This Agreement contains disclaimers of warranties, limitations on liability, releases, a class-action waiver, and the requirement to mediate and arbitrate all claims that may arise under this Agreement. These provisions are an essential basis of this Agreement.
This is a legally binding Agreement between you and tsmatch.com, including any successor or affiliated company or entity. You must be at least 18-years old and have reached the age of majority and legal consent in the jurisdiction in which you live or reside to agree to this Agreement. By clicking on the words “I agree,” “Submit,” or similar syntax, you are electronically signing this Agreement, and therefore agree to be bound by and acknowledge your complete acceptance of all the express and incorporated terms of this Agreement. If you do not agree to this Agreement or do not meet the age requirements, you must not register.
No Prostitution or Sex Trafficking. The promotion of prostitution, escort services, personal companions, etc. are contrary to the purposes of tsmatch.com and will not be tolerated in any fashion. Promoting or offering prostitution or escort services in connection with this affiliate marketing program is strictly prohibited. Affiliate sites that are used for the promotion of prostitution or escort services in any way will be removed from the program. This includes the use of hyperlinks to external websites promoting prostitution, URLs promoting prostitution, and any other activity that tsmatch.com considers as promotions or offers of prostitution or escort services.
THIS AGREEMENT pertains to all web sites owned, operated, published or controlled by tsmatch.com including, without limitation tsmatch.com (hereinafter individually and collectively referred to as "SITE").
Parties addressed in this Agreement:
COMPANY: tsmatch.com (hereinafter "COMPANY") d/b/a tsmatch.com is the sponsor of the affiliate program referred to herein, and may also be referred to as "we," "us," or "our."
AFFILIATE: An independent person or entity wishing to promote the SITE, which may also be referred to as "you" or "your." Designation as an AFFILIATE shall not create a partnership, joint venture, agency, employment or other relationship between COMPANY and AFFILIATE, which shall solely be independent contractors as defined in this Agreement.
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 this Agreement. This Agreement is intended to be accepted electronically pursuant to the Electronic Signatures in Global and National Commerce Act (E-Sign Act)), and other similar laws. You manifest your agreement to this Agreement 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.
Revisions to This Agreement: COMPANY reserves the right to revise, amend, or modify any or all of the terms and conditions of this Agreement and our other policies and agreements at any time and in any manner. You should periodically check this web page for any modifications regarding this Agreement by re-visiting this web page and using the "refresh" button on your browser. You 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 you have clicked the "refresh" button on your browser, you may presume that no changes have been made since the last reading of the Agreement. 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.
WHEREAS, COMPANY has developed an affiliate membership program ("Program") for its SITE and intends to market its online services through independent affiliates using various online and traditional media, and elsewhere;
WHEREAS, AFFILIATE desires to become an affiliate member of the Program, subject to the terms and conditions stated herein; and, WHEREAS, the Parties hereto have determined that it is in their mutual best interest to reduce their agreement to writing. 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:
Grant of License and Affiliate's Content:
Upon acceptance of AFFILIATE into the Program by COMPANY, COMPANY 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, non-transferable, non-assignable, non-sublicenseable, revocable license to use such Materials solely for the purposes set forth in this Agreement.
The COMPANY reserves the unequivocal right to select, alter, delete, add to, or remove any and all Materials for use by AFFILIATE. COMPANY'S Materials may not be used in violation of any term contained in this Agreement. AFFILIATE'S license to use the Materials shall automatically terminate, and all such rights shall automatically revert to COMPANY upon cancellation of the AFFILATE'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 COMPANY in writing. THIS LICENSE IS REVOCABLE AT WILL. SUCH REVOCATION DOES NOT REQUIRE PRIOR NOTICE.
Upon acceptance into the Program, COMPANY will provide AFFILIATE with the information necessary to participate in the Program. Graphics or text may be created by the AFFILIATE only with COMPANY'S prior written consent. COMPANY reserves the right to require any text, online agreement, documents, notices, disclaimers, or age verification devices in its sole and absolute discretion, which AFFILIATE agrees to utilize as specified by COMPANY. AFFILIATE shall be solely responsible for all content available on or through Your site (hereinafter the "Affiliate Website.") You warrant that the Affiliate Website and the materials thereupon will not infringe upon or contain any content that infringes upon or violates any intellectual property rights, or otherwise violates any applicable law, rule or regulation. We shall have no obligations with respect to the content available on or through any participating website, including but not limited to, any duty to review or monitor any such content. Pursuant to 47 U.S.C. §230, COMPANY is not responsible for materials created by third parties, appearing on our SITE. In addition, You are solely responsible for the content on Your Affiliate Website. As more fully described infra, COMPANY 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 created by AFFILIATE shall be owned by COMPANY upon creation. AFFILIATE'S license to use the Materials shall automatically terminate, and all such rights shall automatically revert to COMPANY upon cancellation of the AFFILIATE'S membership or withdrawal from the Program by the AFFILIATE.
To begin the enrollment procedure, you must electronically submit a completed COMPANY Application form through our Affiliate SITE located at: tsmatch.com. 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.
We reserve the right to accept or reject applications for any or no reason, in our sole and absolute discretion including, but not limited to: Unlawful content appearing on your Web site; Defamatory, obscene, child pornographic, harassing, or otherwise objectionable content appearing you your Web site;
If your Web 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;
If you or your Web site encourages password theft or hacking;
If your Web site does not receive a sufficient number of unique hits;
If you appear to utilize deceptive, unlawful or unfair promotional tactics or devices;
If your Web site or content found thereon violates our Acceptable Use Policy; or,
If COMPANY deems your application or Web site to be unsuitable for any reason.
We will reject applications for affiliates who use URLs that are confusingly similar to COMPANY trademarks.
Affiliate's Notification Duty:
AFFILIATE agrees to notify COMPANY of all URLs where the SITE will be promoted.
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 in this Agreement. Acceptance is effective upon clicking "I Accept" or any similar syntax, and/or the installation or opening of any COMPANY software or any other COMPANY product.
Compensation and Benefits:
AFFILIATE will be compensated in accordance with:
the pay per sign up program, which pays AFFILIATE per confirmed sale, at the rate specified in AFFILIATE's account.
the mobile program payout, which pays AFFILIATE per valid United States mobile telephone number as confirmed by COMPANY'S mobile provider, at the rate specified in AFFILIATE's account.
the pay per lead program, which pays AFFILIATE per confirmed male lead, at the rate specified in AFFILIATE's account.
the revenue share program, which pays AFFILIATE a revenue share of each new member, at the rate specified in AFFILIATE's account.
the custom payout program, which pays AFFILIATE a rate to be agreed to and specified in AFFILIATE's account.
the pay per single-opt join program, which pays AFFILIATE per male single-opt join, at the rate specified in AFFILIATE's account.
Any AFFILIATE who converts less than one (1) out of thirty (30) leads to a sale may be moved to our revenue share program, at our discretion.
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.
COMPANY is not responsible for any billing errors that are not brought to its attention within 15 days from receipt of billing information by AFFILIATE.
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.
AFFILIATE will receive no commission for activity determined to be fraudulent by COMPANY, 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.
COMPANY will also deny commission for any links coming from any practices that violate the Acceptable Use Policy as described in this Agreement. Any Web site found to be engaging in such actions will not receive any credit or payment and will forfeit any and all credit or payment earned.
AFFILIATE agrees that COMPANY, 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.
Billing and Disbursement:
COMPANY 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 COMPANY and may be changed unilaterally by COMPANY, at COMPANY'S sole convenience. Disbursements are made to AFFILIATE by the COMPANY on the 10th and 25th days of each month, or on the first business day following a weekend or holiday. Payments on the 10th of each month represent revenue generated from the 15th through the end of the preceding month. Payments on the 25th of each month represent revenue generated from the 1st through 15th days of each month.
AFFILIATE must provide COMPANY with AFFILIATE'S Social Security Number or Federal Tax ID, if requested. Failure to provide COMPANY such information may result in termination of this Agreement.
Acceptable Use Policy for Affiliates:
AFFILIATE agrees to be bound by the following general policies in connection with all content with which COMPANY'S Materials are associated:
Promotion of the SITE through the use of "Prohibited Content" is forbidden. Prohibited Content includes, but is not limited to: illegal activity, prostitution, sex trafficking, real or simulated underage material, incest, warez content, scat, coffins, defecation, urination, genital mutilation, sacrilegious material, teen modeling, actual or simulated rape, sexual violence, menstruation, obscenity, actual or simulated activities with animals, any form of force, fraud, or coercion, weapons, intoxication, unconscious activities, threats of physical harm to persons or property, programs containing viruses, pirated software, wire fraud, gambling, drug trafficking, and/or violations of international export control laws. COMPANY reserves the right to review and/or reject any content created and/or posted by AFFILIATE.
Any fraudulent, deceptive or unfair transactions or trade practices are strictly forbidden. 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.
COMPANY may not be promoted on any Web site that encourages password trading, distribution, or hacking. COMPANY may not be prosecuted through the direct or indirect use of warez content, "spamming" (unsolicited commercial messages prohibited by state or federal law), listing on newsgroups, search engines, bulk messages, or hidden frames. AFFILIATE shall not engage in any activities that may be harmful to the image, goodwill, reputation, or intellectual property rights (including but not limited to copyrights, trademarks, service marks, trade names, common law rights and/or patent rights) of COMPANY or any third party. AFFILIATE shall not directly or indirectly display on AFFILIATE'S Web site any advertising links, banners, or promotional materials for SITE other than those that have been pre-approved in compliance with this Agreement. AFFILIATE shall not advertise Company's "textndate" product on Their website(s) and/or any affiliate website(s) containing adult content that can, in any way, be categorized by a reasonable person as the following: "A website whose business operation focuses on adult-oriented themes or entertainment, and includes depictions and/or descriptions of nudity, eroticism, and/or sexual activity."
AFFILIATE may not advertise or attempt to use any express or implied discussion of sexual activity for money in connection with COMPANY.
AFFILIATE may not attempt to cheat, defraud or mislead COMPANY in any way.
Violation of the restricted nonexclusive license provided in this Agreement is prohibited and may result in termination of AFFILIATE'S account.
AFFILIATE may not use COMPANY's material or images to promote other sites.
AFFILIATE 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.
The free areas of the submitted Web site must not contain sexual activity, illegal activity, or lascivious display of the genitals. All such content must be restricted to the password-protected or otherwise age verified areas.
AFFILIATE may not circumvent, or attempt to circumvent, any access screen implemented by the COMPANY, requiring users to enter their birth date and requiring agreement to COMPANY's Terms and Conditions.
COMPANY enforces a strict, zero tolerance policy with respect to underage content. No site may use models under the age of eighteen (18) when the content was created, 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. Further, COMPANY will cooperate fully with law enforcement, including the rendering of substantial assistance toward the investigation, prosecution and conviction of those in violation of COMPANY's zero tolerance policy.
AFFILIATE'S Web site(s) must contain all information required by 18 U.S.C. §2257, and/or §2257A, as amended, and must be supported by all required documents.
AFFILIATE may not "hotlink" to any of COMPANY'S images, banners and/or graphics.
AFFILIATE must provide within 24 hours, upon request by COMPANY, access to any password protected area where SITE has been or is being promoted.
AFFILIATE warrants that all materials shall only be transmitted and distributed by AFFILIATE'S Web site to willing adults.
AFFILIATE may not solicit or permit any minor to become a customer of the Web sites.
AFFILIATE agrees not to utilize any false, misleading or infringing metatags or other site identifiers, tied to the AFFILIATE'S site. AFFILIATE is not permitted to use COMPANY's trademarks, brand names, 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, illegal or Prohibited content may be found on AFFILIATE's Web site.
AFFILIATE agrees to indemnify and hold COMPANY harmless from any and all liabilities, claims, damages (including attorney's fees), threatened or incurred as a result of AFFILIATE's activities or omissions as set forth in Section XIII. COMPANY shall retain the discretion to interpret, modify, terminate and/or enforce any of the general policies for AFFILIATE. 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.
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 COMPANY to randomly select a URL. The General Policies outlined above apply to the content contained on any Pop Up windows.
Promotional Restrictions and Spam:
AFFILIATE may use any reasonable promotional tool desired, with the following exceptions:
SPAM. AFFILIATE agrees not to use the facilities and capabilities of SITE to solicit the performance of any activity that is prohibited by the CAN-SPAM Act dealing with illegal distribution of Unsolicited Commercial Bulk Email ("UCBE"), commonly known as "spam," nor shall AFFILIATE forge or use without authorization, any mail header information. AFFILIATE agrees to the COMPANY'S Spam Policy, found at the bottom of your affiliates dashboard, which is hereby incorporated by reference. Any breach of the COMPANY'S Spam Policy will result in immediate termination from the Program and forfeiture of any further commissions or payments. If AFFILIATE uses unsolicited email, which does not strictly comport with the provisions of the CAN-SPAM Act, AFFILIATE will be immediately terminated and no commissions will be paid to any such offending AFFILIATE. If such conduct is suspected, any commissions will be withheld. COMPANY reserves the right to conduct random audits of AFFILIATE to determine whether this provision is being complied with, and any suspected offending activity will result in immediate termination and suspension of all payments. Any violation will result in the forfeiture of any payments due.
NO DECEPTIVE ADVERTISING. All forms of deceptive or unfair advertising are prohibited. If AFFILIATE is uncertain as to the requirements of federal advertising law, AFFILIATE understands that it should obtain legal advice before engaging in any promotion. More information about deceptive trade practices can be found here: www.FTC.gov.
END USER CONTACT INFORMATION: The parties contemplate that contact information obtained by AFFILIATE from its end users may be shared with the COMPANY for the purpose of marketing and promotion of products and/or services to the users. Accordingly, AFFILIATE agrees that it will provide a "clear and conspicuous" (as defined by the Federal Trade Commission, www.FTC.gov) request for consent by the user, and obtain such consent, to receive electronic messages from COMPANY relating to its products and/or services. AFFILIATE shall provide this clear and conspicuous request for consent separate and apart from its standard user terms of service. Affiliate shall further obtain agreement from its users allowing COMPANY to create login credentials for the user, and transmit those credentials to the user by electronic message. This agreement shall be obtained separate and apart from the consent referenced above, and shall be obtained separate and apart from AFFILIATE's standard user terms of service. Notwithstanding any conflicting provisions contained elsewhere in this agreement, COMPANY provides AFFILIATE with limited, revocable agency to secure agreement from its users on behalf of COMPANY for this specific purpose, and for no other. The parties hereto do not intend to create any general agency relationship by the above provision, and it is agreed that this provision shall be narrowly construed for its intended purpose.
Age of Majority:
COMPANY 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 robust age verification. Therefore, the SITE adopts the following policies with regard to online age verification: Users must only access images depicting sexual activity or lascivious display of the genitals or pubic area (i.e. hardcore images) by passing through some form of effective online age verification, beyond a list statement that the user is over the age of 18; or Alternatively, users must be restricted to accessing pages or content, or Material containing only soft core (i.e. no hard core as described above) materials, which will be separately identified and provided by the SITE.
"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.
Notwithstanding the foregoing, Confidential Information shall not include information which: Is known to the receiving party at the same time of disclosure or becomes known to the receiving party without breach of this Agreement; Is rightfully received from a third party without restriction on disclosure; Is independently developed by the receiving party or any of its subsidiaries; Is furnished to any third party by the disclosing party without restriction on its disclosure; Is approved for release upon a prior written consent of the disclosing party; or Is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
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.
Upon the request of the disclosing party, the receiving party will promptly return all Confidential Information furnished hereunder and all copies thereof. 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.
Intellectual Property Rights:
The parties agree that: Each party's trademarks are and shall remain the sole property of that party; Nothing in this Agreement shall convey to either party any right of ownership in the party's trademarks; Neither party shall now or in the future contest the validity of the other party's trademarks; and Neither party shall in any manner take any action that would impair the value of, or goodwill associated with, such trademarks.
The Parties acknowledge and agree that all use of the other party's trademarks by a party shall inure to the benefit of the party whose trademarks are being used. 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.
At any time, COMPANY 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.
AFFILIATE may not register or use any domain names that are identical to, confusingly similar to, or typographical variants of COMPANY's trademarks or domain names. Violations of Others' Marks: The AFFILIATE is not permitted to register any Uniform Resource Locator (URL) or world wide web address that contains or infringes upon any other person or entity's trademarks. AFFILIATE may not register URLs that contain any terms that are confusingly similar to any other person or entity's trademarks, service marks, trade names, or URLs. This includes use of any URLs that may be considered to be cybersquatting on another person or entity's trademark rights, including but not limited to, those owned by COMPANY and discussed herein. If the AFFILIATE violates this provision or infringes on the trademark rights or other intellectual property rights of any other third party, COMPANY will cooperate with any aggrieved party who can demonstrate that the AFFILIATE has engaged in conduct that could be reasonably considered to be an infringement upon that party's legitimate trademark or other intellectual property rights, and who can show that the AFFILIATE's URL violates those rights.
If COMPANY has a reasonable belief that AFFILIATE's URL is in violation of another's rights, COMPANY reserves the right to do the following: Provide the AFFILIATE's personally-identifying information to the aggrieved party so that the party may contact the AFFILIATE in order to serve formal demand upon the AFFILIATE, or so that the trademark owner may serve proper legal process upon the AFFILIATE. If a lawsuit also determines that the legitimate trademark holder is entitled to damages, any funds that remain in the AFFILIATE's account may be turned over to the aggrieved party, if an arbitrator, mediator, court, or other adjudicative body so orders. Withhold any funds otherwise due to the AFFILIATE in order to reimburse COMPANY for any administrative or other expenses incurred in executing our rights under this Agreement. This includes paying our own attorneys to evaluate any reasonable claims made against the AFFILIATE. If the claims are determined to be meritless, the AFFILIATE will receive reimbursement of any withheld funds. Violations of Our Marks: This Agreement covers all of the following marks, whether rights to them are derived from registration or from the common law, whether they are registered or recognized in your country or jurisdiction or not: tsmatch.com
Hereinafter, these marks will be referred to as "Our Marks."
AFFILIATE specifically acknowledges that any of Our Marks are retained by us and are not owned by the AFFILIATE, licensed by the AFFILIATE, or useable by the AFFILIATE except to the extent specifically outlined in this Agreement. As a specific matter - the AFFILIATE is not permitted to register any URL or world wide web address that contains any of Our Marks or URLs that contain any terms that are confusingly similar to Our Marks or our URLs. AFFILIATE may not register any URL or world wide web address that consists of, or contains, common or likely misspellings of Our Marks or any URLs operated by us or our partners. In the event that you wish to register a URL and you are unclear as to whether the URL would be considered to be a violation of this rider, you must pre-notify. Upon receipt of your request, we will issue a determination to you within seventy-two (72) hours as to whether the URL would be a violation of our rights. If we determine that the URL would not be a violation of our rights, we will notify you within seventy-two (72) hours with express permission to register the URL. Upon receipt of our permission, you may register the URL and operate it according to the rights and responsibilities of the Affiliate Agreement. In the event that you do not receive a response from us within seventy-two (72) hours, you should consider registration of the URL to be a violation of this Agreement and you should not register the URL.
If you have pre-notified us of a proposed URL that we believe would be violative of our rights, we will register the URL ourselves. However, you will be permitted to operate the URL under the following conditions: You remain an AFFILIATE in good standing. You do not operate the URL to promote any commercial enterprise except those we expressly authorize (in writing). You do not otherwise violate this Agreement or any of its riders or other documents that are, or may be, incorporated by reference from time to time. If any of these conditions are triggered, any Web site at the URL in question will be immediately removed from the world wide web, your account will be terminated, and all funds otherwise due to you will be retained by us and will not be paid to you. If we serve you with a demand or request to transfer any URL that we believe, in our sole discretion, is a violation of any of our rights in Our Marks, you shall pay five thousand dollars ($5,000) in liquidated damages if we are determined to be the prevailing party in any dispute over the domain name. We reserve the right to waive this amount in exchange for rapid compliance with our demand. Upon issuance of our demand, we have the option of treating the AFFILIATE as a violator under this Agreement and we may take the role of the "Aggrieved Party."
We may also exercise the following rights against the AFFILIATE:
Upon demand, the AFFILIATE must transfer the offending URL to us. If the demand is not met within seventy-two (72) hours of the demand being sent via e-mail, then the AFFILIATE agrees to pay us an additional two-hundred and fifty dollars ($250) in liquidated damages per twenty-four (24) hour period or portion thereof until the domain is transferred to us. We reserve the right to withhold any payments otherwise due the AFFILIATE in escrow in order to collect these liquidated damages from the AFFILIATE. We will not collect them from escrow until you have exhausted or waived your appeal rights and other legal remedies.
If the AFFILIATE transfers the domain within seventy-two (72) hours of the initial request, then the AFFILIATE will be permitted to continue to operate the domain as a licensee, without interruption, as long as the AFFILIATE pays any liquidated damages that are due, and as long as the AFFILIATE is otherwise in compliance with the terms of all applicable agreements with us, including all of the terms of this Agreement. In various portions of this Agreement, liquidated damages are outlined. In agreeing to pay these liquidated damages, the AFFILIATE acknowledges that these amounts are not penalties, and that the actual damages are uncertain and difficult to ascertain, but that these amounts represent the parties' good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
If we are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from the AFFILIATE, or if we are required to seek the assistance of an Attorney to pursue legal or equitable claims against the AFFILIATE, or if we are required to file a complaint under the UDRP (or similar domain name arbitration proceedings) against the AFFILIATE in order to bring about the transfer of an offending URL to us from the AFFILIATE, then the AFFILIATE additionally agrees that the AFFILIATE will reimburse us for all fees incurred in these proceedings.
The AFFILIATE understands that recovery of even a nominal amount of damages in a court of law may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. The AFFILIATE agrees that the AFFILIATE will pay all of these fees and costs. The AFFILIATE agrees that we may withhold any of the AFFILIATE's otherwise-due payments in order to collect these liquidated damages from the Affiliate.
The following termination rights are in addition to the termination rights that may be provided elsewhere in this Agreement:
Mutual Right to Termination Upon Notice: Either COMPANY, 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 COMPANY 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 trademarks and Materials referring to or supplied by COMPANY, including banners and promotional materials.
Affiliate's Right to Terminate: AFFILIATE shall have the right to terminate this Agreement at any time by providing written notice to COMPANY, however, any and all customer rebills are forfeited from the date of termination forward. COMPANY's Right to Terminate: COMPANY shall have the right to terminate this Agreement at any time.
Disclaimer and Limitations:
You expressly agree that Your use of the services is at Your sole and exclusive risk. The services are provided on an "as is, with all faults" and "as available" basis. We expressly disclaim 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. We make no warranty that the services will meet Your requirements, or that the services will be uninterrupted, timely, secure, or error free; nor do we 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. You understand and agree that any use You make of any material and/or data downloaded or otherwise obtained through the use of the services is at Your own discretion and risk, and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data.
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 We are held liable to You for damages, the total amount of liquidated damages for any and all claims shall not exceed one hundred dollars (US$100.00).
You shall remain solely responsible for the operation of Your own Affiliate Website, and We shall remain solely responsible for operation of the Program and its Site. Each Party acknowledges that the other's Site may be subject to temporary shutdowns due to causes beyond the operating Party's reasonable control.
AFFILIATE agrees to defend, indemnify, defend, and hold COMPANY 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:
Any breach of AFFILIATE'S covenants under this Agreement;
AFFILIATE'S use (or misuse) of the SITE and/or Program;
All conduct and activities occurring under AFFILIATE'S user ID and password;
Anything related, directly or indirectly with AFFILIATE'S Web site, Content, information or data;
Any defamatory, libelous or illegal material contained within AFFILIATE'S Web Site, Content, information or data;
Any claim or contention that AFFILIATE'S Web site, Content, information or 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;
Third party access or use of AFFILIATE'S Web site, Content, information or data;
Any claim related to Affiliate's Web site; or
Any violation of this Agreement.
COMPANY 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. In such case, COMPANY shall be permitted to select its own counsel to represent its legal interests. AFFILIATE shall not settle any such claim or liability without the prior written consent of COMPANY.
AFFILIATE understands that COMPANY 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 COMPANY. AFFILIATE also understands that COMPANY will charge, on an hourly basis, for any and all time spent by its staff or legal representatives responding to any third party complaints, disputes, copyright claims or actions involving AFFILIATE or AFFILIATE'S Web site.
Relationship of the Parties:
The relationship between COMPANY 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, unless expressly provided otherwise herein.
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, data breach, SPAM, net congestion, or any failure of a computer, server or software. 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.
Notice and Payment:
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 UPS. Payments may be made electronically, through wire transfer, PayPal, or other commonly utilized methods. Either party may change the address to which notice or payment is to be sent by providing written notice to the other party under any provision of this paragraph.
This Agreement shall be governed in accordance with the State of California. All disputes under this Agreement shall be resolved by litigation in the courts of the State of California 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 San Joaquin County, California.
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.
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.
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.
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.
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.
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.
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. Further, both parties have had an opportunity to seek legal counsel of their choice.
The parties acknowledge the legally binding nature of this Agreement. By clicking on the "SEND APPLICATION" button (or similar language) on the following website: tsmatch.com, AFFILIATE is affirmatively stating that AFFILIATE has read and understands the terms set forth herein and that AFFILIATE agrees to be bound by the terms hereof. AFFILIATE hereby adopts the /s/ mark appearing on the signature line below, as AFFILIATE"S electronic signature on this document.