Webmaster Affiliate Agreement
EFFECTIVE DATE: OCTOBER 16, 2009 LAST MODIFIED: JUNE 08, 2016
I. PARTY DEFINITIONS:
A. The operative Parties referred to in this Agreement are as follows:
1. Us, the Publisher - B4WEB SL, is the Publisher of the websites located at IXCASH.net, and those linked to the foregoing (hereinafter individually and collectively referred to as the "Site" or "Website"). Hereinafter, when first-person pronouns are used in this Policy, (Us, We, Our, Ours, etc.) they are referring to B4WEB SL We may also be referred to as "Publisher" from this point forward.
2. You, the Affiliate - This Affiliate Agreement (hereinafter "Agreement") will refer to the Affiliate as "You" or through any second-person pronouns, such as "Yours," etc. Hereinafter, the Affiliate shall be referred to as "Affiliate" or by applicable second-person pronouns.
3. The Parties - Throughout certain provisions of this Agreement, Publisher and Affiliate shall be collectively referred to as the "Parties" and as "Party" when referred to individually within the same provision.
II. RECITATIONS:
A. WHEREAS, B4WEB SL We have developed an affiliate marketing program (hereinafter the "Program" or "IXCASH") for Our Site and intend to market Our Site and associated content through Our Site, various online and traditional media, and elsewhere;
B. WHEREAS, You desire to become a member of the Program, subject to the terms and conditions stated herein; and,
C. NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and conditions herein set forth, and with the intent to be legally bound thereby, B4WEB SL the Parties hereby agree as follows:
III. INTRODUCTORY PROVISIONS:
A. This Agreement and the provisions hereof, shall be in full force and effect commencing on the date accepted by the Affiliate and continuing until terminated by either of the Parties in accordance with the Termination provisions set forth elsewhere in this Agreement. Acceptance is effective upon clicking "I Accept" or any similar syntax, and/or the installation or opening of any software or any other product provided by the Publisher.
B. DEFINING THIS AGREEMENT - This Agreement is a legal contract between You, (the Affiliate) and Us (the Publisher). You should treat it as any other legal contract by reading its provisions carefully as they will affect Your legal rights. By assenting to this Agreement or by taking advantage of any of the benefits of membership in Our Program, You are affirmatively agreeing to be bound by all of the terms contained in this Agreement. You may not pick and choose which terms apply to You. If You do not agree to be bound by all of the terms in this Agreement, You must cease all activities contemplated by this Agreement, cease participation in the Program and forfeit all commissions that may be due.
C. ELECTRONIC SIGNATURES / ASSENT REQUIRED - Nobody is authorized to act as an Affiliate for this Site unless they have signed this Agreement. Such signature does not need to be a physical signature, since this Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-Sign Act) of the United States. You manifest Your agreement to enter into this Agreement by taking any act demonstrating Your assent thereto. Most likely, You have clicked a button containing the words "I agree" or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract. If You have not yet done so, You must immediately click here to electronically sign this Agreement. If We discover that You have not signed this Agreement, You will be terminated from the Program, any funds otherwise due will be forfeited, and You will be required to refund any payments made to You. If You fail to remit this refund within thirty (30) days of Our demand for repayment, We will take legal action against You.
D. REVISIONS TO THIS AGREEMENT -
1. From time to time, We may unilaterally revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect.
2. We agree that if We change anything in this Agreement, We will change the "Last Modified Date" at the top of this Agreement. You agree to periodically re-visit this web page, and to use the "Refresh" button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the "Last Modified" date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the "Last Modified" date has changed, then You can be certain that something in the Agreement has been changed.
3. Waiver - if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your own legal rights.
E. SEPARATION OF AFFILIATE AND PUBLISHER IS COMPLETE AND TOTAL -
1. The Publisher and Affiliate are completely separate entities and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, joint venturer agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any manner or thing whatsoever.
2. Nothing provided - Acting as an Affiliate does not mean that You are an employee of the Publisher. In fact, You are specifically placed on notice that You are not an employee of the Publisher. You are, at most, an independent contractor. No tools, no materials, and no support (other than what is specifically described in this Agreement) shall be provided to You. You are responsible for all Internet access, computer equipment, modems, software, and other necessary requisites that you may need in order to function as an Affiliate.
IV. SPECIFIC grant of License and AFFILIATE's content:
A. We agree to provide access to, and membership in, the Program to the You and to provide You with the right to market, advertise and promote Our online services and content.
B. We will provide You access to a selection of promotional content including images, recordings, video, audio, links, computer script, advertising banners, sub-domains and other promotional materials (hereinafter, "Materials") that are associated with the Program from time to time, and hereby grant a non-exclusive, restricted, license to use such Materials solely for the purposes set forth in this Agreement. THIS LICENSE IS REVOCABLE AT WILL. SUCH REVOCATION DOES NOT REQUIRE PRIOR NOTICE.
C. We reserve all rights to select, alter, delete, add to, or remove any and all Materials used by You to promote Our content. Our Materials may not be used in violation of any term contained in this Agreement.
D. Your license to use the Materials shall automatically terminate, and all rights shall automatically revert to Us upon cancellation of Your membership or Your withdrawal from the Program. You may not copy, reproduce, alter, modify, change, broadcast, distribute, transmit, disseminate, sell, nor offer for sale in any manner, the Materials at any time anywhere in the world except as expressly authorized by Us, in writing.
E. If You are accepted into the Program, We will provide You with the information necessary to operate as an Affiliate. You, as an Affiliate, may create Your own materials as well, but any such materials must be approved by Us, and any such materials may not utilize Our trademarks unless the use is expressly permitted by Us.
F. If You create Your own marketing materials, We shall have the right to exercise editorial control over the materials and shall have the right to demand that You cease use of any materials whatsoever that may be used to promote the Program directly or indirectly. No paid keywords advertising on search engines is allowed targeting keywords related to our brand name; keywords such as (but not limited) ISEEXYOU.com, ISEEXYOU. Failure to adhere to any demand made by Us in this regard within forty-eight (48) hours of the demand being made shall constitute a material breach of this Agreement and shall subject You to immediate termination.
G. If You create Your own marketing materials, We shall have the absolute right to demand that these materials contain certain text, online agreements, documents, notices, disclaimers, or age verification devices that may be necessary or desirable to protect Our or Your legal interests.
H. You shall be solely responsible for all content available on or through Your site (hereinafter the "Affiliate Website.") You warrant that the Affiliate Website and the materials thereupon will not infringe upon or contain any content that infringes upon or violates any intellectual property rights, or otherwise violates any applicable law, rule or regulation. We shall have no obligations with respect to the content available on or through any participating website, including but not limited to, any duty to review or monitor any such content. Thus, You are solely responsible for the content on Your Affiliate Website.
I. We own the rights to any and all content and Materials located on any of Our Affiliate's sites if Our services are in any way promoted by that site. This intellectual property rights transfer applies whether We provided any content on the site or not. We shall always remain the owner of all intellectual property rights pertaining to the Materials, which may be licensed from third-party content producers. Any and all derivative works generated by You shall inure to the benefit of the Publisher, and We shall be considered the owner or license holder of such derivative works, to the extent permitted by law.
J. Your license to use any of Our Materials shall automatically terminate, and all such rights shall automatically revert to Us upon cancellation of Your membership or Your withdrawal from the Program.
V. ENROLLMENT:
Acceptance into the Program is not automatic. In order to enroll in Our Program, the first step is to submit a completed application form through Our Program website, IXCASH.net. After your application is complete, We will evaluate Your application and notify You of Your acceptance. We reserve the right to refuse acceptance at any time and for any reason.
VI. ACCEPTABLE CONDUCT Policy for Affiliates:
A. You agree to be bound by the following general policies in connection with all content with which Our Materials are associated:
1. No defamatory, obscene, child pornography, harassing, illegal, or otherwise objectionable content may appear on the Affiliate Website;
2. You shall have no content on the Affiliate Website that promotes or facilitates illegal activity, or violates the rights of others such as copyright, trademark, other intellectual property infringement, right to privacy, right to publicity, or other similar rights;
3. You shall have no content that is prohibited. Prohibited content includes, but is not limited to: child pornography, incest, scatological content, depictions of coffins (or other death images), defecation, feces, urination, genital mutilation, underage teen modeling, actual or simulated rape, sexual violence, menstruation, obscenity, bestiality, threats of physical harm to persons or property, programs containing viruses, pirated software, wire fraud, drug trafficking, and/or violations of international export control laws. We reserve the right to review and/or reject any content created and/or posted by You on the Affiliate Website.
4. Our Affiliates are strictly forbidden to engage in any fraudulent, deceptive or unfair transactions or trade practices. You agree to fully comply with the United States Federal Trade Commission ("FTC") statutes and regulations (if You do business in the United States or with United States based customers), and any related rules, policies, and advisory opinions issued by the FTC. No commissions will be paid on violation transactions, and may be withheld if such conduct is suspected.
5. You shall not promote any of Our Sites on any site that encourages password trading, distribution, or hacking. You may not engage in promotion through the direct or indirect use of warez content, spamming, listing on newsgroups, search engines, bulk emailing, or hidden frames.
6. You shall not engage in any activities that may be harmful to the image, goodwill, or reputation of the Publisher. Whether activities meet this definition is in Our sole discretion.
7. You agree not to utilize any techniques to manipulate search engine results that may be false, misleading, infringing, or otherwise manipulative or deceptive in order to drive traffic to the Affiliate Website.
8. You are not permitted to utilize any meta-tags or other search engine terms that would imply or suggest that underage or illegal content may be found on the Affiliate Website.
9. You shall neither directly nor indirectly display on the Affiliate Website any advertising links, banners, or promotional materials for other external web sites other than those that have been pre-approved in compliance with this Agreement.
10. You shall not attempt to cheat, defraud, or mislead the Publisher, in any manner.
11. Violation of the restricted nonexclusive license provided in this Agreement is prohibited.
12. You shall not use Our Material or images to promote other sites or businesses.
13. You shall not use any material that contains "Trojan Horses," viruses, or the like, which causes damage to any computer or programs regardless of the intent. You will be solely responsible for any damage caused by the aforementioned destructive materials and the use of such materials will result in Your termination from this Program.
14. The free areas of the Affiliate Website must not contain sexual activity or graphic display of the genitals. All such content must be restricted to password-protected areas.
15. You may not circumvent, nor attempt to circumvent, the access screen requiring users to enter their birth date and requiring agreement to the Publisher's User Agreement, i.e., "Terms & Conditions."
16. Our Site features youthful models who are all over eighteen (18) years of age. You shall never attempt to market the Site as featuring underage models, nor shall You take any action that might be perceived as doing so or that might be perceived as marketing the Site to pedophiles.
17. Promotional Restrictions and SPAM - You may use any reasonable promotional tool desired, with the following exceptions:
SPAM. You agree not to use the facilities and capabilities of the Site to solicit the performance of any activity that is prohibited by the United States' CAN-SPAM Act dealing with illegal distribution of Unsolicited Commercial Bulk Email ("UCBE"), commonly known as "spam." You shall never forge or use without authorization, any mail header information. You agree to the Site's SPAM Policy, which is hereby incorporated by reference. Any breach of the Site's SPAM Policy may result in immediate termination from the Program and forfeiture of any further commissions or payments. Any violation of the CAN-SPAM Act is strictly prohibited. Any Affiliate using unsolicited email, which does not strictly comport with the provisions of Our SPAM Policy, will be immediately terminated as an Affiliate and no commissions will be paid to any such offending Affiliate. If such conduct is suspected, any commissions will be withheld, and the Affiliate will be reported to the appropriate authorities. We reserve the right to conduct random audits of all of Our Affiliates to determine whether this provision is being complied with, and any suspected offending activity will result in immediate termination and suspension of all payments. Any violation will result in the forfeiture of any payments due.
18. WE HAVE A ZERO-TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIC ACTIVITY.
a. You understand that all depictions of all persons in all Materials produced or published by Us are of persons over eighteen (18) years of age as of the date of the production of the depiction. We take great measures to ensure that no underage models appear in any of Our Materials.
b. If You traffic in, possess, or ever possessed any form of child pornography (including so-called "virtual" child pornography), You must exit this Site immediately and You are ineligible to be an Affiliate. We do not provide this kind of material. We do not tolerate those who provide or produce this kind of material. We do not tolerate consumers of this kind of material.
c. In order to further Our zero-tolerance policy, You agree that You will report any images, real or simulated, that appear to depict minors on any Affiliate's site. If You see any images or other depictions that are questionable, You agree to report these images by emailing us at [email protected].
d. Include with Your report any appropriate evidence, including the date and time of identification, as well as the URL of the page containing the content. All reports will immediately be investigated and the appropriate action will be taken.
e. We enthusiastically cooperate with any law-enforcement agency investigating child pornography. If You suspect other outside websites are participating in unlawful activities involving minors, please report them immediately to http://www.asacp.org.
19. The Affiliate Website must contain all information required by 18 U.S.C. § 2257, supported by all required documents. You represent that each site operated by You is in full compliance with Section 2257 of Title 18, United States Code, the "Records Keeping and Labeling Act," including all applicable regulations. You acknowledge that it is Your legal obligation to comply with the disclosure provisions of the Records Keeping and Labeling Act, and that You must identify a records custodian and records address for each image appearing on the Affiliate Website, and maintain all required age records, indexed in the required manner.
20. You also warrant that all materials shall only be transmitted and distributed via the Affiliate Website to willing adults.
21. You shall not "hotlink" to any of the Publisher's images, banners and/or graphics unless they have been provided to You for this purpose.
22. You must provide, within twenty-four (24) hours and upon request by the Publisher, access to any password-protected area where Our Sites are being or have been promoted.
23. You shall neither solicit nor permit any minor to become a customer of the Site. We take a strong stance in favor of preventing minors from accessing sexually-oriented materials. Accordingly, any and all images, web pages, or tours depicting sexual activity must be protected by some form of legal age verification. Therefore, We adopt the following policies with regard to online age verification:
a. Visitors to the Affiliate Website(s) can only access images depicting sexual activity (i.e. hardcore images) by passing through some form of online age verification that complies with the requirements of the United States' Child Online Protection Act, ("COPA") such as the BirthDateVerifier™ solution; or
b. Alternatively, visitors to the Affiliate Website(s) must be restricted to accessing pages or content, or Material containing only soft core (i.e. no sexual activity) materials, which will be separately identified and provided by the Site.
24. You shall not targeting keywords related to our brand in paid advertising on search engines. Keywords related to the brand (but not limited) such as ISEEXYOU.com, ISEEXYOU.
B. Suspected violation of any portion of the Acceptable Conduct Policy provisions may result in termination from the Program and forfeiture of any past or future commissions or payments, whether earned or unearned. If, in Our sole discretion, You have violated any of the Acceptable Conduct Policy provisions, You will forfeit all funds otherwise due, and We will fully cooperate with law enforcement regarding the investigation of Your actions.
C. We shall retain the discretion to interpret, modify, terminate and/or enforce any of the general policies for Affiliates.
D. If You violate any portion of the Acceptable Conduct Policy, You hereby agree that each and every violation shall result in liquidated damages of US$3,000.00 per occurrence. You specifically agree to pay this US$3,000.00 in liquidated damages. In agreeing to pay these liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the Parties' good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
VII. RESPONSIBILITY FOR THIRD-PARTY COMMUNICATIONS AND SERVICES:
A. ONLINE VENUE & IMMUNITY -
1. Our Site acts as a venue to allow third-parties, including advertisers, members, and posters, to offer, sell, and buy particular services as set forth on this Site from anywhere, in a variety of formats. You stipulate that We are considered a provider of an "interactive computer service" for purposes of immunity from claims provided by Section 230 of the Communications Decency Act ("CDA"), codified in United States law at 47 U.S.C. Section 230. We are not considered information content providers for content that third-parties may submit to the Site. As such, We are immune from any claims arising from the content of communications made by third parties, except those specifically excepted from the CDA. Suing an interactive computer service that has immunity from claims is frivolous, and may result in serious court sanctions. We are not involved in the actual transaction between third-parties and Users of Our Site or any Affiliate Website.
2. We maintain no additional information regarding Our Advertisers/Members/Posters beyond that contained in their advertisements. You accept full responsibility for any correspondence, communication or contact with Our Advertisers/Members/Posters and understand that the Site has no affiliation whatsoever with any of the individuals, business enterprises or Advertisers/Members/Posters on the Site, beyond a contractual advertising agreement and/or agreement to provide web Services.
3. Accessing the Site does not guarantee that You will meet or receive responses or services from any individual or Advertiser/Member/Poster that is listed on the Site in Our database, as We do not control Advertisers/Members/Posters in any way.
4. Any and all financial arrangements between You and the Advertisers/Members/Posters are strictly between the parties who accept the arrangement. As a result, We have no control over the quality, safety or legality of the services advertised, the truth or accuracy of the listings, the ability of sellers to provide services or the ability of buyers to purchase services.
5. We make NO guarantees of service provided by any individuals, business enterprise, and/or Advertiser/Member/Poster. We cannot ensure that a buyer or seller will actually complete a transaction, and do not warrant the satisfaction of any party.
B. MEETINGS BETWEEN USERS AND ADVERTISERS/MEMBERS/POSTERS -
1. You acknowledge and agree that We, as the Publisher, shall not be held responsible in any way for the outcome of any contact or meeting, whether in person, by telephone, email or any other means, resulting from advertisements placed or responded to, or messages or communications sent or received by Users or Advertisers/Members/Posters through the Site, or through any use, directly or indirectly, of the Site.
2. You further acknowledge and agree that the Site does not screen any Users or Advertisers/Members/Posters of the Site, has no control over their actions and makes no representations or warranties with respect to the character, veracity, age, weight, height, health or any other attribute of Users of the Site, including any person who places advertisements on the Site.
3. You further acknowledge and agree that We do not endorse, encourage, recommend or arrange communications or meetings among or between Users and Advertisers/Members/Posters, or any other persons. Further, You are expected to use common sense and take appropriate measures and precautions to insure Your own personal safety and privacy in the event that You choose to communicate with, or meet with any person with whom You have communicated through the use of the public areas, or chat areas of the Site, or through advertisements posted on the Site.
C. ACCURACY OF ADVERTISEMENTS -
1. You further acknowledge that You understand that We do not control the content of any information, messages, communication or other materials posted or uploaded by Users or Advertisers/Members/Posters on the Site, including without limitation all Advertisers/Members/Posters, and that consequently You release Us from any and all liability and responsibility in connection with the content of any information, messages, communication or other materials You may receive from other Users of the Site.
2. You further acknowledge that You understand that We do not guarantee or vouch for the accuracy or truthfulness of any messages, communication, information or content of any kind which has been posted, uploaded or provided by other Users of the Site, including without limitation all Advertisers/Members/Posters, and that consequently You release Us from any and all liability and responsibility in connection with verifying the accuracy of any such messages, communication, information or content of any kind provided by other Users or Advertisers/Members/Posters on the Site.
3. You further acknowledge that You understand that We undertake no obligation to screen, endorse, monitor, control, investigate, supervise or verify any advertisements or communications submitted to the Site by third-party licensees, advertisers/members/posters, or Users for electronic dissemination through the Site. All Users of the Site are therefore cautioned and advised to use their own judgment to evaluate all advertisements and other communications available at or through the use of the Site prior to purchasing goods and/or services described at the Site or otherwise responding to any communication on the Site.
D. Disputes with Advertisers/Members/Posters -
1. Since the Site has no affiliation or control over users or Advertisers/Members/Posters, including their communications or services, We shall not be held liable for any interactions between You and any Advertiser/Member/Poster or service provider who may also have officers, directors, employees, shareholders, agents, or outside contractors over whom We have no control and with whom We have no affiliation.
2. Because We are not involved in the actual transaction between buyers and sellers, in the event that You have a dispute with one or more Advertisers/Members/Posters, You release the Site and Our officers, directors, agents, subsidiaries and employees from any and all claims, demands and damages both 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.
E. INFORMATION CONTROL -
1. We do not control the information provided by other Users which is made available through Our system. You may find other Users' information to be offensive, harmful, inaccurate, or deceptive. Please use caution and common sense when using Our Site. Please note that there are always risks relating to dealing with people acting under false pretense.
2. We will review complaints about Our Users and Advertisers/Members/Posters in order to determine if any Terms and Conditions established by the Site have been violated. However, such action does not imply that We are responsible for resolving the dispute, or will provide assistance of any kind. You may send an e-mail if You wish to identify any user or Advertiser/Member/Poster You believe is in violation of Our Terms and Conditions.
VIII. AFFILIATE'S NOTIFICATION DUTY:
You agree to immediately notify Us of the following:
A. Any and all URLs where Our Site(s) will be promoted.
B. Whenever there are inquiries or concerns by any individual regarding any questionable activities of any kind.
C. If You receive any inquiries or requests for information regarding the following subjects:
1. Obscenity
2. Child Pornography
3. SPAM Complaints
4. Copyright Infringement
5. Trademark Infringement
6. Deceptive Trade Practices
7. Misleading Search Terms
8. Invasion of Privacy Issues
9. Fraud, including Credit Card Fraud.
10. Any other criminal investigation inquiry of any kind unless You are clearly prohibited from doing so by law.
11. Any other civil investigation inquiry of any kind that pertains to You, even if it does not relate to your relationship with Us.
12. Any civil or criminal subpoena served upon You, even if it does not relate to Your relationship with Us.
D. Failure to adhere to this section shall obligate You to pay US$500.00 per occurrence in liquidated damages to Us.
IX. Compensation AND BENEFITS:
A. You will be compensated in accordance with the pay per sign-up program posted here: https://ixcash.net/en/webmaster/affiliate-program.php, which may be altered from time to time without notice.
B. We are not responsible for any billing errors.
C. You will be compensated with a commission or referral fee according to the terms of this Agreement and the pay program referred to above. Your payouts will be debited for cancelled subscriptions.
D. You will receive no commission for activity determined to be fraudulent, including but not limited to credit card numbers in a negative bin number data base, multiple subscriptions from a single email address, multiple subscriptions with the same credit card number, sequential names or patterns of names, many subscriptions from a specific Website in a short time span, and multiple attempts to subscribe from the same credit card, or any subscriptions that suggest a violation of our SPAM Policy. We will also deny or withhold commission for any links coming from any practices that violate the Acceptable Conduct Policy provisions located elsewhere in this Agreement. Any Affiliate Website found to be engaging in such actions will not receive any credit or payment and will forfeit any and all credit or payment earned.
E. You agree that the We, in Our sole discretion, may deny or withhold payment and terminate Your membership due to any suspicious behavior including but not limited to unusually numerous charge backs or subscription cancellations.
X. BILLING AND DISBURSEMENT:
A. We have the sole right to determine the manner in which payments will be processed, and the identity of any third-party processor used for billing purposes. Determination of the third-party billing service shall be made at Our convenience and may be unilaterally changed by Us at Our sole convenience and discretion.
B. If requested, You will provide Us with a Social Security Number or Federal Tax ID, so that an IRS form 1099 may be issued. Failure to provide such information to Us may result in termination of this Agreement.
XI. Representations and Warranties:
A. You, as the Affiliate Website operator, warrant and represent that You own or operate a lawful, and otherwise valid Internet website that adheres to the Acceptable Conduct Policy provisions as outlined above.
B. You warrant that You are the sole owner of any and all necessary rights, title, and interest to any content contained on the Affiliate Website, and that such Affiliate Website is free of claims to the content by third parties.
C. You represent that You have the requisite power and authority to enter into this Agreement and perform the obligations set forth herein and that You are an adult at least eighteen (18) years of age; that performance under this Agreement does not and will not constitute a breach of any existing contract or obligation undertaken by You; and that there are no outstanding orders, judgments, decrees, rules or regulations which would preclude You from entering into this Agreement.
D. We make no representations or warranties other than those specifically contained herein, and specifically disclaim any implied warranties, including merchantability or fitness for a particular purpose. We make no representations of success or profitability and do not monitor or supervise the Site.
XII. POP-UP WINDOWS / JOIN PAGE:
You are entitled to use one pop up exit window in connection with participation in the Program. You may determine the content of the Pop Up by selecting a URL, or by allowing Us to randomly select a URL. The policies outlined in this Agreement apply to the content contained on any Pop Up windows. Your are also entitled to modify the Join Page to allow or disallow trial memberships, at Your discretion.
XIII. CONFIDENTIALITY AND PRIVACY POLICY:
A. "Confidential Information" shall mean any confidential technical data, trade secret, intellectual property, know-how or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing Party as "Confidential" or "Proprietary." If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced to writing and delivered to the receiving Party within ten (10) days of such disclosure.
B. Notwithstanding the foregoing, Confidential Information shall not include information which:
1. Is known to the receiving Party at the same time of disclosure or becomes known to the receiving Party without breach of this Agreement;
2. Is or become publicly known through no wrongful act of the receiving Party or any subsidiary of the receiving Party;
3. Is rightfully received from a third-party without restriction on disclosure;
4. Is independently developed by the receiving Party or any of its subsidiary;
5. Is furnished to any third-party by the disclosing Party without restriction on its disclosure;
6. Is approved for release upon a prior written consent of the disclosing Party; or
7. Is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. You agree that You will not disclose any Confidential Information to any third- party and will not use Confidential Information of the disclosing Party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of five (5) years thereafter, without the prior written consent of the disclosing Party. You further agree that Confidential Information shall remain Our sole property and that You will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information that We have entrusted to You. We shall grant no license to You with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon our request You will promptly return all Confidential Information furnished or gathered or received in any way and all copies thereof.
E. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. You shall never disclose any of the specific terms of this Agreement to any third-party without Our prior written consent. Notwithstanding the foregoing, any Party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other Party.
F. If You breach any of Your obligations with respect to confidentiality and unauthorized use of Confidential Information hereunder, We shall be entitled to equitable relief to protect Our interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
G. We shall be entitled to make any public statement, press release or other announcement relating to the Site without any prior written approval from You.
XIV. INTELLECTUAL PROPERTY RIGHTS:
A. The Parties agree that:
1. Each Party's trademarks/servicemarks (hereinafter "marks") are and shall remain the sole property of that Party;
2. Nothing in this Agreement shall convey to either Party any right of ownership in the other Party's marks;
3. Neither Party shall now or in the future contest the validity of the other Party's marks; and
4. Neither Party shall in any manner take any action that would either impair the value of, or the goodwill associated with, such marks.
5. The Parties acknowledge and agree that all use of the other Party's marks by a Party shall inure to the benefit of the Party whose marks are being used.
B. Each Party hereby grants the other Party, during the term of this Agreement, a non-exclusive, non-transferable license to use that Party's trade names, trademarks, service names, copyrights, and similar proprietary marks as is reasonably necessary to perform its obligations under this Agreement; provided, however, that any promotional materials containing a Party's proprietary marks will be subject to that Party's prior, written approval.
C. Each Party agrees not to use the other Party's proprietary marks in a manner that disparages the other Party or its products or services, or portrays the other Party or its products or services in a false, competitively adverse or poor light. Each Party will comply with the other Party's requests as to the use of the other Party's proprietary marks and will avoid any action that diminishes the value of such marks. Each Party's unauthorized use of the other's proprietary marks is strictly prohibited.
Applying to our affiliate program you shall be aware that you are going to share your site performance with ISEEXYOU us. We are going to use this data just to improve our service and we will never share with 3rd parties.
D. At any time, We may, at our sole discretion, require a copy of any and all legal documentation showing rightful ownership, or licensed distribution for any item displayed on the Affiliate Website so as to resolve any copyright or other legal claims that may arise. If You are unable to provide ownership or licensing information to the complaining Party and/or website, then You must remove the objectionable material, or face having the applicable pages taken down by Us.
E. You specifically acknowledge that any marks held by Us are retained by Us and are not owned by You, licensed by You, or useable by You except to the extent specifically outlined in this Agreement.
1. As a specific matter - You are not permitted to register any Uniform Resource Locator (URL) or World Wide Web address that contains any of Our trademarks or URLs or that contain any terms that are confusingly similar to Our trademarks or Our URLs.
2. You may not register any URL or World Wide Web addresses that consist of, or contain, common or likely misspellings of Our marks or Our URLs.
3. In the event that You wish to register a URL and You are unclear as to whether the URL would be considered to be a violation of this provision, You are invited to contact us at [email protected]. Upon receipt of Your request, We will issue a determination to You within thirty (30) days as to whether the URL would be a violation of this Agreement.
4. In the event that You do not receive a response from Us within thirty (30) days, You should consider registration of the URL to be a violation of this Agreement and You should not register the URL.
5. If You violate this Agreement, You will immediately transfer the offending URL to Us upon demand, and You agree to pay Us US$1,500.00 in stipulated liquidated damages for each URL registered in violation of this Agreement.
6. You specifically agree to pay these liquidated damages. In agreeing to pay these liquidated damages, You acknowledge that this amount is not a penalty, and that the actual damages are uncertain and difficult to ascertain, but that this amount represents the Parties' good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
7. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, or if We are required to file an ICANN complaint against You in order to bring about the transfer of an offending URL to Us from You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages, or in order to seek injunctive relief from You, or in order to file and prosecute an ICANN complaint.
8. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
F. PROHIBITION ON CYBERSQUATTING AND TYPOSQUATTING ON OTHERS' MARKS -
At no time will You register a URL that includes any other trademark, trade name, or service mark owned by any other person, corporation, or other entity. You will not register any URL that contains terminology that is confusingly similar to such trademarks, service marks, or URL(s). This includes, but is not limited to, terms that may be considered to be "typosquatting." If You do engage in such conduct, all payments to You will be suspended, all obligations to render such payments to You will become void, and Your information may be turned over to an aggrieved Party requesting it.
XV. TERMINATION:
The following termination rights are in addition to the termination rights that may be provided elsewhere in this Agreement:
A. MUTUAL RIGHT TO TERMINATION UPON NOTICE - Either Party may terminate this Agreement at any time for any reason upon written notice to the other Party. In the event that We terminate this Agreement for breach, You shall not be entitled to receive any further commissions or payments, including commissions earned prior to the date of termination. Further, upon termination, You shall immediately cease using any marks and Materials referring to or supplied by Us, including banners and promotional materials.
B. AFFILIATE'S RIGHT TO TERMINATE - You shall have the right to terminate this Agreement at any time, however You shall only receive its designated portion of revenue for customer re-bills for a period of three (3) months from the date of termination of this Agreement. Customer re-bills are only payable if the orders are not canceled or returned.
C. PUBLISHER'S RIGHT TO TERMINATE - We shall have the right to terminate this Agreement upon discontinuation of the Program by providing thirty (30) days notice to You. We shall also have the right to terminate this Agreement and cancel an Affiliate's account if an Affiliate has not produced any new sign ups during a three (3) month period of time.
XVI. DISCLAIMER AND LIMITATIONS:
A. You expressly agree that Your use of the services is at Your sole and exclusive risk. The services are provided on an "as is, with all faults" and "as available" basis. We expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. We make no warranty that the services will meet Your requirements, or that the services will be uninterrupted, timely, secure, or error free; nor do We make any warranty as to the results that may be obtained from the use of the services or as to the accuracy or reliability of any information obtained through the services or that defects in any software, hardware or the services will be corrected. You understand and agree that any use You make of any material and/or data downloaded or otherwise obtained through the use of the services is at Your own discretion and risk, and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data.
B. In no event shall either Party be liable to the other for any indirect, special, incidental, punitive or consequential damages, including but not limited to, loss of profits, loss of data, loss of business or other loss arising out of or resulting from this Agreement, even if the other Party has been advised of the possibility of such damages. The foregoing shall apply regardless of the negligence or other fault of either Party and regardless of whether such liability sounds in contract, negligence, tort or any other theory of liability. Notwithstanding the aforementioned limitations of liability, You agree that if We are held liable to You for damages, the total amount of liquidated damages for any and all claims shall not exceed one hundred dollars (US$100.00).
C. You shall remain solely responsible for the operation of Your own Affiliate Website, and We shall remain solely responsible for operation of the Program and its Site. Each Party acknowledges that the other's Site may be subject to temporary shutdowns due to causes beyond the operating Party's reasonable control.
XVII. DISCLAIMER AND INDEMNIFICATION:
A. The provision of any services which is in violation of any laws is strictly prohibited. If We determine that You or any User has provided or intends to utilize Our services in violation of any law, Your status as an Affiliate will be terminated immediately. We do hereby disclaim any liability for damages that may arise from any User providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold Us harmless from any liability that may arise for Us should You violate any law.
B. You agree to defend and indemnify Us should any third-party be harmed by Your illegal actions or should We be obligated to defend any claims including, without limitation, any criminal action brought by any Party.
C. Our Site contains material that may be offensive to third-parties. You agree to indemnify and hold Us harmless from any liability that may arise from someone viewing such material and You agree to cease review of the Site should You find it offensive.
D. You agree to defend, indemnify, and hold harmless the Publisher, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, attorneys, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from meetings, involvement, communication or other interactions with Advertisers/Members/Posters or other Users of the Site, including but not limited to intentional and/or reckless torts, assaults, battery, theft, fraud, deception, cheating, disease, pregnancy, defamation, false imprisonment, sexual battery and/or molestation, lewdness, obscenity, or any other civil or criminal wrong arising from such interaction.
E. You agree to defend, indemnify, and hold harmless the Publisher, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your, or You under another person's authority including without limitation to governmental agencies, use, misuse, or inability to use the Site or any of the Materials contained therein, or Your breach of any of this Agreement. We shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at Our own expense, and choose Our own legal counsel, but are not obligated to do so.
F. You understand that the Publisher will take drastic measures to protect itself from any legal or civil litigation including, but not limited to, removing an Affiliate's web page(s) or Website(s) from Our servers for any reason deemed appropriate by Us. You also understand that We will charge, on an hourly basis, for any and all time spent responding to any third-party complaints, disputes, copyright claims or actions involving Affiliate or Affiliate's Websites. You agree to pay any such amounts without delay, and You agree to pay US$500.00 in liquidated damages should any amount due under this subsection be due for more than forty-five (45) days.
XVIII. FORCE MAJEURE:
Neither Party will be held liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence, including but not limited to acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, net congestion, or any failure of a computer, server or software. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
XIX. NOTICE AND PAYMENT:
A. Any notice or payment required to be given under this Agreement may be provided by email to a functioning email address of the Party to be noticed, or personal delivery by commercial carrier such as FedEx or DHL.
B. Either Party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
C. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
D. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
XX. JURISDICTION/DISPUTES:
A. GOVERNING LAW. This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of Florida, excluding its conflict of law provisions. The sum of this paragraph is that any and all disputes, must be, without exception, brought to court and litigated in Orange County, Florida.
1. All Parties to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any services or business interactions between the Parties that may be subject to this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Orange County, Florida.
2. The Parties agree to exclusive jurisdiction in, and only in, Orange County, Florida.
4. The Parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the Parties with respect to, or arising out of, this Agreement in jurisdiction other than that specified in this paragraph.
5. All Parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
6. All Parties stipulate that the state and federal courts located in Orange County, Florida shall have personal jurisdiction over them for the purpose of litigating any dispute, controversy, or proceeding arising out of (or related to) this Agreement and/or the relationship between the Parties contemplated thereby.
7. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the Parties address for the giving of notices as set forth in this Agreement.
8. Any final judgment rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.
B. BINDING ARBITRATION - If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party must submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker's compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Orange County, Florida, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes (hereinafter the "Arbitrator.")
C. The Arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any Parties; vary or ignore the provisions of this Agreement; and shall be bound by governing and applicable law. The Arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
D. NO WAIVER OF RIGHT TO ARBITRATION - There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving Party to the other Party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
E. THE FIRST AMENDMENT APPLIES TO ARBITRATION PROCEEDINGS - Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the Parties. Both Parties stipulate to the applicability of the First Amendment's protection of free speech, expression, and association, and both Parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
F. RIGHT TO INJUNCTIVE RELIEF - Both Parties acknowledge that remedies at law may be inadequate to provide an aggrieved Party with full compensation in the event of the other Party's breach, and that an aggrieved Party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
G. ASSIGNMENT - The rights and liabilities of the Parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.
H. SEVERABILITY - If for any reason a court of competent jurisdiction or an Arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
I. ATTORNEYS' FEES - In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce any of the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing Party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorneys' fees and costs incurred in connection therewith, including attorneys' fees incurred on appeal.
J. NO WAIVER - No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
K. HEADINGS - All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
L. COMPLETE AGREEMENT - Unless other documents are incorporated by reference, this Agreement constitutes the entire agreement between the Parties with respect to Your access and use of the Site and the Materials contained therein, and Your Membership with the Site, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
M. Other Jurisdictions - We make no representation that the Site or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site from such locations do on their own initiative and are solely responsible for compliance with all applicable local laws.
XXI. SEVERABILITY:
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
XXII. STIPULATED LIQUIDATED DAMAGES:
A. In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the Parties' good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
B. For any breach of a portion of this Agreement that does not specifically state a liquidated damages amount, You hereby agree that any breach of this Agreement shall result in liquidated damages of US$500.00 per occurrence. You specifically agree to pay this US$500.00 in liquidated damages.
C. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
XXIII. INTEGRATION:
This Agreement (including any specifically-referenced tributary agreements that are incorporated by reference) constitutes the entire understanding of the Parties, and revokes and supersedes any and all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
XXIV. DISCLAIMER:
Other than those set forth herein, the Parties make no other warranties or representations, including warranties of merchantability or fitness for a particular purpose. Neither Party represents the other, and both Parties have had an opportunity to seek legal counsel of their choice.
XXV. BINDING AGREEMENT:
The Parties acknowledge the legally binding nature of this Agreement. By clicking on Register, You are affirmatively stating that You have read and understand the terms set forth herein and that You agree to be bound by the terms hereof. You hereby adopt the /s/ mark appearing on the signature line below, as Your electronic signature on this document.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each signed this document electronically pursuant to the E-SIGN Act.