This affiliate program agreement is between Glorious Holdings Investment Ltd., a British Virgin Islands
corporation (the “Company”), and you, the
individual or entity signing up to become an affiliate (the
“Affiliate”).
The parties agree as follows:
1. Enrollment in the Program
1.1 Eligibility
The
Affiliate must be at least 18-years old and the age of majority (the
age at which the Affiliate can legally consent and enter into
contracts) in the Affiliate’s place of residence to enroll in the
Program. If the Affiliate is an entity, all individuals involved in
the entity must be at least 18-years old and the age of majority in
their place of residence.
1.2 Application
To enroll in the
Program, the Affiliate must fill out the applicable registration form
or email the Company at traffic@spankmasters.com.
1.3 Evaluation of Application
(3.a)
The Company may reject the Affiliate’s application for any
reason, including if the Company determines that:
(3.a.i) The
Affiliate or its owners are under 18-years old and the applicable
age of majority;
(3.a.ii) The
application contains inaccurate information;
(3.a.iii) The
Affiliate’s marketing methods are unsuitable for the Program,
including engaging in any of the conduct listed in section 1.3(b);
(3.a.iv) One or more
affiliate sites incorporate material that is unlawful,
defamatory, libelous, infringing, obscene, harassing, or
otherwise objectionable;
(3.a.v) 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 the Company or another person has intellectual property
or other legal rights;
(3.a.vi) One or more
affiliate sites promotes or facilitates illegal activity, or
violates the rights of others, including copyright, trademark, or
other intellectual property rights;
(3.a.vii) One or more
affiliate sites encourage password theft or hacking; or
(3.a.viii) The
Affiliate or one or more affiliate sites are not otherwise
suitable for the Program for any reason.
If the Company later determines that the Affiliate did not comply
with this section 1.3(a), the Company will terminate the Affiliate’s
account.
(3.b)
The Company may decline the Affiliate’s application or cancel
the Affiliate’s account if the Company determines that the
Affiliate or one or more affiliate sites does any of the
following:
(3.b.i) Promotes
sexually explicit materials without complying with governing law;
(3.b.ii) Promotes
child pornography;
(3.b.iii) Promotes
violence;
(3.b.iv) Promotes
discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age;
(3.b.v) Incorporates
any materials that infringe or assist others to infringe any
copyright, trademark, or other intellectual property rights or to
violate any law;
(3.b.vi) Is in any
way unlawful, harmful, threatening, defamatory, libelous,
obscene, harassing, or racially, ethnically, or otherwise
objectionable to the Company in its sole discretion;
(3.b.vii) Contains
software downloads that potentially enable diversions of
commissions from other affiliates in the Program; or
(3.b.viii) Leads
people to mistake the Affiliate for the Company or any other
affiliated business or otherwise impersonates or tries to
impersonate the Company, its employees, another affiliate, or any
other person.
(3.c) The Company
is not required to notify any prospective affiliate of its
rejection from the Program.
1.4 Reapplication
If
the Company rejects the Affiliate’s application for any reason, the
Affiliate will not reapply to the Program using the same domain name,
URL, email address, company name, or personal name; nor will the
Affiliate reapply using a different domain name, URL, email address,
company name, or personal name.
2. License
2.1 License
Grant
The
Company hereby grants the Affiliate a revocable, nonexclusive,
nontransferable, nonsublicensable, worldwide license to use,
reproduce, and transmit the materials provided to the Affiliate by
the Company within the scope of the Program, via the Internet, solely
for the purpose of providing Internet traffic to the SpankMasters.com
website. This license includes the right to use the SPANK MASTERS
name and trademark, the video content provided by the Company and its
partners, and any other materials provided by the Company for the
Affiliate’s use.
2.2 License
Limitations
The
following limitations apply to the Affiliate’s use of the licensed
materials:
(2.a) Use Restrictions
All unauthorized access or duplication of the licensed materials is a
material breach of this agreement and an infringement of the
Company’s and potentially others’ trademarks, copyrights, or
other rights, including privacy and publicity rights.
(2.b) Other
Prohibited Actions
Unless expressly authorized in advance by the Company in writing, the
Affiliate will not:
2.b.i Modify,
translate, reverse engineer, decompile, or disassemble the
licensed materials;
2.b.ii Create
derivative works based on the licensed materials;
2.b.iii Rent,
lease, or transfer any rights in the licensed materials;
2.b.iv Remove any
proprietary notices or labels on the licensed materials; or
2.b.v Make any
other unauthorized use of the licensed materials.
(2.c) Ownership
of Licensed Materials and Intellectual Property
Except for material in the public domain or licensed to the Company,
the Company owns the licensed materials. United States law,
international treaties, and other laws and regulations protect the
licensed material. The Company retains all rights in the licensed
materials.
2.3 No License for Other Material
The
Company does not grant a license for any other material published on
any other Company website unless it makes that material available to
the Affiliate through the Program and the Company designates it as
licensed materials.
2.4 Reservation of Rights
Except
as expressly granted in this agreement, the Company does not grant
any other rights to the Affiliate. The Company reserves all rights to
select, alter, add, or remove all licensed materials used for the
Program.
2.5 Termination or Withdrawal of License
On
termination of this agreement or the Affiliate’s withdrawal from
the Program, the Affiliate’s license to download and use the
licensed materials automatically terminates and all rights
automatically revert to the Company. At that time, the Affiliate will
promptly delete all copies of the licensed materials that might
reside on any computer system, storage device, server, or website
owned by the Affiliate or under its control.
3. Promotional Links
The Affiliate may
receive—or the Company may make available to the Affiliate—banner,
button, or text links to program sites (the “promotional
links”). These promotional links may contain logos or
identifying marks. The Affiliate’s use of these promotional links
will at all times be subject to this agreement. The Affiliate may
display these promotional links in accordance with its own affiliate
site design, on condition that the Affiliate does not alter, modify,
or expand these promotional links in any way without the Company’s
advance written consent.
4. Program Requirements
4.1 Compliance with Law
The
Affiliate will comply with all laws, including the following:
(1.a) The Federal
Record Keeping and Labeling Requirements (18 U.S.C. §§ 2257–2257A)
and the regulations codified at 28
C.F.R. Part 75;
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(1.d) General Data Protection Regulation (GDRP);
(1.e) European Union Cookie Directive;
(1.f) European
Union Opt-In Directive;
(1.g) The Restore
Online Shoppers’ Confidence Act (15
U.S.C. §§ 8401–8405);
(1.h) Guides
Against Deceptive Pricing (16
C.F.R. Part 233);
(1.i) Guides
Against Bait Advertising (16
C.F.R. Part 238);
(1.j) Guides
Concerning Use of the Word “Free” and Similar Representations
(16
C.F.R. Part 251);
(1.k) Guides
Concerning Use of Endorsements and Testimonials in Advertising (16
C.F.R. Part 255);
(1.l) Use of
Pre-Notification Negative Option Plans (16
C.F.R. Part 425);
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4.2 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:
(2.a) Depictions of Minors
The Affiliate will not disseminate, post on the affiliate sites, 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.b) Illegal
or Objectionable Content
The Affiliate will not disseminate, post on the affiliate sites, or
provide links to any obscene material, including any material
depicting child pornography, incest, scat, defecation, feces,
urination, menstruation, genital mutilation, necrophilia, bestiality,
sado-masochistic abuse or bondage, actual or simulated rape, sexual
violence, actual violence inflected on individuals by themselves or
others, torture, or death. Nor will the Affiliate disseminate, post
on the affiliate sites, 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).
(2.c) Spam
The Affiliate will not disseminate spam in connection with the
Program. Although United States federal and state law does not
prohibit all forms of spamming, the Company impose a stricter,
no-spam policy for affiliates in the Program. What is spamming will
evolve over time as new technologies and methodologies emerge for
spammers to find new ways to abuse the Program. Some of the facts
that the Company takes into account when determining what is spamming
include the following:
(2.c.i) 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);
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(2.c.iii) If the
Affiliate has violated any third-party anti-spamming policy;
(2.c.iv) If the
Affiliate has sent unsolicited bulk messages to nonconsenting
recipients;
(2.c.v) If the
Affiliate has misleading or false information contained in its
messages, subject line, or message-headers;
(2.c.vi) If the
Affiliate uses automated means to collect, transmit, or sell the
email addresses of others;
(2.c.vii) If the
Affiliate uses a third-party website or program to automatically
generate and send messages or content;
(2.c.viii) If the
primary purpose of the Affiliate’s message is commercial in
nature; and
(2.c.ix) 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 the CAN-SPAM
Act: A Compliance Guide for Business. When in doubt, don’t do
it—you spam, you’re out.
(2.d) Fraudulent
and Deceptive Trade Practices
The Affiliate will not engage in any fraudulent, deceptive, or unfair
transactions or trade practices. The Affiliate will 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.
(2.e) Defamation
and Related Conduct
The Affiliate will not publish content on the affiliate sites that is
defamatory, libelous, threatening, abusive, hateful, derogatory,
disparaging, or otherwise injurious to any person or to the
reputation of any person.
(2.f) Intellectual Property Rights
The Affiliate will not publish content on the affiliate sites 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.
(2.g) Cybersquatting or Typosquatting
The Affiliate will 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), subdomain 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.
(2.h) Paid Search Advertising Schemes
The Affiliate will not bid on or purchase any online paid advertising
schemes that incorporate or are confusingly similar to the Company’s
trademarks, service marks, domain names, or URLs. The prohibited
advertising schemes include pay-per-click models, sponsored links,
search engine keywords, AdWords, or similar advertising schemes.
(2.i) Metatags
The Affiliate will not use any false, misleading, or infringing
metatags tied to the affiliate sites. In addition, the Affiliate will
not use any metatags that would imply or suggest that underage or
illegal content may be found on the affiliate sites.
(2.j) Misrepresentation
of Relationship
The Affiliate will 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 sites
except as expressly provided in this agreement.
(2.k) Unauthorized Access
The Affiliate’s unauthorized access or duplication of any content
that the Affiliate obtains directly or indirectly through its
participation in the Program is a material breach of this agreement.
(2.l) Malicious Code, Viruses, Etc.
The Affiliate will 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.
(2.m) Links to and Content of Others
The Affiliate will not use the licensed material, the Company marks,
or any other of the Company’s intellectual property to promote or
link to any other website. No links to other sites are permitted on
pages where the licensed content is used.
(2.n) Chat
Traffic Advertisements
The Affiliate will not use chat traffic advertisements during its
participation in the Program. The Company will not accept chat
traffic under any circumstances.
(2.o) Use of
Unapproved Promotional Materials
The Affiliate will only use the licensed materials provided by the
Company unless the Company states otherwise in writing. The Affiliate
will not use any other material, whether created by the Affiliate or
others, to promote the Program unless the Company states otherwise in
writing.
4.3 Breach of
Program Requirements
The
Company may payment or terminate this agreement if the Affiliate
breaches the program requirements.
5. Affiliate’s Duty to Notify
5.1 The Affiliate will promptly notify the Company
(1.a) of all URLs
where the Affiliate will use the licensed materials;
(1.b) whenever
there are inquiries or concerns by any person regarding any
questionable activities; or
(1.c) if the
Affiliate receives any inquiries or requests for information
regarding any of the following:
(1.c.i) obscenity
(1.c.ii) child
pornography or depictions of nudity or sexuality by minors
(1.c.iii) spam
complaints
(1.c.iv) infringement
of intellectual property rights
(1.c.v) deceptive
trade or unfair business practices
(1.c.vi) misleading
search terms
(1.c.vii) invasion of
publicity or privacy issues
(1.c.viii) fraudulent
activities, including credit card fraud
(1.c.ix) any
criminal investigation unless the Affiliate is prohibited by law
from notifying the Company
(1.c.x) any civil
investigation that pertains to the Affiliate, even if it does not
relate to the Affiliate’s relationship with the Company
(1.c.xi) any civil
or criminal subpoena served on the Affiliate, even if it does not
relate to the Affiliate’s relationship with the Company
5.2 The
Affiliate’s failure to comply with section 5.1 will constitute a
material breach of this agreement. The Affiliate will be
responsible for any damages to the Company based on the Affiliate’s
failure to notify the Company as required by section 5.1.
6. Payment Terms
6.1 Current payment terms for the Program are
posted at www.spankmasters.com.
The Company reserves the right to cancel or change the payment
methods available to the Affiliate, the timing of payments, the
minimum referral fees required for payment, and any other payment
terms in its own discretion, without advance notice. The Company
will generally provide notice of changes in the payment terms in
the same way as it provides notice of changes to this agreement,
but the Affiliate acknowledges that it is the Affiliate’s
responsibility to review www.spankmasters.com
periodically for any changes to the payment terms. Payment amounts
are based on a number of factors, which may include the amount of
traffic sent from the affiliate site to SpankMasters.com, the
location of the traffic based on IP addresses associated with that
traffic, high bounce rates, or low user activity from referred
traffic.
6.2 Traffic numbers for payment amounts are
calculated on a daily basis.
6.3 All payments are made in U.S. dollars
(‘USD”). You acknowledge that the Company is not responsible
for making payments in any other currency, for any currency
conversion charges or fees you may incur as a result, or for any
fluctuations in the respective value of any currency as compared to
the U.S. dollar.
6.4 The Company will use various security
measures to protect the financial data provided by the Affiliate,
however, the Affiliate provides financial information at the
Affiliate’s own risk, and the Company will bear no responsibility
for loss of that data caused by malicious acts by third parties.
The Affiliate acknowledges that the Company may disclose financial
information as required by law, as necessary for the protection of
the Company’s own interests, or as necessary for the protection
of others with whom the Company may have dealings.
6.5 The payment of any applicable taxes is the
Affiliate’s sole responsibility.
6.6 The Affiliate is responsible for ensuring
that the payment information the Affiliate provides the Company for
payment of referral fees is accurate. The Company will not be
liable for any payments that cannot be transmitted to the Affiliate
due to inaccurate payment information, or due to any technical or
other problems with the chosen payment provider’s system.
6.7 The Affiliate acknowledges that the
Affiliate will not be entitled to a referral fee for any referrals
that are in breach of this agreement. The Affiliate also
acknowledges that the Affiliate will not be entitled to a referral
fee from the Company for any subscription that the Company in its
sole discretion determines is the result of possible fraudulent
activity.
7. Affiliate’s Actions and Responsibilities
7.1
The Affiliate will be solely responsible for developing, operating,
and maintaining the affiliate sites and for all materials that
appear on the affiliate sites. The Affiliate’s responsibilities
include:
(1.a) The
technical operation of the affiliate sites and all related
equipment;
(1.b) Displaying
the promotional links and licensed materials on the affiliate
sites in compliance with this agreement;
(1.c) Creating,
posting, and ensuring the accuracy of materials posted on the
affiliate sites;
(1.d) Using the
licensed materials, the affiliate sites, and the materials on the
affiliate sites 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);
(1.e) Disclosing
on the affiliate sites accurately and adequately, either through a
privacy policy or otherwise, how the Affiliate collects, uses,
stores, and discloses data collected from affiliate site visitors,
including, where applicable, that third parties (including the
Company and other advertisers) may serve content and
advertisements, collect information directly from affiliate site
visitors, and place or recognize cookies on affiliate site
visitors’ browsers; and
(1.f) Making sure
that any use that the Affiliate makes of the licensed materials
complies with this agreement.
The
Company will not be liable to the Affiliate or any other person for
the Affiliate’s acts or omissions under this section 7.1.
7.2 The Affiliate
will notify the Company of any malfunctioning links or content.
7.3 The Affiliate
and the affiliate sites will comply with the United States 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”). 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 on the affiliate sites. The Affiliate will post a 2257
statement on the affiliate sites in the manner and locations
required by the § 2257 requirements.
8. Data Ownership
8.1 The Company will have sole ownership of and
full right to use all consumer information generated by the
Affiliate in connection with this agreement. The Affiliate will not
have any rights in and to any consumer information or data behind
the consumer information.
8.2 The Affiliate will not:
(2.a) transfer, export, display, forward, or
otherwise share any consumer information or data contained in it
to or with any third party; or
(2.b) use any consumer information or data
contained in it on the Affiliate’s own behalf in any way not
expressly authorized by the Company.
9. Statements of Fact
9.1 By Affiliate
The
Affiliate states that the following facts are accurate and will
continue to be accurate during this agreement:
(1.a) If the
Affiliate is an individual, the Affiliate is at least 18-years old
and has the legal capacity to enter into this agreement. If the
Affiliate is an entity, it 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.
(1.b) The
Affiliate has the power to enter into this agreement and to
perform its obligations under this agreement.
(1.c) The
Affiliate owns or operates each affiliate site that the Affiliate
identified in the Affiliate’s application.
(1.d) 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.
(1.e) 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.
(1.f) 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.
(1.g) Each
affiliate site and the content on each affiliate site
(1.g.i) does not
infringe the Company’s or any other person’s intellectual
property rights;
(1.g.ii) does not
violate nonparty publicity or privacy rights;
(1.g.iii) does not
promote violence, racial intolerance, or illegal activities;
(1.g.iv) 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;
(1.g.v) does not
depict minors in adult or sexual situations or otherwise target
persons under 18-years old or the age of majority, whichever is
greater;
(1.g.vi) does not
violate any law governing false or deceptive advertising,
sweepstakes, gambling, comparative advertising, or trade
disparagement;
(1.g.vii) is free of
any “worm,” “virus,” or other device that could impair or
injure any person or any person’s property;
(1.g.viii) is not
otherwise defamatory, vulgar, or obscene; and
(1.g.ix) complies
with the program requirements set out in section 4.
(1.h) The
Affiliate is generally familiar with the nature of the Internet
and complies with all laws and industry standards.
(1.i) The
Affiliate’s performance under this agreement does not breach any
agreement or obligation between the Affiliate and a third party or
violate any law.
(1.j) The
Affiliate’s collection and use of personally identifiable
information does not breach the privacy policy or violate any law
that governs the Affiliate’s collection and use of personal
information.
(1.k) The
Affiliate will obtain opt-in consent from any consumer whose
information the Affiliate transfers to the Company for that
consumer to be contacted by and marketed to by the Affiliate and
third parties.
(1.l) The
Affiliate and each affiliate site complies with 18
U.S.C. §§ 2257–2257A and the implementing regulations codified
at 28 C.F.R. Part 75.
9.2 By Company
The
Company states that the following facts are accurate:
(2.a) It is duly
organized, validly existing, and in good standing as a corporation
under the laws of the British Virgin Islands.
(2.b) It has the
power to enter into this agreement and to perform its obligations
under this agreement.
(2.c) It owns or
has the right to operate the Program and www.spankmasters.com.
(2.d) It owns or
has the right to license the licensed materials.
10. Confidentiality
10.1 Neither party
will use or disclose to any third party the other party’s
Confidential Information except as necessary for the performance of
this agreement or to enforce this agreement. The confidentiality
obligations will not restrict either party from disclosing
Confidential Information of the other party in accordance with a
court order from a court of competent jurisdiction, on condition
that the party required to make the disclosure gives reasonable
advance written notice to the other party so that it may contest
the order and if that disclosure is required, only discloses the
part of the Confidential Information that its legal counsel advises
is legally required.
10.2 “ Confidential
Information” consists of (a) any technical information or
plans concerning the Program or any software or other technology of
the Company; (b) any financial information of the other party; (c)
other information disclosed by one party to the other party that is
marked as confidential or should reasonably be assumed to be
confidential under the circumstances; and (d) the content of this
agreement.
10.3 Confidential
Information does not include information that: (a) is or becomes
generally known to the public through no fault of or breach of the
receiving party; (b) is rightfully known by the receiving party at
the time of disclosure without an obligation of confidentiality;
(c) is independently developed by the receiving party without use
of the disclosing party’s Confidential Information; or (d) is
obtained by the receiving party rightfully from a third party who
has no duty of confidentiality to the disclosing party.
11. Publicity
The Company may use
the Affiliate’s trade names, trademarks, service marks, or logos in
presentations, marketing materials, affiliate lists, financial
reports, website listings of affiliates, or advertisements without
advance written approval. The Affiliate may use the Company’s trade
names, trademarks, service marks, logos, domain names, and other
distinctive brand features in connection with performing under this
agreement so long as the Affiliate complies with this agreement.
12. Privacy
For information about how the Company collects, uses, and shares the
Affiliate’s information, please review the privacy policy. The
Affiliate acknowledges that by participating in the Program, the
Affiliate consents to the Company’s collection, use, and sharing of
this information, including the transfer of this information to the
Netherlands or other countries for storage, processing, and use by
the Company.
13. Disclaimers
13.1 The Company
is not making any guarantee of profitability or about the amount of
money the Affiliate will earn through the Program. The Affiliate
acknowledges that past affiliate earnings does not guarantee or
suggest similar future earnings.
13.2 The Company
is not making any warranty—express, implied, oral, or
otherwise—that
(2.a) the Program
or the licensed materials will be timely, uninterrupted, or
error-free (whether as a result of technical failure, acts or
omissions of nonparties, or other causes) or will operate in
combination with any other hardware, software, system, or data;
(2.b) the Program
or the licensed materials will be suitable or otherwise meet the
Affiliate’s requirements or expectations;
(2.c) the Program
or the licensed materials will be accurate or reliable;
(2.d) errors or
defects in the Program or the licensed materials will be
corrected; or
(2.e) the servers
that make the Program and the licensed materials available are
free of viruses or other harmful components.
13.3 The Company
offers the Program and the licensed materials, and the Company
marks “as is.” The Company is not making any warranty, either
express or implied, including implied warranty of merchantability,
fitness for a particular purpose, title, privacy, and
noninfringement for the Program and the licensed materials. No
advice or information, whether oral or written, obtained from the
Company or elsewhere will create any warranty not expressly stated
in this agreement.
14. Limit of Liability
14.1 The Program
or the licensed material may be subject to limitations, delays, and
other problems inherent in the use of the Internet and electronic
communications. The Company is not liable for any delays, delivery
failures, or other damage resulting from these problems.
14.2 The Company
will not be liable to the Affiliate for any of the following:
(2.a) Errors,
mistakes, or inaccuracies in the Program or the licensed
materials;
(2.b) Content or
conduct that is infringing, inaccurate, obscene, indecent,
offensive, threatening, harassing, defamatory, libelous, abusive,
invasive of privacy, or illegal;
(2.c) 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;
(2.d) Interruption
or cessation of transmission to or from the Program;
(2.e) Denial-of-service
attack (DoS) or distributed denial-of-service attack (DDoS);
(2.f) Bugs,
viruses, Trojan horses, malware, ransomware, or other disabling
code that may be transmitted to or through the Program or the
licensed materials by any person or that might infect the
Affiliate’s computer or affect the Affiliate’s access to or
use of the Program, the licensed materials, or the Affiliate’s
other services, hardware, or software;
(2.g) Incompatibility
between the Program or the licensed materials and the Affiliate’s
other services, hardware, or software;
(2.h) Delays or
failures the Affiliate might experience in starting, conducting,
or completing any transmissions to or transactions through or with
the Program or the licensed materials; or
(2.i) Loss or damage incurred because of the use
of any content posted, emailed, sent, or otherwise made available
through the Program.
14.3 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: (a) loss of use; (b) loss of
services; (c) loss of profits; (d) loss of revenue;
(e) loss of goodwill; (f) loss of contracts; (g)
loss of data; (h) loss of privacy; (i) loss of business or
opportunity; or (j) cost of obtaining substitute services
related to the Program or the licensed materials.
14.4 Except as
stated in this agreement, neither party will be liable to the other
party for indirect, incidental, special, statutory, exemplary, or
punitive damages arising from or relating to this agreement,
regardless of theory of liability and even if that party knew or
should have known of the possibility of these damages, including
loss of revenue or anticipated profits or lost business.
14.5 The Company’s
total cumulative liability to the Affiliate for any breach of this
agreement will not exceed the greater of the total amount owed to
the Affiliate under this agreement and $500.
15. Scope of Disclaimers and Limitations
The disclaimers and
limits stated in sections 13 and 14 apply to the greatest extent
allowed by law, but no more. The Company does not intend to deprive
the Affiliate of any mandatory protections provided to the Affiliate
by law. Because some jurisdictions may prohibit the disclaimer of
some warranties, the limitation of some damages, or other matters,
one or more of the disclaimers or limitations might not apply to the
Affiliate.
16. Loss Payment (aka Indemnification)
16.1 In General
The
Affiliate will pay the Company for any loss of the Company’s that
is caused by the Affiliate’s actual or alleged
(1.a) use of the
Program or the licensed materials;
(1.b) failure to
pay taxes in connection with revenues earned under this agreement;
(1.c) dispute with
any affiliate or other person;
(1.d) breach of
this agreement, including any statement of fact in section 9.1;
(1.e) infringement
of any third party’s intellectual property rights;
(1.f) violation of
any law, including the laws identified in section 4.1;
(1.g) fraudulent
or deceptive conduct or trade practices; or
(1.h) negligent,
intentional, or criminal conduct.
But
the Affiliate is not required to pay if the loss was caused by the
Company’s intentional misconduct.
16.2 Definitions
(2.a) “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.
(2.b)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.
16.3 Company’s Duty to Notify
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.
16.4 Legal Defense of a Claim
(4.a) Company’s Control
The Company has
control over defending a claim for a loss (including settling it),
unless the Company directs the Affiliate to control the defense.
(4.b) Direction to Control
If the Company directs
the Affiliate to control the defense, each of the following applies:
(4.b.i) The Affiliate may choose and retain legal
counsel.
(4.b.ii) The Company may retain its own legal
counsel at its expense.
(4.b.iii) The Affiliate will not settle any
litigation without the Company’s written consent if the
settlement (1) imposes a penalty or limitation on the Company,
(2) admits the Company’s fault, or (3) does not fully release
the Company from liability.
(4.c) Good Faith
The Affiliate and the
Company will cooperate with each other in good faith on a claim.
16.5 No Exclusivity
The
Company’s rights under this section 16 do not affect other rights
that the Company might have.
17. Dispute Resolution
17.1 Litigation Election
Either
party may elect to litigate the following type of case or
controversy: (a) an action seeking injunctive relief; (b) an action
seeking to enforce or protect intellectual-property rights; (c) a
dispute related to claims subject to indemnification under section 16;
or (d) a suit to compel compliance with this dispute resolution
provision.
17.2 Negotiation
Each
party will give the other a reasonable opportunity to comply before
it claims that the other has not met its obligations under this
agreement. The parties will first meet and negotiate with each other
in good faith to try to resolve all disputes between the parties
relating to this agreement. The party raising a dispute will submit
to the other party a written notice and supporting material
describing all issues and circumstances related to the dispute (a
“dispute notice”). A primary representative
designated by each party will try to resolve the dispute.
17.3 Mediation
(3.a) If the
parties’ primary representatives are unable to resolve the
dispute within 30 days after receiving the dispute notice, either
party may, by notice to the other party and the International
Chamber of Commerce (ICC), demand mediation under the ICC
Mediation Rules.
(3.b) Mediation
will take place in Tortola, British Virgin Islands, and the
language of the mediation will be English. Each party will bear
its own costs in mediation and the parties will share equally
between them all third-party mediation costs unless the parties
agree otherwise in writing.
(3.c) Each party
will participate actively and constructively in mediation
proceedings once started and will attend at least one joint
meeting between the mediator and the parties. Any party may
terminate mediation at any time after an initial meeting between
the mediator and the parties.
17.4 Arbitration
(4.a) If the
parties fail to settle a dispute through mediation, the parties
will settle any unresolved dispute arising out of or relating to
this agreement, or the breach of it, by arbitration administered
by the ICC in accordance with the Rules of Arbitration of the ICC.
The arbitrator, and not any court or agency, will have exclusive
authority to resolve any dispute arising under or relating to the
interpretation, applicability, enforceability, or formation of
this agreement, including any claim that any part of this
agreement is void or voidable.
(4.b) A single
arbitrator will preside over the arbitration. The arbitrator may
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, which award must set out
findings of fact and conclusions of law. The arbitrator’s award
will be binding on the parties and may be entered as a judgment in
any court of competent jurisdiction.
(4.c) Arbitration
will take place in Tortola, British Virgin Islands, and the
language of the arbitration will be English. Subject to the
prevailing party’s rights under section 17.7, the parties will
bear equally the costs of arbitration, including the fees and
expenses of the arbitrator, and each party will bear the costs
associated with its case.
(4.d) Unless
required by law, neither a party nor an arbitrator will disclose
the existence, content, or results of any arbitration under this
agreement without the advance written consent of both parties.
17.5 Injunctive Relief
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. If any breach occurs or is threatened, the
Company may seek an injunction or a restraining order, in each case
without posting a bond or other security.
17.6 Jurisdiction
(6.a)
If a party brings any proceeding authorized under section 17.1,
that party will bring that proceeding only in the courts located
in Tortola, British Virgin Islands, and each party hereby submits
to the exclusive jurisdiction and venue of those courts for
purposes of any proceeding.
(6.b) Each party
hereby waives any claim that any proceeding brought in accordance
with section 17.6(a) has been brought in an inconvenient forum or
that the venue of that proceeding is improper.
17.7 Recovery of Expenses
(7.a)
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.
(7.b) For purposes
of section 17.7(a), “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.
17.8 Jury Trial
Waiver
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.
17.9 Class
Action Waiver
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
participate 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.
17.10 Limited
Time to Bring Claims
A
party will not bring a claim arising out of, or related to the
subject matter of, this agreement more than one year after the cause
of action first arose. Any claim brought after one year is barred.
18. Term and Termination; Survival
18.1 Term
This
agreement begins on the Company’s approval of the Affiliate’s
application and ends when terminated by either party.
18.2 Termination
Either
party may terminate this agreement for any reason by giving the other
party written notice of termination. The Affiliate’s breach of this
agreement may result in the Affiliate’s immediate dismissal from
the Program, with no obligation to the Company except to pay for
earned commissions and referral fees up to the point of termination
unless this agreement provides otherwise. The Affiliate will forfeit
all commissions or referral fees due if the Company terminates the
Affiliate from the Program because of the Affiliate’s fraudulent
activity or for any breach of the program requirements set out in
section 4.
18.3 Effect of Termination
Termination will not affect the right of either party to receive or
recover (a) damages sustained because of the breach of this agreement
by the other party; or (b) any payments owed or owing under the terms
of this agreement, including payment earned through the date of
termination.
18.4 Survival
Any part of this
agreement that imposes an obligation after termination will survive
the termination, including all disclaimers and limitations of
liability.
19. General
19.1 Entire
Agreement
This
agreement constitutes the entire agreement of the parties concerning
the subject matter. It supersedes all earlier written or oral
discussions, negotiations, proposals, undertakings, understandings,
and agreements between the parties concerning the transactions
contemplated in this agreement.
19.2 Amendment
The
Company may change this agreement on one or more occasions, except
that changes will not apply to ongoing disputes or to disputes
arising out of events occurring before the posted changes. The
Company will notify the Affiliate through the affiliates area of any
changes to this agreement. Changes will become effective when posted
in the affiliates area. It is the Affiliate’s responsibility to
check the affiliates area periodically for changes to this agreement.
If the Affiliate continues to participate in the Program after any
change, the Company will consider the Affiliate’s continued
participation as acceptance of the change unless the Affiliate
notifies the Company in writing of the Affiliate’s disagreement and
the reasons for the Affiliate’s disagreement no later than 15 days
after the change. The Company will contact the Affiliate no later
than 15 days after receiving the Affiliate’s written notice to try
to reach a mutually amicable resolution. If the Company is unable to
resolve the Affiliate’s disagreement with the changes, the
Affiliate’s sole remedy is to terminate this agreement.
19.3 Assignment and Delegation
The
Affiliate will not assign any of its rights or delegate any
performance under this agreement, except with the Company’s advance
written consent. The Company may assign its rights or delegate its
performances under this agreement without the Affiliate’s consent.
Any purported assignment of rights or delegation of performance in
breach of this section 19.3 is void.
19.4 Waivers
The parties may waive any provision in this agreement only by a
writing signed by the party or parties against whom the waiver is
sought to be enforced. No failure or delay in exercising any right or
remedy, or in requiring the satisfaction of any condition, under this
agreement, and no act, omission, or course of dealing between the
parties, operates as a waiver or estoppel of any right, remedy, or
condition. A waiver made in writing on one occasion is effective only
in that instance and only for the purpose stated. A waiver once given
is not to be construed as a waiver on any future occasion or against
any other person.
19.5 Severability
The
parties intend as follows:
(5.a) that if any
provision of this agreement is held to be unenforceable, then that
provision will be modified to the minimum extent necessary to make
it enforceable, unless that modification is not permitted by law,
in which case that provision will be disregarded;
(5.b) that if
modifying or disregarding the unenforceable provision would result
in failure of an essential purpose of this agreement, the entire
agreement will be held unenforceable;
(5.c) that if an
unenforceable provision is modified or disregarded in accordance
with this section 19.5, then the rest of the agreement will remain
in effect as written; and
(5.d) that any
unenforceable provision will remain as written in any
circumstances other than those in which the provision is held to
be unenforceable.
19.6 Notices
(6.a) Form
All notices and other communications between the parties will be in
writing.
(6.b) Method
(6.b.i) Notice
to Company
The
Affiliate may send notice to the Company by email at
traffic@spankmasters.com.
(6.b.ii) Notice to Affiliate
The Company may notify
the Affiliate using the contact information provided by the Affiliate
in the Affiliate’s application.
(6.c) Receipt
The Company will consider an email notice received by it only when
the Company’s server sends a return message to the Affiliate
acknowledging receipt. The Company will consider notices sent to the
Affiliate by email received when the Company’s email service shows
transmission to the Affiliate’s email address. All other notices
will be effective on receipt by the party to which notice is given,
or on the fifth day after mailing, whichever occurs first.
19.7 Governing
Law
The
laws of the British Virgin Islands—without giving effect to its
conflicts of law principles—govern all matters arising out of or
relating to this agreement, including its validity, interpretation,
construction, performance, and enforcement.
19.8 Force
Majeure
(8.a) If a force
majeure event prevents a party from complying with any one or more
obligations under this agreement, that inability will not
constitute a breach if (1) that party uses reasonable efforts to
perform those obligations, (2) that party’s inability to perform
those obligations is not due to its failure to (A) take reasonable
measures to protect itself against events or circumstances of the
same type as that force majeure event or (B) develop and keep a
reasonable contingency plan to respond to events or circumstances
of the same type as that force majeure event, and (3) that party
complies with its obligations under section 19.8(c).
(8.b) For purposes
of this agreement, “force majeure event” means,
for any party, any event or circumstance, whether or not
foreseeable, that was not caused by that party (other than a
strike or other labor unrest that affects only that party, an
increase in prices or other change in general economic conditions,
a change in law, or an event or circumstances that results in that
party’s not having sufficient funds to comply with an obligation
to pay money) and any consequences of that event or circumstance.
(8.c)
If a force majeure event occurs, the noncomplying party will
promptly notify the other party of occurrence of that force
majeure event, its effect on performance, and how long the
noncomplying party expects it to last. From then on, the
noncomplying party will update that information as reasonably
necessary. During a force majeure event, the noncomplying party
will use reasonable efforts to limit damages to the other party
and to resume its performance under this agreement.
19.9 No Third-Party Beneficiaries
This
agreement does not, and the parties do not intend it to, confer any
rights or remedies on any person other than the parties to this
agreement.
19.10 Relationship
of the Parties
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.
19.11 Successors and Assigns
This
agreement binds and inures to the benefit of the parties and their
respective successors and assigns. This section 19.11 does not
address, directly or indirectly, whether a party may assign its
rights or delegate its obligations under this agreement. Section 19.3
addresses these matters.
19.12 Further Assurances
The
parties will take any further actions, or sign any further documents,
as may be necessary to implement and carry out the intent of this
agreement.
19.13 Counterparts
The
parties may sign this agreement in any number of counterparts. The
parties will consider each counterpart an original, and all
counterparts, when taken together, will form the same agreement.
19.14 Signatures;
Electronic Signatures
(14.a) The parties
may sign this agreement by fax or electronically instead of an
original signature. The parties will consider fax or electronic
signatures as original signatures that bind them to this
agreement.
(14.b) The
Affiliate acknowledges that any affirmation, assent, or agreement
the Affiliate sends through www.spankmasters.com
in response to a prompt binds the Affiliate. The Affiliate further
acknowledges that when the Affiliate clicks on an “I agree,”
“I consent,” or other similarly worded “button” or entry
field using a finger (for touch enabled devices), mouse,
keystroke, or other device, this action is the legal equivalent of
the Affiliate’s handwritten signature and binds the Affiliate in
the same way.
19.15 Voluntary
Agreement
The
parties have signed this agreement voluntarily and for valid reasons.
The parties acknowledge that they (i) have carefully read this
agreement, (ii) discussed it with their attorneys or other advisors,
(iii) understand all of the terms, and (iv) will comply with it. The
parties 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.
19.16 No
Reliance
Each
party acknowledges that in signing this agreement, that party does
not rely and has not relied on any statement by the other party or
its agents, except those statements contained in this agreement.
19.17 Permission
to Send Emails to Affiliate
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.
19.18 Feedback
The
Company encourages the Affiliate to give feedback about the Company,
the Program, or the licensed materials. But the Company will not
treat as confidential any suggestion or idea the Affiliate gives, and
nothing in this agreement will restrict the Company’s right to use,
profit from, disclose, publish, or otherwise exploit any feedback,
without payment to the Affiliate.
19.19 English
language
The
parties have drafted this agreement in the English language and no
translation into any other language will be used to interpret or
construe this agreement. All services, support, notices,
designations, specifications, and communications will be provided in
the English language.
19.20 Usages
In
this agreement, the following usages apply:
(20.a) Actions
permitted under this agreement may be taken at any time and on one
or more occasions in the actor’s sole discretion.
(20.b) References
to a statute will refer to the statute and any successor statute,
and to all regulations promulgated under or implementing the
statute or successor, as in effect at the relevant time.
(20.c) References
to numbered sections in this agreement also refer to all included
sections. For example, references to section 6 also refer to 6.1,
6.1(a), etc.
(20.d) References to a governmental or
quasi-governmental agency, authority, or instrumentality will also
refer to a regulatory body that succeeds to the functions of the
agency, authority, or instrumentality.
(20.e) “A or B”
means “A or B or both.” “A, B, or C” means “one or more
of A, B, and C.” The same construction applies to longer
strings.
(20.f) “Including”
means “including, but not limited to.”