By becoming a participant in any CrakOffer® Webmaster Affiliate Marketing Program ("Affiliate Program"), You ("Affiliate" "You") are entering into a binding and enforceable contract with CrakOffer INC. ("Company"; "We"; "Us"). THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS AND PROGRAM RULES UNDER WHICH YOU MAY PARTICIPATE A COMPANY AFFILIATE PROGRAM. BY PARTICIPATING IN A COMPANY AFFILIATE PROGRAM AND/OR CLICKING "I AGREE" ON THE SIGN-UP FORM Y OU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS AND PROGRAM RULES SET FORTH BELOW:
1. You have read and accept the payment terms and conditions associated with Our Affiliate Programs that are set forth at standard commission plan and/or One-Time Payment Option. The payment options and other terms and conditions published at the links above comprise an integral part of this Agreement and are subject to change by Us.
2. All Affiliates, contacts and payees must have reached the age of majority under applicable law where they reside and/or do business, and must be no younger than 18 years of age in any case before any participation in any Affiliate Program. You represent and warrant that You have reached the age of majority under the laws of the state or locality(ies) where You reside and do business.
3. Under the Affiliate Program Rules, and subject to the Terms and Conditions set forth in this Agreement, We grant You the following:
3.1 The non-exclusive, non-transferable, revocable right and permission to create authorized links from Your website to one or more Company websites, for which You will be entitled to receive a commission or referral fee for referrals of traffic to one or more Company websites in accordance with the terms of this Agreement provided that You have complied in all material respects with the Terms and Conditions of this Agreement; and
3.2 The nonexclusive, non-transferable, revocable right and license to display on Your website proprietary Company materials including but not limited to banners; text links; graphic images and text (hereafter collectively referred to as "Program Materials") solely for the purpose of promoting the products and services associated with the Affiliate Program and encouraging visitors to Your website to click through to the Company website(s);
3.3 You acknowledge and agree that the Company is, and shall remain, the exclusive owner of the Program Materials provided to You by Company pursuant to the provisions of the Agreement, and that the Program Materials may only be used by You to generate "referrals", as that term is defined in Paragraph 6. 5, during the Your authorized participation in the Affiliate Program. Program Materials may not be otherwise copied, reproduced, altered, modified, changed, broadcast, distributed, transmitted, disseminated or offered for sale or rental in any manner, including but not limited, uploading of Program Materials onto any "video sharing services" such as, but not limited to, sites such as "Pornotube.com" and "Xtube.com", at any time, anywhere in the world, except at expressly authorized by Company in writing.
3.4 Company reserves all of its rights in its trade names, trademarks and service marks and all other intellectual property associated with the Program Materials. Nothing herein shall be construed as a grant or assignment of any rights in any intellectual property owned by Company, including, without limitation, any of its trademarks or service marks. Any and all use of Company's trademarks shall be in direct association with the Program Materials and all good will generated therefrom shall inure to the sole and exclusive benefit of the Company. Company reserves the right to terminate use of Program Materials and any association of its marks therewith.
3.5 You agree that this license and Your participation in the Company's Affiliate Program(s) may be terminated or revoked by the Company at any time for any reason, or for no reason, upon notice to You, and You agree upon receipt of such notice to immediately to cease using all Affiliate Program Materials and remove all such Affiliate Program Materials and references to Company and its websites from Your websites and all promotional, advertising or marketing materials of any kind.
3.6 Company may terminate any and all licenses for You to use any or all Program Materials at any time. Company may, for example, recall and terminate Your license to use particular Program Materials at its election. You agree to immediately stop using all such recalled Program Materials upon receipt or constructive receipt of such notice (such as by publication in a webmaster resource area associated with an Affiliate Program).
4. In consideration of Company providing You with Affiliate Program Materials and the other benefits of the Affiliate Program(s), You hereby represent, acknowledge, agree, and warrant to Company, all of the following:
4.1 That neither Your website(s), nor any content, goods or services offered in, at or through Your website(s) shall at any time during Your participation in an Affiliate Program or use of any Program Materials:
(i) violate any law, statute, ordinance or regulation or promote illegal activities;
(ii) contain or promote obscene materials, including without limitation any material depicting bestiality, rape or torture;
(iii) contain or promote harmful or indecent matter to minors;
(iv) contain any material in which persons under the age of eighteen are depicted in actual, simulated or suggestive sexual situations;
(v) contain 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.;
(vi) contain any material which constitutes an infringement, misappropriation or violation of any person's or entity's intellectual property rights such as copyrights, trademark rights, rights of publicity or patent rights, or which constitutes a violation of any person's or entity's personal property rights, privacy rights or any other rights;
(vii) promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
(viii) contain content which is defamatory, libelous, hateful, threatening, abusive or harassing;
(ix) include any of the Company's trademarks or service marks, or variations or misspellings thereof, in Your domain names; or
(x) send unsolicited bulk, junk, spam e-mail or any program, file, data stream or other material that contains viruses, worms, "Trojan horses" or any other destructive feature;
4.2 That You have full authority to enter into this Agreement;
4.3 That You will provide truthful, accurate and complete information to Company concerning Your identity, bank account, address or other required information;
4.4 That all obligations owed to third parties with respect to the activities contemplated to be undertaken by You pursuant to this Agreement are or will be fully satisfied by You, so that the Company will not have any obligations with respect thereto;
4.5 That the Content on Your website does not violate any laws, including but not limited to 18 U.S.C. Section 2257, 18 U.S.C. Section 2257A and 28 CFR 75 et seq., or infringe any copyright, patent, trademark, trade secret, right of publicity, privacy right or any other intellectual, personal or proprietary rights of any third party;
4.6 That You will comply with all applicable laws and regulations in the performance of Your obligations hereunder, and that each email address submitted by You has not been created or obtained fraudulently or in contravention of the Terms and Conditions of this Agreement or any law or regulation; and
4.7 That all materials of every kind, including photographic, videographic, audio, textual and haptic materials used in direct or indirect association with materials provided through the Program, including all Program Materials, shall only be transmitted, distributed, broadcast and otherwise disseminated by You to willing adults and shall at all times comply with contemporary community standards in the communities into which they are so disseminated. As such, You will implement and put into place safeguards, including but not limited to, an "age verification" page, so that no persons who have yet to reach the Age of Majority are
(i) granted authority to access servers containing any Program Materials or
(ii) allowed or enabled to view any and/or all Program Materials which may contain explicit images.
4.8 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. (See also http://www.ftc.gov/bcp/guides/free.htm.)
4.9 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. Section 2701-2710, The Computer Fraud and Abuse Act, 18 U.S.C. Section 1030 and The California Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code Section 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. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE OBLIGATED TO ACT WITHIN THE HIGHEST ETHICAL STANDARDS UNDER THIS AGREEMENT.
5. You must complete all the required fields during the Sign-Up process, and provide Us with Your full name and valid contact information including e-mail and mailing address (no P.O. box). You agree to provide us with a legible copy of bona fide photographic identification upon request. You acknowledge and agree that we may e-mail You notices about Our Affiliate Programs, Your account as well as other transactional and promotional information based on the information that You provide to Us.
6. Affiliate Payments.
6.1 All payment obligations owed to You by Us and all payments paid or payable to You pursuant to Your participation in any of Our Affiliate Programs shall be subject to the terms of this Agreement and Your full compliance with, and performance of, all obligations set forth in this Agreement.
6.2 The amount of commission payments to You shall be determined in accordance with the payment provisions of this Agreement, including the terms set forth at time of registration. Any and all payment and other compensation options offered by the Company are subject to change and all programs may be modified, suspended, cancelled or terminated at the Company's election.
6.3 Standard Commission Calculations. Subject to the terms of this Agreement, for "standard commission" calculations, for each person who becomes a subscriber to, or purchases qualifying services from, an authorized program website owned, controlled or operated by Company, where such person has been tracked and verified by Company as a "referral" to one or more Company websites from Your website, as the term "referral" is defined in Paragraph 6.5 below, You will be entitled to receive a referral fee or commission as set forth in the terms of this Agreement pertaining to standard commission.
6.4 Non-Standard Commission Options. The Company may from time to time, at its sole election, offer non-standard commission payment options. Subject to the terms of this Agreement, for all non-standard commissions, for each person who becomes a subscriber to, or purchases qualifying services from, a program website owned, controlled or operated by Company, where such person has been tracked and verified by Company as a "referral" to one or more Company websites from Your website, You will be entitled to receive a referral fee or commission as set forth in the terms of this Agreement pertaining to non-standard commission payment terms. Non-standard commission options may not be offered or available to all Affiliates or prospective Affiliate Program participants. All non-standard commission options shall at all times be subject to modification, suspension, discontinuation or termination, in whole or in part, at Company's sole election.
6.5 For the purposes of this Agreement a "referral" that entitles You to a commission or referral fee payment in accordance with the payment terms of this Agreement shall be defined as follows:
(i) A person who has been directed to an authorized website owned, controlled or operated by Company through the use of a hypertext transfer link residing on Your website which is in the form of a banner ad or other promotional link which automatically connects any person who clicks on said banner ad or other promotional link to an authorized Company website, and which banner ad or other promotional link has been supplied to You by Company as part of the Affiliate Program in which You are participating; and
(ii) such person, who after having been directed to an authorized Company website through the use of the hyperlink banner ad or other promotional link supplied to You by Company residing on Your Website, has been converted by the Company into a paying subscriber or purchaser of services entitling You to a commission or referral fee under this Agreement.
(iii) A person shall not be deemed a "referral" entitling You to any commission or referral fee of any kind if that person leaves the Company site after having been directed there through the hyperlink banner ad or other promotional link (which has been supplied to You by Company) on Your website, without becoming an Company subscriber or purchaser of services of a type that entitles You to a commission or referral fee, even if at some later time that same person returns to the Company website(s), not through the banner ad or other promotional link (which has been supplied to You by Company) on Your website, and at that later time becomes a subscriber to the Company site or a purchaser of services from the Company.
6.6 You acknowledge and agree that You shall not be entitled to a commission or referral fee for any Company subscriber or any other purchases of services from Company who You sent or referred to Company website(s) in violation of the terms of this Agreement, or for any Company subscriber who does not fall within the terms of paragraphs 6.5 (i) & (ii) or who is excluded under the terms of paragraph 6.5 (iii).
6.7 You also acknowledge and agree that You shall not be entitled to a commission or referral fee of any kind from Company for any subscription that Company determines is the result of possible fraudulent activity. You further 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.
6.8 If You are participating in a standard commission program, You will be entitled to the program's applicable commission for as long as the referral continues to make purchases for as long as We maintain the program under which the You provided the subject referral, regardless of whether You continue to promote the program actively.
6.9 Right to Refuse Referrals. Company reserves the absolute right to deny or refuse 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.
7. For Affiliate Program payment options that generate ongoing commission payments, We will send out payments once a week. For any amount under $100.00 per week, or under a minimum payment amount specified by You more than $100.00 per week, We will carry that amount to the following pay period. All revenues will be disbursed in U.S. Dollars.
7.1 In the event that payments to Us by Our payment processors pertaining to referrals You have generated are delayed for any reason, you agree that We shall have a reasonable period of time for the receipt and processing of such payments, and for transmission of corresponding commissions or referral fee payments to You derived from said payments from Our payment processors.
8. You hereby acknowledge that if You reside in the United States or any of its territories, You are required to complete a W9 form with the correct information and enter a Federal Tax ID or Social Security Number or We will be forced to withhold tax as required by law. We will register a 1099 for all U.S. domestic entities to which We issue combined yearly payments of $600.00 or more. Failure to provide this or other required tax or identification information will cause Your payment to be delayed or withheld. You acknowledge and agree that You and You alone are fully responsible for the payment of all taxes directly or indirectly related to Your participation in any and all Affiliate Programs.
9. If We find that You have cheated in any of Our Programs, or any other affiliate marketing program, including other webmaster affiliate programs not operated by Company, We reserve the right in Our sole and absolute discretion to cancel Your participation in any and all of Our Programs, at any time, without prior notification, and You acknowledge and agree that in such circumstances, You will not be paid for any of the Affiliate Programs in which You have participated and You may be barred from any future participation in any of Our Affiliate Programs.
9.1 You acknowledge and agree that Company shall have the right to deny or withhold payment from You and to terminate You from any and all Affiliate Programs if there has been an abnormal number of chargebacks or cancellations of memberships or subscriptions that have been referred to any of the Company's websites through, from or in association with, Your website(s) or any websites associated with You. You further acknowledge and agree that Company shall have the right, in its sole and exclusive judgment, to determine what constitutes an abnormal number of chargebacks or cancellations of memberships or subscriptions.
10. You AGREE that any of the following will result in ALL of Your accounts being terminated without pay, ALL of Your unpaid commissions being FORFEITED to Company, and will further result in You being precluded from ever participating in any of Our Programs:
(i) any use of SPAM by You or a person under Your control, including, without limitation, use in direct or indirect association with Your participation in any Affiliate Program, including but not limited to means using unsolicited bulk E-mail, Instant Messages, Chatroom, Newsgroup, ICQ or IRC postings, or text messaging;
(ii) any promoting or dealing in content such as: Warez, passwords, MP3, bestiality, rape, child pornography, violence, or any other illegal activity, including any use of prohibited content in hidden meta tags, text, links, graphic(s) or any HTML;
(iii) any attempt to mislead or defraud Company in any way;
(iv) any hijacking of traffic;
(v) any providing of any incorrect or incomplete account information;
(vi) any generation of any hits or signups as a requirement to enter or obtain access to goods or services on Your (or someone else's) website;
(vii) any use of any sort of mechanism or effort that falsely generates hits or signups, including signups by You;
(viii) any violation, infringement or misappropriation of any person's or entity's copyrights, trademark rights, patent rights, rights of publicity, privacy rights or any other intellectual, personal or property right;
(ix) any cheating or defrauding of any other affiliate marketing program or its sponsor;
(x) any hosting of a website on non-adult free hosts that do not permit adult content, including, but is not limited to, Geocities, Angelire, Tripod, Xoom, CJB.net, or Hypermart;
(xi) any misrepresentation or disparagement of any of Our websites, services, programs, performers or content including but not limited to, misrepresenting the cost of membership, terms of membership, or content contained within Our website(s);
(xii) any improper exploitation of Our website Terms and Conditions, including but not limited to, instructing, informing, urging or incentivizing a person to sign up and cancel, all such actions and practices are expressly forbidden and shall not be tolerated in any way; and
(xiii) Any unauthorized modification, alteration or use of Program Materials or any of the Company's other intellectual property, including its trademarks.
11. You acknowledge and agree that all accounts that are terminated will have a stop placed on the payment of any and all outstanding funds otherwise owing to You.
12. Only Company databases and files will be used in determining all statistics relevant to Your participation in Company Affiliate Programs, including but not limited to the determination of amount of valid hits, signups, referrals, cancellation, credits and any commissions or referral fees owned to any Affiliate pursuant to this Agreement. Any discrepancies, inaccuracies, errors or complaints regarding any such determinations must be brought to Our attention within 30 days or else they will be deemed permanently waived.
13. We reserve the right to cooperate in any and all investigations relating to activities involving any violation of these Terms and Conditions, including disclosure of Your account information to third parties in connection therewith.
14. You agree that You shall fully indemnify, defend and hold Us harmless from any and all damages, losses and costs (including attorneys' fees) resulting from any breach of warranty or obligation under this Agreement and/or any act taken by You or any persons under Your control in violation of these Terms and Conditions, including any failure to act when required to under these Terms and Conditions.
15. 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, its employees, agents or assigns.
15.1 You acknowledge and agree that We shall have no control or ownership interests of any kind in Your business or Your website.
15.2 You acknowledge and agree that You shall have no financial or other interest in Company or any property owned by Company, its affiliates, agents, successors or assigns.
15.3 You acknowledge and agree that Your relationship with Us shall be restricted to matters pertaining to the Program exclusively and shall be governed entirely by the terms and conditions of this Agreement.
15.4 You acknowledge and agree that We have no direct or indirect control over the content of performances or services, the manner of performances or services, or the time or duration of provision of performances or services by You on, at or in association with Your website except as specifically set forth in this Agreement.
15.5 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, monitoring of, supervision of, prior approval of, or review of the content appearing or otherwise distributed on, at or in association with Your website, and that You shall be solely responsible for any legal liabilities or consequences resulting from Your dissemination of that content, including the Program Materials, on or through Your website.
16. Prohibited Spamming Policy. As an Affiliate and participant in the Program, You agree to abide by all of the additional provisions and prohibitions set forth in this paragraph and its subparts relating to "spamming activities" and the transmission of emails containing sexually oriented content.
16.1 All Affiliates, including You, are required to fully inform themselves of the provisions of the federal CAN-SPAM Act of 2003 (also known as the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003) ("CAN-SPAM Act") and must, as a condition of participation in this program, abide by all of the provisions of the CAN-SPAM Act. Any violation of the CAN-SPAM Act by an Affiliate constitutes a material breach of this Agreement and will subject that Affiliate to immediate termination from any and all Affiliate Programs.
16.2 Without limiting the generality of the previous paragraph, any of the following prohibited acts or practices by Your or any person or entity under Your direct or indirect control shall constitute a material violation of these terms and conditions and shall result in ALL of Your accounts being terminated without pay and complete forfeiture of any and all of Your accrued commissions, referral fees and other benefits prior to the termination: Any initiation of a commercial electronic mail message or a transactional or relationship message (as those terms are specifically defined in the CAN-SPAM Act) (hereafter collectively referred to as CEMMs) that contains or is accompanied by header information that is materially false or materially misleading, whereby, for the purposes of this paragraph--
(i) The header information of CEMMs that is technically accurate but that includes an originating electronic mail address, domain name, or Internet Protocol address that was obtained by means of false or fraudulent pretenses or representations shall be considered materially misleading;
(ii) A "from line that accurately describes any person who initiated the CEMM shall not be considered materially false or materially misleading; and
(iii) Header information shall be considered materially misleading if it fails identify accurately the computer used to initiate the CEMM because the person initiating the messages knowingly uses another computer to relay or retransmit the message for purposes of disguising its origin;
16.4 Any initiation of a transmission of a CEMM with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient about a material fact regarding the subject matter of the message;
16.5 Any initiation of a transmission of a CEMM that does not contain a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed that-
(i) A recipient of the CEMM may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and
(ii) Remain capable of receiving such reply requests or messages from the recipient for at least 30 days after the date of the transmission of the original CEMM;
16.6 Any initiation of a transmission of a CEMM to a recipient, more than 10 business days after the receipt of a request from that recipient to stop sending such messages (however, this prohibition does not apply if there is affirmative consent by the recipient subsequent to the recipient's request not to receive such messages);
16.7 Any initiation of a transmission of a CEMM to a recipient by any person acting on behalf of the Affiliate, more than 10 business days after the receipt of a request from that recipient to stop sending such messages (however, this prohibition does not apply if there is affirmative consent by the recipient subsequent to the recipient's request not to receive such messages);
16.8 Any assistance in initiating the transmission of a CEMM by any person acting on behalf of the Affiliate assists, through the provision or selecting of addresses of recipient to which the message will be sent, to a recipient who has requested not to receive any such messages (however, this prohibition does not apply if there is affirmative consent by the recipient subsequent to the recipient's request not to receive such messages);
16.9 Any sale, leasing, exchanging or otherwise transferring or releasing of any electronic mail address of an email recipient with knowledge that the recipient has made a request to stop receiving messages, either directly or indirectly, for any purpose other than compliance with a provision of law (however, this prohibition does not apply if there is affirmative consent by the recipient subsequent to the recipient's request not to receive such messages);
16.10 Any initiation of any transmission of a CEMM unless the message provides the following:
(i) Clear and conspicuous identification that the message is an advertisement or solicitation;
(ii) Clear and conspicuous notice of the opportunity through a mechanism for a replay electronic mail message, specified in the CEMM, for the recipient to decline to receive further messages from the sender; and
(iii) A valid physical postal address of the sender;
16.11 Any accessing of another person's computer without authorization and intentional initiation of the transmission of multiple CEMMs from or through such computer;
16.12 Any accessing another person's computer to relay or retransmit multiple CEMMs with the intent to deceive or mislead recipients, or any Internet access service, as to the origin of the messages;
16.13 Any material falsification of header information in multiple CEMMs and/or intentional initiation of the transmission of such messages;
16.14 Any registration for an email account, user account or domain name using information that materially falsifies the identity of the actual registrant, and subsequent intentional initiation of the transmission of CEMMS from such accounts or domain names;
16.15 Any false representation to be the registrant, or the legitimate successor in interest of the registrant of an Internet Protocol address, and intentional initiation of the transmission of multiple CEMMs from such address; and
16.16 Any initiation of the transmission of a CEMM that includes sexually oriented material (i.e., any material that depicts sexually explicit conduct as defined in section 2256 of title 18, United States Code) to any recipient who has not given prior affirmative consent to the receipt of the message, where the CEMM
(i) Fails to include in the subject heading of the message the marks or notices prescribed by the Federal Trade Commission for such messages; or
(ii) Fails to provide that the content of the CEMM that is initially viewable to the recipient when the message is opened, includes only-
(a) the marks or notices prescribed by the Federal Trade Commission for such messages;
(b) the mechanism and information necessary to provide the recipient with the opportunity to decline to receive any further such messages from the sender; or
(c) the valid physical postal address of the sender.
17. You acknowledge and agree that Company makes no guaranties or warranties of any kind with respect to the Program or Program Materials provided by, through or in association with the Program, and all Program Materials are provided to You "as is", and that Your participation in the Program and use of the Program Materials, is 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 and any and all Program Materials of every kind supplied to You as part of this Program.
18. You acknowledge and agree that under no circumstances shall Company, its employees, independent contractors, authors, agents, attorneys, representatives, assigns and successors be liable to You, or any other person or entity, for any direct or indirect losses, injuries, special or incidental or consequential damages of any kind (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOODWILL, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any Company website(s), or arising from or in connection with the use of the Program Materials, or due to 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, computer or other equipment failure, or due to incorrect placement of HTML., regardless whether based upon breach of contract, negligence or any other claim or cause of action, In the event of any network downtime, computer or technical error We will not be held responsible for any lost hits, signups, traffic or income.
18.1 Notwithstanding the foregoing express limitations of liability, You acknowledge and agree that should Company, its officers, employees, successors, or assigns be held liable to You for damages, injuries or losses of any kind, directly or indirectly resulting from Your participation in the Program, that the maximum total dollar amount of liquidated damages for any and all of Your claims, injuries, damages or losses shall not exceed a total of ten dollars ($10.00).
19. 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 statement of any kind regarding:
(i) The potential profitability or likelihood of success of Your participation in the Program as set forth in this Agreement or otherwise;
(ii) The possibility or likelihood that use of any products and/or services provided by Company pursuant to this Agreement can or will result in the recoupment of any funds expended by You for the promotion of Your website or any other purpose; or
(iii) 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.
19.1 You expressly acknowledge and agree that the success any of its business endeavors which involve Your participation in the Program pursuant to this Agreement, like any other business endeavor, 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 and its agents, officers, directors, and employees harmless from any claim of loss to You directly or indirectly resulting from Your decision to participate in the Program pursuant to this Agreement.
20. We shall not monitor, supervise or review, and shall not be responsible for any content appearing or otherwise distributed on, at or in association with Your website(s) including any Program Materials or content which You have received from Us. You assume the full and sole responsibility and liability for the decision to display or include content on Your website, to distribute or make the content available to the viewers of Your website in various geographical areas, and for all decisions relating to the manner in which You permit or restrict access to Your website.
21. We reserve the right to alter or modify these Terms and Conditions at any time without prior notice to You. It is Your responsibility to refer to this document from time to time so that You may be informed of any changes to the Terms and Conditions. Ignorance of the Terms and Conditions is no excuse for You to fail to respond to any action taken by Us, or to Your failure to act, under these Terms and Conditions.
22. Either party may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Upon termination of this Agreement You shall immediately cease using all the Program Materials and other Company intellectual property provided under this Agreement, and You shall immediately remove all Promotional Materials from Your website(s).
23. We reserve the right to cancel this Agreement at any time, for any reason, without prior notification. In such cases You will be notified immediately and paid for accumulated funds up to that point in time, unless otherwise forfeited under the terms of this Agreement. Notice by e-mail, to the e-mail address We have on file for You is considered sufficient notice for to terminate or cancel this Agreement.
24. This Agreement constitutes the entire agreement between You and Company with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral.
24.1 You agree that Company may from time to time, in its sole and exclusive discretion, modify the quantity, type and quality of benefits provided to You hereunder either with or without notice. We may modify other terms and conditions at any time upon e-mail notice to You, by publication at the place that the Company maintains a webmaster resource area or by modification of this Agreement available at its current file location.
24.2 You agree that no modification of this Agreement by You, Your employees, representatives, agents, assigns or successors shall be enforceable of have any effect unless first reduced to writing, agreed to in writing by the Company and signed by Company's duly authorized representative.
24.3 You agree that no officer, employee or representative of You or Company has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and You acknowledge and agree that You have not executed this Agreement in reliance upon any such representation or promise.
24.4 You acknowledge and agree that the failure of Company to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder.
24.5 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 benefits hereunder may be assigned by You to any other person or entity.
24.6 You agree that Company may at any time, and without prior notice to You, freely assign all or part of its duties, obligations and benefits hereunder.
25. By accepting these terms and conditions and becoming an Affiliate, You agree that this Agreement and all disputes or controversies as to the interpretation of or any performance arising under, or related to this Agreement shall be governed by and construed under the laws of the State of FLORIDA and the United States as applied to agreements between FLORIDA state residents entered into and to be performed within the State of FLORIDA, except as governed by Federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
25.1 You further agree that notwithstanding any judicially or statutorily created choice of law rule that would otherwise require the application of the law of some other jurisdiction, all provisions of this Agreement and all matters or controversies of any kind arising out of, or related to this Agreement or the rights or liabilities of the parties hereto shall be governed solely by the substantive statutory and common law of the state of FLORIDA.
25.2 Any and all disputes or controversies of any kind, including but not limited to any performance, duty, obligation or liability arising under or related to this Agreement which are not first resolved informally, shall be determined by binding arbitration in LOS ANGELES, CALIFORNIA, in accordance with the rules of the American Arbitration Association (the "AAA") or a similar organization if the AAA is unavailable for any reason. 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 the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the State of FLORIDA and the United States. The prevailing party in the arbitration proceeding shall be entitled, in addition to any other remedies, to an award of reasonable attorneys' fees.
25.3 The parties agree that the venue for all legal disputes, controversies, and actions of any kind arising under or related to this Agreement shall be Miami, FLORIDA.
26. For purposes of construction of this Agreement, both Company and You shall be deemed to have mutually drafted this Agreement and all parts thereof. If You would like to negotiate other terms or otherwise modify this Agreement before providing your assent and agreement, please contact the Company manager at [email protected] 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.
27. If any provision of this Agreement is held void or unenforceable to any extent, such provision shall be deemed excised and removed to make the remaining provisions enforceable. Unless otherwise specifically provided, the provisions of this Agreement shall survive its termination.
28. Either party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party, including, without limitation, acts of God, nature, any government agency(ies), war, civil disturbance, labor disputes or shortages, electrical or mechanical breakdowns, inability or refusal of a common carrier to provide communications capabilities, 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 prohibiting or interfering with either party from carrying on its day-to-day operations as contemplated under this Agreement.
29. We strongly advise that You review this Agreement with Your attorney before You enter into it. You acknowledge and agree that nothing herein and no statement by Us or any employee, representative, agent or other person associated with Us has in any way prevented or inhibited You in any way from seeking such advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair; all 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 associated herewith.
30. 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.
31. Acceptance And Execution Of This Agreement.
31.1 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 "I agree", "I 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.
31.2 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 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:
(i) by any means set forth in Paragraph 31.1 above, including, for example, by clicking the button that is posted at the signup page indicating that You have read and agree to these Terms and Conditions;
(ii) 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;
(iii) 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;
(iv) by participating in the Program in any manner, including by causing the sending of any referral;
(v) by causing the sending to You or the receiving by You of one or more payments from Company or its agent(s);
(vi) by causing the sending to any person or entity under our direct or indirect control one or more payments from Company or its agent(s);
(vii) by subsequently accessing any "webmaster" area associated with the Program or other area of any Company website associated with the Program; or
(viii) by engaging in any other action that reasonably indicates Your intention to participate in the Program or Your actual participation in the Program.