AFFILIATE AGREEMENT

This affiliate agreement (the "Agreement") is made and entered into by and between the owner of www.justcash.com (“we” or the “Company”), and you, ("you" or "Affiliate") the party submitting an application to become a lead generation affiliate of the Company (“Affiliate”). The terms and conditions contained in this Agreement apply to your participation in the affiliate program developed by Company ("Affiliate Program") for purposes of marketing the Affiliate Program and associated content on the Company’s websites (the “Program Sites”). The Affiliate wants to participate in the Affiliate Program and, by submitting an application you expressly consent to all the terms and conditions of this Agreement. With that, the parties agree as follows:

1. Enrollment in the Affiliate Program

To enroll in the Affiliate Program, the Affiliate must be at least 18-years old or the age of majority in the Affiliate’s place of residence, whichever is greater. If the Affiliate is an entity, all individuals involved in the entity must meet the same requirements.

You must submit an application for the applicable Affiliate Program, available from us or from our website at www.justcash.com. After we review your application, we will notify you of your acceptance or rejection to the applicable Affiliate Program. We may accept or reject your application at our sole discretion for any reason, including if we determine that:

  1. The Affiliate or its owners are under 18-years old and the age of majority in their place of residence;
  2. The application contains inaccurate information;
  3. The Affiliate’s marketing methods are unsuitable for the Affiliate Program, including engaging in advertising or marketing methods that:
    1. Promote sexually explicit materials without complying with governing law;
    2. Promotes violence;
    3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
    4. Incorporates any materials that infringe or assist others to infringe any copyright, trademark, or other intellectual property rights or to violate any law;
    5. Is in any way unlawful, harmful, threatening, defamatory, libelous, obscene, harassing, or racially, ethnically, or otherwise objectionable to Company in its sole discretion;
    6. Contains software downloads that potentially enable diversions of commissions from other affiliates in the Affiliate Program; or
    7. Leads customers to mistake the Affiliate for Company or any other affiliated business or otherwise impersonates or tries to impersonate Company, its employees, another Affiliate, or any other person.
  4. One or more affiliate sites incorporate material that is unlawful, defamatory, libelous, infringing, obscene, harassing, or otherwise objectionable;
  5. One or more of the Affiliate’s domain names or affiliate sites are identical or confusingly similar to a trademark or service mark in which Company or another person has intellectual property or other legal rights;
  6. One or more affiliate sites promotes or facilitates illegal activity, or violates the rights of others, including
  7. One or more affiliate sites encourage password theft or hacking; or
  8. The Affiliate or one or more affiliate sites are not otherwise suitable for the Affiliate Program for any reason.

If the Company approves the Affiliate’s application, but later determines that the Affiliate did not comply with any of (i)-(viii) above, the Company will terminate the Affiliate’s account. Company is not required to notify any prospective Affiliate of rejection from the Affiliate Program.

Subject to our acceptance of you as an Affiliate and your continued compliance with the terms and conditions of this Agreement, Company agrees as follows:

We will make available to you via the graphic and textual links to the Program Web Site (i.e., the Company owned website that is the subject of the Affiliate Program application) and/or other creative materials (collectively, the "Links") which you may display on web sites owned or controlled by you and in online advertisements (collectively, "Media"). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site. This right to use is a non-exclusive, non-transferrable, revocable license limited to the lead generation purpose and the terms and conditions set forth in this Agreement.

2. Obligations of the Affiliate

Affiliate agrees to:

  1. Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
  2. Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (a) are not illegal, (b) do not infringe upon the intellectual property or personal rights of any third party, (c) do not contain or link to any material which depicts child pornography, any person under 18, rape, snuff, torture, death, violence, or incest, racial slurs or hate speech and (d) do not contain or link to any material that is obscene, illegal, unlawful, defamatory, libelous, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate (collectively, "Infringing Content").
  3. Not make any representations, warranties or other statements concerning Company or client or any of their respective products or services, except as expressly authorized herein.
  4. Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by Company or clients or a part of the Program Web Site, without prior written permission from us.
  5. Comply with all (a) obligations, requirements and restrictions under this Agreement and (b) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
  6. Comply with the terms, conditions, guidelines and policies of any third-party services used by Affiliate inconnection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
  7. Always prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Affiliate Program and the provision of such personally identifiable information to Company and clients for use as intended by Company and clients.
  8. Make sure to not place Company ads on any online auction platform (i.e. eBay, Amazon, etc).

The following additional program-specific terms shall apply to any promotional programs set forth below:

  1. Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by Company in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software can be easily removed according to generally accepted methods. It is strictly prohibited to promote any Links through spam, content locking and other deceitful tactics. This includes, but is not restricted to: spam (via email, forums, comments and instant messenger), blind leading, direct-to-form promotion, link code hack and unauthorized landing page alteration.
  2. Affiliate Network Campaigns. For all Affiliates that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the "Network") for access and use by those affiliates in Affiliate's Network (each a "Third Party Affiliate"). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Infringing Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to Company the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program. Unless Company has been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by Company, Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.

3. Compliance with Law

The Affiliate will comply with all laws, including the following:

  1. The Federal Record Keeping and Labeling Requirements (18 U.S.C. §§ 2257–2257A) and the regulations codified at 28 C.F.R. Part 75;
  2. The CAN-SPAM Act of 2003 (15 U.S.C. §§ 7701–7713) and the regulations codified at 16 C.F.R. Part 316;
  3. The Restore Online Shoppers’ Confidence Act (15 U.S.C. §§ 8401–8405);
  4. Guides Against Deceptive Pricing (16 C.F.R. Part 233);
  5. Guides Against Bait Advertising (16 C.F.R. Part 238);
  6. Guides Concerning Use of the Word “Free” and Similar Representations (16 C.F.R. Part 251);
  7. Guides Concerning Use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255);
  8. Use of Prenotification Negative Option Plans (16 C.F.R. Part 425);
  9. FTC Policy Statement on Deception (www.ftc.gov/bcp/policystmt/ad-decept.htm);
  10. FTC Policy Statement on Advertising Substantiation (www.ftc.gov/bcp/guides/ad3subst.htm);
  11. FTC Policy Statement on Unfairness (www.ftc.gov/bcp/policystmt/ad-unfair.htm); and
  12. FTC .com Disclosures: How to Make Effective Disclosures in Digital Advertising (https://www.ftc.gov/tips-advice/business-center/guidance/com-disclosures-how-make-effective-disclosures-digital).

4. Prohibited Conduct

The Affiliate is responsible for all content posted on the affiliate sites. The Company prohibits the Affiliate from engaging in the following prohibited conduct:

  1. Depictions of Minors. The Affiliate must not disseminate, post on its affiliate site, or provide links to any matter that involves depictions of nudity or sexuality by an age inappropriate-appearing performer (that is, a performer who looks younger than 18-years old) or by a performer who is portrayed or made to appear as a person under 18-years old by virtue of the script, make-up, costuming, demeanor, setting, etc.
  2. Illegal or Objectionable Content. The Affiliate must not disseminate, post on its affiliate site, or provide links to any obscene material, including any material depicting child pornography, incest, scat, defecation, feces, urination, menstruation, genital mutilation, necrophilia, bestiality, actual or simulated rape, sexual violence, sado-masochistic abuse or bondage, actual violence inflicted on individuals by themselves or others, torture, or death. Nor will the Affiliate disseminate, post on its affiliate site, or provide links to any content or materials of the following nature: warez, distribution of pirated content, prostitution or escort services, human trafficking, gambling, or controlled substances (including related paraphernalia).
  3. Spam. The Affiliate must not disseminate spam in connection with the Affiliate Program. Although United States federal and state law does not prohibit all forms of spamming, the Company imposes a stricter, no-spam policy for Affiliates. What is spamming will evolve over time as new technologies and methodologies emerge for spammers to find new ways to abuse the Affiliate Program. Some of the facts that the Company takes into account when determining what is spamming include:
    1. If the Affiliate has violated a U.S. federal or state anti-spamming law, including any part of the CAN-SPAM Act of 2003 (15 U.S.C. §§ 7701–7713) or any of the federal regulations promulgated under the CAN-SPAM Act (16 C.F.R. Part 316);
    2. If the Affiliate has violated any third party anti-spamming policy;
    3. If the Affiliate has sent unsolicited bulk messages to nonconsenting recipients;
    4. If the Affiliate has misleading or false information contained in its messages, subject line, or message-headers;
    5. If the Affiliate uses automated means to collect, transmit, or sell the email addresses of others;
    6. If the Affiliate uses a third-party website or program to automatically generate and send messages or content;
    7. If the primary purpose of the Affiliate’s message is commercial in nature; and
    8. The number of spam or abuse complaints that have been lodged against the Affiliate.

    No one factor is controlling, and the Company will look to the particular circumstances of each case to determine what is spamming. The Company recommends that the Affiliate review CAN-SPAM Act: A Compliance Guide for Business. When in doubt, don’t do it—you spam, you’re out.

  4. Fraudulent and Deceptive Trade Practices. The Affiliate must not engage in any fraudulent, deceptive, or unfair transactions or trade practices. The Affiliate must comply with the Federal Trade Commission (FTC) statutes and regulations and any related rules, policies, and advisory opinions in advertising, marketing, and promoting the Program Sites.
  5. Defamation and Related Conduct. The Affiliate must not publish content that is defamatory, libelous, threatening, abusive, hateful, derogatory, disparaging, or otherwise injurious to any person or to the reputation of any person.
  6. Federal Record Keeping and Labeling Requirements. The Affiliate will be provided with pre-approved marketing materials and images provided by the Program Site. The Affiliate shall comply with the federal record keeping and labeling requirements codified at 18 U.S.C. §§ 2257–2257A and the implementing regulations codified at +28 C.F.R. Part 75 (collectively, the “§ 2257 requirements”) with respect to such marketing materials and images by including a link to the Program Site’s compliance statement found out http://justbangdates.com/usc2257.php. If the Affiliate utilizes its own sexually explicit material: (a) The Affiliate and the affiliate site must comply with the § 2257 requirements; (b) The Affiliate will act as the required “Custodian of Records” under the § 2257 requirements for all content depicting actual sexually explicit conduct of an actual human being that may be used to promote or market the Program Sites regardless of who produced the content; and (c) The Affiliate must post a § 2257 statement on the affiliate site in the manner and location required by the § 2257 requirements.
  7. Intellectual Property Rights. The Affiliate must not publish content on the affiliate site that infringes the intellectual property rights or other legal rights of any person, including copyright, patent, trademark, service mark, trade secret, trade dress, right of privacy, right of publicity, moral right, and any other proprietary right.
  8. Cybersquatting or Typosquatting. The Affiliate must not use or register or try to use or register any domain name (including second-level, third-level, fourth-level, fifth-level, and so on), sub-domain name, or directory that is identical or confusingly similar to a trademark or service mark in which the Company or another person has intellectual property or other legal rights.
  9. Metatags. The Affiliate must not use any false, misleading, or infringing metatags tied to the affiliate site. In addition, the Affiliate must not use any metatags that would imply or suggest that underage or illegal content may be found on the affiliate site or the Program Sites.
  10. Unethical Marketing Practices. The Affiliate must not try to intercept, direct, re-direct, divert, or usurp traffic (including through the use of user-installed software) from, or divert referral fees from, any other participant in the Affiliate Program. The Affiliate must not directly or indirectly offer any person any consideration or incentive (including payment of money or granting of any discounts or other benefits) to go to the Program Sites using the promotional links on the affiliate site; nor will the Affiliate require any person to join one or more Program Sites as a prerequisite to accessing other products or services. The Affiliate will not try to directly or indirectly obtain usernames or passwords from end users of the Program Sites, including persons whom the Affiliate referred to the Program Sites.
  11. Misrepresentation of Relationship. The Affiliate must not misrepresent the Affiliate’s contractual relationship with the Company or imply that any relationship exists with the Company except as expressly provided in this agreement. For example, the Affiliate will not publish any statement indicating that the Company supports, endorses, or contributes to the affiliate site except as expressly provided in this agreement.
  12. Unauthorized Access. The Affiliate’s unauthorized access or duplication of any content that the Affiliate obtains directly or indirectly through its participation in the Affiliate Program is a breach of this agreement.
  13. Malicious Code, Viruses, Etc. The Affiliate must not use or offer for download any material that contains a virus or malicious code, for example a Trojan Horse, that has the potential of causing disruption or damage to any computer system, network, or server. The Affiliate will be liable to the Company for all damage caused by any program of this nature.
  14. Links to and Content of Others. The Affiliate must not use the licensed material, the Company marks, or any other Company intellectual property to promote or link to any other website.
  15. Chat Traffic Advertisements. The Affiliate must not use chat traffic advertisements during its participation in the Affiliate Program. The Company will not accept chat traffic under any circumstances.
  16. Use of Unapproved Promotional Materials. The Affiliate must only use the licensed material to promote the Program Sites. The Affiliate must not use any other material, whether created by the Affiliate or others, to promote the Program Sites.

5. Compensation Information

We will pay Affiliate for each Qualified Action (the "Commission"). The Commission rates are set forth in the respective application for each of the applicable Affiliate Programs. A "Qualified Action" means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person, (iii) is not using pre-populated fields, (iv) completes all of the information required for such action within the time period allowed by Company and (v) is not later determined by Company to be fraudulent, incomplete, unqualified or duplicative.

We will pay you any Commissions earned on at least a monthly basis, and will use commercially reasonable efforts to pay on a weekly or bi-weekly basis, provided that your account has a balance greater than $250. Accounts with a balance of less than $250 will roll over to the next month, and will continue to roll over monthly until a $250 or higher balance is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.

Payment for Commissions is dependent upon clients providing such funds to Company, and therefore, you agree that Company shall only be liable to you for Commissions to the extent that Company has received such funds from clients. You hereby release Company from any claim for Commissions if Company has not received such funds from Clients.

Company shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under this Agreement and shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Company in its sole discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to Company in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide Company with Affiliate's reports within three (3) days after 30th day of the calendar month, and if Company’s and Affiliate's reported statistics vary by more than 10% and Company reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then Company and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Company’s numbers shall govern.

If Affiliate has an outstanding balance due to Company under this Agreement or any other agreement between the Affiliate and Company, whether or not related to the Affiliate Program, Affiliate agrees that Company may offset any such amounts due to Company from amounts payable to Affiliate under this Agreement.

  1. Payout Limitations.
    1. Company will pay the Affiliate a Commission for Qualified Actions to the extent its system can track a visitor to the applicable Program Site from the time a visitor clicks on a link to the time of signup.
    2. The Company will not pay the Affiliate a commission (i) if its system cannot process the affiliate code; (ii) if a visitor does not signup; or (iii) if a promotional link directs a visitor to the applicable Program Site, but the visitor leaves and later returns to the applicable Program Site to sign up without going through the promotional link.
    3. The Company will not pay the Affiliate for any activity that the Company determines is fraudulent, including credit card numbers in a negative bin number database, multiple subscriptions from a single email address, multiple subscriptions with the same credit card number, subscriptions with past memberships to the applicable Program Site, sequential names or patterns of names, many subscriptions from a specific Program Site in a short time span, and multiple attempts to subscribe from the same credit card.
    4. The Company may also deny or withhold commissions for any signups coming from any practices that breach this agreement. If the Company determines that the Affiliate is engaging in practices that breach this agreement, the Affiliate will not receive any credit or payment and will forfeit all credits or payments earned.
  2. Abnormal Chargebacks or Cancellations and Other Suspicious Behavior. The Company may deny or withhold any Commission to the Affiliate and terminate the Affiliate’s participation in the Affiliate Program if there has been an abnormal number of chargebacks or cancellations from traffic referred to the Company through one or more affiliate sites. The Company will determine what is an abnormal number of chargebacks or cancellations based on its review of the situation and its experience with other affiliates. In addition, the Company may also deny or withhold payment to the Affiliate and terminate the Affiliate’s participation in the Affiliate Program due to any other suspicious behavior, including unusual conversion ratios, lack of or low quantity of member logins, or low member usage.
  3. Taxes. The Affiliate will pay all taxes attributable to the Commissions earned under this agreement. On one or more occasions, the Company may request the Affiliate to provide tax information depending on the jurisdiction in which the Affiliate resides or is incorporated. The Affiliate will promptly comply with any request by the Company for tax information. If the Company requests tax information from the Affiliate and the Affiliate does not provide it to the Company, the Company may withhold payment from the Affiliate until the Affiliate provides this information or otherwise satisfies the Company that the Affiliate is not a person from whom the Company is required to obtain tax information.

6. Affiliate Site Obligations

The Affiliate will be solely responsible for developing, operating, and maintaining the affiliate site and for all materials that appear on the affiliate site. The Affiliate’s responsibilities include:

  1. The technical operation of the affiliate site and all related equipment;
  2. Displaying the promotional links and licensed material on the affiliate site in compliance with this Agreement;
  3. Creating, posting, and ensuring the accuracy of materials posted on the affiliate site, including all materials related to the Company’s online services and content;
  4. Using the licensed material, the affiliate site, and the materials on the affiliate site in a way that does not infringe any of the Company’s rights or those of any other person (including copyrights, trademarks, privacy, publicity, or other intellectual property or proprietary rights);
  5. Disclosing on the affiliate site accurately and adequately, either through a privacy policy or otherwise, how the Affiliate collects, uses, stores, and discloses data collected from visitors, including, where applicable, that third parties (including the Company and other advertisers) may serve content and advertisements, collect information directly from visitors, and place or recognize cookies on visitors’ browsers; and
  6. Making sure that any use that the Affiliate makes of the licensed material and the Company trademarks complies with this Agreement.

7. Affiliate Statement of Facts

The Affiliate states that the following facts are accurate and will continue to be accurate during this agreement:

  1. If the Affiliate is an individual, the Affiliate is at least 18-years old or has reached the age of majority in the Affiliate’s place of residence, whichever is greater, and has the legal capacity to enter into this Agreement. If the Affiliate is an entity, all individuals involved in the entity must meet the same requirements and the entity is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of its jurisdiction of incorporation, organization, or chartering.
  2. The Affiliate has the power to enter into this Agreement and to perform its obligations under this agreement.
  3. The Affiliate owns or operates each affiliate site that the Affiliate identified in its application.
  4. The Affiliate owns or has a license for all content found on each affiliate site, including all text, audio, images, and videos displayed on each affiliate site.
  5. The revenue the Affiliate earns through the Program is and will be directed solely to the Affiliate, and the Affiliate is not authorized to transfer the Affiliate’s checks to or deposit the Affiliate’s checks with any nonparties other than bona fide financial institutions.
  6. The Affiliate is not an individual, organization, or entity listed on The Office of Foreign Assets Control Specially Designated Nationals or Blocked Persons list, as published and updated by the United States Department of Treasury.
  7. Each affiliate site and the content on each affiliate site:
    1. does not infringe the Company’s or any other person’s intellectual property rights;
    2. does not violate nonparty publicity or privacy rights;
    3. does not promote violence, racial intolerance, or illegal activities;
    4. does not depict bestiality, necrophilia, genital mutilation, sado-masochistic abuse or bondage, defecation, urination, bleeding, enema play, menstruation, rape, extreme violence, torture, incest, or any other obscene material;
    5. does not depict minors in adult or sexual situations or otherwise target persons under 18-years old or the age of majority, whichever is higher;
    6. does not violate any law governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, or trade disparagement;
    7. is free of any “worm,” “virus,” or other device that could impair or injure any person or any person’s property;
    8. is not otherwise defamatory, vulgar, or obscene; and
    9. complies with the program restrictions set out in Section 4.
  8. The Affiliate is generally familiar with the nature of the Internet and complies with all laws and industry standards.
  9. The Affiliate’s performance under this agreement does not breach any agreement or obligation between the Affiliate and a nonparty or violate any law.
  10. The Affiliate’s collection and use of personally identifiable information does not breach the Program’s privacy policy or violate any law that governs the Affiliate’s collection and use of personal information.
  11. The Affiliate and each affiliate site complies with 18 U.S.C. §§ 2257–2257A, including the implementing regulations codified at 28 C.F.R. Part 75.

8. Termination

This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media and deleting all copies of the Links. We may terminate your participation in the Affiliate Program or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in the Affiliate Program or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all Company or client intellectual property, and will cease representing yourself as a Company or client affiliate. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.

9. Remedies

In addition to any other rights and remedies available to us under this Agreement Company reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or chargeback paid Commissions to your account if (i) Company determines that you have violated this Agreement, (ii) Company receives any complaints about your participation in the Affiliate Program which Company reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or chargebacks for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, Company reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third-party that has been directly damaged by your actions. Company’s failure to act with respect to a breach by you or others does not waive Company’s right to act with respect to subsequent or similar breaches.

10. Anti-Spam Policy

You shall, throughout the term of this Agreement, comply with all anti-spam legislation and regulations applicable in the jurisdictions in which you operate, including in respect of any commercial electronic message (“CEM”) you send, or cause or permit to be sent, and in respect of any request for consent to send a CEM you make in connection with the terms of this Agreement. “CEM” means an electronic message that has as one of its purposes, to encourage participation in a commercial activity. Without limiting the generality of the foregoing, to the extent that you send any CEMs in relation to this Agreement, you shall (i) ensure that CEMs are only sent to persons who have consented to receive them, (ii) ensure that all CEMs sent comply with the requirements prescribed by the applicable anti-spam legislation or regulations and (iii) implement a functional unsubscribe mechanism with immediate processing capabilities.

11. Fraud

You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. Company shall make all determinations about fraudulent activity in its sole discretion.

12. Confidentiality – Disclosure Required by Law

  1. If any proceeding is brought to compel the Affiliate or any of its representatives to disclose confidential information, or if the Affiliate or any of its representatives is otherwise required by law to disclose any confidential information, the Affiliate will do the following:
    1. Unless by doing so the Affiliate would violate any law or an order of a government body, notify the Company of that proceeding or that requirement, as the case may be, promptly after learning of it, taking into account for purposes of determining the Affiliate’s promptness any time constraints that the Company would face in bringing a proceeding to prevent that disclosure or to protect the confidentiality of any information that is disclosed; and
    2. At the Affiliate’s expense, cooperate with the Company in any proceeding that the Company brings to prevent that disclosure or to protect the confidentiality of any information that is disclosed.
  2. It will not constitute a breach of the Affiliate’s obligations under this agreement for the Affiliate or any of its representatives to disclose confidential information as required by law, on condition that the Affiliate has complied with its obligations under Section 12(i) for that disclosure and has delivered to the Company a written opinion of the Affiliate’s legal counsel prepared at the Affiliate’s expense stating that the disclosure is required by law and that opinion is reasonably acceptable to the Company.

13. Indemnification

Affiliate hereby agrees to indemnify, defend and hold harmless Company and clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, or Company or client intellectual property, (iii) any claim relating to your Media, including but not limited to, the content contained on such Media or (iv) any claim relating to any actual or alleged breach of applicable anti-spam legislation or regulations by Affiliate.

More specifically, Affiliate will pay the Company for any loss of the Company’s (unless caused by the Company’s intentional misconduct) that is caused by the Affiliate’s:

  1. use of the Program, the Program Sites, the licensed material, or the Company marks;
  2. failure to pay taxes in connection with revenues earned under this agreement;
  3. dispute with any customer, Affiliate, or other person;
  4. breach of this Agreement, including any statement of fact found in Section 7;
  5. infringement of nonparty intellectual property rights;
  6. violation of any nonparty rights;
  7. violation of any law, including the laws identified in section 3;
  8. fraudulent or deceptive conduct or trade practices;
  9. negligent conduct;
  10. intentional conduct; or
  11. criminal conduct.

For purposes of this Section “Loss” means an amount that the Company is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages. A loss is “caused by” an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.

The Company will notify the Affiliate before the 15th business day after the Company knows or should reasonably have known of a claim for a loss that the Affiliate might be obligated to pay. The Company’s failure to give the Affiliate timely notice does not terminate the Affiliate’s obligation, except to the extent that the failure prejudices the Affiliate’s ability to defend the claim or mitigate losses.

The Company has control over defending a claim for a loss (including settling it), unless the Company directs the Affiliate to control the defense. If the Company directs the Affiliate to control the defense, each of the following applies: (i) The Affiliate may choose and retain legal counsel; (ii) The Company may retain its own legal counsel at its expense; (iii) The Affiliate will not settle any litigation without the Company’s written consent if the settlement (a) imposes a penalty or limitation on the Company; (b) admits the Company’s fault; or (c) does not fully release the Company from liability.

The Affiliate and the Company will cooperate with each other in good faith on a claim and the Company’s rights under this Section do not affect other rights that the Company might have.

14. Disclaimers

THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. COMPANY DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED OR THAT AN ERRORS OR DEFECTS IN THE AFFILIATE PROGRAM WILL BE CORRECTED. COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. COMPANY DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS THROUGH THE AFFILIATE PROGRAM OR THAT PAST AFFILIATE EARNINGS GUARANTEE OR SUGGEST FUTURE COMMISSIONS OR EARNINGS.

COMPANY SHALL NOT MONITOR, SUPERVISE OR REVIEW, AND SHALL NOT BE RESPONSIBLE FOR ANY LINKS APPEARING OR OTHERWISE DISTRIBUTED ON, AT OR IN ASSOCIATION WITH YOUR MEDIA INCLUDING ANY LINKS 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 MEDIA, TO DISTRIBUTE OR MAKE THE CONTENT AVAILABLE TO THE VIEWERS OF YOUR MEDIA IN VARIOUS GEOGRAPHICAL AREAS, AND FOR ALL DECISIONS RELATING TO THE MANNER IN WHICH YOU PERMIT OR RESTRICT ACCESS TO YOUR MEDIA.

15. Limitation of Liability

IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF COMPANY. INDEED, THE PROGRAM, PROGRAM SITES, OR LICENSED MATERIAL MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF BUSINESS OPPORTUNITY, IN CONNECTION WITH THIS AGREEMENT EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. COMPANY AND ITS SUBSIDIARIES, AFFILIATES, PARTNERS AND LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES, OWNERS AND AGENTS’ CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED (i) $10,000; or (ii) THE AMOUNTS PAID TO AFFILIATE BY COMPANY IN COMMISSIONS DURING THE SIX (6) WEEKS IMMEDIATELY PRIOR TO SUCH CLAIM, WHICHEVER AMOUNT IS LOWER.

Additionally, the Company will not be liable to the Affiliate for any of the following:

  1. Errors, mistakes, or inaccuracies of the Program, the Program Sites, or the licensed material;
  2. Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
  3. Unauthorized access to or use of the Company’s servers and any personal or financial information stored in them, including unauthorized access or changes to the Affiliate’s account, transmissions, or data;
  4. Interruption or cessation of transmission to or from the Program or the Program Sites;
  5. Denial-of-service attack (DoS) or distributed denial-of-service attack (DDoS);
  6. Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Program, the Program Sites, or the licensed material by any person or that might infect the Affiliate’s computer or affect the Affiliate’s access to or use of the Program, the Program Sites, the licensed material, or the Affiliate’s other services, hardware, or software;
  7. Incompatibility between the Program, the Program Sites, or the licensed material and the Affiliate’s other services, hardware, or software;
  8. Delays or failures the Affiliate might experience in starting, conducting, or completing any transmissions to or transactions through or with the Program, the Program Sites, or the licensed material; or
  9. Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Program or the Program Sites.

The Company will not be liable to the Affiliate for breach-of-contract damages that the Company could not reasonably have foreseen on entry into this Agreement. The Company also will not be liable to the Affiliate—regardless of theory of liability and even if the Affiliate advised the Company of the possibility of these damages—for any damages for (1) loss of use, (2) loss of services, (3) loss of profits, (4) loss of revenue, (5) loss of goodwill, (6) loss of contracts, (7) loss of data, (8) loss of privacy, (9) loss of business or opportunity, or (10) cost of obtaining substitute services related to the Program, the Program Sites, the licensed material, or any other Company products and services.

Except as stated in this Agreement, neither party will be liable to the other party for indirect, incidental, special, exemplary, or punitive damages arising from or relating to this Agreement, regardless of theory of liability and even if that party has been advised of the possibility of these damages, including loss of revenue or anticipated profits or lost business.

16. Dispute Resolution

The parties may elect to litigate only the following types of case or controversy (i) an action seeking equitable relief; or (ii) a suit to compel compliance with this dispute resolution section of the Agreement.

Before bringing any claim pursuant to or related to this Agreement, the party bringing the claim will give the other a reasonable opportunity to work toward resolving the disputes between them in good faith or through the use of a mediator should they so agree. In the event such good-faith negotiations or mediation efforts between the parties are ineffective, except as otherwise provided in this Agreement, any controversy or dispute arising out of this Agreement, the interpretation of any of the provisions hereof, or the action or inaction of either party hereunder shall be submitted to arbitration in Santa Ana, California before Judicate West under the commercial arbitration rules then outstanding. Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment upon any award thus obtained may be entered in any court having jurisdiction thereof.

The arbitrator(s) will have the right to assess, against a party or among the parties, as the arbitrator(s) deem reasonable, (a) administrative fees of Judicate West, (b) compensation, if any, to the arbitrator(s) and (c) attorneys’ fees incurred by a party. Arbitration hearings will be held in Santa Ana, California. The provisions of California Code of Civil Procedure Section 1283.05 will apply to any arbitration. Service upon a party in any such action or proceeding may be made by email to the party’s email address as last appearing on the records of the Company, with a copy submitted by regular mail if a last known mailing address is known or has been provided. This Agreement is governed by the laws applicable in the State of California, USA.

The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this Agreement is void or voidable. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity, except that the arbitrator will not award punitive or exemplary damages, or damages otherwise limited or excluded in this Agreement. The arbitrator will issue a final award on all issues submitted to the arbitrator. The arbitrator’s award will be binding on the parties. You and Company may litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the sole arbitrator.

You must commence an arbitration pursuant to this section by filing a demand for arbitration within ONE (1) YEAR after the date you first know or reasonably should know of the act, omission or default giving rise to the claim; and you will have no right to any remedy for any claim not asserted within that time period (If applicable law prohibits a one-year limitations period for asserting claims, the claim must be asserted within the shortest time period in excess of one year that is permitted by applicable law). To the fullest extent permitted by applicable law: no arbitration under or related to this Agreement shall be joined to an arbitration involving any other party, whether through class arbitration proceedings or otherwise; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between you and us); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between you and us).

Except as specifically set forth below, should either party bring a Dispute in a forum other than Judicate West without the prior written consent of the other party, the arbitrator may award the other party its reasonable costs and expenses, including attorneys’ fees, incurred in staying or dismissing such other proceedings or in otherwise enforcing compliance with this dispute resolution provision. Otherwise, in any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section “prevailing party” means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.

The Affiliate acknowledges that breach by it of its obligations under this Agreement could cause irreparable harm for which damages would be an inadequate remedy. To the extent that you have breached or have indicated your intention to breach this Agreement in any manner which violates or may violate our intellectual property rights, or may cause continuing or irreparable harm to us (including, but not limited to, any breach that may impact our intellectual property rights), we may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction in the State of California without posting a bond or other security and without proof of actual damages.

Each party hereby waives its right to a trial by jury in any proceedings arising out of or related to the subject matter of this Agreement. Either party may enforce this waiver up to and including the first day of trial.

The parties will conduct all proceedings to resolve a dispute in any forum on an individual basis only. Neither the Affiliate nor the Company 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 a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.

17. Miscellaneous

The Affiliate grants the Company permission to email notices, advertisements, and other communications to the Affiliate, including emails, advertisements, notices, and other communications containing adult oriented material, sexual content and language, and images of nudity unsuitable for minors. The Affiliate’s permission will continue until the Affiliate asks the Company to remove the Affiliate from the Company’s email list. For more information, please see the Privacy Policy.

The parties intend that their relationship will be that of independent contractors and not business partners. This Agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party. The parties further agree that (i) they have signed this Agreement voluntarily and for valid reasons; (ii) they have carefully read this Agreement and discussed it with their attorneys or other advisors; (iii) they understand all of the terms and will comply with them; and (iv) they have relied on the advice of their attorneys or other advisors about the terms of this Agreement and waive any claim that the terms should be construed against the drafter.

Affiliate shall be responsible for the payment of all attorney fees and expenses incurred by Company to enforce the terms of this Agreement. This Agreement contains the entire agreement between Company and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that Company shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether Company "clicks through" or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without Company’s prior written consent. Company may assign this Agreement at any time. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.

Except as otherwise set forth herein, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.

By submitting an application to the Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to the Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. This Agreement was last revised on 05-16-2017.