TERMS OF SERVICE
Please read the following Affiliate Webmaster Agreement (the "Agreement"). When you enroll to a GossipKings.com (the "Program") affiliate, you agree to all of the terms and conditions of this Agreement. Please read the following terms and conditions carefully, as they form the agreement between you, the Webmaster, and the Program. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND PROGRAM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOT COMPLETE THE APPLICATION FORM TO BECOME AN AFFILIATE WEBMASTER (referred to herein as "Affiliate", "Webmaster" or "you"). BY COMPLETING THE APPLICATION FORM TO BECOME AN AFFILIATE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.
Enrollment in Program
By completing the necessary form(s) to enroll in Program, you are represent and warrant to Program that you are over the age of 18 or the age of majority in your jurisdiction, whichever is higher ("Age of Majority"), and that you are capable of entering into this Agreement. Program reserves the right to either refuse to accept your enrollment or to immediately terminate your membership to Program, if Program, in Program's sole and absolute discretion, believes you to be under the Age of Majority. By completing such form(s) you are also certifying to Program that the laws in your jurisdiction do not in anyway prohibit you from entering into this Agreement.
You understand that your ability to enter into and perform under this Agreement is contingent upon Program's acceptance of your application and your ability to access the Internet and that you are solely responsible for any costs associated with your responsibilities under this Agreement including, but not limited to, setting up any websites, connecting to the Internet, maintaining any websites and hosting any websites. You acknowledge and agree that while Program may offer free hosting at the time that you apply to Program and/or are accepted to Program, any such free hosting service by Program may be revoked at any time and that you will be required to find and pay for hosting services for any websites you create under this Agreement.
You are hereby granted a revocable, non-exclusive, non-transferable license to access and download promotional banners, videos, photographs, other promotional materials, and/or promotional materials created by you, provided that such materials are approved by Program in writing ("Ad Tools"), for use on site(s) owned by you ("Referral Sites") in order to refer traffic to websites owned, controlled and/or operated by us (the "Sites" or "Site Names"). Please click here for a list of such Sites. Such Promotional Items are licensed to you for the limited purposes of advertising, marketing and promoting Member Sites. Any and all licenses granted to you pursuant to this agreement shall immediately cease and revert to Program upon the termination or cancellation of this agreement.
You agree not to share any of the Promotional Items with anyone, in any way except as in accordance with the terms of this Agreement and applicable law. You represent and warrant that you will only use the Site Names, Referral Sites, Promotional Items and/or the Sites in compliance with all applicable laws, including Spanish Federal Laws.
Your Website Names
Subject to the limitations in the paragraph above and pursuant to the license granted to you herein, Program will permit you to use any and all Site Names that you may choose in connection with promoting the Sites so long as such website domain name(s) registered by you does not infringe on Program's, Program's affiliated entities' or any third party's intellectual property rights, defame, insult or otherwise harass anyone, and does not promote or suggest any illegal activity. Again, you understand and agree that the limited, revocable license granted herein is limited by the conditions set forth above including, without limitation, the limitation that you are not permitted to register or use any domain names that are substantially similar to the Site Names or any website names belonging to any of our affiliated entities.
You agree to register with Program all domain names you use, own, create, manage and/or control in connection with this Agreement. Program will not compensate you for any referrals to the Sites, for which you would otherwise be due a payment for under this Agreement, if the referring site is not registered with Program. Should Program compensate you for any referral(s) from a site or sites not registered with the Program, you hereby acknowledge and agree that such payment is in error and that you are not in any way entitled to further payments for referrals from such site(s). You further acknowledge and agree to inform Program of any such payment error and that such erroneous payments may stop at any time with no liability to you by Program.
Representations to Program
You hereby represent and warrant that you will put safeguards in place, including, but not limited to an "age verification" page, so that no persons who have not yet attained the Age of Majority may view any and all Promotional Items which may contain explicit images. You further represent and warrant that you will not "deep link" so that a person referred to the Sites does not first have to confirm that he/she is at least the Age of Majority.
You further warrant that you have all legal rights, free from any and all encumbrances and third party claims, to all images, text, script(s), applications, logos and functional elements appearing on all Referral Sites.
You represent and warrant that you will only advertise on services and providers which permit such advertisement and that you will not advertise our Sites on any website or service which promotes any activity or which may be covered under the section of this Agreement entitled "Termination". You understand and agree that if you advertise for any service or provider which does not permit such advertising, including, without limitation, Myspace and Craigslist, you may be terminated if you do not immediately remove such advertisement after being notified that such advertisement is not permitted.
Enrollment with Program
Program endeavors to evaluate every application to us in good faith and as quickly as possible. Program reserves the right to deny an application for any reason, including but not limited to:
1. You supply us with inaccurate or incomplete data, and
2. You are attempting to register from one of the following countries: Albania, Armenia, Azerbaijan, Belarus, Brazil, Bulgaria, China, Cost Rica, Georgia, Hungary, India, Indonesia, Israel, Japan, Jordan, Kazakhstan, Korea, Kyrgyzstan, Latvia, Lithuania, Malaysia, Moldova, Pakistan, Poland, Romania, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan and Yugoslavia.
UNNACCEPTED FORMS OF MARKETING THE SITES
Program does not permit marketing or promotion of the Sites via email, forum/guestbook/comment spam, instant messenger, posts to social networking sites, and/or posts to twitter. You acknowledge and agree that any email marketing by you will be grounds for immediate termination from Program, without pay.
Program only allows linking to the provided linkcodes in the webmaster area. You acknowledge and agree that by linking in any other way will be grounds for immediate termination from Program, without pay.
Program does not permit false advertising such as promoting content we do not have or that does not exist (such as fake, alleged or non-existant sex tapes). Sales generated by such promotion will not be paid and may result in account termination without payment.
Program does not permit advertising trough ads and banners from other sites/programs. Sales generated by such promotion will not be paid and may result in account termination without payment.
Emails from Program to You
You acknowledge and agree that it may be necessary for Program to email you with information regarding your account with Program and changes to Program. For that reason, you warrant to Program that at all times while you are a Webmaster for Program you will keep an accurate, working email address on file with Program. You further acknowledge and agree that while Program has the right to send such emails to you, Program is under no obligation to do so regardless of any emails Program may have sent t you in the past or may send to you in the future.
You understand and agree that you are required by this Agreement to supply Program with a valid email address and other contact information, a failure to do so may result in the termination of your membership with Program.
Program warrants it will supply all webmasters in good standing with Program with accurate and up-to-date information with respect to the Custodian for all Promotional Materials provided by Program to you. You understand and agree that you will post the Custodian information provided to you by Program on all of your websites associated with and linking to the Sites. You further agree that in the event Program requests that you change the Custodian for any reason, you will immediately do so. A failure to so change the Custodian as well as any other violation of this section will result in your immediate termination, without further notice, from Program and all amounts earned by you through Program, but not yet paid, will be immediately forfeited by you. You further understand and agree that to suggest or imply the Custodian has records for materials not supplied to you by Program is also a material breach of this Agreement and this Section.
Payout Switch in PPS (Pay Per Signup) Program
Program reserves the right to switch any affiliate from PPS to Revshare
when the affiliate's joins are unprofitable for Program. Switching from PPS
to Revshare happens automatically when the affiliate's join quality gets
below the threshold set by Program. The account will
be automatically switched back to PPS once the quality of the joins
In furtherance of this Agreement, Program may disclose to you certain confidential information with respect to Program's business dealings, business model or other information which Program does not make available to the general public ("Confidential Information"). You agree to keep such Confidential Information in the strictest confidence until such time as Program makes such Confidential Information widely available to the general public. You further agree that in the event you receive any subpoena, complaint, court order or other official request or demand pertaining to the Confidential Information, you will immediately forward such to Program and that Program shall have the opportunity and the right to seek protective relief to prevent a disclosure of the Confidential Information.
Nothing in this Agreement is intended by you or Program to constitute a joint venture or collaboration between you and Program. You acknowledge that you are in no way an agent, employee or similarly situated employment like relationship. You further acknowledge that you are only an affiliate of Program and have no authority to act on Program's behalf or bind Program to any debt or agreement. You agree that you will be solely responsible for the development, operation and maintenance of your Referral Sites and for all materials that appearing on such Referral Sites. You further agree that you are solely responsible for the development, operation and maintenance of the Referral Sites and for any and all materials appearing on such Referral Sites.
Program offers to webmasters several different programs, which are described at http://secure.ebonyhollywood.com/external.php?page=programs. Program issues payments to webmaster (each Payout) based upon the number of user registrations (Registrations) sent to Program, subject to the terms of this Agreement, on a biweekly basis (each a Pay Period). You acknowledge and agree that these payout levels may be changed at any time and that the posting of such change at least seven (7) days prior to such change taking effect shall be deemed adequate notice to you. In all circumstances, Program will only pay Webmaster for valid subscriptions. Please see below for information with respect to what Program may deem an Invalid Subscription.
Program pays out on a biweekly basis. Payouts are based upon the amount of valid referrals, as set forth above, from sites registered by you with Program based upon our ability to track such referrals, which valid referrals result in a valid subscription to any of the Sites ("Valid Subscriptions"). You understand and agree that all Payouts by Program to you, must be cashed within ninety (90) days of such payout's issuance or such will be deemed forfeited by you to Program. You understand and agree that any dispute or question you may have regarding the amount of any Payout(s) must be called to the attention of the Program within ninety (90) days of the issuance of such payment or all your rights with respect to such dispute shall be deemed permanently waived by you. Similarly, in the event that Program believes that any payments were made in excess of the amount due to you, Program brings such overpayment to your attention within ninety (90) days of such payment.
Change to Payment Information
You agree to notify Program of any change in your payment information at least seven (7) days before the close of any pay period. No changes to your information are valid until you have received written confirmation from Program.
You acknowledge and agree that you shall not be entitled to any compensation from Program for and subscription if Program determines or believes, in Program's sole discretion, that such subscription is the result of possibly fraudulent activity. Following is a list of what Program deems to constitute fraudulent activity:
- Multiple subscriptions coming from the same I.P. address within a short period of time;
- Subscriptions by Webmaster's family;
- Multiple or sequential subscriptions with credit cards which have the same bin number;
- Multiple subscriptions from the same credit card number;
- Subscriptions which are cancelled within twenty-four (24) hours of sign-up;
- Credit card used for subscription is in a "negative" database;
- Credit card with a bin number which is listed in the "negative" database; and
- A sudden surge in subscriptions from any or all of your sites, when such site(s) suddenly has a drastic increase in subscriptions.
You acknowledge and agree that the foregoing list is not an exhaustive list of all conduct which may constitute fraudulent activity, for which you will not be compensated. You further acknowledge and agree that the foregoing list may be changed at any time, as Program may deem necessary. You understand and agree that Program may terminate or suspend your account based upon Program's determination that one or more subscriptions are invalid.
Suspension or Termination
Program reserves the right to either terminate or suspend your status with Program in the event that referrals from your sites are subject to a high rate of Invalid Subscriptions, "chargebacks" or cancellations of accounts. Program further reserves the right to terminate or suspend your account with Program if you have a high rate of fraudulent activity with respect to referrals as such are outlined in the immediately preceding section.
In addition to reasons for termination mentioned previously herein, Program reserves the right to immediately terminate your account with Program, without notice to you, if at any time:
- you purchase or attempt to purchase any of our Site Names as a Google AdWord or any similar advertising device;
- Program has previously terminated you;
- the inclusion of any defamatory, obscene, harassing, or content which is otherwise contrary to law;
- any of your sites making referrals to Program promotes, aids or abets the sale, re-sale or trading of Program passwords;
- participating in any activities that may be harmful to the reputation, image, goodwill and/or reputation of Program and/or the Sites;
- permitting access to or sharing the Promotion Materials to individuals under the Age of Majority;
- attempting to circumvent Program's and/or the Site's age verification pages;
- a Referral Site has references to; photographs or video depicting; promotes; or in any way suggests Program or the Sites contain or endorse: child pornography, incest, scat, coffins, defecation, urination, genital mutilation, sacrilegious, teen modeling, actual or simulated rape, sexual violence, menstruation, obscenity, and/or bestiality;
- any material, date, file(s), program or other material which contains viruses, Trojan Horses or any other destructive script or program on any of your sites promoting the Sites. Program may immediately terminate this Agreement and all monies owed to you by Program will be deemed forfeited by you.
Either party may terminate this Agreement by delivering to the other written notice of cancellation. An email sent by Program to the email address associated with your account shall be deemed adequate notice to you, whether or not you actually read such email.
Effect of Termination or Cancellation
Immediately upon termination or cancellation any and all licenses granted to you herein cease and revert to Program. You agree to immediately remove from any and all websites owned, controlled, managed, and/or maintained by you and destroy all copies of the Promotional Items. If at the time of termination or cancellation you manage, own, operate or otherwise control a website which incorporates the Site Names or misspellings thereof, you agree to transfer such websites to the Program within twenty (20) days of termination or cancellation. Upon the request of Program, you agree to mail to Program written confirmation that all Promotional Items have been removed and destroyed. You understand that your failure to comply with this section will result in irreparable harm to the Program and the intended third party beneficiary. Program reserves the right to take any and all legal actions necessary to enforce the provisions of this section against you including, without limitation, monetary damages, injunctions, and actions for specific performance.
YOU EXPRESSLY AGREE THAT YOUR PERFORMANCE UNDER THIS AGREEMENT AND USE OF THE PROMOTIONAL MATERIALS ARE AT YOUR SOLE AND EXCLUSIVE RISK. ALL MATERIALS AND SERVICES PROVIDED BY PROGRAM ARE ON "AS IS, WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. PROGRAM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. PROGRAM MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES PROGRAM 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 PROGRAM 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. YOU ALSO AGREE TO BE SOLELY LIABLE TO PROGRAM FOR THE LOSS OF ANY DATA AND/OR MATERIALS PROVIDED TO YOU BY PROGRAM, INCLUDING BUT NOT LIMITED TO DAMAGE CAUSED AS A RESULT OF HACKING AND/OR VIRUSES.
You agree to defend, indemnify, defend, and hold Program 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 (a) any breach by you of this Agreement; (b) your use (or misuse) of Program's services and/or Promotional Materials; (c) all conduct and activities occurring using your account and/or Referral Sites; (d) any item or service sold or advertised in connection with your Referral Sites; (e) any defamatory, libelous or illegal material(s) contained within your Content or material(s) or your information and data; (f) any claim or contention that any of your Referral Sites contain any information, data or other materials which infringes any third party's patent, copyright, trademark, or other intellectual property rights or violates any third party's rights of privacy or publicity; (g) third party access or use of the Promotional Materials provided to you information and data; (h) any claim related to your website(s); (i) any costs incurred on your behalf as a result of your failure to comply with local or Federal United States Law; (j) any financial or privacy issues arising from breached security of your account; and/or (k) any violation of this Agreement. Program reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from you, but shall have no obligation to do so and Program is permitted by this Agreement to later seek indemnification from you. You shall not settle any such claim or liability without the prior written consent of Program, which consent shall not be unreasonably withheld. You understand that Program will take any and all measures to protect itself from any legal or civil litigation including, but not limited to, removing your website(s) from its servers and/or canceling your account, in Program's sole discretion. You also understand that Program will charge, on an hourly basis, for any and all time spent responding to any third party complaints, disputes, copyright claims or actions involving you or your Referral Sites.
Notice and Account Information
Any notice or payment required by or in furtherance of this Agreement may be provided by email to the email address on file for the party to be noticed, or personal delivery by commercial carrier such as FedEx or Airborne. You agree to keep current email and address information on file with Program for this purpose.
Notice shall be deemed effective upon receipt by the other party, except as provided for herein. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day.
In the event that any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
Waiver of Liability
You hereby waive any and all damages, including interest, on any monies not received by you as a result of your violation of this section.
Jurisdiction and Costs
You hereby agree that all disputes arising out of this Agreement shall be governed by the laws of and governing HongKong, HK, excluding its conflict of law provisions. You and Program hereby agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. You and Program hereby submit to the exclusive jurisdiction of the state and federal courts HongKong, HK for resolution of all disputes. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in HongKong, HK.
In the event either you or Program 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 attorneys' fees and costs incurred in connection therewith, including attorney's fees incurred on appeal.
Non-Transferable or Assignable
You agree and acknowledge that you are not permitted to assign this Agreement to any third party and any attempt to do so will be deemed as your notice of termination.
Program's failure to enforce any and all remedies shall not be construed as a waiver thereof.
Headings are used herein for ease of reference purposes and shall not be used in interpreting, construing and/or enforcing this Agreement.
The invalidity, illegality or unenforceability of any part of this Agreement or any of its terms, as determined by a court of competent jurisdiction, 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.
Entirety of Agreement
Except where expressly stated to the contrary herein, this Agreement constitutes the entire agreement and understanding between you and Program, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
You and Program acknowledge the legally binding nature of this Agreement. By utilizing this website, you are acknowledging and affirmatively stating that you have read and understood the terms of this Agreement and that you agree to be bound by this Agreement. You hereby adopt the /s/ mark appearing on the signature line below as your electronic signature on this document. IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each signed this document electronically pursuant to the E-SIGN Act.