitlab shall not be responsible or liable, directly or indirectly, for any damages or losses caused or alleged to be caused by or in connection with your use of, or reliance on, the Website to obtain search results or to link to a third-party website. However, if you have a problem with a link from our Website, please let us know by notifying Hitlab at the following Email address: email@example.com.
3.1. Any and all materials you post on the Website including, but not limited to, comments, posts, feedback, messages, text, data, images, graphics, audio, video, music, sound, chat or other communications, together with any ideas, suggestions, opinions, or observations made by you (collectively the “User Content”) whether included in blogs, discussion groups, Emails, profiles, comments, or any other portion or feature of the Website are not private and are subject to this Agreement.
3.2. By using the Website, you acknowledge and understand that Hitlab does not guarantee any confidentiality with respect to any of your User Content.
3.3. By submitting such User Content on or though the Website, you hereby warrant the following:
3.3.1. You are the sole author of the User Content and the User Content originated with them and not copied in whole or in part from any other work;
3.3.2. You have obtained all necessary permissions associated with the User Content including, but not limited to, permissions relating to copyrights, trademarks, rights of publicity and/or rights of privacy; and
3.3.3. All User Content submitted to or though the Website, and/or your Hitlab account, will not be unlawful, harmful, threatening, tortuous, defamatory, libelous, abusive, disparaging, pedophilic, pornographic, invasive of another’s privacy, hateful, malicious or otherwise in violation of this Agreement.
3.4. Hitlab does not assume responsibility for any of your User Content. Hitlab expressly disclaims any and all liability in connection with your User Content.
3.5. Your User Content is in no way endorsed by Hitlab and Hitlab makes no guarantees regarding the reliability, accuracy, or quality of any User Content that is posted on the Website, or any other Website, or upon any medium that said information may be posted or otherwise transmitted.
3.6. You bear all risk and responsibility for any User Content posted from your Top Promoter account, including but not limited to, its accuracy and reliability, and any damages, injuries, consequences, or harm that results there from.
3.7. By posting User Content to the Website, you hereby grant Hitlab a worldwide, non-exclusive, royalty-free, sub-licensable, and transferable right and license to use, reproduce, distribute, prepare derivative works of, display, and perform your User Content in connection with the Website and Hitlab’s (and its successor’s) business, including without limitation, for promoting and redistributing part or all of the Website (and derivative works thereof) in any media now known or hereafter developed. The foregoing license, granted by you, terminates once you remove or delete the User Content from the Website and so advise Hitlab.
3.8. Hitlab reserves the right, but undertakes no such duty, to review, edit, move or delete any User Content provided for display or placed on the Website, at its sole discretion and without prior notice.
3.9. All of the information, content, services and software displayed on, transmitted through, or used in connection with the Website including, but not limited to, news articles, opinions, posts, reviews, text, photographs, images, illustrations, graphics, audio clips, video, interactive features, html, source and object code, software, data and the like (collectively the “Content”), as well as its selection and arrangement, is owned by Hitlab (excluding any “User Content” which may be owned by others).
3.10. You authorize Hitlab to use your name, photograph, personal story and/or likeness in advertising/promotional materials and waive all claims for remuneration for such use.
3.11. The Content on the Website is provided to you “AS IS,” for your information and personal use only, and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without the prior written consent of Hitlab or as expressly provided herein.
3.12. The Promoter hereby acknowledges that the trademarks, service marks and logos contained in the Website (collectively the "Marks"), are owned by or licensed to Hitlab Promoter Inc., excluding any “Marks” which may be owned by others, and are subject to copyright, trademark and other intellectual property law rights under the applicable international intellectual property laws and/or conventions.
3.13. Copyright Notice. The www.toppromoter.com website is ©2012 Hitlab Promoter Inc. – All Rights Reserved and no portion of the Website may be copied, reproduced, transmitted, derived, or otherwise used for any purpose without the prior written permission of Hitlab.
4. GETTING STARTED
4.1. In order to use the Website, Visitors are not required to register to view the storefront. Customers must register to complete a purchase. Promoters must register to access the back-office system. You shall only use your account and are strictly prohibited from using the account of any other Customer or Promoter.
4.2. As part of the registration process, you will create a username and password combination, among other things, which should enable you to access your account on the Website. You are responsible for keeping your password private. If an account has been phished (or someone has been able to locate your password or other identifying information), you should take immediate appropriate remedial measures and precautions in order to protect your account and personal and/or financial information. In addition, you must promptly notify Hitlab. Notices shall be provided by Email, sent to: firstname.lastname@example.org.
4.3. PLEASE NOTE: HITLAB DISCLAIMS ALL LIABILITY FROM A PHISHED ACCOUNT, EXCEPT AS MAY BE EXPRESSLY OTHERWISE SET FORTH HEREIN.
4.4. BY REGISTERING WITH THE WEBSITE, YOU HEREBY REPRESENT AND WARRANT THAT:
4.4.1. You are a natural person;
4.4.2. You are of legal age to form a binding contract in the jurisdiction where you reside;
4.4.3. You are not otherwise barred by any laws from using the Website in accordance with the terms and conditions herein.
4.5. When registering an account, and at all times thereafter when using the Website, you warrant that you will provide only accurate, complete and updated information regarding your personal and/or financial information (including information supplied to you, by Hitlab, regarding Hitlab, Promoters or Hitlab Artists and/or their songs). Hitlab reserves the right to terminate the Promoter for any reason and at any time whatsoever without notice.
4.6. You may not select the name of another user (Visitor, Customer or Promoter or otherwise) or other person, with the intent to impersonate that user or other person or to deceive Hitlab, or anyone else as to your true identity.
4.7. Even if you do not have the intent to impersonate or deceive as described above, you shall not select the “same” (identical or substantially similar) name as another user.
4.8. You hereby agree that Hitlab may rely on any data, notice, instruction or request furnished to Hitlab, by you, which is reasonably believed by Hitlab to be genuine and to have been sent or presented by you or a person reasonably believed, by Hitlab, to be authorized to act on your behalf.
4.9. Hitlab and third parties dealing with you and/or Hitlab shall be entitled to rely conclusively upon your power and authority to manage and operate your business and affairs.
4.10. You acknowledge that your sponsor/upline has given you, or you have otherwise been provided with access to current copies of this Agreement, the Compensation Plan, and that you have read and understand same.
4.11. Except for those paragraphs that remain in force notwithstanding termination, you may voluntarily terminate this Agreement and close your account at any time, regardless of reason. If you elect not to renew or to terminate this Agreement, or if it is terminated by Hitlab, you lose all rights to commissions, overrides, position and any other compensation from the date of termination and thereafter.
4.12. Hitlab retains full authority to accept or reject any application or any order submitted by you. Acceptance of your application as a Visitor, a Customer or a Promoter is solely at the discretion of Hitlab. No right of action against Hitlab will arise because of its refusal to accept your application(s) and/or order(s).
4.13. Hitlab may terminate this Agreement immediately without notice if you have violated any term or condition of this Agreement or you have otherwise acted illegally or unethically.
5. PROMOTER RIGHTS, DUTIES AND OBLIGATIONS
5.1. There is no financial or purchase requirement to become an independent sales consultant (“ISC” or “Promoter”) or to enter the Program.
5.2. A Promoter may elect to purchase a web tools subscription (hereinafter “Advanced Promoter’s Kit”) for USD $2.00 per month which is at or below Hitlab’s cost. The Advanced Promoter’s Kit grants the Promoter access to an additional set of tools that allow him to manage his Downline. These tools include but are not limited to internal messaging, online chat, training, events, leads management, organization management, order and commissions reports, and social networking utilities.
5.3. The Promoter is an independent contractor and not a partner, joint venturer, fiduciary, servant, agent, employee, legal representative or franchisee of Hitlab. While the Promoter will be entitled to inform others that he/she is an ISC engaged by Hitlab in an independent status, he/she shall clarify with others, where necessary, his/her status as an independent contractor of Hitlab. The Promoter does not have any power (nor will it represent itself as having any power) to in any way enter into commitments or contracts, assume obligations, give any warranties, make any representation or incur liability of any kind in the name of Hitlab or on behalf of any other Visitor, Customer or Promoter or to otherwise bind or obligate them or to assume or create any expressed or implied obligation or responsibility on their behalf or in their name.
5.4. The Promoter shall have complete control and discretion over the operation of his/her independent businesses including, without limiting the nature of the foregoing, how much or how little time he/she may devote to his/her businesses, and shall be entitled to establish his/her own business goals, business hours, and business methods, policies and procedures. All expenses incurred in connection with registering, operating and/or functioning of the Promoter are solely the obligation and responsibility of the Promoter.
5.5. The Promoter is not obligated to Hitlab, or any other party or company, to perform any services.
5.6. Under no circumstances will you promote the purchase of music available via the Website or the participation in the Program as an investment opportunity.
5.7. Hitlab does not require you to enroll or recruit anyone. Compensation is based upon the sale of products and/or services and not upon recruiting other participants in the Program. Sales of Hitlab products and/or services are a requirement to receive override compensation. The Compensation Plan and your compensation are based on a Promoter’s sales to end consumers or the sales to end consumers by members of a Promoter’s Downline.
5.8. You are responsible for training and supporting the persons you enroll/sponsor into the Program. You will maintain regular communications and provide support to the persons in your downline through personal contacts, texting, Emails, postings, blogs, telephone communications, written communications or attendance at meetings.
5.9. You are not guaranteed a specific income. Your financial success comes only from the purchase of Hitlab products and/or services by the end consumer, building your own downline, and training that downline to sell to new customers, sponsor, and train others in their respective networks.
5.10. Financial reward is based on ability, personal effort, and initiative. In discussing the Compensation Plan, you will make no claims as to income potential either written or oral except those that may prepared by Hitlab from time to time for illustration purposes only.
5.11. Hitlab will pay commissions and overrides to you and your downline from moneys received and accepted by Hitlab for the sale of products and/or services to end consumers made by you and your downline under the terms of the Compensation Plan. You have reviewed and understand this Agreement and the Compensation Plan. However, Hitlab does not pay commissions or overrides on the sale of the Advanced Promoter’s Kit.
5.12. When presenting the Program to others, you will present the program in its entirety, without omission, distortion or misrepresentation. You will only use business and promotional material available on the Website or otherwise provided by Hitlab or approved by Hitlab in writing.
5.13. When presenting or discussing the Program or Compensation Plan to a prospective Promoter, you may not make income projections, income claims, or disclose actual income generated from the Program (including the showing of commission payments, bank statements, or tax records).
5.14. You will conduct all business operations in strict compliance with all applicable laws and other requirements of any federal, provincial, state, municipal, or other governmental agency.
5.15. Actual or attempted cross sponsoring is strictly prohibited. “Cross sponsoring” is defined as the enrollment of an individual who or entity that already has a current Agreement on file with Hitlab, or who has had such an agreement within the preceding six calendar months, within a different line of sponsorship. The use of a spouse’s or relative’s name, trade names, assumed names, corporations, partnerships, trusts, federal ID numbers, or fictitious ID numbers to circumvent this policy is prohibited. Promoters shall not demean, discredit or defame other Promoters in an attempt to entice another Promoter to become part of the first Promoter’s Team.
5.16. You declare, acknowledge, understand and agree that:
5.16.1. you are responsible for determining and conducting your own business activities;
5.16.2. you are an Independent Contractor and not an agent, employee, legal representative or franchisee of Hitlab and will not be treated as an employee for federal, provincial or state purposes;
5.16.3. you will not represent in any manner that you are an agent, employee, or legal representative of Hitlab;
5.16.4. you are responsible for all federal, state, provincial or other income taxes, social security, unemployment, and other taxes on your earnings and will provide your Social Security Number, Social Insurance Number or other applicable tax identification to Hitlab for tax reporting purposes;
5.16.5. as an Independent Contractor, you will be responsible for obtaining any licenses required by law in relation to your operations as a Promoter; and
5.16.6. Hitlab will not be liable whatsoever for city, county, state, provincial, federal or other taxes or other fees pertaining to your efforts and earnings as a Promoter or otherwise.
5.17. No portion of the Advanced Promoter’s Kit payments will be refundable after 10 days from the date of this Agreement. All refund requests must be sent in writing within this period.
5.18. Hitlab grants you the right to use its trademarks and service marks solely in accordance within the scope of this Agreement.
5.19. You will not, under any circumstances, without written permission from a Hitlab officer, contact or solicit any artist that Hitlab represents or any Hitlab supplier. Such action is cause for termination.
5.20. You will not represent or imply, directly or indirectly, that the Program, including the Compensation Plan, has been approved or endorsed by any governmental agency. No governmental agency approves or endorses any marketing company, product, service, or program.
5.21. You will indemnify and hold Hitlab harmless from any and all claims, expenses, costs, causes of action, and damages resulting from or growing out of your statements or actions or any member in your downline in violation of this Agreement or in furtherance of your own business activities. This provision shall survive the termination of the Agreement.
5.22. Except as otherwise provided in this Agreement, all decisions and documents relating to the management and operation of the Promoter account shall be made and executed only by yourself.
5.23. You may have other business interests and may engage in other activities in addition to those relating to Hitlab. However, you may not share or participate in any other investments or activities of any other Promoter.
5.24. Promoters observing a policy violation by another Promoter should submit a written report of the violation directly to the attention of Hitlab detailing the incident, including but not limited to, infraction dates, number of occurrences, persons involved, and any supporting documentation.
5.25. Hitlab reserves all rights not expressly granted to the Visitor, the Customer or the Promoter within this Agreement.
6.1. While allowing the Promoter the right to sponsor/enroll other Promoters into the Program, Hitlab does not pay any bonuses, commissions or other remuneration, or allow anyone to make similar payments, for mere sponsoring/enrolling. To the contrary, the Promoter acknowledges that there is only one revenue earning event for a ISC, namely the sale of Hitlab products and/or services to customers, and that payment of all bonuses, commissions and other remuneration to ISCs under the Compensation Plan is properly to be construed as either payment for the inherent mark-up associated with the resale of Hitlab products and/or services to retail customers, or as payments in respect of the resale of products to others by an ISC’s downline.
6.2. Accordingly, ICRs’ remuneration shall be ultimately based on the reselling of Hitlab products to customers, and no commissions, bonuses, or other business revenues shall be earned from the mere sponsorship or enrollment of any other ISC. The Promoter is strictly prohibited from making or representing that compensation is payable for anything other than sale of product or services.
6.3. No salary of any kind will be paid to the Promoter for performance under this Agreement or participation in the Program. Except as expressly provided in this Agreement, no Promoter shall be entitled to compensation from Hitlab for services rendered to Hitlab, any other Visitor, Customer or Promoter and/or the Website.
6.4. Hitlab will track the total number of Customers and/or Promoters who have purchased a product or service, either directly from Hitlab, from a Promoter, or through a Promoter’s downline sales (hereinafter the “Promoter Downline”). The Promoter Downline refers specifically to other Customers and/or Promoters in the downline of the Promoter. The Promoter Downline will consist of all the recruits the Promoter has made who meet the requirements of the Compensation Plan, in addition to any recruits those subsequent Promoters have made who also meet the requirements of the Compensation Plan; however, the downline sales only reach a maximum of six (6) levels deep. In other words, after any given Promoter has sold to another Visitor, Customer and/or Promoter, and five (5) other Promoters purchased from any of those Promoters, the sixth sale therein would be the last sale upon which the first Promoter could share a percentage of the sale in accordance with the Compensation Plan.
6.5. Except as expressly provided in this Agreement, no Promoter has any right to any return of monies and/or other distribution(s).
6.6. U.S. residents only: Before any Payout Request may be processed, the Promoter, if resident in the U.S., must fill out a W9 Form and promptly return it to Hitlab at the address set forth in paragraph 6.10. PLEASE NOTE: the W9 Form is required by Federal Law, and is a necessary prerequisite should the Promoter desire any allocation and/or distribution to be issued to the Promoter regarding their activities pursuant to the Program. Should a U.S. Promoter acquire Six Hundred Dollars ($600) or more, the Promoter will be issued a 1099 Form to complete and return with the individual’s taxes for the applicable taxable year. The 1099 Form will be sent to the address posted on the Promoter User Account. It is the Promoter’s sole responsibility to make sure this information is current and accurate.
6.7. The Promoter has the sole responsibility of reporting, for taxable purposes, any and all monetary gains and/or losses earned through their use of the Website and/or the Program.
6.8. Failure to conform to the requirements of this article 6 shall operate as though the Promoter had never made a Payout Request or otherwise exercised his/her right to a cash payment.
6.9. Should a Promoter have a dispute regarding his/her account standing and/or a matter related therein, the Promoter must set forth the dispute, in writing, via First Class Mail, facsimile or electronic mail to the following:
Attention: Accounting Dept.
HITLAB PROMOTER INC.
600 de Maisonneuve Blvd. West,
Montreal, Quebec, H3A 3J2
6.10. Hitlab will make all reasonable efforts to amicably and fairly resolve the dispute of any legitimate claim.
7. LIMITATION OF LIABILITY
7.1. Hitlab shall not be responsible for acts beyond its control, including, but not limited to fire, flood, earthquake, storms, power outages, labor difficulty, equipment failure, supplier problems, or other difficulties that might prevent performance according to this Agreement.
7.2. IN NO EVENT SHALL HITLAB PROMOTER INC., OR ANY PARENT, SUBSIDIARY, AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, LICENSOR, DISTRIBUTOR, SUPPLIER, AGENT, RESELLER, OWNER, OR OPERATOR OF THE TOPPROMOTER.COM WEBSITE, BE LIABLE TO THE PROMOTER OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) LOSS ARISING FROM THE USE OR MISUSE OF HITLAB PRODUCTS OR SERVICES, (II) ERRORS, OMISSIONS, MISTAKES, LOSSES OR INACCURACIES OF CONTENT, (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE PROMOTER’S ACCESS TO AND OR USE OF THE WEBSITE OR PARTICIPATION IN THE PROGRAM, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF HITLAB’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (VII) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE PROMOTER’S USE OF ANY CONTENT POSTED, EmailED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR PARTICIPATION IN THE PROGRAM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
7.3. The Promoter specifically acknowledges that Hitlab shall not be liable for user submissions or for any defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with the Promoter.
7.4. The Website is controlled and offered by Hitlab from its facilities in Canada and the United States. Hitlab makes no representations that the Website is appropriate or available for use in other locations. Those who access or use the Website from other jurisdictions do so at their own volition and are responsible for compliance with local law(s).
7.5. THE PROMOTER AGREES THAT HIS OR HER USE OF THE WEBSITE SHALL BE AT THE PROMOTER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, HITLAB PROMOTER INC., AND ANY PARENT, SUBSIDIARY, AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, LICENSOR, DISTRIBUTOR, SUPPLIER, AGENT, RESELLER, OWNER, OR OPERATOR OF THE TOPPROMOTER.COM WEBSITE, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND THE PROMOTER’S USE THEREOF. HITLAB MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) LOSS ARISING FROM THE USE OR MISUSE OF HITLAB PRODUCTS OR SERVICES, (II) ERRORS, OMISSIONS, MISTAKES, LOSSES OR INACCURACIES OF CONTENT, (III) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE PROMOTER’S ACCESS TO AND OR USE OF THE WEBSITE OR PARTICIPATION IN THE PROGRAM, (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, AND/OR (VII) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EmailED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE. HITLAB DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY HYPERLINKED WEBSITE OR OTHER PROMOTION, AND HITLAB WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN THE PROMOTER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HITLAB OR ANY VISITOR, CUSTOMER OR OTHER PROMOTER SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7.6. As with the purchase of a product or service through any medium or in any environment, the Promoter should use his or her best judgment and exercise caution where appropriate.
8.1. THE PROMOTER SHALL INDEMNIFY AND HOLD HARMLESS HITLAB PROMOTER INC., ANY PARENT, SUBSIDIARY, AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, LICENSOR, DISTRIBUTOR, SUPPLIER, AGENT, RESELLER, OWNER, OR OPERATOR OF THE WEBSITE, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS OR DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS FEES) ARISING FROM: (I) THE PROMOTER’S USE OF AND ACCESS TO THE WEBSITE; (II) THE PROMOTER’S VIOLATION OF ANY TERM OF THIS AGREEMENT CONTAINED HEREIN; (III) THE PROMOTER’S VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT; OR (IV) ANY CLAIM THAT THE PROMOTER’S USER CONTENT CAUSED DAMAGE TO A THIRD PARTY. THIS DEFENSE AND INDEMNIFICATION OBLIGATION WILL SURVIVE THIS AGREEMENT AND THE PROMOTER’S USE OF THE WEBSITE.
8.2. The Promoter hereby acknowledges and agrees to reimburse Hitlab, on demand, for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Agreement, provided that Hitlab promptly notifies the Promoter of any such claim and/or liability. The Promoter shall have the option of assuming control of the defense of such claim; however, this must be explicitly set forth in writing and sent to Hitlab at the following address:
Attention: Indemnification claims
HITLAB PROMOTER INC.
600 de Maisonneuve Blvd. West,
Montreal, Quebec, H3A 3J2
8.3. Pending final determination of any claim involving such alleged violation of the Agreement, Hitlab may withhold sums potentially due hereunder in an amount reasonably related to the amount of such claim.
8.4. If no action is filed within one (1) year following the date on which such claim was first received by Hitlab, Hitlab shall release all sums withheld if requested by the Promoter in writing and otherwise in accordance with this agreement in connection with such claim, unless Hitlab, in its reasonable business judgment, believes an action will be filed thereafter. Notwithstanding the foregoing, if, after such release by Hitlab of sums withheld in connection with a particular claim, such claim is reasserted, then Hitlab’s rights under this paragraph will apply ab initio in full force and effect.
9. COPYRIGHT INFRINGEMENT
9.1. The Promoter hereby understands and warrants that, by registering as a Promoter, Hitlab is not liable for any copyright violation that might result from the Promoter’s use of the Website.
9.2. If the Promoter has reason to believe that a copyrighted work has been copied or posted on the Website in a way that constitutes copyright infringement, or you are a copyright owner or an agent thereof, and believe that any User Content or other Content infringes upon your copyrights, the Promoter (or you) may submit notification pursuant to the Digital Millennium Copyright Act (“DMCA”) or other applicable law by providing Hitlab with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
9.2.1. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
9.2.2. Identification of the claimed infringing material and information reasonably sufficient to permit Hitlab to locate the material on the Website;
9.2.3. Information reasonably sufficient to permit Hitlab to contact you, the Promoter, such as an address, telephone number, and, if available, an Email address;
9.2.4. A statement by you, that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
9.2.5. A statement by you made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
9.2.6. Your physical or electronic signature.
9.3. Such notice shall be in writing and sent via First Class Mail, facsimile or electronic mail to the following:
Attention: Copyright Infringement Complaint
HITLAB PROMOTER INC.
600 de Maisonneuve Blvd. West,
Montreal, Quebec, H3A 3J2
9.4. Please also note that any person who knowingly, materially misrepresents that material or activity is infringing may be subject to liability (17 U.S.C. § 512(f)).
10. TRANSFERING A PROMOTER ACCOUNT
10.1. Assignment by the Promoter. Neither the Promoter account, this Agreement nor any rights and/or obligations created pursuant to the terms of this Agreement may be voluntarily or involuntarily transferred, sold, leased, conveyed, encumbered, pledged, assigned, or otherwise disposed of (collectively, "Transfer"), in whole or in part, by the Promoter, and any such attempted Transfer shall be void and of no effect without the advance written consent of Hitlab provided that the assignor will at all times guarantee performance by such Transferee of each and every obligation assumed by the Transferor under the terms of this Agreement. However, such rights may be assigned, Transferred by Hitlab without restriction.
10.2. On the death, adjudicated incompetence, or bankruptcy of the Promoter, Hitlab will close the corresponding account.Any and all amounts then credited to the deceased Promoter’s Credit account less any sums due or payable by the deceased Promoter to Hitlab will be paid to his/her heirs upon request, as provided by law.
11. TERMINATING A PROMOTER ACCOUNT
11.1. Hitlab reserves the right to temporarily suspend the Promoter account suspected of being in violation of this Agreement, law or otherwise, and to terminate said account if it is affirmatively determined, at Hitlab’s sole discretion, that the has indeed violated the Agreement, law or otherwise.
11.2. The Promoter account shall be closed and this Agreement shall be terminated upon the happening of any of the following events:
11.2.1. Violation of any of the terms within this Agreement which is not cured within ten (10) days of a notice to this effect;
11.2.2. In the event there is no activity in the Promoter’s User Account for a period of six (6) months or more;
11.2.3. In the event, the Website is closed for any reason;
11.2.4. By operation of law; or
11.2.5. The death, incompetence, expulsion, or bankruptcy of the Promoter.
11.3. Upon termination, the Promoter shall cease using the Website.
11.4. Hitlab reserves the right, at our sole discretion, immediately and without prior notice, to suspend or terminate this Agreement, the Promoter’s account, the Promoter’s ability to access their account, and to remove any User Content through its use of the Website, for any reason, including without limitation any violation by the Promoter of this Agreement or conduct by the Promoter that Hitlab determines to be inappropriate or in violation thereof.
11.5. The Promoter hereby agrees that Hitlab and its affiliates shall not be liable to the Promoter or any third-party for any suspension or termination pursuant to this Agreement.
12.1. Best Efforts to Settle Disputes. The parties agree to exercise their best efforts to promptly settle any question, dispute, controversy, claim, or other matters of difference concerning questions of fact or law arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach (threatened, alleged or actual), enforcement or termination, as well as non-contractual claims, (including any claims against or involving any Hitlab shareholders, directors, officers, employees or agents) and any damages resulting from any of the above (a “Dispute”). To this end, they agree that executives of each party who have authority to settle the Dispute will discuss and negotiate with each other, in good faith and understanding of their mutual interests, to reach a just and equitable solution satisfactory to both parties.
12.2. Arbitration. If the parties do not reach a solution under paragraph 12.1 within fifteen (15) calendar days following the date that either Party is informed in writing by the other Party that a Dispute exists (the “Notice of Dispute”), then upon written notice by any party to the other (the “Arbitration Notice”), the Dispute must be finally settled by arbitration before and under the auspices of the Canadian Commercial Arbitration Centre (the “Arbitration Center”) in accordance with its International Commercial Arbitration Rules which rules the parties hereto expressly state to be known to them and are herein incorporated by reference subject to the following:
12.2.1. the arbitration tribunal must consist of a single arbitrator appointed by mutual agreement of the parties, or failing agreement within fifteen (15) business days following delivery of the Arbitration Notice, any party may apply to the Arbitration Center to appoint an arbitrator;
12.2.2. unless an oral hearing is waived in writing by both Parties, the arbitrator shall hold a hearing on the Dispute to be arbitrated and such hearings shall be held at such time and place in Montreal, Canada as the arbitrator shall determine;
12.2.3. the Parties expressly agree that any arbitration hereunder may proceed in the absence of any Party who, after due notice, fails to be represented at such arbitration or to obtain an adjournment thereof, and that, in such event, an award may be made based solely upon the evidence submitted by the Party who is present;
12.2.4. the English language shall be used throughout the arbitration proceedings;
12.2.5. each Party shall be responsible for paying all costs and expenses of its own attorneys' fees and expert witnesses' fees; all other costs and expenses of the arbitration proceedings, including the fees and expenses of the arbitrator and the cost of transcripts, shall be shared equally by the Parties;
12.2.6. the arbitrator will have the right to award any relief he or she deems proper, except for exemplary or punitive damages; and,.
12.2.7. all decisions of the arbitrator shall be in writing, shall set forth detailed findings of fact and conclusions of law, shall be final, binding and conclusive upon the Parties and will not be subject to any appeal unless determined by a court of competent jurisdiction to have been fraudulent, capricious, arbitrary, so grossly erroneous as a matter of law as necessarily to imply bad faith or not be supported by substantial evidence.
12.3. Any claim in arbitration must be conducted and resolved on an individual basis only (and not on a class-wide, multiple-plaintiff, or similar basis) and will not be consolidated with any other proceeding involving any other person (except for those that involve affiliates or agents of the parties).
12.4. The agreement to arbitrate survives regardless of the expiration or termination of this Agreement.
12.5. Louisiana Residents Only: Notwithstanding the foregoing, Louisiana residents may bring an action against the Company with jurisdiction and venue as provided by Louisiana law.
13.1. Any notice, demand, requests, instructions, approvals and consent or other communication to be given in connection with this Agreement (collectively and individually the “Notice”) shall be in writing and addressed to its addressee at the address stated above or such addresses as a party may specify from time to time by Notice.
13.2. Notices may be delivered by hand, overnight courier service (e.g., FEDEX, DHL) registered or certified mail, Email or fax and shall be deemed to have been received as follows:
13.2.1. If delivered by hand: at the time of delivery to a person who appears reasonably to be in charge.
13.2.2. If sent by Email or fax: at the time of confirmed transmission provided a confirmation copy is sent by airmail or registered or certified mail within twenty-four (24) hours after the transmission.
13.2.3. If sent by registered or certified mail or by overnight courier service: at the time of delivery or of attempted delivery in the case delivery cannot be completed due to no fault of the sender.
13.3. If the time of such deemed receipt as provided in paragraph 13.2 is not during the customary hours of business, the Notice shall be deemed to have been received at 10:00 a.m. at the place of delivery on the first customary day of business thereafter.
13.4. All Notices shall be in the English language.
14. GENERAL PROVISIONS
14.1. Entire Agreement. This Agreement sets forth the entire Agreement and understanding between the parties with respect to the subject matter of this Agreement and merges, supersedes and cancels all prior discussions, representations, inducements, promises, undertakings, understandings, agreements or otherwise, whether oral, in writing or otherwise, between the parties with respect to such subject matter. Without limiting the generality of the foregoing, no oral explanation or oral information provided by the parties hereto, or any of them, shall alter the meaning or interpretation of this Agreement. There are no statements, terms, conditions, undertakings, representations, warranties or collateral agreements still in force or effect which have not been embodied in this Agreement. Any inconsistency which may exist between any terms and conditions of this document and that of any related agreement shall be resolved in favour of the terms and conditions of this document, unless such related agreement contains a specific mention that such terms and conditions are not applicable.
14.2. Amendments. In order to maintain a viable marketing program, Hitlab may institute changes, modify or revise the Website, this Agreement, the Compensation Plan, the products or services it offers, and the prices thereof from time to time. Any such revisions become effective and binding on the Promoter upon notice. Posting of such change on the Website constitutes sufficient notice. It is the responsibility of the Promoter to possess knowledge of all amendments and modifications enacted hereafter, since they will be bound thereto.
14.3. Costs. Each party shall be responsible for its own costs, including fees of attorneys, accountants or consultants, in carrying out the activities contemplated by this Agreement and the drafting, negotiation and execution of this Agreement. Neither party shall be responsible for the payment of any such costs incurred by the other party.
14.4. Severability. Each of the parties agrees that notwithstanding anything otherwise contained in this Agreement, in the event that any clause, term or provision of this Agreement or any portion hereof is determined by any Court, arbitrator or other tribunal of competent jurisdiction to be invalid, unenforceable, in conflict with any applicable law or regulations or otherwise illegal, this Agreement shall continue in full force and effect as if the offending clause, terms and provisions hereof or portion thereof are no longer incorporated herein.
14.5. Modifications to render valid. If any applicable and binding law or rule of any jurisdiction i) requires a greater prior notice of the termination of or refusal to renew this Agreement than is required hereunder, or ii) requires the taking of some other action not required hereunder, or iii) makes any provision of this Agreement or any specification, standard or operating procedure prescribed by Hitlab invalid or unenforceable, the prior notice and/or other action required by such law or rule shall be substituted for the comparable provisions hereof, and Hitlab shall have the right, in its sole discretion, to modify such invalid or unenforceable provision, specification, standard, policy or procedure to the extent required to achieve validity and enforceability. The Promoter agrees to be bound by any promise or covenant imposing the maximum duty permitted by law which is subsumed within the terms of any provision hereof, as though it were separately articulated in and made a part of this Agreement, that may result from striking from any of the provisions hereof, or any specification, standard or operating procedure prescribed by Hitlab, any portion or portions which a court may hold to be unenforceable in a final decision to which Hitlab is a party, or from reducing the scope of any promise or covenant to the extent required to comply with such a court order.
14.6. Waiver of Default. No failure or delay (i) in exercising any right or remedy, or (ii) in requiring the satisfaction of any condition, under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
14.7. No Oral Waivers. The parties may waive this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced and, unless otherwise provided, such waiver shall be limited to the specific breach waived.
14.8. Force Majeure. If performance of any of the obligations contained in this Agreement is delayed, prevented, restricted or otherwise hindered by legislative action, act of God, action of the elements, serious fire, labour disturbance, delays in transportation, shortage of materials or supplies, government restrictions, war, riots, flood, earthquake, epidemic or other conditions beyond the control of either party, performance hereunder by such party, to the extent so hindered, shall be excused provided such party has taken all proper precautions, due care and reasonable alternative measures with the objective of avoiding or otherwise minimizing the hindrance and promptly resuming performance hereunder provided that nothing herein contained shall require a party to settle or compromise a strike, boycott, lockout, industrial dispute or other labour difficulty if to do so would in its sole discretion be contrary to its best interests. Any party claiming the benefit of this paragraph shall promptly give notice thereof to the other party including sufficient information as to the cause and in such case. The parties hereto shall consult with each other with a view of suspending or amending this Agreement. If the parties are unable to agree on the manner in which this Agreement should be suspended or amended, any party may withdraw from the Agreement by providing a prior notice of at least three (3) months to the other of its intention to terminate this Agreement if performance is not resumed within this period, in which case this Agreement will be deemed terminated.
14.9. Governing Law. This Agreement shall be governed, interpreted, construed and enforced in accordance with the laws in force in the Province of Quebec and the federal laws of Canada applicable therein except for trade mark and copyright matters which shall be governed by the laws of the relevant territory.
14.10. International Conventions. Notwithstanding anything to the contrary contained herein, the following international conventions shall NOT apply to this Agreement: (i) the Uniform Law on the Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods, (ii) the United Nations Convention on Contracts for the International Sale of Goods of 1980 (iii) the United Nations Convention on the Limitations Period in the International Sale of Goods, concluded in New York on 14 June, 1974, and the Protocol Amending the Convention on the Limitations Period in the International Sale of Goods, concluded in Vienna on 11 April, 1980.
14.11. No Punitive Damages. Hitlab and the Promoter hereby waive to the fullest extent permitted by law (and to the extent that such waiver is not contrary to any statutory provisions in force in the relevant territory), any right to or claim for any punitive or exemplary damages against the other and agree that in the event of a dispute between them, each shall be limited to the recovery of any actual damages sustained by it.
14.12. Language. This Agreement has been drafted in the English language at the request of the parties. A la demande des parties, cette convention a été rédigée en langue anglaise. Dieses Abkommen ist auf Wunsch der Parteien in der englischen Sprache entworfen worden. The Promoter further acknowledges that notwithstanding the fact that this Agreement has been drafted in the English language and that the mother tongue of the Promoter is not English, the Promoter nevertheless confirms that he/she fully understands each and every provision of this Agreement and the consequences thereof. The Promoter reconnaît également que malgré le fait que cette convention ait été rédigée en anglais et que sa langue maternelle soit le français, the Promoter en a bien compris le sens de chaque disposition et les conséquences qui en découlent. The Promoter bestätigt, dass trotz der Tatsache, dass dieses Abkommen auf Englisch entworfen wurde, und dass die Muttersprache von seinen Vertretern, die den Vertrag ausgehandelt haben, Deutsch ist, the Promoter die Bedeutung von jeder Klausel und den entstehenden Folgen richtig verstanden hat. The Promoter edelleen ilmoittaa, että huolimatta siitä tosiasiasta että tämä Vahvistus on laadittu englanniksi ja että the Promoter in johtajien, joille on uskottu tämän Vahvistuksen neuvotteleminen ja täytäntöönpano, äidinkieli ei ole englanti, tästä huolimatta the Promoter vahvistaa, että se täysin ymmärtää tämän Vahvistuksen kaikki ehdot ja seuraukset siitä. The English language shall be the governing language despite translation into any other language.
14.13. Acceptance. This Agreement shall be effective only upon acceptance by Hitlab, at its principal office in Montreal, Canada. If you are submitting a hardcopy of this Application, your signature signifies your acceptance of this Agreement. If you submit this application online, you acknowledge and agree that by clicking on the icon/button labeled “Agree & Sign Up Now”, “Submit,” “you Accept” or such similar icons/buttons as may be designated on the online application to accept the terms and conditions of the Agreement, you are submitting a legally binding electronic signature and entering into a legally binding contract with Hitlab. You acknowledge and agree that this Agreement is not invalid or unenforceable by reason only of being executed and expressed in electronic form. A faxed, Emailed, pdf, scanned or other electronic copy of the Agreement shall be treated as an original in all respects.
14.14. Statute of Limitations for Cause of Action. The Promoter agrees that any cause of action arising out of or related to the Website and/or this Agreement must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred thereafter. The Promoter waives all claims that any other statute of limitations applies.
14.15. Reservation of Rights. Hitlab reserves all rights not expressly granted to you within this Agreement.
Ability and Capacity to Accept this Agreement: The Promoter affirms that he or she is a natural person and at least eighteen (18) years of age, and is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with the terms contained herein.
• The Promoter affirms that he or she has read, understands, and agrees to abide by the provisions set forth in this Agreement and the Compensation Plan.
• The Promoter understands that these documents constitute the entire Agreement of the parties and that there are no other agreements either oral or written between the parties.
• The Promoter certifies that neither Hitlab nor his/her enroller or sponsor has made any claims guaranteeing you any success in participating in the Program either through sales or recruiting, and that any profits or earnings that he/she might expect will be solely from his/her efforts as an ISC through the Compensation Plan.
• The Promoter understands that he/she is not required to purchase the optional Advanced Promoter’s Kit or become a Customer to become an ISC.
• The Promoter understands that his/her purchase of the optional Advanced Promoter’s Kit is NON REFUNDABLE after 10 days from the date of this Agreement. All refund request must be made in writing within this period.