Affiliate Program Terms and Conditions
Please read the following CAREFULLY. This is a binding legal contract ("Agreement") between Evero Media LLC. (hereinafter “Company,” and similar denoting terms, e.g., "we", or "us") and you ("You"). Before You can become a participant in our affiliate webmaster program ("Program") you must first read and agree to all of the following terms and conditions.
These Terms and Conditions govern Your participation in the Program, as that term is defined below, including the use of Company’s services and any materials that the Company may provide to You for use in association with Your participation in the Program.
By participating in the Program or by using any materials provided by Company, You agree to be bound by these Terms and Conditions. You also agree that this Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-Sign Act) and any other applicable statutory and common law that best effectuates Our mutual intent to create an enforceable agreement binding You and the Company to all the terms, conditions and other provisions set forth in this Agreement. You further acknowledge and agree that You will manifest Your agreement to this contract by any act that reasonably demonstrates Your assent to this Agreement, including, without limitation, by clicking an acceptance button or any other link in association with this Agreement in which the words “you agree” or similar text appears or by obtaining any benefits of participation in the Program.
TO PARTICIPATE IN THE PROGRAM YOU MUST BE OVER THE AGE OF 18 YEARS AND BE AN ADULT AS THE TERM “ADULT” IS DEFINED WHERE YOU ARE LOCATED DURING YOUR PARTICIPATION IN THE PROGRAM AND YOU MUST AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND SUBSEQUENT MODIFICATIONS OF THIS AGREEMENT DURING THE TIME YOU PARTICIPATE IN THE PROGRAM.
IF YOU ARE UNDER THE AGE OF 18 YEARS OR ARE NOT AN ADULT IN THE AREA YOU ARE LOCATED, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU DO NOT HAVE AUTHORIZATION TO ACCESS ANY PROGRAM MATERIALS OR ANY WEBMASTER OR PROGRAM-RELATED PARTS OF ANY COMPANY WEBSITE, DATABASE OR COMPUTER SYSTEM.
The Company may, in its sole discretion, modify the terms of this Agreement by posting such changes on the website on which this document is accessible or on any other Program Web Site as that term is defined below. Your continued participation in the Program, use of Program Materials, as that term is defined below, or use of any services provided by Company and/or any Company agent(s) after the effective date of any such notice shall constitute Your acceptance of all such changes. You acknowledge and agree that because e-commerce has traditionally been subject to frequent and substantial technological and legal changes, You fully acknowledge, understand and accept the responsibility of keeping abreast of all amendments, modifications and other changes in and to this Agreement, the Company’s Privacy Policy and notices posted on Program Websites.
You acknowledge and agree that any and all offers to You to participate in the Program are, and at all times were, subject to all the terms, conditions, obligations, limitations and waivers below. You acknowledge and agree that by participating in the Program You will be bound by all the terms and conditions set forth in this Agreement, and thereby expressly agree to the foregoing and all of the following:
1. DEFINITIONS
1.1 “Adult Persons” shall mean persons who are over the age of majority in the place in which they are located at the time their age is of legal consequence in the providing of goods and/or services such as the allowance or denial of access to a website. Adult persons shall also mean persons over the age of eighteen (18) years unless they are located in a jurisdiction wherein the age of majority is not eighteen (18) years, in which case “Adult Persons” shall mean persons over the age of twenty-one (21) years.
1.2 “Commission Payout Disclosure” shall mean the published listing of Referral Fees, as described in Sections 2.2 and 2.3, that are paid to Program Participants in Good Standing for Referrals that are compensable in accordance with this Agreement, the Commission Payout Disclosure and other notices published by the Company. Up-sell and multi-level referral compensation, if any, that might from time to time be offered in association with the Program will also be published in the Commission Payout Disclosure.
1.3 “Program Benefits” shall mean benefits to which You are entitled during the time that You are a Program Participant In Good Standing, as set forth in Paragraph 2 below, including the limited and conditional rights to use Program Materials and receive payments of Referral Fees. Program Benefits, and Your entitlement to Program Benefits, are at all times subject to this Agreement.
1.4 “Program Materials” shall mean promotional materials and Referral tracking materials, owned by Company that are supplied to You for the sole purpose of generating Referrals and otherwise promoting Program Website(s) while You are a Program Participant In Good Standing. All Program Materials shall at all times remain the sole and exclusive property of Company.
1.5 “Program Participant In Good Standing” shall mean You, provided that You are not in breach of any term, condition, obligation, warranty, indemnification, representation or other provision of this Agreement, including subsequent modifications of this Agreement, and You are not in breach or violation of any other requirement or obligation associated with Your participation in the Program.
1.6 “Program Website” shall mean each website Company has designated as a website to which You may send Referrals in accordance with this Agreement.
1.7 “Referral” shall mean an adult person who has been directed to a Program Website through the use of a hypertext transfer link residing on Your Website(s) that is in the form of a banner advertisement or other promotional link which automatically connects any person who clicks on the banner advertisement or other promotional link to a Program Website. Such banner advertisement or other promotional link may include or be associated with a unique Program participant tracking code supplied to You by the Company in association with Your participation in Program as a Program Participant In Good Standing. Notwithstanding the foregoing, a person directed to a Program Website shall not be deemed to be a Referral if that person leaves the Program Website without subscribing to the Program Website after having been initially directed there through a Program hyperlink banner advertisement or other promotional link on Your Website(s) supplied by the Company, even if at some later time that same person returns to the Program Website and subscribes to the Program Website, provided that such person does not subsequently return to the Program Website via a banner advertisement or other promotional link supplied to You as a Program Participant while You are a Program Participant In Good Standing.
1.8 “Referral Fee” shall mean a commission or other fee payable to You in accordance with the Commission Payout Disclosure for lawfully generated bona fide Referrals by You in accordance with this Agreement.
1.9 “Sexually Explicit Conduct” shall have the same meaning as set forth in the CAN-SPAM Act (See CAN-SPAM Act”, 15 U.S.C. §§ 7701-7713).
1.10 “Spam” shall mean unsolicited bulk email (“UBE”), whereby a typical individual email message comprising a part of the UBE is a part of a larger collection of email messages, substantially all of which having the same or substantively identical content, and one or more such email messages are sent to a material number of recipients, each of which have not granted verifiable permission for the email message to be sent to them.
1.11 “The 2257 Regulations” shall mean all requirements set forth at 18 U.S.C. §2257, 28 CFR 75 et seq., 18 U.S.C. §2257A and all regulations promulgated in association therewith.
1.12 “Your Website” shall mean each website that You own, operate, and control, from which You are hereby authorized to send Referrals to the Program Website(s) while You are a Program Participant In Good Standing. Your Website(s) shall be subject to this Agreement from the time You commence authorized participation in the Program.
2. PROGRAM BENEFITS.
2.1 RIGHTS GRANTED TO YOU BY US. Subject to the terms and conditions set forth in this Agreement, the Company grants to You, the following limited, nonexclusive, nontransferable and revocable rights during the time You are a Program Participant In Good Standing:
2.1.1 The limited, nonexclusive, nontransferable and revocable right to participate in the Program;
2.1.2 The limited, nonexclusive, nontransferable and revocable right to direct and/or refer adult visitors or users of Your Website(s) to one or more Program Websites;
2.1.2 A limited nonexclusive, nontransferable and revocable license for You to use Program Materials provided by the Company, such as promotional banners and other promotional materials, for use on Your Website(s) for the exclusive purpose of advertising, marketing or promoting websites owned, controlled and/or operated by Company during the time You are a Program Participant In Good Standing; and
2.1.3 All licenses and rights granted to You in this Agreement shall automatically and permanently terminate upon the termination of Your participation in the Program by any means, Company’s termination of the Program, Company’s termination of this Agreement or by the operation of law.
2.2 REFERRAL FEES. Subject to the terms and conditions set forth in this Agreement, for each person who becomes a paid subscriber to a Program Website and who has been tracked and verified by the Company as a “Referral” to a Program Website from Your Website(s), You will receive a “Referral Fee” in accordance with the Commission Payout Disclosure, specified in Section 2.3, that is in effect at the time the person became a bona fide Referral.
2.2.1 Notwithstanding the foregoing, You acknowledge and agree that You shall not be entitled to a Referral Fee from Company for any Referral or subscription to any Program Website that
2.2.1.1 the Company determines in its sole discretion is the result, or is the likely result of fraudulent activity; or
2.2.1.2 results from any activity by You or any person under Your direct or indirect control that violates any term, condition, obligation or other provision set forth in this Agreement.
2.2.2 You acknowledge and agree that Company shall have the right, in its sole and exclusive discretion, at any time to expand or modify what it determines to constitute possible fraudulent activity. Without limiting the foregoing, possible fraudulent activity shall include without limitation, the following circumstances or activities:
2.2.2.1 Where a subscriber has used or attempts to use a credit card number which is in a negative data base;
2.2.2.2 Where there are multiple subscriptions or attempted subscriptions originating from a single IP address within a short period of time;
2.2.2.3 Where there are sequential or multiple subscriptions under different names, or variations of the same name using the same credit card number, or sequential names or patterns of names using different credit card numbers;
2.2.2.4 Where there is a pattern of "bursting subscriptions" characterized by numerous subscriptions from a website in a relatively short time span (the "bursting period"), or where there has been history of few subscriptions from that website before or after the bursting period;
2.2.2.5 Where there has been an attempt to put through a credit card with a BIN number that is listed in a negative BIN number database; and
2.2.2.6 Where there have been sequential or multiple attempts to register or subscribe with a credit card using the same BIN number and sequential or multiple number strings to complete the credit card number.
2.3 COMMISSION PAYOUT DISCLOSURE. Referral fees are paid at the rate of 50% of the referred subscriber's membership fee minus 50% of the credit card processor's fee. For example, if a subscriber purchases a membership for $27.95 and the credit card processor charges 11%, then You would receive a referral fee of ($27.95 / 2) - ((27.95 * 0.11) / 2) = $12.44.
2.3.1 Referral fees for recurring memberships are paid on the initial signup fee and all recurring fees ("rebills"), until the subscriber cancels or the subscriber's membership is otherwise terminated. Referral fees on non-recurring memberships are paid on the one-time signup fee only.
2.3.2 If a referred subscriber's membership is refunded or charged back, the referral fee that was paid on the subscription will be deducted from Your account in the period in which the refund or chargeback occurs.
2.4 EXCESSIVE CHARGEBACKS. You acknowledge and agree that Company shall have the right to deny or withhold any and all payments otherwise due You pursuant to Your participation in the Program, and to terminate Your rights to participate in the Program if there has been an abnormal number of chargebacks or cancellations of memberships or subscriptions that have been referred to Company from Your Website(s). You further acknowledge and agree that Company shall have the right, in its sole and exclusive judgment, to determine what constitutes an “excessive” or “abnormal” number of chargebacks or cancellations of memberships or subscriptions.
2.5 U.S. DOLLARS. All Referral Fees payable hereunder shall be paid in United States Dollars.
2.6 MODIFICATION OF BENEFITS. Company reserves the right, in its sole and exclusive discretion, at any time to alter or modify the method and terms of payment benefits to Participants and the duration of the Program. Upon notice of any change in benefits under the Program, You shall have the right to withdraw or terminate Your participation in the Program.
3. GENERAL PROVISIONS GOVERNING YOUR PARTICIPATION IN THE PROGRAM. You acknowledge and agree that Your participation in the Program, Your right to receive Program Benefits, including Your right to receive Referral Fees, and Your use of Program Materials are all subject to the following limitations:
3.1 ADULTS ONLY PROGRAM PARTICIPATION. Only Adult Persons over the age of eighteen (18) years of age or twenty-one (21) years of age in places where the age of majority is not eighteen (18) years, may apply to participate in, or participate in the Program. If You are not an Adult Person, You are not authorized to access the Company’s databases or computers beyond the warning splash page. This “Adults-only” prohibition, includes without limitation, any “Adults-only” parts of any Program Websites, Company Websites, or any Program Materials. Please be advised that any accessing of Company computers or databases, including any “Adults-only” parts of any Company Websites, or any Program Materials in excess of the authorization given to You comprises a violation of federal and state law and infringes the Company’s copyrights and other proprietary rights.
3.2 YOU MUST PROVIDE TRUTHFUL AND ACCURATE INFORMATION. You must truthfully complete all the required fields of requested data during the sign-up process to participate in the Program. You must provide Us with Your full legal name and valid contact information including email and mailing addresses (P.O. box addresses will not satisfy this requirement). Please be advised that any information fraudulently provided to the Company via the Internet or other wire means comprises a violation of federal and state laws. You hereby authorize the Company, its agents and contractors to email You notices about the Program and Your account to email addresses You provide to Us, and otherwise communicate with You based on other information that You provide to Us.
3.3 LAWFUL REFERRAL GENERATION. You are free to generate Referrals by any lawful methods that are not in violation of any terms, conditions, obligations, duties, warranties, indemnifications or any other parts of this Agreement. You may not direct Referrals or any other traffic to a Program Web Site, any other website owned by Company, or to any of the Company’s affiliates, in any manner that violates any law, rule, regulation or custom, or which violates or infringes the rights of any person or entity.
3.4 PROHIBITED PROMOTION AREAS. You will not promote Program Websites to, or generate Referrals from, any persons in the following countries: Afghanistan, Albania, Argentina, Armenia, Azerbaijan, Bahrain, Belarus, Bhutan, Bosnia and Herzegovina, Brazil, Bulgaria, China, Colombia, Costa Rica, Croatia, Cuba, Czech Republic, Ecuador, El Salvador, Egypt, Estonia, Georgia, Hong Kong, Hungary, India, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Korea (North and South), Kyrgyzstan, Latvia, Lithuania, Macedonia, Malaysia, Republic of Moldova, Mongolia, Pakistan, Philippines, Poland, Romania, Russian Federation, Saudi Arabia, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Venezuela, and Vietnam.
3.5 COMPANY RIGHTS TO TERMINATE PROGRAM PARTICIPATION AND BENEFITS. The Company shall at all times have the right, in its sole and exclusive discretion, to terminate, suspend or modify Yours and any other person’s participation in the Program at any time and Company may do so with or without prior notice or cause. Company shall at all times also have the unlimited and unqualified right to modify, suspend or terminate any and all Program Benefits, the entire Program or any part(s) thereof, without prior notice, justification or explanation.
3.6 PROGRAM MODIFICATIONS. The Company, in its sole and exclusive discretion, shall have the right at any time to change or modify any Program, including without limitation, the right to change the basis for calculating and the method of paying compensation, including Referral Fees, to Program Participants, including, without limitation, the right to change the basis for entitlement for payment of a Referral Fee from a commission for the sale of a subscription or membership resulting from a Referral, to a payment for the generation of a “click through” Referral. If at any time Company materially changes the Program, You shall have the right to withdraw and terminate Your participation in the Program at any time by providing written notice to the Company of such termination of participation in accordance with the Notice provisions set forth in Paragraph 18 below. If You terminate Your participation in the Program, You shall have no other rights or remedies regarding any Program changes by the Company or any modification of any person’s, including Yours and Your affiliates’, participation in any Program, and You hereby agree not to bring any claim or action against the Company or any Indemnified Parties, as that term is defined herein, regarding any modification, suspension or termination of the Program or any person or entity’s participation in the Program.
3.7 PROGRAM BENEFITS ARE NOT TRANSFERABLE. Program Benefits are not transferable by You and may only be used by You in association with Your Website(s) while You are participating in the Program and are a Participant In Good Standing.
3.8 PROHIBITED ACTIVITIES. You agree that You will not use the Program, Program Benefits or any materials or rights provided to You in direct or indirect association with any activity that is prohibited by any law, regulation or rule. Without limiting the foregoing, You agree that you will not engage in any of the following prohibited activities and if any such action described below is engaged in by You or anyone under Your control, You expressly agree that Company shall be entitled, at Company’s election and discretion, to terminate Your participation in the Program, with forfeiture of all of Your unpaid Referral Fees, recover all damages resulting from any and all such actions, report such actions to other affiliate marketing program companies, and permanently preclude You from ever participating in any Company Program again:
3.8.1 Engaging in any illegal activity, including, without limitation, disseminating or otherwise using unlawful Spam, unlawful Instant Messages, Chatroom, Newsgroup, ICQ or IRC postings, or using any other forms of unlawful unsolicited electronic advertisements or other communications;
3.8.2 Promoting, publishing, distributing or otherwise using, in any manner, any illegal or unlawful content, including, without limitation, child pornography, content that is not in compliance with The 2257 Regulations, material advocating or providing assistance to terrorists, and content comprising infringing works, defamatory material, or stolen passwords;
3.8.3 Engaging in any activity that Company in its sole discretion determines is offensive or inappropriate;
3.8.4 Including on, in or in association with Your Website(s) any depiction of
3.8.4.1 children;
3.8.4.2 adults, animated characters, synthespians or avatars portrayed as, or reasonably appearing to be, children;
3.8.4.3 incest;
3.8.4.4 torture, genital mutilation, rape or other violent sexual acts;
3.8.4.5 bestiality;
3.8.4.6 necrophilia;
3.8.4.7 menstruation, urination or defecation; or
3.8.4.8 any other depiction deemed illegal by any governmental authority.
3.8.5 Using prohibited content in hidden meta tags, text, links, graphic(s) or any HTML;
3.8.6 Misleading or defrauding the Company or consumers or attempting to do so in any way;
3.8.7 Generating Referrals directly or indirectly or otherwise directing traffic by using a misleading domain name on the Internet that may either deceive a person into viewing material that is obscene in nature or deceive a minor into viewing material that is harmful to minors on the Internet;
3.8.8 Hijacking traffic;
3.8.9 Providing incorrect or incomplete account information;
3.8.10 Generating hits or signups as a requirement to enter or obtain access to goods or services on Your Website(s) or another party’s website;
3.8.11 Engaging any means or mechanisms that falsely generates hits or signups by any person or entity;
3.8.12 Cheating or defrauding any other Program participant, other company operating an affiliate program or any of Company’s sponsors, contractors, or other related parties;
3.8.13 Violating or infringing any rights of any person or entity, including without limitation, any copyrights, trademark rights, patent rights, rights of publicity, privacy rights or any other intellectual, personal, property or contract right violation, infringement or misappropriation;
3.8.14 Hosting Your Website(s) with or through a web hosting entity that does not permit adult content, including, but not limited to, Geocities, Angelfire, Tripod, Xoom, CJB.net, and Hypermart;
3.8.15 Misrepresenting any Program Website in any manner, including but not limited to, misrepresenting the cost of membership, terms of membership, or content contained within a Program Website;
3.8.16 Any unfair or deceptive advertising, including any such activity prohibited by Section 5 of the FTC Act, such as any representation, omission, or practice that is likely to mislead consumers and improperly affect consumer’s behavior or decisions about a product or service;
3.8.17 Misusing the Program or this Agreement in any manner, including but not limited to, instructing a prospective member to sign up and cancel;
3.8.18 Engaging in any unauthorized modification, alteration or other unauthorized use of Program Materials or any other materials provided to You by, through or in association with the Program by Company or any of its agents; or
3.8.19 Attempting to establish new accounts from any of the following locations: Afghanistan, Albania, Argentina, Armenia, Azerbaijan, Bahrain, Belarus, Bhutan, Bosnia and Herzegovina, Brazil, Bulgaria, China, Colombia, Costa Rica, Croatia, Cuba, Czech Republic, Ecuador, El Salvador, Egypt, Estonia, Georgia, Hong Kong, Hungary, India, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Korea (North and South), Kyrgyzstan, Latvia, Lithuania, Macedonia, Malaysia, Republic of Moldova, Mongolia, Pakistan, Philippines, Poland, Romania, Russian Federation, Saudi Arabia, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Venezuela or Vietnam.
3.9 FULL COMPLIANCE WITH FTC REGULATIONS. You and all persons under Your control or authority shall at all times fully comply with all United States Federal Trade Commission (“FTC”) statutes, regulations, rules, policies, and advisory opinions. You expressly agree that You and Your Website(s) will fully, fairly and accurately describe the products and services that are offered and/or sold on, at, in or through Your Website(s). You also expressly agree that You will fully, fairly and accurately disclose the costs and all associated terms and conditions, procedures for purchasing goods and/or services available on, at, in or through Your Website(s) as well as all procedures for obtaining refunds and/or credits and otherwise resolving disputes regarding such goods and services and the operation of Your Website(s).
3.10 USE OF THE WORD “FREE”. You expressly agree that any and all use of the word "free" on or in association with Your Website(s) or otherwise in association with Your participation in the Program must comply with the FTC rules and regulations. If You use the word "free" in association with an offer that is subject to certain terms and conditions, You agree that those terms shall be disclosed in a clear and conspicuous manner. Additional information regarding the use of the word “free” in association with offers is available in a guide entitled “FTC GUIDE CONCERNING USE OF THE WORD "FREE" AND SIMILAR REPRESENTATIONS." A copy of the aforementioned guide may be obtained from the FTC.
3.11 COOPERATION WITH INVESTIGATIONS. The Company reserves the right to cooperate in any investigation relating to activities involving any violation of this Agreement, any violation of any law, rule or regulation and any allegation of any violation or infringement of any right of any person or entity, including any intellectual property, privacy or contractual right. Such cooperation shall include, without limitation, disclosure of any and all information provided to Us by You, to third parties, including but not limited to law enforcement, administrative agencies and courts.
3.12 PROGRAM MATERIALS ARE COMPANY PROPERTY. All Program Materials and other materials provided to You in association with the Program, including, without limitation, any and all advertising banners, photographic materials, video, audio and audio-video recordings, software, scripts, code and text, are and shall remain the property of Company and shall not be copied or reproduced, altered, modified or changed, broadcast, distributed, transmitted or disseminated, sold or offered for sale in any manner, except as previously expressly authorized by the Company for use by You in association with Your participation in the Program as set forth in this Agreement.
3.13 COMPANY TRADEMARKS. You acknowledge and agree that all trademarks and services marks used in or in association with the Program, the Program Websites, other Company websites and/or other Company products and services including, without limitation, "Drake Cameron" or "DrakeCameron.com" (“Company Trademarks”), constitute valuable Company property in which Company reserves all rights and in which You shall not, at any time, obtain any proprietary rights whatsoever. You also acknowledge and agree that all Company copyrights and other intellectual property rights owned by Company or any associated entity that are used or embodied in or in connection with the Program, Program Website(s), other Company websites and/or other Company products and services shall be and remain at all times the Company’s sole property. You expressly agree that You shall not during, or at any time after You cease participation in the Program, in any way question or dispute the Company’s ownership of any such rights or any Program Materials or other materials provided to You in association with Your participation in the Program. Nothing herein shall be construed as a grant or assignment of any rights in or to any Program Materials or any intellectual property owned by Company or any other person or entity. In the event that new trademarks, trade names, copyrightable material and/or other intellectual property is created, adopted or developed during the time You are a Program Participant, You hereby expressly acknowledge that the same shall be and at all times remain the Company’s property. All good will generated by the use of Company Trademarks by You pursuant to Your participation in the Program shall inure to the sole and exclusive benefit of the Company.
3.14 NO SIMILAR DOMAIN NAME REGISTRATION OR USE. You may not register or use any domain name that includes or is similar to any Company Trademarks or any trademarks, service marks or trade names appearing in any Program Materials or other materials provided to You pursuant to this Agreement.
3.15 SEEK LEGAL ADVICE. It is strongly suggested that You have this Agreement reviewed by competent counsel and seek appropriate legal advice and counseling regarding compliance with all the laws that may pertain to Your online business, including, without limitation, the obscenity laws, The 2257 Regulations, laws governing the distribution of harmful matter to minors, deceptive domain name regulations, child pornography laws, the FTC Act and other laws prohibiting false, unfair or deceptive advertising, the CAN-SPAM Act, state “do not email” registry laws such those that are currently in effect in Utah (Utah Child Protection Registry Act) and Michigan, laws pertaining to intellectual property rights, including copyrights, trademark rights, service mark rights, patent rights, rights of publicity, laws pertaining to online privacy, laws pertaining to computer and database security, including The Electronic Communications Privacy Act (18 U.S.C. §§ 2701-2710), The Computer Fraud and Abuse Act (18 U.S.C. § 1030) and The California Comprehensive Computer Data Access and Fraud Act (Cal. Penal Code §502), laws pertaining to online or other assistance to terrorists, The PROTECT Act, laws pertaining to pimping, pandering and prostitution, tax laws, laws pertaining to sexual harassment, and laws pertaining to libel, trade libel and defamation.
3.16 COMPANY DOES NOT PROVIDE LEGAL ADVICE. You acknowledge and agree that nothing in this Agreement, any future modifications of this Agreement or any other communication by Company or any of its principals, officers, directors, employees, agents, attorneys, contractors or any other person directly affiliated with Company shall at any time be construed, or relied upon, by You or any person under Your control as legal advice or legal counsel of any kind. Please do not ask Company or any of its employees to provide You with legal advice. Referrals to competent legal counsel familiar with adult entertainment law are available from the Free Speech Coalition.
3.17 NO UNLAWFUL SPAMMING. NOTE: WE HAVE ZERO TOLERANCE FOR UNLAWFUL TRANSMISSION OF BULK UNSOLICITED EMAIL (I.E., ILLEGAL SPAMMING). IF COMPANY DISCOVERS THAT YOU HAVE ENGAGED IN UNLAWFUL SPAMMING DURING THE TIME YOU ARE A PROGRAM PARTICIPANT, YOUR PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, YOU WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS OTHERWISE DUE TO YOU WILL BE FORFEITED TO THE COMPANY.
3.18 FULL COMPLIANCE WITH CAN-SPAM ACT. You expressly agree that at all times that You are a Program Participant, You will not use any form of unlawful or illegal Spam, newsgroup postings, IRC posting or any other form of unlawful unpermissioned electronic solicitation in direct or indirect association with Your Website(s), any Program Website, any Company Website, or use of Program Materials or any intellectual property owned or licensed by the Company, for the purpose of directing or Referring users, or for any other reason. If You choose to generate Referrals via the use of email, You must, and hereby expressly agree, at all times to fully comply with the United States CAN-SPAM Act of 2003 (“CAN-SPAM Act”, 15 U.S.C. §§ 7701-7713 and 18 U.S.C. § 1037.
3.19 VIOLATIONS OF CAN-SPAM ACT. You acknowledge that any violation of the CAN-SPAM Act by You or any party under Your control may result in substantial civil liability and serious criminal penalties. We strongly suggest that You seek proper advice from a qualified legal specialist familiar with the requirements for compliance with the CAN-SPAM Act prior to Your use of unsolicited bulk email for any commercial purposes. Notwithstanding the foregoing, You acknowledge and agree that any violations of the CAN-SPAM Act or any other email regulation by You or any person(s) under Your control in association with Your participation in the Program might expose Company to substantial civil liability. As such You hereby agree to fully indemnify Company and all persons and entities associated therewith for all liability, costs and damages resulting from any and all violations of the CAN-SPAM Act by You and/or any person(s) under Your control. All Program Participants discovered to be in violation of the CAN-SPAM Act will be terminated from the Program and We reserve the right to report any and all discovered violations of the CAN-SPAM Act.
3.20 PROGRAM EMAIL PROMOTION REQUIREMENTS. All email used by You or any person(s) under Your control to directly or indirectly generate Referrals shall comply with all of the following requirements:
3.20.1 The exact phrase “SEXUALLY-EXPLICIT:” must be contained in capital letters as the first 19 characters at the beginning of the subject line (counting the dash, colon and space). This phrase in the subject line must be in ASCII format.
3.20.2 The same exact phrase “SEXUALLY-EXPLICIT:” must be in capital letters as the first 19 characters in the main body, i.e., the “Brown Paper Wrapper” area of the email message. The Brown Paper Wrapper refers to the opening portion of the email that is immediately visible to the recipient, without scrolling down or taking any other affirmative steps to view the message. Sexually explicit material can be displayed beneath the 'Brown Paper Wrapper' area of the email message or accessible by clicking on a link, but must be accompanied by any reasonably required instructions on how to access, or activate a mechanism to access, the sexually explicit material and must be preceded by a clear and conspicuous statement that to avoid viewing the sexually explicit material, the recipient should delete the email message without following such instructions.
3.20.3 The “Brown Paper Wrapper” area must clearly and conspicuously indicate that the message itself is an advertisement or solicitation, display a valid physical postal address of the sender, and contain an email address, or other Internet-based mechanism, that remains capable of receiving replies for no less than thirty (30) days after the transmission of the original message. The area must also contain information advising the recipient that he or she can reply to decline any further commercial email messages from the sender.
3.20.4 The subject line must not contain text with written descriptions of Sexually Explicit Conduct. Also, the “Brown Paper Wrapper” area of the email message must not contain materials with Sexually Explicit Conduct. Sexually Explicit Conduct, including any materials that constitute actual or simulated sexual intercourse (including genital-genital, oral-genital, anal-genital, or oral-anal, whether heterosexual or homosexual); masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of a human being.
3.20.5 The header information of each email and other electronic message, including, without limitation, all mobile telephone messages, shall be truthful and accurate, shall not be forged or missing, and shall not misrepresent or disguise the sender or origin of any communication or the path of the message from sender to intended recipient.
3.20.6 No email messages shall directly or indirectly contain, comprise, facilitate or assist any “chain letters”, “pyramid schemes” or similar processes of any type.
3.20.7 Each email message shall contain the Universal Resource Locator (“URL”) of Your website and a valid email address at which the recipient may use to reach You. Each email must contain a statement informing the email recipient that the recipient may contact You to instruct You to remove the recipient from Your mailing list and to send no further messages to the recipient’s email address.
3.20.8 You agree that You will inform Company within twenty-four (24) hours of Your receipt of any and all complaints regarding Your use of email communication directly or indirectly in association with Your participation in the Program.
3.21 DOMAIN NAMES. You agree that you will not use any domain name in association with the Program
3.21.1 that is not registered with a reputable domain registration company;
3.21.2 that comprises, in whole or in part, harmful matter to minors;
3.21.3 that violates the Protect Act;
3.21.4 that is registered to or otherwise belongs to any party other than You, unless you have the registrant’s or owner’s express written permission to use the domain name in association with the Program and You have provided the Company with a copy of such express written permission prior to such use in association with the Program; or
3.21.5 that in any manner misrepresents or disguises the point of origin of any communication, including email and mobile telephone messages.
3.22 TERMINATION FOR UNLAWFUL ELECTRONIC COMMUNICATIONS. You acknowledge and agree that We have the right to immediately, and without notice, terminate Your participation in the Program if We, in Our sole and exclusive judgment, conclude that You have engaged in the use of any form of unlawful UBE, newsgroup postings, password selling or trading, warez, IRC posting or any other form of Spamming.
3.23 “DO NOT EMAIL” REGISTRY LAW AND OTHER EMAIL LAW COMPLIANCE. You also agree to comply with all state laws regulating email, such as the “do not email” registry laws, such as the Utah Child Protection Registry Act. You also agree to comply with all foreign laws regulating the use of unsolicited bulk email message transmissions as they apply to any subject email transmissions You generate. You expressly hereby agree that failure to comply with all applicable laws pertaining to email transmission may, at Company’s sole election, result in immediate termination of Your participation in the Program and forfeiture of any Referral Fees payable to You.
3.24 PROGRAM WEBSITES ARE FOR ADULTS ONLY; UNAUTHORIZED ACCESS IS PROHIBITED BY LAW. You acknowledge that persons under the age of majority in the jurisdiction in which they are located (e.g. persons under the age of eighteen (18) years in the United States), are not authorized to access any part of the Program Websites beyond the first warning page, and that any such access in excess of authority given by Us constitutes a violation of federal and state laws and unauthorized copying of Our intellectual property in violation of United States copyright laws. Accessing any adults-only parts of any Program Website(s), other Company Websites or any parts thereof without Company authorization comprises intentional unauthorized access of Company computers and data in Our databases. Any such access to Our computers and Our data in excess of the permission granted by the Company, including any access to any online tools, webmaster statistics or other resources only available to Program Participants in Good Standing, by any person who is not an adult or is not a Program Participant in Good Standing, may violate state, federal and foreign laws, including, without limitation, The Electronic Communications Privacy Act, 18 U.S.C. §§ 2701-2710, The Computer Fraud and Abuse Act, 18 U.S.C. § 1030 and The California Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code §502. You also acknowledge and agree that any unauthorized access to any Program Website or Company content database also constitutes one or more intentional infringements of Our copyrights in the materials depicted thereon.
3.25 DISCLAIMERS AND AGE VERIFICATION. With respect to any website or web page or any other electronic presentation of material which is sexual in nature that You use in direct or indirect association with the Program to generate Referrals, You agree to present to a potential viewer of such material appropriate disclaimers and a means of exit for the viewer before granting access to any material that is sexually explicit or otherwise unsuitable or inappropriate for minors. In addition, You agree that with regard to exhibition of such sexual materials You will implement an appropriate age verification mechanism or procedure that complies with all laws to which such sexual materials are subject.
3.26 COPY OF 2257 REGULATION RECORDS. You agree that Company may, at its election, at any time, require You to provide a copy of all documentation required by The 2257 Regulations as partial evidence of Your compliance with The 2257 Regulations.
3.27 BEST EFFORTS TO KEEP INFORMED. You agree that You will use best efforts to become and stay informed of all laws that are directly or indirectly applicable to the use of Your website, especially as such use relates to Your participation in the Program.
3.28 SOFTWARE EXPORT RESTRICTIONS. You acknowledge that some elements of Your Website(s) may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You hereby represent and warrant that You will not assist or participate in any such prohibited exporting or diversion and that You will not license or otherwise permit anyone to receive any materials controlled under any United States laws and regulations in violation of the law.
3.29 TAX IDENTIFICATION INFORMATION. If You are residing in the United States, only citizens or resident aliens of the United States may participate in the Program and You must supply Company with a Federal Tax ID or Social Security Number that is representative of, and exactly matches the payee name You provide to the Company. Your failure to supply that information will constitute a basis for terminating this Agreement and for forfeiting any commissions or fees to which You would otherwise be entitled under this Agreement. To comply with IRS reporting requirements, Company may use a credit agency to verify and/or modify payee name information as warranted.
3.30 UNAUTHORIZED ACCESS TO COMPANY COMPUTERS AND/OR DATABASES PROHIBITED BY LAW. You acknowledge and agree that You shall not access, or attempt to access any Program Materials and/or the Company website(s) in a manner not expressly authorized by the Company. Any and all unauthorized access to Company’s computers and/or databases, including for the purpose of unauthorized viewing, downloading, receipt, duplication or other use of Program Materials or any Company website, regarding which You are directly or indirectly involved, shall constitute intentional infringement(s) of the Company’s and potentially others’ intellectual property rights by You, and other rights, and may also violate state and federal anti-hacking and computer privacy laws, including The Electronic Communications Privacy Act, 18 U.S.C. §§ 2701-2710, The Computer Fraud and Abuse Act, 18 U.S.C. § 1030 and The California Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code §502. Any unauthorized use or any intrusion of Company’s or any other Program Participant’s computer systems or networks is strictly prohibited. You agree not to engage or attempt to engage in such activity or to attempt to access any of Company’s servers or other computers for the purpose of altering or manipulating Company hardware or software. If it is discovered that You are involved in any breach of Company computer or network security or the breach of any other party’s computer or network security you acknowledge and agree that Company shall have the unlimited right to notify law enforcement agency(ies) for the purposes of investigating and potentially prosecuting criminal violation(s) of Company’s system or network security and You hereby authorize Company to release information about You to third party system administrators associated with other affiliate marketing programs, and others, in order to assist in resolving security incidents and preventing future incidents.
3.31 NO AUTHORIZATION TO ACCESS PROGRAM MATERIALS OR COMPANY WEBSITES FROM PROHIBITED LOCATIONS. You hereby acknowledge that You understand that the Company does not authorize the accessing, viewing, downloading, duplication, receiving, transmission, broadcasting or other use of the Program Materials, Program Websites and other Company websites by any person, INCLUDING YOU, who is located in any of the areas designated as PROHIBITED AREAS. All of the following areas constitute PROHIBITED AREAS from which no Program Materials and/or any Company website may be accessed, viewed, downloaded or otherwise received:
3.31.1 All parts of the United States of America corresponding to the entire area within each United States Postal Service zip code commencing with any of the following three digits:
150-179, 182-188, 193, 195, 196, 226-229, 238-268, 270-299, 304-310, 312-329, 335-339, 341, 342, 344, 346, 347, 349-352, 354-374, 376-397, 403-418, 420-427, 430-459, 467-479, 572-577, 609-620, 622-629, 634-639, 644-648, 650-658, 664-679, 686-693, 703-708, 710-714, 716-731, 734-741, 743-751, 754-769, 771, 772, 776-785, 788-799, 840, 841, 843-847
3.31.2 All parts of the following countries: Saudi Arabia, The United Arab Emirates, Kuwait, Afghanistan, Iran, and other countries operating under Sharia law, Syria, Libya, Sudan, Jordan, Pakistan, Egypt, Lebanon, Iraq, Somalia, The Republic of China, North Korea, Singapore, Japan, Germany; and
3.31.3 All parts of every other geophysical place corresponding to a political entity or part thereof in which the access, viewing, downloading, dissemination of, or other use of the materials contained in the website would constitute a violation of any law, regulation, rule or custom.
3.32 ALL PROGRAM PARTICIPANTS MUST REMAIN IN GOOD STANDING. You must be a Program Participant In Good Standing to participate in the Program. You hereby acknowledge and agree that You shall cease to be a Participant In Good Standing and shall be subject to immediate termination of all Program Benefits without prior notice if You fail to perform under, or breach, any part(s) of this Agreement.
4. YOUR WARRANTIES TO US. In consideration of Company providing You with Program Benefits and as a material inducement for Company to enter into this Agreement with You, You hereby expressly warrant all of the following:
4.1 That You are over the age of eighteen (18) years or, if the age of majority in the place that You are located is not eighteen (18) years, You warrant that You are currently over the age of twenty-one (21) years and are legally an adult in the place where You are located, and You further warrant that You have not participated in any Company Program or accessed any “adults-only materials” at any Program Website or any other Company Website prior to the time You became an adult as defined under the applicable law of the state or locality where You reside;
4.2 That You are the person who owns or is otherwise entitled to contract on behalf of the entity that owns the rights to Your Website(s);
4.3 That You have full authority, all necessary rights and sufficient capabilities to enter into this Agreement and perform all the duties, obligations, warranties, indemnifications and other requirements set forth in this Agreement;
4.4 That You will at all times only provide accurate and complete information to Company concerning Your identity, bank account, address and/or other required information;
4.5 That at all times You are a Program Participant, You will not use any form of unlawful or illegal Spam, newsgroup postings, IRC posting or any other form of unlawful unpermissioned electronic solicitation in direct or indirect association with Your Website(s), any Program Website, any Company Website, or use any Program Materials or any intellectual property owned by the Company, for the purpose of directing or Referring users or for any other reason;
4.6 That if You elect, in Your sole discretion, to generate Referrals via the use of email, You must, and hereby expressly agree at all times, to fully comply with the CAN-SPAM Act and all foreign laws regulating the use of unsolicited bulk email message transmissions as they apply to email transmitted by You or any person(s) under Your control;
4.7 That You will at no time while You are participating in the Program, or using any Program Materials or other materials provided to You by Us, directly or indirectly display on, or otherwise include or use in, on or in association with, Your Website(s) any advertising or advertising links of any kind which promote Company Websites, other than through the use of specific advertisements, advertisement links, banners and other materials that have been supplied by the Company or its agent(s) pursuant to this Agreement for use in association with Your Program Participation while You are a Program Participant In Good Standing;
4.8 That You will not copy or reproduce, alter, modify or change, broadcast, distribute, transmit, disseminate or otherwise use any banners or other Program Materials, use any Program Benefits or use or exploit the Program, in any manner, at any time anywhere in the World except as authorized by this Agreement or in a separate written agreement with the Company;
4.9 That You will ONLY use Program Materials, such as promotional pictures and images provided by Company, on Your Website(s) to generate Referrals;
4.10 That You will not conduct Your business or manage Your Website(s) in any manner that violates any law, regulation or rule, including, without limitation, The 2257 Regulations, The CAN-SPAM Act, The Adam Walsh Child Protection Act of 2006, any other child pornography laws, The Child Online Privacy Protection Act,The Protect Act (prohibiting deceptive adult website domain names), any FTC rule or regulation, or any foreign law applicable to Your Website(s);
4.11 That neither You nor any person under Your control will include in Your Website(s) or promotional materials, or link Your Website(s) or promotional materials to, or otherwise use, any of the following types of content or materials while You are a Program Participant, and neither You nor any person under Your control will directly or indirectly link any of the following content or materials to any Program Website or other Company website or any of Company’s intellectual property by any means:
4.11.1 Obscene material, including without limitation any material depicting bestiality, rape or torture;
4.11.2 Any material which is displayed or transmitted in a way as to constitute harmful matter or indecent communications to minors;
4.11.3 Any material in which persons under the age of eighteen are depicted in actual, simulated or suggestive sexual situations;
4.11.4 Any material not fully in compliance with The 2257 Regulations;
4.11.5 Any material which constitutes child pornography or matter which involves depictions of nudity or sexuality by an age inappropriate-looking performer (i.e. someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc., or any material that includes or is associated with any of the following terms: “Lolita”, “Pre-Teens”, “Young Teens”, “Kids” and “Kiddy” for any purpose in any fashion including, but not limited to, within meta-based tags;
4.11.6 Any material that is threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity;
4.11.7 Any content or other material that promotes discrimination based on race, sex, sexual orientation, religion, nationality, ethnicity, disability, age, or any content or other material that comprises hateful or offensive material directed toward a particular person or a specific race, sex, sexual orientation, religion, nationality, ethnicity, disability or age;
4.11.8 Any material that constitutes an infringement, misappropriation or violation of any person's or entity’s intellectual property rights such as copyrights, trademark rights, rights of publicity, patent rights, or any person or entity’s private property rights, privacy rights, contract rights or other rights;
4.11.9 Any program, file, data stream or other material that contains viruses, worms, "Trojan horses" or any other destructive feature which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person or entity, regardless of whether damage is intended or unintended;
4.11.10 Any communications of any kind with a terrorist or a terrorist organization;
4.11.11 Any functionality of any kind that provides any form of assistance to any terrorist, terrorist organization or act of terror; or
4.11.12 Any illegal matter whatsoever;
4.12 That if Your Website does business in California or any other jurisdiction that requires websites to post a privacy policy, You will at all times post and comply with the provisions of the privacy policy posted on Your Website;
4.13 That You will not unlawfully harvest or otherwise collect data from persons visiting Your Website, including, but not limited to, email addresses, except as expressly disclosed in Your Website’s(s’) published privacy policy;
4.14 That You will not falsify or delete any attributions of authorship of content depicted on Your Website(s) if to do so would violate the rights of any person or entity;
4.15 That You will not restrict or inhibit any other Program Participant from fully participating in the Program and fully enjoying all Program Benefits;
4.16 That You will not violate any code of conduct or other guidelines posted by Company in association with the Program;
4.17 That You will not create a false identity for the purpose of misleading Company or any other person or entity;
4.18 That all materials of every kind, including all photographic, videographic, audio and textual materials used in direct or indirect association with materials provided through the Program shall only be transmitted, distributed, broadcast or otherwise disseminated by You to willing adults and all such materials shall at all times comply with contemporary community standards in the communities into which they are so disseminated;
4.19 That unless Your participation in the Program is terminated by the Company, You agree to be deemed a Program Participant until You terminate participation in the program by notifying Company by email of Your intent to terminate Your participation in the Program;
4.20 That You will remain a Program Participant in Good Standing at all times You are receiving benefits or are otherwise participating in the Program;
4.21 That if Your participation in the Program is terminated for any reason, You cease to be a Program Participant in Good Standing, You change Your Website's(s’) URL(s) or You cease to offer services on the Internet, You shall immediately and permanently cease all use of all Program Materials provided to You, immediately cease use of all Company Trademarks, and immediately remove from Your Website(s) all files containing any other materials provided to You by the Company and/or the Company’s agent(s) for use in association with Your Participation in the Program;
4.22 That You agree that You shall at all times maintain a designated employee of Your company to act as the Custodian of the Records for all records that are required to be maintained pursuant to The 2257 Regulations in relation to depictions on Your Website(s) and other depictions used by You or persons under Your control in relation to the generation of Referrals, and that You shall immediately provide to Us as requested, in Our sole discretion, evidence that You are in compliance with all of The 2257 Regulations;
4.23 That You shall properly (and continuously) post the statements in the manner (and the locations) required by The 2257 Regulations on Your Website(s) or other Internet areas You employ for the promotion or marketing of our Program;
4.24 That any information in the nature of the legal names, dates of birth, addresses, and other personal information of actors and models, together with any and all information that is derived therefrom, which You may receive from Us for purposes of assisting You in complying with The 2257 Regulations, shall be treated by You as "Confidential 2257 Information;" that all of this Confidential Information is the sole and exclusive property of the Company and that You shall use the Confidential Information solely for the purpose of compliance with The 2257 Regulations and for no other purpose whatsoever;
4.25 That You shall protect all Confidential 2257 Information by using the same degree of care to prevent the unauthorized use or dissemination or publication of the Confidential 2257 Information as You would use to protect Your own confidential and/or proprietary information, and that You will comply with any and all laws governing the safekeeping or protection of such personal information, and, without limiting the generality of the foregoing, You warrant that You shall not
4.25.1 copy, reproduce, distribute, loan, sell or disclose to any person, firm or corporation any of the Confidential 2257 Information disclosed to You by Us in any matter whatsoever;
4.25.2 permit any third party to have access to such Confidential 2257 Information; or
4.25.3 use such Confidential 2257 Information for any purpose other than for compliance with The 2257 Regulations;
4.26 That You shall hold harmless and indemnify Company against any claim for damages, attorneys’ fees, costs, fines, financial penalties, and assessments resulting from Your failure to use a reasonable degree of care to prevent the unauthorized use or dissemination of the Confidential 2257 Information or resulting from Your failure to comply with any law governing the safekeeping or protection of such Confidential 2257 Information, including any violations of Cal. Civ. Code §§ 1798.80-1798.84;
4.27 That You will keep such Confidential 2257 Information only so long as You are required to do so by The 2257 Requirements, and that such Confidential 2257 Information will thereafter be promptly destroyed in a manner that will not permit its dissemination to any other person, firm, or corporation;
4.28 That You are, and will at all times you are a Program Participant, remain in full compliance with all federal and state labor laws;
4.29 That You will not include any Company Trademarks or variations or misspellings thereof, in any of Your domain names or try to register any domain names that include or are confusingly similar to any Company Trademarks or variations or misspellings thereof.
4.30 That all obligations owed to third parties with respect to any and all activities contemplated to be undertaken by You pursuant to this Agreement are or will be fully satisfied by You, and that Company will have no obligations with respect thereto;
4.31 That each Referral and each email address submitted by You was generated by a real person and neither such Referral nor email address has been created by a third party or was obtained fraudulently or in violation of any term or condition of this Agreement;
4.32 That You shall at no time access, view, download, receive or otherwise use, or cause or enable others to access, view, download, receive or otherwise use Program Materials and/or any Company website directly or indirectly in places which the Company does not authorize such access, viewing, downloading, receipt or other use;
4.33 That Your Website(s) shall post on all entry pages an advisory that the material in Your Website(s) is(are) for “adults only” and that any access to Your Website(s) by a minor constitutes computer trespass, violations of Your copyrights and other intellectual and proprietary rights, and unauthorized access to computers and databases in excess of authority granted in violation of federal and state laws;
4.34 That you will not engage in
4.34.1 the introduction of any malicious program(s), such as viruses or worms, into any computer, mobile telephone, server or network, including any mobile telephone network;
4.34.2 the interference with service provided by any computer, mobile telephone device, server or computer network, including mobile telephone networks;
4.34.3 any circumventing of user authentication or security of any host, network or account;
4.34.4 use of an account with another affiliate program provider to promote Your Website(s) in an unlawful or abusive manner;
4.34.5 any form of unauthorized access to or use of data, systems or networks belonging to the Company or any Program participants;
4.34.6 unauthorized monitoring of data or traffic on any computer network or system without express authorization of the owner of the system or network;
4.34.7 any use of the Program, Program Materials or any other materials or service provided by Company for the purpose of compromising the security of any Company computer, server or computer network;
4.34.8 alteration or modification of any Company accounts, records or other data, including without limitation, any data pertaining to You or any person(s) under Your control; or
4.34.9 attempt to change, modify or destroy the identity of any Company computer system or change files on, or partitioning of, any of Company’s computer or server drives;
4.35 That You are sufficiently fluent in the English language to fully understand all the terms, conditions, duties, obligations, warranties, indemnifications and other provisions set forth in this Agreement;
4.36 That You have made a copy of this Agreement for your records;
4.37 That You will indemnify, defend and hold the Company, its principals, officers, directors, shareholders, employees, agents, attorneys, assigns and successors harmless from any and all damages, losses and costs, including attorney's fees, resulting from any act taken by You in violation of any term or condition of this Agreement, including but not limited to any breach of any warranty in this Agreement, or any failure to act when required to act under any terms or conditions of this Agreement; and
4.38 That You acknowledge and agree that all Your warranties, indemnities and obligations, are expressly designed and intended by You and the Company to survive the termination of this Agreement and Your termination of participation in the Program for any reason.
5. NO JOINT OR COLLABORATIVE VENTURE; NO MONITORING OR CONTROL OF YOUR CONTENT. Nothing in this Agreement is intended by Us or You to create or constitute a joint or collaborative venture or partnership of any kind between You and Us, nor shall anything in this Agreement be construed as constituting or creating any agency, employment relationship, joint or collaborative venture or partnership between You and Company or any of Company’s employees, agents, contractors, affiliates or assigns.
5.1 You acknowledge and agree that We shall have no control, nor ownership interests of any kind in Your business or Your Website(s), and that You have full responsibility for the content and operation of Your Website(s), including, without limitation, the payment of all taxes.
5.2 You acknowledge and agree that You shall have no financial or other interest in Company or any property owned by Company, any related entity or any of Company’s contractors, affiliates, agents, successors or assigns.
5.3 You acknowledge and agree that Your relationship with the Company shall be restricted to matters pertaining to the Program exclusively and shall be governed entirely by this Agreement.
5.4 You acknowledge and agree that the Company has no direct or indirect control over the content distributed by You or persons under Your control on, at, or in association with Your Website(s).
5.5 You further acknowledge that neither Company nor any employee, associate, agent, assign or successor of Company shall exert or provide any direct or indirect control over, the monitoring of, supervision of, prior approval of, or review of the content appearing or otherwise distributed on, at, or in association with Your Website(s), and that You shall be solely responsible for any legal liabilities or consequences resulting from the dissemination of that content on or through Your Website(s).
6. NO GUARANTEES OR WARRANTIES OF ANY KIND. You acknowledge and agree that Company makes no guaranties or warranties of any kind with respect to the Program, Program Materials, or Program Benefits provided by, through or in association with the Program. You acknowledge and agree that all materials provided to You by the Company or its agent(s) are provided to You “as is”, and that participation in the Program and use of Program Materials and any other materials provided to You by Company and/or its agent(s) are solely at Your risk. Company disclaims all warranties, either express or implied including, but not limited to, express or implied warranties of merchantability and fitness for a particular purpose, with regard to the Program, Program Materials and any and all other materials and services of every kind provided You.
7. COMPANY LIMITED LIABILITY AND LIQUIDATED DAMAGES. You acknowledge and agree that under no circumstances shall Company, its directors, officers, other principals, shareholders, employees, independent contractors, authors, agents, attorneys representatives, assigns or successors be liable to You, or any other person or entity, for any direct or indirect losses, injuries or incidental or consequential damages of any kind (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) directly or indirectly arising from, associated with or otherwise regarding Your participation in the Program, including, without limitation, regarding any link to any Program Website or other Company website, any use of Program Materials or any other materials provided by Company and/or its agent(s), any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of Company's services, content or Program Materials, including without limitation any losses due to server problems or due to incorrect placement of HTML, any affiliate Referral tracking code errors, any failure(s) of Company and/or its agent(s) to comply with The 2257 Regulations, any errors or omissions, any action resulting in copyright, trademark or patent infringement, or any other claim or cause of action, whether based upon breach of contract, negligence, or otherwise. In the event of any network downtime, computer or technical error, Company will not be held responsible for any lost hits, signups, traffic, revenue or income.
7.1 YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE PROGRAM AND YOUR USE OF ALL PROGRAM MATERIALS AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY THE COMPANY ARE AT YOUR SOLE AND EXCLUSIVE RISK. ALL MATERIALS AND SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS.
7.2 THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET ANY PROGRAM PARTICIPANT’S OR YOUR REQUIREMENTS, OR THAT ANY SERVICES PROVIDED BY THE COMPANY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR PARTICIPATION IN THE PROGRAM OR ANY PARTICIPANT’S USE OF ANY PROGRAM MATERIALS OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY THE COMPANY OR ITS AGENTS.
7.3 YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY PROGRAM MATERIALS 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 DOWNLOADING OF ANY AND ALL PROGRAM MATERIAL AND/OR OTHER MATERIALS PROVIDED TO YOU BY THE COMPANY.
7.4 COMPANY MAY MAKE THIRD-PARTY GOODS, SERVICES AND/OR SOFTWARE AVAILABLE TO YOU. COMPANY HAS NO CONTROL OVER THE CONTENT OF THIRD-PARTY SERVICES. USE OF ANY THIRD-PARTY CONTENT OR SERVICES WILL BE AT YOUR OWN RISK.
7.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU OR ANY PERSON(S) UNDER YOUR CONTROL FROM COMPANY OR ITS EMPLOYEE(S), CONTRACTOR(S), AGENT(S), ATTORNEY(S), AFFILIATE(S) OR ANY OTHER PARTY ASSOCIATED WITH THE COMPANY, OR THROUGH THE PROGRAM, SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY MARKETING OR PROMOTIONAL MATERIALS DESCRIBING THE SERVICES ASSOCIATED WITH THE PROGRAM.
7.6 YOU ARE SOLELY RESPONSIBLE FOR THE PROPER OPERATION OF YOUR WEBSITE(S) AND ALL OTHER MATTERS UNDER YOUR CONTROL. IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR ANY USERS OF YOUR WEBSITE FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR OPERATION OF YOUR WEBSITE(S) AND RELATED BUSINESS(ES) OR FAILURE TO OPERATE YOUR WEBSITE(S) OR BUSINESS(ES).
7.7 PARAGARAPH 7 AND ALL SUBPARAGRAPHS HEREOF APPLY TO ALL CLAIMS BY YOU, BY ANY PARTIES UNDER YOUR CONTROL AND BY ANY CUSTOMERS OR USERS OF YOUR WEBSITE(S) REGARDLESS OF THE CAUSE OF ACTION UNDERLYING THE CLAIM, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT, ACTIONS FOR NEGLIGENCE OR STRICT LIABILITY. YOU HEREBY ACKNOWLEDGE YOUR OBLIGATION TO INDEMNIFY COMPANY REGARDING ANY CLAIMS BROUGHT AGAINST COMPANY BY SUCH PARTIES, CUSTOMERS AND USERS OF YOUR WEBSITE(S).
7.8 NOTWITHSTANDING THE FOREGOING EXPRESS LIMITATIONS OF LIABILITY, YOU ACKNOWLEDGE AND AGREE THAT SHOULD COMPANY, ITS OFFICERS, EMPLOYEES, CONTRACTORS, AGENT(S), ATTORNEYS, AFFILIATES, SUCCESSORS, OR ASSIGNS BE HELD LIABLE TO YOU FOR ANY CLAIMS, DAMAGES, INJURIES, COSTS OR LOSSES OF ANY KIND, DIRECTLY OR INDIRECTLY RESULTING FROM YOUR PARTICIPATION IN THE PROGRAM OR USE OF ANY PROGRAM MATERIALS OR OTHER MATRIALS OR SERVICES PROVIDED BY THE COMPANY AND/OR COMPANY’S AGENT(S), THAT YOUR DAMAGES SHALL BE LIMITED TO LIQUIDATED DAMAGES AND THAT THE TOTAL AGGREGATED DOLLAR AMOUNT OF SUCH LIQUIDATED DAMAGES FOR ANY AND ALL SUCH CLAIMS, DAMAGES, INJURIES, COSTS AND LOSSES SHALL NOT EXCEED A TOTAL OF TEN DOLLARS ($10.00).
8. NO REPRESENTATIONS OF SUCCESS OR PROFITABILITY. You hereby confirm and acknowledge that You have unilaterally decided to enter an Internet service business and acknowledge that it is a high risk business. You further confirm, acknowledge and expressly agree that neither Company, any agent or representative of Company, nor any other person has at any time in the past, represented to You or has otherwise directly or indirectly communicated in any manner to You any guarantee, reassurance, or any other communication of any kind regarding:
8.1 the potential profitability or likelihood of success of Your participation in the Program as set forth in this Agreement or otherwise;
8.2 the possibility or likelihood that use of any products and/or services provided pursuant to this Agreement can or will result in the recoupment of any funds expended by You for the promotion of Your Website(s) or any other purpose; or
8.3 the existence, nonexistence, size or any other characteristics of any market for any products or services which involve Your participation in the Program pursuant to this Agreement.
8.4 You expressly acknowledge and agree that the success of any business endeavor, including Your participation in the Program pursuant to this Agreement, is subject to numerous factors, such as the effectiveness of advertising and promotion, Your administrative capabilities, etc., and that the ultimate success or failure of Your business rests with You and not Company. You further expressly agree not to raise any claim of any kind against Company, and You agree to hold Company harmless from any claim of loss to You, directly or indirectly resulting from Your decision to participate in the Program.
9. NO MONITORING OR SUPERVISION PROVIDED BY US. We shall not monitor, supervise or review, nor shall Company be responsible for any content appearing or otherwise distributed on, at or in association with, Your Website(s), including any Program Materials provided to You by, through or in association with the Program or content which You have otherwise received from Company. You assume the entire and exclusive responsibility and liability for all decisions to display and/or include any and all content on Your Website(s), to distribute or make the content available to the viewers of Your Website(s) in various geographical areas, for all decisions relating to the manner in which You permit or restrict access to Your Website(s), and for all the consequences resulting therefrom.
10. COPYRIGHT POLICY CLAIMS OF INFRINGEMENT; DESIGNATED AGENT/DMCA NOTICE. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining appropriate and sufficient prior consent of the owner of such proprietary rights. Without limiting the foregoing, if You believe that Your work has been copied and has been posted or is being displayed on any Company website in a way that constitutes copyright infringement, please provide Our Copyright Agent with the following information consistent with the Digital Millennium Copyright Act (DMCA):
10.1 an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
10.2 a description of the copyrighted work that You claim has been infringed;
10.3 a description of where the material that You claim is infringing is located on Our website or in Our electronic messages including if feasible the URLs of web pages and all associated links;
10.4 Your address, telephone number, and email address;
10.5 a written 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; and
10.6 a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf.
10.7 INTENT TO COMPLY WITH DMCA. It is the intention of Company to fully comply with the DMCA, including the Notice and “take down” provisions and to benefit from the safe harbors immunizing it from liability to the fullest extent provided by law, and to the extent the Notice and “take down” requirements above deviate from the requirements under the DMCA then the Notice requirements as provided by the DMCA shall control and are herein incorporated by reference.
11. TERM AND TERMINATION OF AGREEMENT. You acknowledge and agree that the term of this Agreement is at will, and that this Agreement and Program may be terminated, in whole or in part, by Company in its sole and exclusive discretion, at any time, without any advance notice. Termination notice by email, to the email address We have on file for You, or to a mailing address We have on file for You, or otherwise as provided in Paragraph 18 herein, shall constitute sufficient notice to terminate this Agreement.
11.1 RIGHT TO REFUSE REFERRALS. Company reserves the absolute right to deny any prospective Referral and any person or entity participation in the Program. Company shall not be required to provide any reason or justification for denial of processing of a Referral or denial of participation in the Program to any person or entity.
11.2 EARNED REFERRAL FEES. In the event that this Agreement or the Program is terminated by Company, You shall be entitled to all unpaid commissions or referral fees earned by You prior to the date and time of termination, provided that at the time the Program is terminated You are a Program Participant In Good Standing. However, You shall not be entitled to receive any Referral Fees or for any Referrals sent to Company after the date and time of termination of the Agreement or Program.
11.3 RIGHT TO RETAIN OR DESTROY FILES. Upon termination of this Agreement, Company reserves the unlimited right, without obligation, to maintain copies of Your files, records, and data You have provided to us and all data associated with Your participation in the Program for archival and other purposes. Any and all such records and files may be destroyed at any time Company desires at Company’s sole election.
12. ENTIRE AGREEMENT; MODIFICATION; ASSIGNMENT. This Agreement constitutes the entire agreement between You and Company with respect to all matters pertaining to Program, Program Materials, Your Participation in the Program and all other subject matter hereof. This Agreement replaces, supersedes and cancels all prior and contemporaneous understandings, agreements, discussions, and representations, whether written or oral regarding such subject matter, including without limitation any marketing or promotional materials located on any and all Program Websites and/or Company Websites. No amendment to or modification of this Agreement by You will be valid or binding unless it is in writing and signed by a duly authorized representative of each party. Company may modify this Agreement as set forth in Paragraphs 3.6 and 12.1 of this Agreement.
12.1 MODIFICATION BY NOTICE FROM COMPANY. You agree that Company may from time to time, in its sole and exclusive discretion, modify this Agreement, including any terms regarding the type and quality of benefits provided to You hereunder. Any and all terms and conditions may be modified by Us at any time upon email notice to You or by posting at one or more Program web address location(s). You agree that each time You send Referrals to or regarding a Program Website, otherwise participate in the Program or use any Program Benefits or other services offered in, through or in association with the Program, that by doing so You are also reaffirming the then current version of this Agreement and reaffirming Your agreement to be bound by all the terms, conditions, duties, obligations, warranties, indemnifications and other provisions of the then current version of this Agreement. You also agree that the aforesaid methods of affirmation, agreement, acceptance and acknowledgment set forth in this Paragraph 12.1 shall be valid and binding with respect to this Agreement and any and all subsequent modifications of this Agreement.
12.2 NO MODIFICATION BY YOU UNLESS WE AGREE IN WRITING. You agree that no modification of this Agreement by You, Your principals, officers, directors, employees, representatives, agents, attorneys, affiliates, assigns or successors shall be enforceable or have any effect unless first reduced to writing and signed by a duly authorized representative of Company.
12.3 NO RELIANCE ON OTHER REPRESENTATIONS. You agree that none of Your principals, officers, directors, employees, representatives, agents, attorneys, affiliates, assigns or successors have any authority to make any representations or promises in connection with this Agreement or the subject matter thereof that are not expressly set forth in this Agreement, and You acknowledge and agree that You have not executed this Agreement in reliance upon any representation or promise by any of Company’s principals, officers, directors, other principals, shareholders, employees, representatives, agents, attorneys, affiliates, assigns or successors that is not expressly set forth in this Agreement.
12.4 NO WAIVER. You acknowledge and agree that the failure of Company to enforce any specific provision(s) of this Agreement shall not preclude the enforcement of any other provisions, any further enforcement of such provision(s) or the exercise of any right hereunder by the Company, or be deemed a waiver of any right, remedy or prerogative. No waiver of one breach of this Agreement will constitute a waiver of subsequent breaches of the same or of a different nature.
12.5 PERSONAL AGREEMENT. You agree that all promises, obligations, duties and warranties made by You in this Agreement are personal to You and that neither they nor any Program Benefits or any other benefits hereunder may be assigned by You to any other person or entity.
12.6 ASSIGNMENT. The rights and liabilities of the parties to this Agreement will bind and inure to the benefit of their respective assignees, successors, executors, and administrators. You agree that Company may at any time in its sole discretion, and without prior notice to You, freely assign, in whole or in part, this Agreement, the Program, Program Benefits, and all or part of Company’s duties, obligations and/or performance associated therewith. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part, by You.
13. INDEMNIFICATION. You agree to defend, indemnify, and hold Company and its officers, directors, other principals, shareholders, contractors, agents, attorneys, successors and assigns, harmless from and against any and all claims and liabilities, including attorneys’ fees, experts’ fees, and all other litigation costs related to, arising from or arising under each and every breach of any of Your representations, duties, warranties, obligations, including indemnification obligations, or any other provision of this Agreement, including, without limitation, any and all claims related to any use or misuse of the Program, Program Materials or any other materials or services provided to You, any illegal, unlawful, infringing, defamatory or libelous activity by You or any person under Your control, any content or other material contained or depicted on, in or in association with Your Website, any claim or contention that Your Website(s) contains any content, materials or processes that infringes any third party’s copyrights, trademark rights, patent rights, rights of publicity or any other intellectual property rights or violates any third party’s rights of privacy or contract rights, any claim relating to any third party access or use of data You have obtained from third parties, including, without limitation any data associated with 2257 Regulation compliance, or any other breach of this Agreement by You or any person under Your control. Company reserves the right, at its own expense, at its election, but without obligation, to participate in the defense of any matter otherwise subject to the indemnification provisions set forth in this Paragraph. You agree that You shall not settle any claim or liability subject to Your duty of indemnification set forth herein without the prior written consent of Company.
14. ARBITRATION; CHOICE OF LAW.
14.1 BINDING ARBITRATION. Any and all disputes as to the interpretation of, or any performance under, this Agreement that are not first resolved informally, shall be determined by binding arbitration in Los Angeles, California, before a single arbiter knowledgeable in Internet and e-Commerce matters, in accordance with the Rules for Commercial Arbitration of the American Arbitration Association (“AAA”). The appointing agency for the arbiter shall be the AAA. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with any parts of this Agreement.
14.2 ARBITRATOR. The jurisdiction of the arbiter with respect to legal matters shall be limited only by the statutory and common law of the State of California and the United States of America and the limitations set forth in this Agreement. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; ignore or depart from strict interpretation and adherence to the provisions of this Agreement, and shall be bound by governing and applicable law and substantive and procedural limitations set forth in this Agreement. 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. Except as provided below, the party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator’s fees unless the matter involves alleged infringement of Company’s intellectual property, in which case the prevailing party shall be awarded its attorneys fees, all arbitration costs and arbitrator fees, in addition to all other applicable remedies.
14.3 DISCOVERY. The parties may conduct discovery prior to the arbitration hearing as provided for in the California Code of Civil Procedure with respect to discovery in arbitration matters. Notwithstanding the foregoing, each party shall have the right to take no more than two (2) depositions of potential witnesses, and each shall have the right to serve no more than two (2) sets of interrogatories, none of which shall include more than twenty (20) Interrogatories. Additional discovery shall be in the discretion of the arbitrator. All discovery shall be completed within three (3) months after the selection of the arbitrator, unless this period of time is extended by the arbitrator for good cause.
14.4 ARBITRATION IS AT COMPANY’S ELECTION FOR DISPUTES REGARDING ITS INTELLECTUAL PROPERTY. This provision mandating arbitration for the resolution of disputes does not apply to any dispute involving any of the Company’s intellectual property or any intellectual property licensed to the Company, in which case, resolution of all such disputes via arbitration shall be at Company’s sole discretion and election and Company shall at all times reserve all rights to, and be entitled to, freely litigate any dispute involving Company’s intellectual property in state or federal court in Los Angeles, California. If Company elects to litigate an intellectual property dispute in court and thereby forego the arbitration provisions of this Agreement for such dispute, the parties shall be required to join all other then current claims with the intellectual property claim before the court, and the prevailing party shall be awarded its reasonable attorneys fees and all costs, including expert fees, in addition to all other applicable remedies. The fact that Company elects or does not elect to bring a particular intellectual property dispute in court shall not affect Company’s option to do so or not do so regarding any and all subsequent intellectual property disputes.
14.5 DISPUTES REGARDING WHETHER ARBITRATION IS PROPER. Notwithstanding the foregoing, You and the Company hereby expressly agree that any and all disputes regarding the scope of jurisdiction of any arbitrator or whether a matter is properly the subject of this arbitration provision (for example, a dispute whether the matter arises out of or relates to this Agreement) that are not informally resolved within five (5) business days, shall be resolved, either by a panel of three (3) arbitrators, not including the original arbitrator, or by a state or federal court of competent jurisdiction in Los Angeles, California. You and the Company hereby agree to stipulate to the jurisdiction of such court for the limited purpose of resolving such disputes over the jurisdiction of the arbitrator or scope of matters subject to this arbitration provision.
14.6 GOVERNING LAW. This Agreement and all matters arising out of or otherwise relating to this Agreement shall be governed by the laws and judicial decisions of the State of California, excluding its conflict of law provisions, and the laws and judicial decisions of United States of America.
NOTICE: YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INVOLVING THIS AGREEMENT TO BE DECIDED BY NEUTRAL ARBITRATION IN LOS ANGELES, CALIFORNIA, U.S.A., AS PROVIDED BY CALIFORNIA LAW AND THE LAWS OF THE UNITED STATES OF AMERICA AND YOU ARE GIVING UP ANY AND ALL RIGHTS YOU MAY POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR TO HAVE THE MATTER RESOLVED BY A JURY TRIAL. IN SO AGREEING YOU ARE ALSO GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. YOU HEREBY ACKNOWLEDGE THE FOREGOING AND THAT YOU ARE ALSO RELINQUISHING ANY RIGHTS TO RESOLVE DISPUTES IN ANY VENUE OUTSIDE OF LOS ANGELES, CALIFORNIA, U.S.A. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE (FOR MORE INFORMATION REGARDING CALIFORNIA CIVIL CODE PLEASE CONSULT YOUR ATTORNEY). NEVERTHELESS AND NOTWITHSTANDING THE FOREGOING, YOU HEREBY ACKNOWLEDGE AND EXPRESSLY AGREE THAT YOUR AGREEMENT TO THE ARBITRATION PROVISIONS SET FORTH IN THIS AGREEMENT IS KNOWING AND ENTIRELY VOLUNTARY.
15. SEVERABILITY; ALL PROVISIONS OF THIS AGREEMENT NOT DEEMED UNENFORCEABLE SHALL SURVIVE ANY UNENFORCEABLE PROVISIONS. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, for any reason, such invalidity, illegality or unenforceability shall not affect any and all other provisions hereof, and such provision(s) shall be enforced to the maximum extent possible and the remainder of this Agreement shall remain in full force and effect and shall be construed, interpreted, applied and enforced as if such invalid, illegal or unenforceable provision(s) or part(s) thereof had never been included in this Agreement. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any and all other provisions. Unless otherwise specifically provided, all provisions of this Agreement regarding Your warranties to the Company shall survive its termination regardless of the cause thereof.
16. THIS AGREEMENT SHALL BE DEEMED TO BE MUTUALLY DRAFTED; HEADINGS. For purposes of construction and interpretation of this Agreement, both Company and You shall be deemed to have mutually drafted this Agreement and all parts thereof. You hereby acknowledge and agree that this is not a contract of adhesion and that You shall not raise any claim to the effect that this Agreement constitutes a contract of adhesion or is unconscionable in any way. Paragraph and subparagraph headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
17. REVIEW BY YOUR ATTORNEY. We strongly suggest that You review this Agreement with Your attorney prior to its execution. You acknowledge and agree that nothing herein and no statement by the Company or any of Company’s principals, officers, directors, shareholders, employees, representatives, agents, attorneys, affiliates, assigns or successors or other person associated with Company has in any way prevented or inhibited You in any way from freely seeking such advice prior to entering into this Agreement. You hereby acknowledge and agree that you are not under any specific time constraint to agree to this Agreement or to participate in the Program, and you may leave the Company’s website without completing the Program participation application process without any obligation or sanction for having done so. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair, all material and other terms have been fully disclosed in writing, and that You have been given a reasonable chance to seek advice of independent counsel with respect to this Agreement and all transactions contemplated that might be associated herewith. You acknowledge that You have had competent counsel review this Agreement and provide You with legal consultation regarding the same. Notwithstanding the foregoing, You hereby acknowledge and agree that if You have not had competent counsel review this Agreement prior to Your assent to enter into this Agreement by any means, You hereby acknowledge that You have expressly, knowingly and voluntarily decided not to do so and that You shall not at any time raise the fact that You have not had an attorney review this Agreement or claim You were not provided an opportunity to have an attorney review this Agreement before entering into this Agreement and assenting to all its provisions.
18. NOTICES. All notices permitted or required under this Agreement may be sent
18.1 if by the Company to You, via email, standard mail, registered mail, or Federal Express, as appropriate, to the email address, facsimile number, or street address most recently provided by You or publicly obtainable by the Company and/or Company’s agents; and
18.2 if by You to the Company, via email.
18.3 All notices sent in accordance with the Paragraph shall be effective upon receipt and shall be deemed to be received unless such notice is returned to the sender marked as “undeliverable” or similarly noted, or such notice is determined to be undeliverable due to a delivery or transmission failure.
19. ENGLISH. You hereby acknowledge that you are sufficiently fluent in the English language to fully understand all the provisions of this Agreement.
20. FORCE MAJEURE. Either party to this Agreement shall be excused from delays in performing and from failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party, including but not limited to unforeseen circumstances, acts of God or nature, such as fire, flood, earthquakes, hurricanes, storms or other natural disasters, war, riot, arson, embargoes, civil disturbance, acts of civil or military authority, terrorism, organized labor disputes, electrical or mechanical breakdowns, inability or refusal of a common carrier to provide communications capabilities, widespread or generalized failure of a telecommunications or information services infrastructure, hacking, denial of service attacks, or any other cause beyond either party’s direct control, including but not limited to, the issuance of an order by any regulatory, administrative, judicial or legislative authority or other governmental agency prohibiting or interfering with either party from carrying on its day-to-day operations as contemplated under this Agreement.
21. GOVERNMENT NOTICE. Some scripts and other programming and software elements associated with Program and/or Program Materials have been developed at private expense and constitute “restricted computer software” or “commercial computer software” within the meaning of United States Federal Acquisition Regulations or United States Defense Federal Acquisition Regulations, and similar regulations relating to government acquisition of computer software. Nothing in this Agreement shall be construed or be deemed to license or grant any government agency any rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or restrict any government rights in any materials that may be provided hereunder that are developed at government expense.
22. ACCEPTANCE AND EXECUTION OF THIS AGREEMENT.
22.1 YOUR ASSENT AND VALID EXECUTION BY ANY REASONABLE MEANS IS THE INTENT BY THE PARTIES. You agree that You and Company expressly intend that You shall be deemed to have agreed to have provided your assent and agreement to enter into this Agreement, to have validly executed this Agreement, and to be bound by all its terms, conditions, duties, obligations, warranties, indemnifications and other provisions at the moment You provide Your assent to this Agreement by any reasonable means, including, without limitation, by clicking or otherwise engaging an acceptance button, icon, link, or any other communication in association with this Agreement in which the words “you agree”, “you accept” , “submit” or any similar terms or language appears or is otherwise associated. By providing such assent or other agreement to this Agreement or by supplying Company with information to enroll you into the Program, You are also acknowledging that You have completely read and understand this Agreement and the Company’s Privacy Policy in its entirety and that You agree to and accept all of the terms, conditions, promises, warranties, duties, obligations and other provisions set forth in this Agreement and Our Privacy Policy.
22.2 BROAD INTERPRETATION OF REASONABLY MEANS OF PROVIDING ASSENT. You also agree that You shall be deemed to have acknowledged, affirmed and agreed to all the provisions of this Agreement and Our Privacy Policy by using any means that may broadly be interpreted as an act of affirmation, agreement, acceptance or acknowledgement of this Agreement or any part thereof, including, without limitation:
22.2.1 by any means set forth in Paragraph 22.1 above, including, for example, by clicking any button that is posted at the Webmaster Signup Page indicating that You have read and agree to these Terms and Conditions;
22.2.2 by not opting out of an assent to this Agreement, for example by not un-checking or deactivating a checked box indicating that You accept or agree to these Terms and Conditions;
22.2.3 by using any Program Materials in any manner, regardless of whether such use is by You directly or indirectly through a person or entity under Your control;
22.2.4 by participating in the Program in any manner, including by causing the sending of any Referral;
22.2.5 by causing the sending to You or the receiving by You of one or more payments from Company or its agent(s);
22.2.6 by causing the sending to any person or entity under Your direct or indirect control one or more payments from Company or its agent(s);
22.2.7 by subsequently accessing any “webmaster” area associated with the Program or other area of any Company website associated with the Program; or
22.2.8 by engaging in any other action that reasonably indicates Your intention to participate in the Program or Your actual participation in the Program.
22.3 REAFFIRMATION OF THE AGREEMENT AND PRIVACY POLICY. You also agree that each time You or any person or entity under Your direct or indirect control accesses or otherwise uses or receives any services or materials offered in, through or in association with the Program, that You are re-agreeing and reaffirming that You are bound by this Agreement and You are re-acknowledging and reaffirming this Agreement in its entirety, as well as Our Privacy Policy, with respect to the latest form and version of this Agreement and Privacy Policy that are published, posted or otherwise available at or through a Program Website contemporaneously with Your subsequent aforementioned access, use or receipt of services or materials.
22.4 REAFFIRMATION OF THEN-CURRENT VERSION OF THIS AGREEMENT AND PRIVACY POLICY. You further agree that each time You receive a Program Benefit, including, without limitation, using any Program Materials or receiving a commission or referral payment from Us, You are reaffirming and re-acknowledging that You have read, understand and fully agree to the version of this Agreement and the version of our Privacy Policy that is current at the time You receive the Program Benefit.
22.5 RIGHT NOT TO USE E-SIGN ACT; LIMITED USE OF E-SIGN ACT; RIGHT TO ACCESS E-SIGN RECORD; RIGHT TO OBTAIN HARD COPY. You acknowledge that You have the right not to agree to have this Agreement governed by the E-Sign Act and You have a right to withdraw consent to use the E-Sign Act to enter into this Agreement by emailing Us. Notwithstanding the foregoing, You agree that if You do not want this Agreement to be governed by the E-Sign Act or if You withdraw consent to use the E-Sign Act to enter into this Agreement, You will be providing Your assent and agreement to this Agreement and the Privacy Policy, and all subsequently modified versions of this Agreement and Privacy Policy, by any other means set forth above, including, without limitation, by clicking the button associated with this Agreement containing the words “you agree” (or similar text), or by accessing the webmaster or Program area(s) of a Company website, by using any Program materials provided to You, by sending traffic or sales referral(s) in association with the Program or by receiving payment of any kind in association with the Program. You acknowledge and agree that Your consent to use the E-Sign Act is limited to this Agreement and the subject matter set forth herein, including your assent to and execution of, this Agreement, as well as your Program application and sign-up forms. You acknowledge that You also have a right to obtain a hard copy of the executed Agreement. Please be advised that changes in Your computer equipment may affect Your ability to obtain an electronic version of the executed document.
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