Please read the following CAREFULLY. This is a legal agreement ("Agreement") between Digital J Media Ltd. ("Company" "we," or "us") and "webmaster/applicant."
The following offer to applicant is subject to all the terms, conditions, limitations and waivers below. Applicant acknowledges and agrees that by participating in the Program and to be bound by all the terms and conditions in this Agreement.
Acceptance of this agreement: By filling out and submitting the sign-up form, You are agreeing to be bound by all of the terms, conditions, promises, warranties, duties and obligations set forth in this Agreement and Company is agreeing to become a counter-party to the Agreement. The date of execution shall be the date on which the form is forwarded to Company.
What rights are granted under this agreement:
Subject to the terms and conditions set forth in this Agreement by Company grants to Webmaster, the following:
The non-exclusive right to direct, refer or send visitors or users of your website to websites owned, operated or controlled by Company.
A limited nonexclusive, nontransferable and revocable license to access, download and use promotional banners, hypertext links, and other promotional materials created by Company for use on your website or websites for the exclusive purpose of advertising, marketing or promoting websites owned, controlled and/or operated by Company or services provided through Company's website(s); however, the license herein granted shall automatically and immediately cease upon the termination or breach of any term in this agreement.
Applicant Warrants to Company:
In consideration of Company providing program benefits, applicant agrees and warrant as follows:
That applicant will at no time, or using any materials provided by company, directly or indirectly display or include on Your Website any advertising or advertising links of any kind which promote Company websites or services provide through Company's websites, other than those advertisements or hypertext ad links which have been pre-approved by Company, in compliance with this Agreement, and which advertise Company or other sites, companies, products or other wide area network addresses which we designate.
NOTE: COMPANY POLICIES ARE FOR ZERO TOLERANCE FOR SPAMMING. IF YOU SPAM, YOUR PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, YOU WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS OTHERWISE DUE TO YOU WILL BE FORFEITED TO THE COMPANY: You therefore warrant that You will not use any form of mass unsolicited electronic mail solicitations, news group postings, IRC posting or any other form of what is commonly known as "spamming" as a means of promoting your website or for the purpose of directing or referring users to any websites owned, operated or controlled by Company. You further acknowledge and agree that company has the right to immediately, and without notice, terminate your participation in the program if we, in our sole and exclusive judgment, conclude that you have engaged in the use of any form of mass unsolicited electronic mail solicitations, news group postings, password selling or trading, warez, IRC posting or any other form of "spamming".
That applicant will not copy or reproduce, alter, modify or change, broadcast, distribute, transmit or disseminate any banners, hypertext links or other promotional or advertising materials provided to applicant by company pursuant to this agreement and the program in whole or in part, in any manner, at any time anywhere in the world except as authorized by Company in writing;
That applicant will not, directly or indirectly, by any means, trick, link or artifice of any manner link any of the following content or material to any Company website through any hyperlinks maintained or created on applicants website or websites:
1. Obscene material; including without limitation to any material depicting bestiality, rape, torture, or scat.
2. Any material which is displayed or transmitted in a way as to constitute harmful matter or indecent communications to minors;
3. Any material which constitutes child pornography or matter which involves depictions of nudity or sexuality by an age inappropriate-looking performer be the performer real or computer generated (i.e. someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc;
4. Any material, which is threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity;
5. Any material which constitutes an infringement, misappropriation or violation of any person's rights of publicity, privacy rights or any person's intellectual property rights, including but not limited to copyrights, trademark and service rights; This includes photos altered to look like celebrities or other private persons. 6. Any program, file, data stream or other material which contains viruses, worms, "Trojan horses" malicious java script or any other feature, which takes control of a third parties computer or cpu without their permission. Regardless whether damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person;
7. Any material which contains any solicitation for prostitution, or which promotes or facilitates Incentive Based Websites, Warez Websites or the hacking, cracking or the downloading or trading of unauthorized MP3 audio files;
8. Any material not fully in compliance with 18 U.S.C. Sec. 2257 et seq.;
That Applicant shall remain a program participant until applicants terminate participation in the program by notifying Company of the applicant's intent to terminate participation; or applicants participation in the program is terminated by Company for any reason; or the program is terminated by Company for any reason.
That applicant will remain a program participant in good standing at all times applicant is receiving benefits or are otherwise participating in the program.
That applicant shall cease to be a participant in good standing and shall be subject to immediate termination of all benefits without prior notice if there is a failure to perform under or breach any part of this Agreement.
That if applicants participation in the program is terminated for any reason or is not in good standing, changes applicants website's URL or applicant ceases to offer services on the Internet, applicant shall immediately and permanently cease all use of all materials provided by Company and that all files containing materials provided will be removed from your website.
That applicant is over the age of eighteen (18) years.
That the person executing this agreement has the authority and is otherwise is entitled to contract on behalf of the entity which owns the rights to the applicants Website.
That you will supply Company with a Federal Tax ID or Social Security Number when requested, and that the failure to supply that information will constitute a basis for terminating this Agreement and for forfeiting any commissions or fees to which you would otherwise be entitled under this Agreement as liquidated damages.
That upon termination of this Agreement you will immediately cease using Company marks and remove any materials supplied to you by Company or referring to Company, including without limitation any banner ads, from Your Website.
That all of applicant's warranties, indemnities and obligations, which by their nature are designed to survive termination, shall extend beyond the termination of this Agreement.
Referral Fees & Commissions: Percentage-based referral fees are calculated as a percentage of the adjusted gross amount of the sale.
Limitations Of Your Participation In The Program:
You acknowledge and agree to the following limitations:
Only persons over the age of eighteen (18) years may participate in the program.
Company shall at all times have the right, in its sole and exclusive discretion, to modify and/or terminate the Program and any and all program benefits associated with Program at any time, and may do so with or without prior notice or cause.
Company has the right to terminate applicants and any other person's participation in the Program at any time and may do so with or without prior notice or cause.
This agreement and the rights under it are not transferable and may only be used by applicant in association with participation in the program.
All Program Benefits materials, including, without limitation, all advertising banners, hypertext links, photographic materials, recordings, video, sound, and any other form of intellectual property provided to You by Company as part of this Program shall remain the property of Company and may not be copied or reproduced, altered, modified or changed, broadcast, distributed, transmitted or disseminated, sold or offered for sale in any manner, at any time anywhere in the World except as expressly authorized by Company in writing.
Nothing herein shall be construed as a grant or assignment of any rights in any intellectual property owned by Company, including, without limitation, any of its trademarks or service marks.
A "referral" from Your Website which entitles You to a "referral fee" shall be defined as follows:
(i) A person who has been directed to a website controlled or operated by Company through the use of a banner ad or hypertext link supplied by Company as part of the Program (hereinafter referred to as "Authorized Link") that resides on your website and which automatically connects any person who clicks on said Authorized Link to a Company website; and
(ii) A person who, after having been directed to a website owned or operated by Company through the use of an Authorized Link, clicks through to an Advertiser listed on Company's website (hereafter defined as a "unique click-through to an Advertiser").
You acknowledge and agree that Company shall have the right to deny or withhold payment from applicant and to terminate applicant from the program if the Company determines that applicant has directly or indirectly engaged in, or encouraged fraudulent activity.
You further acknowledge and agree that Company shall have the right, in its sole and exclusive judgment, to determine what constitutes fraudulent activity and whether conduct, directly or indirectly constituted or encouraged fraudulent activity. The Company's determination that fraudulent activity has or is occurring shall be conclusive as to that issue.
You acknowledge and agree that Company shall have the right to terminate the program at any time, for any reason, or for no reason at all, in its sole and absolute discretion.
All referral fees due and payable hereunder shall be payable in United States Dollars.
The referral fees payable as part of the Program shall be listed at the link located at Company’s website, and Company reserves the right, in its sole and exclusive discretion, at any time to alter or modify the Program including the method and terms of all payment benefits to Participants. Any changes posted link set forth above shall be binding upon all participants immediately upon posting said changes at that link by Company.
For any month in which the total number of chargebacks by customers introduced via a "referral" by you is greater than or equal to 2% of the total non-chargeback "referrals" during said month, the commission earned that month will be reduced by 10%. For the second consecutive month in which chargebacks by customers introduced via a "referral" by you are greater than 2% of the total non-chargeback "referrals" during said month, the commission earned for that month will be reduced by 50%. For the third consecutive month in which chargebacks by customers introduced via a "referral" by you are greater than 2% of the total non-chargeback "referrals" during said month, the affiliate account will be terminated at the end of said month. In the event of excessive chargebacks (5 or more chargebacks by customers introduced via a "referral" by you within a month, or 10% or more of the transactions in a month are chargebacks by customers introduced via a "referral" by you totalling more than 2), the affiliate account will be terminated. Chargeback percentages will be calculated and penalties applied at the end of each month.
It is Applicants sole obligation to check the link to determine if there have been any changes in the Program. If Company has changed the terms of this agreement and Applicant disagrees with such than Applicant is excluded from program. No Joint Or Collaborative Venture; No Monitoring Or Control Of Your Content By Us: Nothing in this Agreement is intended by Company to create or constitute a joint or collaborative venture or partnership of any kind between Company and Applicant agree that nothing in this Agreement be construed as constituting or creating any agency, employment relationship, joint or collaborative venture or partnership between Applicant and Company its employees, agents or assigns.
You acknowledge and agree that Company shall have no control nor ownership interests of any kind in applicants business or Website.
You acknowledge and agree that You shall have no financial or other interest in Company or any property owned by Company, its affiliates, agents, successors or assigns.
You acknowledge and agree that the relationship with Company shall be restricted to matters pertaining to the Program exclusively and shall be governed entirely by the terms and conditions of this Agreement.
You acknowledge and agree that Company has no direct or indirect control over the content of performances or services, the manner of performances or services, or the time or duration of provision of performances or services by Applicant, at or in association with your Website except as specifically set forth in this Agreement.
You further acknowledge that neither Company nor any employee, associate, agent, assign or successor of Company shall exert or provide any direct or indirect control over, monitoring of, supervision of, prior approval of, or review of the content appearing or otherwise distributed on, at or in association with your Website, and that applicant shall be solely responsible for any legal liabilities or consequences resulting from the dissemination of that content on or through your Website.
Company makes no guarantees or warranties of any kind: You acknowledge and agree that Company makes no guaranties or warranties of any kind with respect to the Program or materials provided by, through or in association with the Program, and all materials are provided to you "as is", and that use of Program and associated materials, including, without limitation is solely at your risk. Company disclaims all warranties, either express or implied including, but not limited to, express or implied warranties of merchantability and fitness for a particular purpose, with regard to the Program and any and all materials of every kind supplied to as part of this Program.
Company Limited Liability and Liquidated Damages : You acknowledge and agree that under no circumstances shall Company, its employees, independent contractors, authors, agents, representatives, assigns and successors be liable to applicant, or any other person or entity, for any direct or indirect losses, injuries or incidental or consequential damages of any kind (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any Company website, or arising from or in connection with the use of the Program materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of Company services, content or Program materials, including without limitation any losses due to server problems or due to incorrect placement of HTML or other programming languages.
Notwithstanding the foregoing express limitations of liability, you acknowledge and agree that should Company, its officers, employees, successors, or assigns be held liable for damages, injuries or losses of any kind, directly or indirectly resulting from participation in the program, that the aggregate liability arising with respect to and under this Agreement and the Program for any and all claims, injuries, damages or losses will not exceed the total referral fees paid or payable to you under this Agreement.
No Representations Of Success Or Profitability
You hereby confirm and acknowledge that you have unilaterally decided to enter an Internet service business and acknowledge that it is a high-risk business. You further confirm, acknowledge and expressly agree that neither Company, any agent or representative of Company, nor any other person has at any time in the past, represented to You or has otherwise directly or indirectly communicated in any manner to You any guarantee, reassurance or any other communication of any kind regarding:
1. the potential profitability or likelihood of success of your participation in the Program as set forth in this Agreement or otherwise;
2. the possibility or likelihood that use of any products and/or services provided by Company pursuant to this Agreement can or will result in the recoupment of any funds expended by You for the promotion of Your Website or any other purpose; or
3. the existence, nonexistence, size or any other characteristics of any market for any products or services which involve Your participation in the Program pursuant to this Agreement.
4. Applicant agrees that such program is not a franchise or other business opportunity and agrees that such program does not fall within any such act or law. Specifically, these terms and conditions are not by their definition an offer or business opportunity. You further expressly agree not to raise any claim of any kind against Company and you agree to hold Company harmless from any claim of loss to you directly or indirectly resulting from your decision to participate in the Program pursuant to this Agreement.
No Monitoring Or Supervision Provided By Company
Company shall not monitor, supervise or review, and shall not be responsible for any content appearing or otherwise distributed on, at or in association with Your Website except for that content which is supplied to You by Us, provided that said content supplied to You by Us has not been altered or modified by You or any other party.
Term And Termination Of Agreement
You acknowledge and agree that the term of this Agreement is at will and will begin upon Company's acceptance of your Affiliate application and will end when terminated by either party. Either you or Company may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.
In the event that this Agreement or Program is terminated, you shall be entitled to all unpaid commissions or referral fees earned by you prior to the date and hour of termination. However, You shall not be entitled to receive any commissions or referral fees for any "referrals" delivered or received by Company after the date and time of termination.
Entire Agreement; Modification; Assignment This Agreement constitutes the entire agreement between Applicant and Company with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral.
You agree that Company may at any time, in its sole and exclusive discretion, modify the type and quality of benefits provided to you under this Agreement by posting a change notice or a new agreement on this site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
Applicant acknowledges and agrees that the failure of Company to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder.
Applicant agrees that all promises, obligations, duties and warranties made by applicant in this Agreement are personal to applicant and that neither they nor any benefits hereunder may be assigned by applicant to any other person or entity.
You agree that Company may at any time, and without prior notice to you, freely assign all or part of its duties, obligations and benefits hereunder.
Arbitration; Choice of Law Any and all disputes as to the interpretation of or any performance under this Agreement which are not first resolved informally, shall be determined by binding arbitration in: Rules of the American Arbitration Association shall apply. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the State of California and the United States.
This Agreement shall be deemed to have been executed and performed entirely within Cyprus.
All Provisions Of This Agreement Not Deemed Unenforceable Shall Survive Any Unenforceable Provisions In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.
This Agreement Shall Be Deemed To Be Mutually Drafted for purposes of construction of this Agreement, both Company and You shall be deemed to have mutually drafted this Agreement and all parts thereof.
Review By Your Attorney
We strongly advise that you review this Agreement with Your attorney before you enter into it. You acknowledge and agree that nothing herein and no statement by us or any employee, representative, agent or other person associated with us has in any way prevented or inhibited You in any way from seeking such advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair; all terms have been fully disclosed in writing, and that you have been given a reasonable chance to seek advice of independent counsel with respect to this Agreement and all transactions associated herewith.
Acceptance And Execution Of This Agreement
By filling out and submitting the sign-up form, You are agreeing to be bound by all of the terms, conditions, promises, warranties, duties and obligations set forth in this Agreement and Company is agreeing to become a counter-party to the Agreement. The date of execution shall be the date on which the form is forwarded to Company.