JIMMYDIAMOND.COM
WEBMASTER AFFILIATE AGREEMENT
Effective Date: 07/20/2005
Last Modified: 10/08/2011
I. INTRODUCTORY PROVISIONS:
A. THIS AGREEMENT pertains to all Web sites owned or operated by SHROUK, INC., (hereinafter "CORPORATION").
B. Parties addressed in this Policy:
The Parties addressed in this Policy are:
1) CORPORATION d/b/a JimmyDiamond.com which may also be referred to as "COMPANY" OR www.jimmydiamond.com or "We, Us, or Our."
2) All Affiliates of the Web site, JimmyDiamond.com ("SITE"), and any additional sites that CORPORATION may publish or control including, but not limited to, Oldspunkers.com, Spunker.com, and Chubbyloving.com..
3) Any other Affiliate(s), employees, contractors, servants, or agents ("Affiliate" or "you/your"), of CORPORATION. The existence of one of the aforementioned relationships to us neither creates nor implies the existence of another.
C. IMPORTANT! By accessing, using, viewing, reading, printing, installing, or downloading any material from the SITE, or becoming an affiliate member of the SITE, you agree to be bound by these Terms and Conditions. This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-Sign Act). You manifest your agreement to these Terms and Conditions by any act demonstrating your assent thereto, including clicking any button containing the words "I agree" or similar syntax. You may submit a paper copy of this transaction and print this form for your personal records. You have the right to withdraw your consent to use the E-Sign Act by emailing us. Your consent to use the E-Sign Act is limited to providing the information on this form. Access to this electronic record requires a simple browser program such as Internet Explorer,TM Netscape, Opera, or Mozilla FirefoxTM and a computer.
D. The terms and conditions of this Agreement are subject to change by at any time at its sole discretion. You will be provided reasonable notice of any such changes. Any continued performance under this Agreement, following our posting of a change notice or new agreement on our SITE, shall constitute confirmation of Affiliate's acknowledgement and assent to any such modifications. Please consult this Agreement as posted on SITE regularly and read them carefully before using the SITE. You affirm that you have read this Agreement and understand, agree and consent to its Terms and Conditions.
E. Revisions to This Policy: SITE reserves the right to revise, amend, or modify this policy and our other policies and agreements at any time and in any manner. The user should periodically check this web page for any modifications regarding these Terms and Conditions by re-visiting this web page and using the "refresh" button on the user's browser. The user should note the date of last revision to this page, which appears at the top of this page. If the "last modified" date remains unchanged, after the user has clicked the "refresh" button on his/her browser, the user may presume that no changes have been made since the last reading of the document. A changed "last modified" dates indicates that this document has been updated or edited, and the updated or edited version supersedes any prior versions immediately upon posting.
F. You are solely responsible for obtaining access to the SITE and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the SITE (i.e., computers, modems, and software, including the most recent versions of Internet browsers, applications, and plug-ins).
II. Recitations:
A. WHEREAS, has developed an affiliate membership software program for its Web site(s) ("SITE(S)") and intends to market its affiliate membership software program and associated documentation for the Program, (collectively, the "Program"), through its Web site(s), various online and traditional media, and elsewhere;
B. WHEREAS, Affiliate desires to become an affiliate member of the Program, subject to the terms and conditions stated herein; and,
C. WHEREAS, Affiliate has determined that it is in its interest to enter into this Agreement.
D. NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and conditions herein set forth, and with the intent to be legally bound thereby, Affiliate hereby agrees as follows:
Iii. grant of License and AFFILIATE's content:
A. SITE agrees to provide access to, and membership in, the Program to Affiliate and to provide Affiliate with the ability to market, advertise and promote certain content, images, recordings, video, audio, links, computer script, advertising banners, and other promotional materials (hereinafter, "Materials") that are associated with the Program from time to time, and hereby grants a non-exclusive, restricted, revocable license to use such Materials solely for the purposes set forth in this Agreement.
B. The SITE reserves the unequivocal right to select, alter, delete, add to, or remove any and all Materials for use by Affiliate. SITE's Materials may not be used in violation of any term contained in this Agreement.
C. Affiliate's license to use the Materials shall automatically terminate, and all such rights shall automatically revert to SITE upon cancellation of the Affiliate's membership or withdrawal from the Program by the Affiliate. Affiliate may not copy, reproduce, alter, modify, change, broadcast, distribute, transmit, disseminate, sell or offer for sale in any manner, the Materials at any time anywhere in the world except as expressly authorized by the SITE in writing.
D. Upon acceptance into the Program, SITE will begin providing users with the information necessary to participate in the Program. Logos, graphics or text may be created by the Affiliate, with SITE's permission. The SITE reserves the right to require any text, online agreement, documents, notices, disclaimers, or age verification devices that may be necessary or desirable to protect the SITE's or the Affiliate's legal interests.
E. The Affiliate shall be solely responsible for all content available on or through its Web site served by CORPORATION's services by and through the CORPORATION software, and shall at all times be subject to the terms of this Agreement.
F. Affiliate further warrants that its Web site and Materials served by CORPORATION's services will not infringe or contain any content that infringes upon or violates any intellectual property rights, or otherwise violates any applicable law, rule or regulation. CORPORATION shall have no obligations with respect to the content available on or through any participating Web site, including but not limited to, any duty to review or monitor any such content. Thus, Affiliate is solely responsible for the content on Affiliate's Web site.
G. CORPORATION owns the rights to any and all content and Materials located on Affiliate's site, whether or not provided by CORPORATION. As more fully described infra, CORPORATION shall remain the owner of all intellectual property rights pertaining to the Materials, which may be licensed from third party content producers. Any and all derivative works generated by Affiliate shall inure to the benefit of CORPORATION, which shall be considered the owner or license holder of such derivative works, to the extent permitted by law.
H. Affiliate's license to use this material shall automatically terminate, and all such rights shall automatically revert to CORPORATION upon cancellation of the Affiliate's membership or withdrawal from the Program by the Affiliate.
I. Upon acceptance into the Program, CORPORATION will begin providing users with the information necessary to participate in the Program and begin promoting the CORPORATION'S Web site(s).
IV. ENROLLMENT PROCEDURE:
A. To begin the enrollment procedure, you must submit a completed CORPORATION Application form through our Affiliate Web site located at: http://jimmydiamond.com/index.php When you sign up, you must provide a valid email address. Failure to do so will result in your account being deleted. We will evaluate your application in good faith and will notify you of your acceptance or rejection.
B. We reserve the discretion to accept or reject applications for any reason including, but not limited to:
1. Unlawful content appearing on your site;
2. Defamatory, obscene, child pornographic, harassing, or otherwise objectionable content appearing you your site;
3. If your site promotes or facilitates illegal activity, or violates the rights of others such as copyright, trademark, other intellectual property infringement, right to privacy, right to publicity, or other similar rights;
4. If you encourage password theft or hacking;
5. Your site does not receive a sufficient number of unique hits;
6. If your site or content found thereon violates our Acceptable Use Policy, See Section 9, infra; or,
7. If CORPORATION deems your application or site to be unsuitable for any reason.
V. AFFILIATE'S NOTIFICATION DUTY:
Affiliate agrees to notify CORPORATION of the URL's where the COMPANY Web site(s) will be promoted.
VI. Term:
This Agreement and the provisions hereof, shall be in full force and effect commencing on the date accepted by the Affiliate and continuing until terminated by either of the parties in accordance with the Termination provisions set forth infra. Acceptance is effective upon clicking "I Accept" or any similar syntax, and/or the installation or opening of any COMPANY software or any other CORPORATION, product.
VII. Compensation AND BENEFITS:
A. Affiliates will be compensated in accordance with the pay per sign up program posted here http://jimmydiamond.com/index.php which may be altered from time to time without notice.
B. Affiliate agrees to periodically review the Program details for any changes, which are effective immediately upon posting. Compensation is subject to proper technical specification with the burden of error placed on the Affiliate.
C. CORPORATION is not responsible for any billing errors.
D. Affiliate will be compensated with a commission or referral fee according to the terms of this Agreement. Affiliate's payouts will be debited for cancelled "referral" subscriptions.
E. Affiliates will receive no commission for activity determined to be fraudulent by CORPORATION, including but not limited to credit card numbers in a negative bin number data base, multiple subscriptions from a single email address, subscriptions with the same credit card number, sequential names or patterns of names, many subscriptions from a specific Web site in a short time span, and multiple attempts to subscribe from the same credit card.
F. CORPORATION will also deny commission for any links coming from any practices that violate the Acceptable Use Policy as described in Section 9 of this Agreement. Any Web site found to be engaging in such actins will not receive any credit or payment and will forfeit any and all credit or payment earned.
G. Affiliates agree that CORPORATION, in its sole discretion, may deny or withhold payment and terminate Affiliate's membership due to suspicious behavior including but not limited to numerous charge backs or subscription cancellations.
H. The Affiliate should note the date of last revision to this Agreement. Affiliate agrees to periodically review this Agreement using the "refresh" button in the Affiliate's browser. If the date of last revision remains unchanged after clicking the "refresh" button on his or her browser, the Affiliate may presume that no changes have been made. A changed "last modified" date indicates that this Agreement has been updated or edited, and the updated or edited version supersedes any prior versions immediately upon posting.
VIII. Implementation:
CORPORATION and Affiliate acknowledge that "time is of the essence" in the commencement of this Agreement. CORPORATION will devote all commercially reasonable efforts to provide Affiliate with all necessary Materials as soon as reasonably possible.
IX. BILLING AND DISBURSEMENT:
A. CORPORATION reserves the right to determine the manner in which payments will be processed, and the identity of any third party processor used for billing purposes. Determination of the third-party billing service shall be made at the convenience of CORPORATION and may be changed unilaterally by CORPORATION, at CORPORATION'S sole convenience.
B. Disbursements are made to Affiliates according to the schedule provided by ccbill.
C. Further details pertaining to the program details such as the payment processor, fees, and payouts can be found on the program details page, here: http://jimmydiamond.com/index.php which is hereby incorporated by reference and made part of this Agreement.
D. Affiliate will provide CORPORATION with a Social Security Number or Federal Tax ID, if requested. Failure to provide CORPORATION such information may result in termination of this Agreement.
X. Representations and Warranties:
A. Affiliate warrants that Affiliate is the sole owner of any and all necessary rights, title, and interest to the content contained on the Affiliate's Web site, and that such Web site is free of claims to the content by third parties.
B. You, as the site Operator, warrant and represent that you own or operate a lawful, and otherwise valid Internet Web site.
C. You further represent that you have the requisite power and authority to enter into this Agreement and perform the obligations set forth herein and that you are and adult at least eighteen (18) years of age; that performance under this Agreement does not and will not constitute a breach of any existing contract or obligation undertaken by you; and that there are no outstanding orders, judgments, decrees, rules or regulations which would preclude you from entering into this Agreement.
D. You shall indemnify CORPORATION, and its shareholders, officers, directors, employees and assigns against any loss, damage, liability (including reasonable legal fees) which result from the use of any COMPANY materials or other CORPORATION materials not expressly authorized by this Agreement.
E. Affiliate further represents that each site is in full compliance with Section 2257 of Title 18, United States Code, the "Records Keeping and Labeling Act," including all applicable regulations. Affiliate acknowledges that it is Affiliate's legal obligation to comply with the disclosure provisions of the Records Keeping and Labeling Act, and that Affiliate must identify a records custodian and records address for each image appearing on the Affiliate's Web site and maintain all required age records, indexed in the required manner. Affiliate represents and warrants that any and all content it provides on its Web site is compliant with Title 18 U.S.C. 2257, and that all models depicted thereon were at least eighteen (18) years of age when the content was taken. Affiliate also warrants that all materials shall only be transmitted and distributed by Affiliate's Web site to willing adults.
F. CORPORATION makes no representations or warranties other than those specifically contained herein, and specifically disclaims any implied warranties, including merchantability or fitness for a particular purpose. CORPORATION makes no representations of success or profitability and does not monitor or supervise the Site.
XI. ACCEPTABLE USE Policy for Affiliates:
A. Affiliate agrees to be bound by the following general policies in connection with all content with which COMPANY'S Materials are associated:
1. Illegal content is strictly forbidden. Illegal content includes, but is not limited to: child pornography, incest, warez content, scat, coffins, defecation, urination, genital mutilation, sacrilegious, teen modeling, actual or simulated rape, sexual violence, menstruation, obscenity, bestiality, threats of physical harm to persons or property, programs containing viruses, pirated software, wire fraud, drug trafficking, and/or violations of international export control laws. CORPORATION reserves the right to review and/or reject any content created and/or posted by Affiliate.
2. Any fraudulent, deceptive or unfair transactions or trade practices are strictly forbidden. The Affiliate agrees to fully comply with the United States Federal Trade Commission ("FTC") statutes and regulations (if Affiliate does business in the United States or with United States based customers), and any related rules, policies, and advisory opinions issued by the FTC. No commissions will be paid on such transactions, and may be withheld if such conduct is suspected. In addition, the Affiliate's account may be terminated in such circumstances.
3. COMPANY may not be promoted on any Site that encourages password trading, distribution, or hacking. COMPANY may not be prosecuted through the direct or indirect use of warez content, spamming, listing on newsgroups, search engines, bulk emailing, or hidden frames.
4. Affiliate shall not engage in any activities that may be harmful to the image, goodwill, or reputation of CORPORATION.
5. Affiliate shall not directly or indirectly display on Affiliate's Web site any advertising links, banners, or promotional materials for Sites other than those that have been pre-approved in compliance with this Agreement.
6. Affiliate may not attempt to cheat, defraud or mislead CORPORATION in any way.
7. Violation of the restricted nonexclusive license provided in this Agreement is prohibited and may result in termination of Affiliate's account.
8. Affiliate may not use COMPANY's material or images to promote other sites.
9. Affiliates shall not use any material that contains "Trojan Horses," viruses, or the like, which causes damage to any computer or programs regardless of intent. Affiliate will be solely responsible for any damage caused by the aforementioned destructive materials and the use of such materials may result in the termination of this Agreement.
10. The free areas of the submitted site must not contain sexual activity or graphic display of the genitals. All such content must be restricted to the password-protected areas.
11. Affiliate may not circumvent, or attempt to circumvent, the access screen requiring users to enter their birth date and requiring agreement to COMPANY's Terms and Conditions.
12. CORPORATION enforces a strict, zero tolerance policy with respect to child pornography. No site may use models under the age of eighteen (18) or suggest that its models are under the age of eighteen (18), either through text or other implication. Any Affiliate suspected of violating this zero tolerance provision shall be terminated from the Program.
13. Affiliate's websites must contain all information required by 18 U.S.C. 2257, supported by all required documents.
14. Affiliates may not "hotlink" to any of COMPANY'S images, banners and/or graphics.
15. Affiliates must provide within 24 hours, upon request by CORPORATION, access to any password protected area where COMPANY Websites are being or have been promoted.
16. Affiliates may not solicit or permit any minor to become a customer of the Websites.
17. Affiliates agree to indemnify and hold CORPORATION harmless from any and all liabilities, claims, damages (including attorney's fees), threatened or incurred as a result of Affiliate's activities or omissions.
18. CORPORATION shall retain the discretion to interpret, modify, terminate and/or enforce any of the general policies for Affiliates.
19. We dont accept sales from affiliates that bid on our domains in the search engines
B. Suspected violation of any of the Acceptable Use Policies may result in termination from the Program and forfeiture of any past or future commissions or payments, whether earned or unearned.
XII. POP UP WINDOWS / JOIN PAGE:
Affiliate is entitled to use one pop up exit window in connection with participation in the Program. Affiliate may determine the content of the Pop Up by selecting a URL, or by allowing CORPORATION to randomly select a URL. The General Policies outlined above apply to the content contained on any Pop Up windows.
XIII. PROMOTIONAL RESTRICTIONS AND SPAM:
Affiliate may use any reasonable promotional tool desired, with the following exceptions:
ANTI-SPAM POLICY
This website adopts the following Anti-Spam Policy, effective January 1, 2003:
Dissemination of any and all unsolicited commercial email (i.e., "spam") is STRICTLY PROHIBITED.
Although federal law allows the dissemination of unsolicited bulk email under certain, tightly regulated conditions, we have elected to impose a stricter, total spam ban policy, for all affiliates and promoters of this website. This means affiliates and promoters are prohibited from engaging in any bulk email promotions on behalf of this website, regardless of how the recipient email addresses are acquired, generated or obtained. This also means that use of opt-in, double opt-in, or any form of email address recipient list is likewise prohibited, regardless of whether such activities are otherwise permitted by state or federal law.
Any violation of this strict Anti-Spam Policy will be grounds for immediate termination and forfeiture of all unpaid commissions or entitlement thereto. This website reserves the right to audit and investigate compliance with the Anti-Spam Policy at any time, with or without notice.
Any questions or comments regarding this Anti-Spam Policy should be directed to: ____http://shrouk.com/contact/_____.
XIV. AGE OF MAJORITY:
CORPORATION takes a strong stance in favor of preventing minors from accessing sexually-oriented materials. Accordingly, any and all images, web pages, or tours depicting sexual activity must be protected by some form of legal age verification. Therefore, the SITE adopts the following policies with regard to online age verification:
A. Users can only access images depicting sexual activity (i.e. hardcore images) by passing through some form of online age verification that complies with the requirements of the Child Online Protection Act, ("COPA") such as the BirthDateVerifer solution; or
B. Alternatively, users must be restricted to accessing pages or content, or Material containing only soft core (i.e. no sexual activity) materials, which will be separately identified and provided by the SITE.
XV. Metatags:
Affiliate agrees not to utilize any false, misleading or infringing metatags tied to the Affiliate's site. An Affiliate is not permitted to use its domain name and/or its metatags on the Affiliate's site to garner search engine traffic. In addition, Affiliate agrees not to utilize any metatags that would imply or suggest that underage or illegal content may be found on the submitted Web site.
XVI. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE:
A. NOTICE OF CLAIMED INFRINGEMENT. The SITE respects the intellectual property of others, and we ask our users to do the same. We voluntarily observe and comply with the United States' Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide SITE's Designated Copyright Agent the following information:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. Description of the copyrighted work or other intellectual property that you claim has been infringed;
3. A description of where the material that you claim is infringing is located on a Site;
4. Your address, telephone number, and email address;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6.. A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
B. You may send your Notice of Claimed Infringement to:
Lawrence G. Walters, Esquire
Weston, Garrou, DeWitt & Walters
781 Douglas Avenue
Altamonte Springs, FL 32714
Phone: (407) 389-4529
Fax: (407) 774-6151
Please do not sent other inquires or information to our Designated Agent.
Notices will be acted on within 24 48 hours after receipt.
C. It is important to understand that knowingly making a material misrepresentation concerning alleged copyright infringement may result in significant civil penalties including damages, costs and attorney's fees incurred by the alleged infringer or CORPORATION.
D. In the event Affiliate's site is taken down pursuant to the DMCA, re-bills attributed to the noticed site will be suspended during the "take down" period. Any repeat violators of the DMCA will be banned from the Program.
E. NOTICE AND TAKEDOWN PROCEDURES. The SITE implements the following "notice and takedown" procedure upon receipt of any notification of claimed copyright infringement:
1. The SITE reserves the right at any time to disable access to, or remove any material or activity accessible on or from the SITE or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent.
2. It is the firm policy of the SITE to terminate the account of repeat copyright infringers, when appropriate, and the SITE will act expeditiously to remove access to all material that infringes on another's copyright, according to the procedure set forth in 17 U.S.C. 512 of the Digital Millennium Copyright Act ("DMCA"). The SITE's DMCA Notice Procedures are set forth in the preceding paragraph. If the notice does not comply with Paragraph 19 and 512 of the DMCA, but does comply with three requirements for identifying sites that are infringing according to 512 of the DMCA, the SITE shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements.
3. When the Designated Agent receives a valid notice, the SITE will expeditiously remove and/or disable access to the infringing material and shall notify the affected user. Then, the affected user may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter-notification, it will replace the material at issue within 10-14 days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity.
4. The SITE reserves the right to modify, alter or add to this policy, and all users should regularly check back to these Terms and Conditions to stay current on any such changes.
F. It is important to understand that knowingly making a material misrepresentation concerning alleged copyright infringement may result in significant civil penalties including damages, costs and attorneys fees incurred by the alleged infringer or Affiliate. In the event Affiliate's Web site is taken down pursuant to the DMCA, re-bills attributed to the noticed site will be suspended during the "take down" period. Any repeat violators of the DMCA will be terminated and banned from the Program.
XVII. CONFIDENTIALITY AND PRIVACY POLICY:
A. "Confidential Information" shall mean any confidential technical data, trade secret, intellectual property, know-how or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as "Confidential" or "Proprietary." If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced to writing and delivered to the receiving party within ten (10) days of such disclosure.
B. Notwithstanding the foregoing, Confidential Information shall not include information which:
1. Is known to the receiving party at the same time of disclosure or becomes known to the receiving party without breach of this Agreement;
2. Is or become publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party;
3. Is rightfully received from a third party without restriction on disclosure;
4. Is independently developed by the receiving party or any of its subsidiary;
5. Is furnished to any third party by the disclosing party without restriction on its disclosure;
6. Is approved for release upon a prior written consent of the disclosing party; or
7. Is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. The receiving party agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of the disclosing party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of five (5) years thereafter, without the prior written consent of the disclosing party. The receiving party further agrees that Confidential Information shall remain the sole property of the disclosing party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. The disclosing party shall grant no license to the receiving party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon the request of the disclosing party, the receiving party will promptly return all Confidential Information furnished hereunder and all copies thereof.
E. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be jointly planned and coordinated by and among the Parties. Neither party shall disclose any of the specific terms of this Agreement to any third party without the prior written consent of the other party, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party.
F. If a party breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential Information hereunder, the non-breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary to the contrary contained herein.
G. Except as otherwise set forth in this Agreement, CORPORATION shall be entitled to make any public statement, press release or other announcement relating to the Web site without any prior written approval of Affiliate.
H. CORPORATION honors the privacy of its Affiliate's personal information. Our Privacy Policy is hereby incorporated by reference. For more information on our Privacy Policy, please contact us.
XVIII. INTELLECTUAL PROPERTY RIGHTS:
A. The parties agree that:
1. Each party's marks are and shall remain the sole property of that party;
2. Nothing in this Agreement shall convey to either party any right of ownership in the party's marks;
3. Neither party shall now or in the future contest the validity of the other party's marks; and
4. Neither party shall in any manner take any action that would impair the value of, or goodwill associated with, such marks.
5. The Parties acknowledge and agree that all use of the other party's marks by a party shall inure to the benefit of the party whose marks are being used.
B. Each party hereby grants the other party, during the term of this Agreement, a non-exclusive, non-transferable license to use that party's trade names, trademarks, service names, copyrights, and similar proprietary marks as is reasonably necessary to perform its obligations under this Agreement, provided, however, that any promotional materials containing a party's proprietary marks will be subject to that party's prior, written approval.
C. Each party agrees not to use the other party's proprietary marks in a manner that disparages the other party or its products or services, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party will comply with the other party's requests as to the use of the other party's proprietary marks and will avoid any action that diminishes the value of such marks. Each party's unauthorized use of the other's proprietary marks is strictly prohibited.
D. At any time, CORPORATION may, at its sole discretion, require a copy of any and all legal documentation showing rightful ownership, or licensed distribution for any item displayed on the Affiliate's Web site so as to resolve any copyright or other legal claims that may arise. If Affiliate is unable to provide ownership or licensing information to the complaining party and/or Web site, then Affiliate must remove the objectionable material, or face having the applicable pages taken down by SITE.
XIX. TERMINATION:
The following termination rights are in addition to the termination rights that may be provided elsewhere in this Agreement:
A. Mutual Right to Termination Upon Notice: Either CORPORATION, or Affiliate may immediately terminate this Agreement at any time upon written notice to the other party in the event of a breach of any provision of this Agreement by the other party. In the event that CORPORATION terminates this Agreement for breach, Affiliate shall not be entitled to receive any further commissions or payments, including commissions earned prior to the date of termination. Further, upon termination, Affiliate shall immediately cease using any marks and materials referring to or supplied by CORPORATION, including banners and promotional materials.
B. Affiliate's Right to Terminate: Affiliate shall have the right to terminate this Agreement at any time, however customer rebills are only payable if the orders are not canceled or returned.
C. CORPORATION's Right to Terminate: CORPORATION shall have the right to terminate this Agreement upon discontinuation of the Program by providing thirty (30) days notice to all participating Affiliates. CORPORATION shall also have the right to terminate this Agreement and cancel an Affiliate's account, if an Affiliate has not sent CORPORATION any new sign ups during a three (3) month period of time.
XX. DISCLAIMERS AND LIMITATIONS:
A. In no event shall either party be liable to the other for any indirect, special, incidental, punitive or consequential damages, including but not limited to, loss of profits, loss of data, loss of business or other loss arising out of or resulting from this Agreement, even if the other party has been advised of the possibility of such damages. The foregoing shall apply regardless of the negligence or other fault of either party and regardless of whether such liability sounds in contract, negligence, tort or any other theory of liability. Notwithstanding the aforementioned limitations of liability, you agree that if CORPORATION is held liable to you for damages, the total amount of liquidated damages for any and all claims shall not exceed ten dollars ($10.00).
B. Affiliate shall remain solely responsible for the operation of their own site, and CORPORATION shall remain solely responsible for operation of the Program and its sites. A list of CORPORATION'S sites can be found here: http://jimmydiamond.com/index.php. Each party acknowledges that the other's site may be subject to temporary shutdowns dues to causes beyond the operating party's reasonable control.
XXI. ASSUMPTION OF RISKS:
Affiliate expressly agrees that Affiliate's use of the services is at Affiliate's sole and exclusive risk. The services are provided on an "as is, with all faults" and "as available" basis. SITE expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. SITE makes no warranty that the services will meet Affiliate's requirements, or that the services will be uninterrupted, timely, secure, or error free; nor does SITE make any warranty as to the results that may be obtained from the use of the services or as to the accuracy or reliability of any information obtained through the services or that defects in any software, hardware or the services will be corrected. Affiliate understands and agrees that any use Affiliate makes of any material and/or data downloaded or otherwise obtained through the use of the services is at Affiliate's own discretion and risk, and that Affiliate will be solely responsible for any damage to Affiliate's computer system or loss of data that results from the download of such material and/or data.
XXII. INDEMNIFICATION:
A. Affiliate agrees to defend, indemnify, defend, and hold SITE and its affiliates, successors, assigns, officers, employees, agents, directors, shareholders and attorneys, harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from:
1. Any breach of Affiliate's covenants under this Agreement;
2. Affiliate's use (or misuse) of the Services;
3. All conduct and activities occurring under Affiliate's user ID and password;
4. Any item or service sold or advertised in connection with Affiliate Content or Affiliate's information and data;
5. Any defamatory, libelous or illegal material contained within Affiliate Content or Affiliate's information and data;
6. Any claim or contention that Affiliate Content or Affiliate's information and data infringes any third party's patent, copyright, trademark, or other intellectual property rights or violates any third party's rights of privacy or publicity;
7. Third party access or use of Affiliate Content or Affiliate's information and data;
8. Any claim related to Affiliate's Web site; or
9. Any violation of this Agreement.
B. SITE reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from Affiliate, but shall have no obligation to do so. Affiliate shall not settle any such claim or liability without the prior written consent of SITE, which shall not be unreasonably withheld.
C. The Affiliate understands that SITE will take drastic measures to protect itself from any legal or civil litigation including, but not limited to, removing an Affiliate's web page(s) or Web site(s) from its servers for any reason deemed appropriate by SITE. Affiliate also understands that SITE will charge, on an hourly basis, for any and all time spent responding to any third party complaints, disputes, copyright claims or actions involving Affiliate or Affiliate's web sites.
XXIII. RELATIONSHIP OF THE PARTIES:
The relationship between CORPORATION and Affiliate under this Agreement is that of independent contractors and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any manner or thing whatsoever.
XXIV. FORCE MAJEURE:
Neither party will be held liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence, including but not limited to acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, net congestion, or any failure of a computer, server or software, including Y2K errors or omissions. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
XXV. NOTICE AND PAYMENT:
A. Any notice or payment required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, or personal delivery by commercial carrier such as FedEx or Airborne.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
C. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
D. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
XXVI. JURISDICTION/DISPUTES:
This Agreement shall be governed in accordance with the State of Florida. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Florida including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it. Venue for any litigation arising out of this Agreement shall be in Orange County, Florida.
XXVII. AGREEMENT BINDING ON SUCCESSORS:
The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, and successors.
XXVIII. ASSIGNABILITY:
Neither party may assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
XXIX. WAIVER:
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
XXX. SEVERABILITY:
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
XXXI. INTEGRATION:
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
XXXII. ATTORNEY'S FEES:
In the event any Party shall commence any claims, suits, or formal legal action to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney's fees and costs incurred in connection therewith, including attorney's fees incurred on appeal.
XXXIII. DISCLAIMER:
Other than those set forth herein, the parties make no other warranties or representations including warranties of merchantability or fitness for a particular purpose. Neither party represents the other, and both parties have had an opportunity to seek legal counsel of their choice.
XXXIV. BINDING AGREEMENT:
The parties acknowledge the legally binding nature of this Agreement. By clicking on the "SEND APPLICATION" button on the following web page, you are affirmatively stating that you have read and understand the terms set forth herein and that you agree to be bound by the terms hereof. You hereby adopt the /s/ mark appearing on the signature line below, as your electronic signature on this document.
XXXV. ELECTRONIC SIGNATURES:
This Agreement is intended to be governed by the Electronic Signatures Act (E-SIGN Act"). By submitting the "Registration Form," Affiliate thereby affixes his or her electronic signature to this Agreement, and thereby manifests assent to all terms contained herein.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each signed this document electronically pursuant to the E-SIGN Act.
_/s/______________________
SHROUK, INC.
_/s/________________________
Affiliate