This Agreement contains the complete terms and conditions that apply to your participation as a member of any the AdultCashPrograms.com Affiliate Programs, which includes RealityCash, webmaster.Adult.com and Jenna Cash (each a "Program," and collectively, the "Programs") operated by Adult.com (hereinafter, "Company," "we" or "us"). As used in this Agreement, "you" or "your" means you, the applicant/participating member. Please note that Playboy Webmasters is NOT included under this Agreement. You must agree to separate terms in order to participate in the Playboy Webmasters affiliate program.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND COMPANY. BY CHECKING THE "I AGREE" BOX AT THE END OF THIS DOCUMENT YOU ARE STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU ARE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, AND YOU ARE AGREEING TO BE BOUND BY THE TERMS HEREOF. YOU CANNOT BECOME A MEMBER OF ANY OF THE PROGRAMS UNLESS AND UNTIL YOU HAVE ACCEPTED EACH AND EVERY TERM HEREOF.
We reserve the right to amend this Agreement at any time and will post the amended Agreement here. YOUR CONTINUED PARTICIPATION IN ANY PROGRAM FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THIS AGREEMENT WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF SUCH RULES, CHANGES OR MODIFICATIONS.
By enrolling in the Program, you acknowledge and agree that you permit Company to contact you via email, phone or by other means in connection with your participation in the Program.
Notice to Affiliates
1. Enrollment in the Program.
To begin the enrollment process, you will submit a completed application through our website, http://www.adultcashprograms.com. We will evaluate your application and will notify you of your acceptance or rejection. We will reject your application if we determine in our sole and absolute discretion that you have provided inaccurate or incomplete signup information, determine that you are an individual who is under 18 years of age (or below the applicable age of majority in your home state) or a resident of an ineligible country, or if we determine that the Internet website(s) or marketing plan you use in connection with the Program is unacceptable to us or our sponsors for any reason, including, but not limited to, if your site incorporates any image or content that is unlawful, defamatory, obscene, harassing or otherwise objectionable, such as sites that facilitate illegal activity or promote violence or promote or assist others in promoting copyright or trademark infringement or other violation of third-party rights. Again, you must be at least eighteen (18) years of age (or older if the applicable legal age of majority is higher than 18) to participate in this Program.
a. Non-Exclusive Limited License For Use of Affiliate Logos and Trademarks. You grant us a non-exclusive, worldwide, royalty-free and fully-paid license to utilize your names, titles, logos, and trademarks (collectively the "Affiliate Trademarks") to advertise, market, promote and publicize in any manner the Programs and/or our rights hereunder. Notwithstanding anything herein to the contrary, we shall not be required to so advertise, market, promote or publicize any affiliate, including you, or the Affiliate Trademarks. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use same in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you (or the Affiliate Trademarks) or binding upon you (or the Affiliate Trademarks); or (ii) infringe upon any trademark, trade name, service mark, copyright, right of publicity, right of privacy or any other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
b. Non-Exclusive Limited License For Use of AdultCashPrograms.com Promotional Materials. Subject entirely to your compliance with the terms and conditions of this Agreement and to your limited rights as a licensee of AdultCashPrograms.com, we grant you a limited, non-exclusive, non-transferable, non-sublicenseable and revocable right and license to (i) direct, refer and otherwise send visitors, including users of your website (as identified in your completed application, the "Affiliate Site" or "Landing Site"), to one or more specified websites owned, operated or controlled by us in connection with the Programs (the "Program Sites"), the referring Uniform Resource Locator ("URL") for which we'll provide to you if we accept your application, and (ii) access, copy, use, reproduce, publicly display and store the hyper-links, promotional banners, photographs and other promotional materials made available to you by us for your use on your Affiliate Site pursuant to the terms and conditions herein and solely in connection with your participation in the Program ("Authorized Promotional Materials"). All such rights and licenses in and to Authorized Promotional Materials shall immediately and automatically terminate upon expiration or termination of this Agreement, and you agree to immediately cease your activities accordingly.
3. Using Links on and to Your Affiliate Site.
a. Once we notify you that your completed application has been accepted, you may use any legal and legitimate form of promotion you choose to direct traffic to your Affiliate Site, consistent with the terms of this Agreement (all mailers must be pre-approved as set forth below). Practices that could reflect negatively on us or any Program (including, but not limited to those listed below) are strictly prohibited and may result in your termination from the Program and/or your forfeiture of any commissions earned under the Programs. You may use banner advertisements, pop-up or pop-under windows, button links, text links or other similar electronic methods (collectively, the "Links") to direct traffic to your Affiliate Site; provided, however, that:
i. any Links appearing other than on your Affiliate Site (including e-mail) MUST direct traffic to your Affiliate Site and NOT directly to the Program Sites or any other URL. In other words, it is VERY IMPORTANT that all Links you develop under a Program, whether they be in e-mail, banner ad, search engine result, pop-up or pop-under window or any other form, must route visitors to your Affiliate Site FIRST, and THEN from there to the Program Site(s). This benefits you, because traffic coming from your Affiliate Site will be much easier to track;
ii. you may not employ deceptive language, blind links, or misleading URLs in any Links or email addresses;
iii. you may open a new browser or frame when a Link is clicked, but ONLY ONE - multiple browsers or frames with links to Program Sites or other sites are not allowed;
iv. you may not force exit traffic to your Affiliate Site or any Program Site, such as by altering the function or behavior of "back" or "close" buttons;
v. you may not place Links to your Affiliate Site on a "circle jerk" site or otherwise send traffic to your Affiliate Site or any Program Site via practices such as hiding or camouflaging the entry button and/or links to their pictures, or hiding the site's true content with the intention of tricking or encouraging browsers into clicking on Links;
vi. you MAY NOT USE MAILERS OF ANY KIND unless pre-approved by Company. In any event, you CANNOT MARKET BY SENDING UNSOLICITED BULK E-MAILS ("Spam") and all marketing e-mails sent hereunder must comply with the CAN-SPAM Act of 2003!!! As used herein, Spam refers to the transmission of unsolicited bulk e-mails (i.e., emails sent to email addresses not derived from a verifiable opt-in program or sent absent a prior business relationship with the recipient). Any activity by you or on your behalf that we determine or reasonably suspect in our sole discretion to be the result of a Spam program will result in your immediate termination from the Programs and your forfeiting of monies otherwise due you hereunder (for further terms and conditions on this topic, please see Section 6, below);
vii. you MAY NOT modify any Authorized Promotional Materials or the Links in any manner, except with our express prior written consent;
viii. you may NOT use any Company, RealityCash, Adult.com, Club Jenna, Jenna Jameson or any affiliated or trademarked terms, or any confusingly similar trademarks or terms, in the metatags or domain name of your Affiliate Site or in any email address used by you;
ix. you may NOT use the Authorized Promotional Materials or any Link provided to you in connection with any Programs in ANY unsolicited or illegal correspondence or materials (e.g., Email, Instant Messaging, Network Messaging, Chatrooms, Newsgroups, ICQ and IRC, etc);
x. you may NOT use any form of deceptive, unfair and/or false advertising in connection with promoting any of the Programs;
xi. you may NOT use any Company-owned or other trademarks, photographs or other content or materials in connection with the Programs, except those specifically made available to you for use with the Programs; and
xii. you may NOT purchase on or through any portal, search engine or other website any keyword-targeted advertising using any trademark of Company or its affiliates, or any confusingly similar trademark, word, phrase or misspelling of such trademark or word, or use any other keyword targeted advertising that is calculated to take advantage of a such trademark or other mark owned by Company or its affiliates without first obtaining our prior written approval.
a. The Program includes four possible forms of commission payout: (i) per signup payout based on a full signup, (ii) per signup payout based on trial signup. (iii) rev share payout based on a full signup, and (iv) rev share payout based on trial signup. You may choose your preferred payout forms from within your Program preferences and may change these selections by changing your Links, which track the payout source.
i. Per Signup: Full Sign Up: We will pay you a one-time commission of $35 per Qualified Subscriber for Jennacash Program Sites and $40 per Qualified Subscriber for Webmasters.adult.com and RealityCash.com Program Sites, who signs up for a monthly or other recurring membership to such Program Site or offering (subject to the limitations below).
ii. Per Signup: Trial Sign Up: We will pay you a one-time commission of $35 per Qualified Subscriber for Jennacash Program Sites, and $40 per Qualified Subscriber for Webmasters.adult.com and RealityCash.com Program Sites, who signs up for a monthly or other recurring membership to such Program Site or offering (subject to the limitations below).
iii. Rev Share: Full Sign Up: We will pay you a commission of 60% per Qualified Subscriber for Jennacash and RealityCash Program Sites, and 50% per Qualified Subscriber for Webmasters.adult.com Program Sites, who signs up for a monthly or other recurring membership to such Program Site or offering for the life of the subscription of that specific Qualified Subscriber to that Program Site (subject to the limitations below).
iv. Rev Share: Trial Sign Up: We will pay you a commission of 60% per Qualified Subscriber for Jennacash and RealityCash Program Sites, and 50% per Qualified Subscriber for Webmasters.adult.com Program Sites, who signs up for a monthly or other recurring membership to such Program Site or offering for the life of the subscription of that specific Qualified Subscriber to that Program Site (subject to the limitations below).
b. Limitations and Notice re: Commissions:
i. If exit consoles are present, most websites featured on the AdultCashPrograms.com's exit consoles are not included in the AdultCashPrograms.com Program and therefore you will receive no compensation for those exit sales under the AdultCashPrograms.com Affiliate Program. The commission rates are subject to change from time to time, upon e-mail notice to you and commencing ten (10) days following the date of such notice.
ii. Note that a commission will be paid to you only if the visitor to the applicable Program Site can be tracked by our system from the time of the Link to the time of the sale. In other words, you will receive no commission if a visitor arrives at a Program Site via your Affiliate Site or your LInks without subscribing to any services, navigates away from the Program Site, and later returns to the Program Site in a manner other than from your Affiliate Site and subscribes to the Program Site.
iii. No commission will be paid to you if the visitor's membership payment at the Program Site cannot be tracked directly to your Affiliate Site by our system or if full payment for services is not made to us by the customer, including, but not limited to, instances of credit card charge-backs, cancellations and other refunds.
iv. No commission will be paid to you for visitors who are below the age of majority in their resident jurisdiction, or who reside in a jurisdiction that otherwise prohibits such person's use of or subscription to the applicable Program Site or the services offered thereon, or who otherwise do not comply with or agree to our terms and conditions.
v. No commission will be paid to you for signups by you or anyone within your organization, or for subscribers who we determine were referred by you in violation of this Agreement or otherwise through actual or possible fraudulent activity (such as through the use of fraudulent names, e-mail addresses or credit cards).
5. Commission Payment.
You acknowledge and agree that before making any payments to you, we may require that you complete an I.R.S. Form W-9 or similar tax form and supply us with a valid Social Security Number, U.S. Federal Tax Identification number or other similar evidence of identity and eligibility, and that you and we are obliged to comply with all applicable laws, rules and regulations regarding taxation and otherwise. Commissions due and owing to you under the Program will be paid to you directly by Company on a monthly basis for the prior month's activity. Payments due and owing to you for a pay period of less than $100.00 will be rolled over into subsequent payment periods until at least $100.00 is reached, at which time you will receive payment. Payments will be in the form of a check in US dollars payable to you, as identified in your application, and will be mailed to the street address indicated in your application (we will not mail to P.O. Boxes!!). You may request and receive payment via bank wire transfer, provided you pay the costs associated with the wire. If you dispute the manner or amount of calculation of your commission with regard to any given payment period, you must inform us in writing within sixty (60) days of the applicable payment, otherwise you are deemed to have waived your right to challenge said payment calculation.
6. ACCEPTABLE USE POLICY REGARDING BULK E-MAILINGS
a. We do not allow promotion of the Program Sites through the transmission of bulk e-mails, which have not been approved in advance by Company. It is extremely important that all pre-approved mass e-mailings by you conform to all applicable state and federal laws, including, but not limited to, the CAN-SPAM Act of 2003, and to our policies. Moreover, you need to be aware of the fact that many service providers, such as America Online, Inc ("AOL"), have their own standards and policies when it comes to mass mailings to their members, and that under this Agreement you are required to comply with the standards and policies of service providers whose users you target or otherwise reach. By way of example, and not limitation, please familiarize yourself with AOL's policy, as most mass mailings will reach at least some, and potentially many, AOL members (e.g., email@example.com).
b. The marketing of any Program Site(s) through the transmission of UBE is strictly prohibited. In other words, you must have a prior business relationship with the e-mail recipient, including but not limited to, having obtained each e-mail address through a verifiable opt-in procedure that includes confirmation of such opt-in. We strongly encourage you to maintain electronic and/or written records of the manner in which you obtain e-mail addresses for use in mailings. If we receive a complaint from a person who received a promotional e-mailing from you, you will need to demonstrate to us (and potentially to third parties) that such person did not receive unsolicited bulk e-mail from you or that you had a valid opt-in for the applicable email address.
c. Specifically, in addition to the general prohibitions stated in this Agreement, you agree to the following in connection with all e-mail marketing you conduct in connection with the Program:
i. as stated above, all text, images and other content of all e-mail messages you wish to send in connection with the Program pursuant to this Agreement must be APPROVED IN ADVANCE by Company. Approval of one email does not imply approval of any future emails. NO E-MAIL MESSAGES MAY BE SENT WITHOUT COMPANY'S PRIOR REVIEW AND WRITTEN APPROVAL;
ii. all recipients of e-mails must have at some point affirmatively consented (as defined by the CAN-SPAM Act) to receiving promotional e-mails from you;
iii. each e-mail message must contain a clear and working hyperlink or other method (such as auto-reply) whereby the recipient can opt out of receiving any future mailings from you regarding the Programs and the Program Sites and such requests must be honored within ten (10) days after receipt by you;
iv. each and every e-mail message you send in connection with the Program must contain a clear and unequivocal written disclaimer stating that such message is not being sent by Company, RealityCash, Adult.com, Club Jenna or any of our affiliated companies. We will provide the exact form of such language upon our approval of each e-mail;
v. Company reserves the right to restrict participants in the Program from targeting or otherwise sending e-mail messages to users of particular Internet service providers ("ISPs"), Internet protocol addresses or domain names. We will notify you of any such restrictions from time to time;
d. We strictly prohibit you from transmitting e-mail that makes use of or contains (i) misleading or deceptive subject lines, (ii) invalid or forged headers, (iii) invalid or non-existent domain names or return addresses (including the recipient's own e-mail address), or (iv) other means of deceptive addressing (collectively, "Counterfeit E-mail"). Do NOT do this. We also strictly prohibit you from transmitting e-mail that is relayed from any third party's mail servers without the permission of that third party, or which employs similar techniques to hide or obscure the source of the e-mail.
e. We do NOT authorize the harvesting or collection of screen names from any ISP (for example, AOL) for the purpose of sending unsolicited e-mail, and will terminate without pay any Program participant determined to have transmitted bulk emails marketing any Program Site(s) to lists gathered by such methods.
f. Should we determine, in our sole discretion, that you have violated this Agreement, your participation in the Program will be terminated immediately, and you will be ineligible to sign up for another account. In such event, you acknowledge that you will not be paid for any traffic or subscriptions generated prior to the date of termination. In addition, your registration information may be turned over to complaining parties (including, if applicable, AOL), and your transmission of UBE and/or Counterfeit E-mail may result in civil and criminal penalties under applicable federal and/or state law.
7. HOW TO REPORT UNSOLICITED BULK E-MAIL
If you believe you are the recipient of unsolicited bulk e-mail from a person or company advertising websites under this Program, please follow this procedure: Please send your spam complaint to us. The best and easiest way to do this is by forwarding the offending e-mail to firstname.lastname@example.org. If you cannot forward the UBE, simply send an e-mail to email@example.com. In either case, please include your name, address, telephone number and any information you may have about the identity of the person or entity that sent the UBE to you. You may be able to collect information about the sender from the e-mail itself, for instance, by examining the e-mail's "header," by examining the webpage or by running a "whois" query against the webpage domain.
8. Responsibility for Your Affiliate Site.
a. You will be solely responsible for all development, operation, hosting and maintenance of, and all content and materials that appear on your Affiliate Site (other than the Authorized Promotional Materials used as permitted under this Agreement). If your Affiliate Site is password-protected, you agree to provide us with a working password during the duration of this Agreement. Please bear in mind the restrictions described in Section 3 above. You are not Company's agent or that of any of our Programs, and we shall not have any responsibility for the development, operation, hosting or maintenance of your Affiliate Site or for any materials that appear on your Affiliate Site. You shall also be solely responsible for ensuring that materials posted on your Affiliate Site do not violate or infringe upon any laws, including but not limited to 18 U.S.C. Section 2257, or the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and ensuring that materials posted on your Affiliate Site are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law. In addition to the foregoing, we will immediately terminate your participation in the Program and seek the return of all commissions paid to you if we believe you have engaged in any practice that violates the terms and conditions herein including, without limitation, any of the following:
i. Sending unsolicited or illegal bulk e-mail (see Section 6, above), Instant Messages, Internet relay chat (IRC), newsgroup, bulletin board or similar postings, forged header mailings or any other form of mailings or postings that violate the anti-UBE policies of ISPs or applicable state or federal laws;
ii. Providing inaccurate or incomplete information to Company concerning your identity, bank account, address or other required information;
iii. Attempting to cheat, defraud or mislead us in any way;
iv. Misrepresenting to the public the terms and conditions or content of the Programs, the Program Sites or your Affiliate Site;
v. Promoting or including on your Affiliate Site password selling or trading, child pornography, obscene content, bestiality, violence, MP3s, or warez;
b. Owning or operating your Affiliate Site in connection with a person who is under 18 years of age; or
c. Operating in a foreign country from which Company will not accept accounts, including, but not limited to:
Albania, Armenia, Azerbaijan, Bahrain, Belarus, Botswana, Brazil, Bulgaria, China, Colombia, Costa Rica, Croatia, Czech Republic, Ecuador, El Salvador, Egypt, Estonia, Georgia, Hungary, India, Indonesia, Iran, Iraq, Israel, Jordan, Kaliningrad, Kazakhstan, Korea, Kyrgyzstan, Latvia, Lithuania, Macedonia, Malaysia, Moldova, Pakistan, Philippines, Poland, Romania, Russia, Saudi Arabia, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Vietnam, Yugoslavia and Zambia.
IN SHORT, WE EXPECT AND DEMAND THAT YOU WILL ACT WITH THE HIGHEST ETHICAL AND LEGAL STANDARDS UNDER THIS AGREEMENT AND APPLICABLE LAWS.
9. Procedure Relating to Alleged or Actual Third Party Rights Infringement by a Participating Webmaster.
a. Upon Company's receipt of a notice of alleged violation of any copyright, trademark, service mark, publicity or other right by you or your Affiliate Site, Company will notify you and ask that you provide written documentation of your right to use the allegedly infringing material. That documentation must be: (i) a license of the rights; (ii) consent from the rights holder or their agent; or (iii) a written statement from you or your attorney (in either email or fax form) explaining your claim to have a lawful right, or a legal defense, to display the allegedly infringing material.
b. If you do provide Company with appropriate rights documentation (i, ii or iii, in Section 9(a) above), Company will forward that documentation to the rights holder or its agent, as appropriate. Should the rights holder/agent not be satisfied, Company will provide the rights holder/agent with your contact information in order that they may contact you and pursue any remaining dispute with you directly.
c. If you fail to provide Company an appropriate written response (i, ii or iii, in Section 9(a) above), you will have seventy-two (72) hours from the date of Company's original notification to you to remove the complained of content. Should you fail to remove said content within seventy-two (72) hours, Links and visitors to the Program Sites coming from the referring URL containing the complained of content will be blocked, and any funds otherwise due and payable to you relating to the referring URL will be forfeited UNTIL SUCH TIME AS YOU PROVIDE AN APPROPRIATE WRITTEN RESPONSE OR REMOVE THE COMPLAINED OF CONTENT. You will also be placed in an "infringer" database, and in the event that repeated complaints are made against you for rights violations, Company has the right to permanently terminate you from the Programs.
10. Term of the Agreement.
The term of this Agreement will begin upon our acceptance of your Affiliate Program Application and will end when terminated as set forth herein. We may terminate this Agreement in whole or in part by ending the Program or otherwise at any time in our sole discretion and no further commission payments will be due to you. In addition, either party may terminate this Agreement, at any time for any reason, by giving the other party written notice of termination. Notice by e-mail, if sent to the e-mail address we have on record for you, is considered sufficient notice for termination of this Agreement. In the event this Agreement is terminated because you have violated the terms of this Agreement, you will not be eligible to receive any commission payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you will only be eligible to earn a commission on signups occurring during the term of the Agreement up until the date of termination, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by e-mail, to the e-mail address we have on record for you, or the posting on the Program website of a revised Agreement or change notice of a new agreement, shall be considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Program rules. All such modifications shall take effect 48 hours after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement by notifying us in writing. Your continued participation in the Program following our posting of a change notice or revised Agreement on the Program website, will constitute binding acceptance of the change.
12. Relationship of Parties.
You and Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or make any representations on our behalf. You will not make any statement, whether on your Affiliate Site or otherwise, that reasonably would contradict anything in this Section. You are not an agent of the Company or any other party in connection with the Program and Company expressly disclaims responsibility for any conduct by you in violation of our terms of this Agreement.
13. Limitation of Liability.
We shall not be liable for any indirect, special, punitive or consequential damages, or any loss of revenue, profits, or data, arising in connection with this Agreement, the Programs or the Program Sites, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement, the Program and the Program Sites will not exceed the total commissions paid or payable to you under this Agreement.
NEITHER COMPANY NOR ANY OF ITS CORPORATE AFFILIATES MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO THE PROGRAMS, THE PROGRAM SITES OR ANY SERVICES OR MATERIALS PROVIDED IN CONNECTION WITH THE PROGRAMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY BENEFIT YOU MIGHT OBTAIN FROM ANY PROGRAM OR ANY PROGRAM SITE. COMPANY DOES NOT GUARANTEE THAT ACCESS OR REGISTRATION TO ANY PROGRAM SITE WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR-FREE, AND COMPANY WILL NOT BE HELD LIABLE FOR THE CONSEQUENCES OF ANY SUCH INTERRUPTIONS OR ERRORS WHICH MAY OCCUR.
15. Representations and Warranties.
You hereby represent and warrant to us that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons; and do not and will not either violate nor constitute a default under the (i) provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you. Should any law enforcement agency or internet service provider provide Company with notice that you have engaged in the transmission of unsolicited bulk e-mails or have otherwise engaged in unlawful conduct or conduct in violation of said service provider's terms of service, we reserve the right to cooperate in any investigation relating to your activities including disclosure of your account information in connection therewith.
We may disclose to you certain information as a result of your participation in the Program, which information we consider to be confidential (herein referred to as "Confidential Information"). For purposes of this Agreement, the term Confidential Information shall include, but is not limited to, (a) any modifications to the terms and provisions of this Affiliate Program Agreement made specifically for your Affiliate Site and not generally available to other members of the Program; (b) website, business and financial information relating to Company; (c) customer and vendor lists relating to Company and any members of the Program, other than you; and (d) any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. Should you receive a court notice, complaint or subpoena requesting or seeking to compel disclosure of Confidential Information, you shall immediately inform Company, and Company shall have the right and shall be given the opportunity to obtain a protective order to prevent disclosure of such Confidential Information. We make no warranty, express or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information, and we shall not have any liability to you or to any other person resulting from your or such third person's use of the information. ANY AND ALL SUCH EXPRESS OR IMPLIED WARRANTIES ARE HEREBY DISCLAIMED TO THE FULL EXTENT PERMITTED BY LAW.
You hereby agree to indemnify, defend and hold harmless Company, its parent company, shareholders, officers, directors, employees, agents, affiliated companies, successors and assigns, from and against any and all third-party claims, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively, "Losses"), insofar as such Losses (or actions in respect thereof) arise out of or are based on (a) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party or is otherwise unlawful; (b) the breach of any promise, covenant, representation or warranty made by you herein; or (c) your performance under this Agreement, participation in any of the Programs, promotion of the Program Sites, or operation or your Affiliate Site.
You may not assign this Agreement or any of its rights or delegate any of your duties under this Agreement without the prior written consent of Company. Any purported assignment or delegation without such required consent shall be null and void and may result in your termination from the Programs.
No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
20. Governing Law.
This Agreement and all its provisions shall be deemed to be made entirely by parties within, and shall be governed by and construed in accordance with the laws of, the State of Illinois, without regard to the conflicts of law provisions thereof. Any and all disputes hereunder which are not first resolved between the parties shall be submitted exclusively to the state and federal courts located in Illinois having proper jurisdiction, and you hereby submit to the personal jurisdiction of such courts. For purposes of interpretation, both you and we shall be deemed to have mutually drafted this Agreement. You acknowledge that the terms hereof are fair and reasonable, and that you have had reasonable opportunity to seek the advice of legal counsel with regard to this Agreement and your performance hereunder.