Ability to Enter Into this Agreement. You are at least the age of majority in your state, country, province or other governing body. You are legally capable of understanding and entering into this Agreement. Your entry into this Agreement does not require the approval or consent of any other persons, and neither violates nor constitutes a default under the (i) provision of any law, rule, regulation, order, judgment or decree to which you are the subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to or binding upon the you.
Grant of License. Upon you receiving an email from us accepting your application to join the Program, this Agreement will be considered entered into by you and us. In connection with your participation in the Program we will make available to you certain images, texts, logos and other items (the “Promotional Materials”) which may be used in your promotion of our various products listed here (collectively the “Products” and each a “Product”). You are granted a revocable, non-exclusive, non-transferable license to use the Promotional Materials solely in connection with your promotion of each corresponding Product. We reserve the right, in our sole discretion, to select, alter, delete, add to, or remove any and all Promotional Materials for use by Webmaster. You may not alter, modify, change, sell or offer for sale in any manner, the Promotional Materials at any time. All use of the Promotional Products must link to the applicable Program website for such Product. A list of our websites can be found here (each a “Site” and collectively the “Sites”). You agree that you shall be solely responsible for your use of any and all of the Promotional Materials. We hereby further grant to you a revocable, limited, non-exclusive, non-transferable license to use the names of the Products. You acknowledge and agree that you will not register, or attempt to register, any of the Product names (or any variation thereof) as a Google AdWord or with a similar search engine advertising program, nor will you attempt to register any of the Product names (or any variation) thereof a domain names. You further agree that any such registration, or attempt at registration, by you will be grounds for your immediate termination from the Program, without compensation, and that you will immediately undertake to assign any such domain name or Google AdWords or similar program purchases to us. You may not participate in any fraudulent, deceptive or unfair transactions or trade practices.
Term. This Agreement shall be in full force and effect commencing on the date accepted by us and continuing until terminated by either of the parties in accordance with the Termination provisions set forth below.
Compensation. In connection with your participation in the Program, you will be provided a unique code to use in connection with all of your promotional efforts here under (the “Referrer Code”). For each purchase from one of our Sites made by a third party using your Referrer Code, you will receive ten percent (10%) of the amount of such purchase actually received by us. We will only issue payment to you if the amount due is in excess of twenty-five dollars ($25.00). Payments will be issued by us on or before the first business day of each calendar month. You will be able to review your Program account’s purchase, refund, chargeback and other information at any time through your Program login. Currently our only method of payment available to you is PayPal. If you do not have a PayPal account, you may not participate in the Program. It is your responsibility to maintain your PayPal account in good standing and for maintaining the security of your account. In the event of a change to your PayPal account information, you must inform us in writing at least five (5) business days prior to the next payment to be issued. You agree that upon us initiating payment to the PayPal account on file, we shall have no further responsibility to you with respect to such payment. By way of example, you will not be due any payment or moneys should you have provided account information containing a typo or if a person either with or without authority accesses your PayPal account and takes any funds transferred by us. We reserve the right to require that you provide us with certain information before any changes can be made to your account with the Program including your PayPal account information. You agree that it is your responsibility to quickly and completely respond to any such requests so that changes can timely be made.
Certain transactions are not eligible for payment such as:
1) 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/or
2) Where there have been sequential or multiple attempts to register or subscribe from a credit card using the same bin number and sequential or multiple number strings to complete the credit card number.
In the event that you believe there has been an error in payment to you, tracking any purchasers referred by you through your Referrer Code, or otherwise in connection moneys due to you, you must alert us in writing within thirty (30) days of such error’s first occurrence. Failure to so notify us in this thirty (30) day period shall be deemed a full waiver by you of any liability by us in connection with such error.
Affiliate’s Representations. You represent and warrant to us that all information provided to us in creating and maintaining your account is currently and will at all times be true and correct. You further represent and warrant that at no time will your promotion of any of the Products infringe upon, or contain any content that infringes upon, the rights of third parties, nor does it violate any intellectual property rights of, or otherwise violate any applicable law, rule or regulation. You further represent that your promotion of the Products will not contain any materially false statement about either the Products nor any competitive product. You are solely responsible for maintaining the security of the information used by you to access your account with the Program. You agree that you will be solely responsible for any and all activity through your account through such account until such time as you inform us in writing that your account may have been compromised.
Additional Promotional Restrictions:
In addition to the restrictions set forth in Section 2 above, in connection with your participation in the Program, you will not participate in (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability or any other unlawful basis under applicable law; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, sexually explicit or similar activities; (d) illegal gambling; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) violation of any applicable law or regulation; (i) harm to minors in any way; or (j) fraudulent activities or impersonation of any person or misrepresentation of affiliation with any person. You may not use any expletives in connection with your promotion of any Product(s).
Furthermore, you will not promote any Product or Site in any way which is or may be:
- in violation of United States Federal Trade Commission (FTC) statutes and regulations (whether or not you do business in the United States or with United States-based customers), and any related rules, policies, and advisory opinions issued by the FTC;
- in violation of any law, regulation or rule in place in any of the states in the United States or its territories;
- harmful to the reputation, image, goodwill or reputation of SITE;
- harvesting or otherwise collecting information about others, including but not limited to e-mail addresses; or,
- considered unsolicited SMS, MMS, or email.
Intellectual Property Rights.
1) Our Intellectual Property.
As between the parties, you acknowledge and agree that all rights, title and interests in and to the Promotional Materials, the Site , the Products, and all graphics, logos, and text associated therewith and all intellectual property rights therein and thereto (including all United States and foreign patents, patent applications, registered and common law trademarks and service marks and any applications thereof, trade secrets, know-how, copyrights, and rights of publicity and any other proprietary rights therein and thereto) are the sole and exclusive property of us. You agree that other than the limited, non-exclusive, revocable license set forth above, you gain no right, title or interest in and to such materials by virtue of this Agreement. You agree that you will not now or in the future contest the validity of our ownership of any of the forgoing items nor will you now or at any time in the future take any action that would impair the value of, or goodwill associated with, such items.
2) Work Made for Hire.
You hereby acknowledge and agree that any works (derivative or otherwise) created by and/or used by incorporating any of the Sites, Products, Promotional Materials or other intellectual property belonging to us, shall be deemed works made for hire by operation of law in light of you being an independent contractor of the Program and the works qualifying as a specially commissioned work. To the extent that such content does not qualify as a work made for hire by operation of law or otherwise, you hereby agree to assign to us, and hereby do irrevocably grant, assign and transfer to us, for no additional consideration, all rights, title and interests in and to such content, including without limitation all copyrights (and derivative works generated therefrom), patent rights, trade secrets, know-how and all other proprietary rights in and to same, to the fullest extent permitted by law. You agree to sign and deliver to us all documents as we consider desirable to evidence the assignment of all rights to us in and to such content.
3) Data Ownership.
As between you and us, we will own all data submitted to us by individuals you refer to us through your Referrer Code and you may not for any reason collect or attempt to collect such information.
In the event that this Agreement is terminated for any reason by either party, you shall immediately cease promoting the Products and shall immediately remove any and all use of the Promotional Materials, the Site names, and the Products from anywhere you may have shared and/or discussed any such item(s). In the event that your participation in the Program is terminated as a result of an actual or suspected breach of this Agreement, in our sole determination, we reserve the right to withhold any amounts due but not yet paid to you in connection with any potential damages which may be incurred by us in connection with such actual or suspected breach. If your termination is not due to an actual or suspected breach of this Agreement, you will be compensated as set forth above in Section 4 of this Agreement.
Not a Supplier.
Except as otherwise outlined herein, you are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to us. Your participation in the Program or receipt of payment hereunder shall not be construed or be deemed to be an inducement for, solicitation of you to provide any products or services to us.
You shall remain solely responsible for activities hereunder, and we shall remain solely responsible for operation of the Program. We have no responsibility for the development, content, operation and maintenance of your advertising/marketing efforts. Each party acknowledges that the other’s services may be subject to temporary unavailability due to causes beyond the operating party’s reasonable control.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE PROGRAM AND THE PROMOTIONAL MATERIALS IS AT YOUR SOLE AND EXCLUSIVE RISK. THE PROGRAM AND PROMOTIONAL MATERIALS ARE PROVIDED ON AN AS IS, WITH ALL FAULTS AND AS AVAILABLE BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. SITE MAKES NO WARRANTY THAT THE PROGRAM OR PROMOTIONAL MATERIALS WILL MEET YOUR REQUIREMENTS, OR THAT THE PROGRAM OR ANY OF OUR SITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROGRAM OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PROGRAM OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
You agree to defend, indemnify, defend, and hold us and our affiliates, successors, assigns, officers, employees, agents, directors, shareholders and attorneys, harmless from and against any and all claims and liabilities, including reasonable attorneys and experts fees, related to or arising from (a) any breach of your representations under this Agreement; (b) your use (or misuse) of the Program and/or Promotional Materials; (c) all conduct and activities occurring under your user ID and password; (d) any item or service sold or advertised by you except for the Products; (e) any defamatory, libelous or illegal material contained within any of your efforts hereunder; (f) any claim or contention that any action, activity, or account controlled by you infringes any third party’s patent, copyright, trademark, or other intellectual property rights or violates any third party’s rights of privacy or publicity; (g) third party access or use of anything posted, shared and/or otherwise distributed by you; (h) any claim related to your website and social media accounts; and (i) any violation of this Agreement. We reserve the right, at our own expense, to participate in the defense of any matter otherwise subject to indemnification from you, but shall have no obligation to do so. You shall not settle any such claim or liability without our prior written consent, which shall not be unreasonably withheld. You understand that we will take drastic measures to protect itself from any legal or civil litigation including, but not limited to, removing your account with the Program. You also understand that we will charge, on an hourly basis, for any and all time spent responding to any third party complaints, disputes, copyright claims or actions involving you.
Relationship of the Parties
The relationship between you and us under this Agreement is that of independent contractors and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any manner or thing whatsoever.
. Force Majeure
Neither party will be held liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence, including but not limited to acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, net congestion, or any failure of a computer, server or software.
Notice and Payment
A. Any notice or payment required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, or personal delivery by commercial carrier such as FedEx or UPS.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
C. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or FedEx) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
D. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
All Disputes (including any dispute relating to the arbitrability of this Agreement or any provision of this Agreement or any other dispute relating to arbitration) must be submitted to arbitration before and in accordance with the arbitration rules of the American Arbitration Association in accordance with its commercial arbitration rules. The term “Dispute” means any controversy or claim arising out of or relating to the Program, the Products, the Promotional Materials, and/or this Agreement, or any breach thereof, including any claim that this Agreement, or any part of this Agreement is invalid, illegal or otherwise voidable or void.
The provisions of this Arbitration Section must be construed as independent of any other covenant or provision of this Agreement; provided that if a court of competent jurisdiction or arbitrator determines that any such provisions are unlawful in any way, such court or arbitrator is to modify or interpret such provisions to the minimum extent necessary to have them comply with the law. Notwithstanding any provision of this Agreement relating to under which state’s laws this Agreement is to be governed by and construed under, all issues relating to arbitrability or the enforcement of the Agreement to arbitrate contained herein are to be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and the federal common law of arbitration.
Judgment upon an arbitration award may be entered in any court having competent jurisdiction and will be binding, final and non-appealable. You and we hereby waive to the fullest extent permitted by law, any right to or claim for any punitive or exemplary damages against the other and agree that in the event of a dispute between them, each shall be limited to the recovery of any actual damages sustained by it.
This arbitration provision is self-executing and will remain in full force and effect after the expiration or termination of this Agreement. In the event either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party by default or otherwise notwithstanding said failure to appear.
Arbitration take place in Broward County, Florida exclusively.
You and we hereby agree that no action (whether for arbitration, damages, injunctive, equitable or other relief, including rescission) will be maintained by any party to enforce any liability or obligation of the other party, whether arising from this Agreement or otherwise, or any other Dispute, unless brought before the expiration of the earlier of one year from the occurrence of the facts giving rise to such claims or within 90 days from either the actual discovery of the facts giving rise to such claims or from the date on which the party should have, in the exercise of reasonable diligence, discovered such facts.
The obligation to arbitrate is not binding upon the Company with respect to claims relating to its trademarks, service marks, patents, copyrights, or other intellectual-property rights, or requests for temporary restraining orders, preliminary injunctions or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute between the parties.
The prevailing party will be entitled to receive from the non-prevailing party its costs relating to the arbitration proceeding including but not limited to, the arbitrator's fees, attorneys' fees and costs, witness fees, transcription fees, etc. and sales and use taxes thereon, if any.
You and we each acknowledge and agree that it is the intent of the parties that arbitration and litigation between the parties will be of the parties' individual claims, and that none of their respective claims may be arbitrated or litigated on a class-wide basis.
This Agreement and all matters arising out of or otherwise relating to these terms and conditions shall be governed by the laws in effect in the State of Florida, without regard to its conflict of law provisions. You and we hereby submit to the personal jurisdiction of the state and federal courts of the State of Florida for resolution of all disputes. You and we hereby agree that exclusive venue for any litigation/dispute under this Agreement shall be with the state and federal courts located in Broward County, Florida.
Class Action Waiver
Any proceedings to resolve or litigate any dispute will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in any representative capacity. You and we further agree that no arbitration or proceeding will be combined with another without the prior written consent of all parties to the affected proceedings.
You may assign this Agreement or the rights and obligations hereunder to any third party without our prior express written approval, which shall not be unreasonably withheld. We may assign this Agreement with at least five (5) days prior written notice to you to the most recent email address on file. Your sole recourse, should you disagree with such assignment, will be to terminate your participation in the Program.
The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their respective heirs, administrators, and successors.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
Except where stated to the contrary herein, this Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may conflict with this Agreement.
In the event any Party shall commence any claims, suits, or formal legal action to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorneys fees and costs incurred in connection therewith, including attorneys fees incurred on appeal.
The parties acknowledge the legally binding nature of this Agreement. By checking the box next to the I agree to the conditions outlined in the terms of service agreement, and clicking the Submit Info button, and by supplying the Program with all the required information to sign up to the Program, you are acknowledging and affirmatively stating that you have read and understand the terms set forth herein and that you agree to be bound by the terms and conditions hereof. You hereby adopt the /s/ mark appearing on the signature line below, as your electronic signature on this document.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each signed this document electronically pursuant to the E-SIGN Act.