a.    The owner/sponsor of this agreement is PhynixPC (Phynix PC, Inc.)

b.    The name of this program is the The Flock.

c.    The Affiliate represents and warrants to PhynixPC that by submitting an application to The Flock that the Affiliate has read and understands the Privacy Policies and agrees to the terms set forth therein.

To register for the The Flock, the Affiliate must complete and submit to the Owner an Affiliate Application Form. The Flock Application Form is included on the PhynixPC web site and can be completed and submitted through its web site.

If any of the Affiliate’s web sites contains images or content that is not acceptable to the Owner or is inconsistent with the image that the Owner wishes to create in association with its brand, or if the Affiliate’s web site contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference, or if the Affiliate’s site contains any material that appears to Owner to violate any patent, trademark, copyright, trade secret, confidential information, or other property rights of any other party.

The Owner reserves the right to review your brand or content at any time to decide if you are abiding by this agreement.  Even after the Owner has accepted the Affiliate as a member of The Flock, the Owner reserves the absolute right to rescind or terminate the Affiliate status for any reason in its sole and absolute discretion, including but not limited to the reasons set forth above.  The Affiliate will have no legal recourse against PhynixPC for the rejection or termination of the Affiliate’s application.  The Affiliate agrees to not currently possess or seek to obtain any other affiliate opportunities with any person or entity that PhynixPC may consider a competitor in the field of System Integrators or having anything to do with marketing personal gaming computers.

The Owner uses a third party, Affiliatly, to process and track any data and payments associated with the program.  The Owner agrees to pay the Affiliate upon the agreed commission for each sale up to 60 days after the purchasing customer has received the product using the discount code provided to the Affiliate from the Owner.  The Owner shall not be obligated to pay commission for any returns resulting from an order within the eligible time period as stated in the Owner’s Return Policy.

The Affiliate will have a non-exclusive, limited term license to use the trademarks, logos, and copyrighted material that PhynixPC provided to the Affiliate with the sole purpose to benefit PhynixPC and the current Affiliate.

The Affiliate hereby represents and warrants to PhynixPC to have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry of this Agreement has been duly and validly authorized by all necessary parties. The Affiliate’s entry of this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court or administrative order.

The effectiveness of this Agreement shall not commence until the Affiliate Application is accepted by PhynixPC. The effectiveness hereof and binding effect shall occur upon the acceptance of the Affiliate’s Application by PhynixPC. This Agreement shall remain in full force and effect until terminated by the Affiliate or by PhynixPC. Either PhynixPC or the Affiliate may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. The Affiliate agrees to inform PhynixPC of any rebranding scenario where names, images, or discount codes may need to be updated. Notices sent hereunder shall be via Email to the Affiliate at the Email address indicated in the Affiliate Application. Any and all notices to the Affiliate via Email at such address shall be deemed to be effective notice to the Affiliate for all purposes.

The Affiliate will forfeit all right to receive past commissions that may have accrued to the Affiliate if this Agreement is terminated as a result of the Affiliate’s failure to comply with the terms of this Agreement or any policies and procedures of The Flock that may be established and amended by PhynixPC in its discretion from time to time. If this Agreement is terminated for any other reason, the Affiliate will have a right to receive its accrued commissions up to the effective date of termination. PhynixPC has the right to withhold final commission payments for sufficient time in order to assure that the amount paid to the Affiliate is accurate and not subject to later adjustment for returns or any other reason. If following final payment PhynixPC determines that the amount of commissions that the Affiliate were paid was too high, as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from the Affiliate to PhynixPC, and PhynixPC shall have all legal right to receive a refund of such overpaid commission from the Affiliate.

PhynixPC reserves the right in its sole and absolute discretion, to modify any terms and conditions of The Flock and the terms and conditions of this Agreement upon notice to the Affiliate. Notice of any changes may be given via Email to the Affiliate or by posting such changes in the The Flock sections of the PhynixPC web site. Such changes and modifications will take effect upon transmission of Email or posting on the Owner’s web site. The Affiliate may terminate participation in the The Flock in the event that any of these modifications are unacceptable to the Affiliate and such termination shall be the Affiliate’s sole and exclusive remedy. In the event that the Affiliate continues to participate in the The Flock following such modifications, the Affiliate will be deemed by the Affiliate’s continued participation to accept any and all such changes.

a.     PHYNIXPC HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS ITS WEB SITE OR TO ACCESS ITS WEB SITE USING THE LINK FROM THE AFFILIATE’S WEB SITE. FURTHERMORE, PHYNIXPC SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO ITS WEB SITE, THE FLOCK, THE AFFILIATE PARTICIPATION IN THE FLOCK, THE AFFILIATE ABILITY TO MAKE ANY COMMISSIONS OR OTHERWISE PROFIT THROUGH PARTICIPATION IN THIS THE FLOCK, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTIBILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON THE OWNER’S COURSE OF DEALING OR USAGE OF TRADE. THE OWNER DOES NOT REPRESENT OR WARRANT THAT ITS WEB SITE OR ANY APPLICATION, INCLUDING BUT NOT LIMITED TO ITS LINK TRACKING FEATURES, WILL BE ERROR FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION.

b.     PHYNIXPC SHALL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LIABILITIES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, LOSS PROFITS, LOST BUSINESS OPPORTUNITY OR ANY OTHER DAMAGES; REGARDLESS OF WHETHER PHYNIXPC WAS OR HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND TOOK NO ACTION TO PREVENT THE SAME.

c.     Without limiting the forgoing, the PhynixPC total liability for any damages arising hereunder shall never exceed the total commissions paid and payable by PhynixPC pursuant to the terms hereof.

In the event that any customer, business, or financial information is disclosed to the Affiliate through the Affiliate participation in the The Flock related in any way to PhynixPC company and business which PhynixPC deems to be confidential and proprietary, the Affiliate agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Affiliate’s own purposes. Confidential information will include any information regarding PhynixPC changes or modifications to this Agreement or The Flock (which PhynixPC shall have no obligation to make) or any special treatment that the Affiliate may receive (which PhynixPC reserves the right to provide in its sole discretion to any affiliate). Confidential information shall also include any and all information related to PhynixPC business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which PhynixPC considers to be confidential and proprietary.

The Affiliate hereby indemnifies and holds PhynixPC, and all of the PhynixPC owners, stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that PhynixPC may incur and which are based in whole or in part upon the Affiliate’s participation in the The Flock, any claims that any of the Affiliate trademarks and other proprietary material infringe upon the rights of any other party, the Affiliate’s breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the The Flock, or any claim related directly or indirectly to the Affiliate’s use, operation or the content of the Affiliate’s web site.

This Agreement shall be interpreted under the laws of the State of North Carolina. Any and all legal actions relative hereto shall be in the courts of North Carolina. 

The parties hereto are independent contractors and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint venturers, shareholders, employer/employee, agent/servant. The Affiliate has no power or authority to bind PhynixPC to any obligation, agreement, debt or liability. The Affiliate shall not hold itself out as an agent or representative of PhynixPC.

This Agreement is only for the benefit of the party that the Affiliate lists in the The Flock Application. The Affiliate shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.