| Woof Cash: Terms and Conditions
WOOFCASH WEBMASTER AFFILIATE AGREEMENT
Last Modified January 17, 2006
THIS AGREEMENT was made between BEAR ENTERTAINMENT
DISTRIBUTING, INC., ('COMPANY,' 'we/us/our'), and the undersigned
Affiliate, ('Affiliate' or 'you/your'), on the date the online
registration form is submitted to and approved by COMPANY. This
Agreement governs the Affiliate Agreement for Woof Cash (www.woofcash.com) (the 'SITE'),
and any additional sites that COMPANY may publish or control.
IMPORTANT! By accessing, using, viewing, reading, printing,
installing, or downloading any material from the SITE, or becoming
an affiliate member of the SITE, you agree to be bound by these
Terms and Conditions. This Agreement is intended to be governed by
the Electronic Signatures in Global and National Commerce Act
(E-Sign Act). You manifest your agreement to these Terms and
Conditions by any act demonstrating your assent thereto, including
clicking any button containing the words 'I agree' or similar
syntax. You may submit a paper copy of this transaction and print
this form for your personal records. You have the right to
withdraw your consent to use the E-Sign Act by emailing us. Your
consent to use the E-Sign Act is limited to providing the
information on this form. Access to this electronic record
requires a simple browser program such as Internet Explorer,
FireFox, Opera, or Safari and a computer. 1. The terms and
conditions of this Agreement are subject to change by COMPANY at
any time at its sole discretion. You will be provided reasonable
notice of any such changes. Any continued performance under this
Agreement, following our posting of a change notice or new
agreement on our SITE, shall constitute confirmation of
Affiliate's acknowledgement and assent to any such modifications.
Please consult this Agreement as posted on SITE regularly and read
them carefully before using the SITE. You affirm that you have
read this Agreement and understand, agree and consent to its Terms
and Conditions.
You are solely responsible for obtaining access to the SITE and
that access may involve third party fees (such as Internet service
provider or airtime charges). You are responsible for those fees,
including those fees associated with the display or delivery of
advertisements. In addition, you must provide and are responsible
for all equipment necessary to access the SITE (i.e., computers,
modems, and software, including the most recent versions of
Internet browsers, applications, and plug-ins).
W I T N E S S E T H:
WHEREAS, COMPANY has developed an affiliate membership software
program for its SITE and intends to market its affiliate
membership software program and associated documentation for the
Program, (collectively, the 'Program'), through its Website(s),
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, Affiliate has determined that it is in its interest to
enter into this Agreement.
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 SITE agrees to provide
access to, and membership in, the Program to Affiliate and to
provide Affiliate with the ability to market, advertise and
promote certain content, images, recordings, video, audio, links,
computer script, advertising banners, and other promotional
materials (hereinafter, 'Materials') that are associated with the
Program from time to time, and hereby grants a non-exclusive,
non-assignable, restricted, revocable license to use such
Materials solely for the purposes set forth in this Agreement. The
SITE reserves the unequivocal right to select, alter, delete, add
to, or remove any and all Materials for use by Affiliate in its
sole discretion. SITE'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 SITE upon cancellation of the
Affiliate's membership or withdrawal from the Program by the
Affiliate. Affiliate may not copy, download, upload or otherwise
reproduce, alter, modify, change, broadcast, distribute, transmit,
disseminate, assign or otherwise transfer, sell or offer for sale
in any manner, the Materials at any time anywhere in the world
except as expressly authorized by the SITE in writing. Upon
acceptance into the Program, SITE will begin providing users with
the information necessary to participate in the Program. Logos,
graphics or text may be created by the Affiliate, with SITE's
prior written permission. The SITE reserves the right to require
any text, online agreement, documents, notices, disclaimers, or
age verification devices that may be necessary or desirable to
protect the SITE's or the Affiliate's legal interests.
The Affiliate shall be solely responsible for all content
available on or through its website served by COMPANY's services
by and through the COMPANY software, and shall at all times be
subject to the terms of this Agreement. COMPANY 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. Thus, Affiliate is solely
responsible for the content on Affiliate's website. COMPANY owns
the rights to any and all content and Materials located on
Affiliate's site, which in any way relate to content provided by
COMPANY. 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 generated by Affiliate
shall inure to the benefit of COMPANY, which shall be considered
the owner or license holder of such derivative works, to the
extent permitted by law.
Affiliate's license to use this material 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.
Upon acceptance into the Program, COMPANY will begin providing
users with the information necessary to participate in the Program
and begin promoting the COMPANY Website(s).
2. ENROLLMENT PROCEDURE To begin the enrollment procedure, you
must submit a completed COMPANY Application form through our
Affiliate website located at: www.woofcash.com
('Affiliate Website'). 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
discretion to accept or reject applications for any reason
including, but not limited to: 1) unlawful content appearing on
your site; 2) defamatory, obscene, child pornographic, harassing,
or otherwise objectionable content appearing you your site; 3) if
your site promotes or facilitates illegal activity, or violates
the rights of others such as copyright, trademark, other
intellectual property infringement, right to privacy, right to
publicity, or other similar rights; 4) if you encourage password
theft or hacking; 5) your site does not receive a sufficient
number of unique hits; 6) if your site or content found thereon
violates our Acceptable Use Policy, See Section 9, infra; or, 7)
if COMPANY deems your application or Website to be unsuitable for
any reason.
AFFILIATE'S NOTIFICATION DUTY
Affiliate agrees to notify COMPANY of the URL's where the SITE
will be promoted.
TERM
This Agreement and the provisions hereof, shall be in full
force and effect commencing on the date accepted by the Affiliate
and continuing until terminated by either of the parties in
accordance with the Termination provisions set forth infra.
Acceptance is effective upon clicking 'I Accept' or any similar
syntax, and/or the installation or opening of any COMPANY software
or any other COMPANY product.
5. COMPENSATION AND BENEFITS Affiliates will be compensated as
follows, which may be altered from time to time without notice.
The programs and benefits are described below. Percentage Share.
Affiliate receives fifty percent (50%) of all sales and rebills
Affiliate generates, as more fully described on the Affiliate
Website. Additional or modified promotional benefits or
restrictions may be implemented from time to time, and notices of
such benefits or restrictions shall be conspicuously stated on the
Affiliate Website. Affiliate agrees to check back periodically to
review the current compensation and benefits pertaining to this
program. Affiliate further 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. 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. Affiliates 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 website 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 Section 9 of this
Agreement. Any Website found to be engaging in such actions will
not receive any credit or payment and will forfeit any and all
credit or payment earned. Affiliates agree 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. The Affiliate should note the date of last revision
to this Agreement. Affiliate agrees to periodically review this
Agreement using the 'refresh' button in the Affiliate's browser.
If the date of last revision remains unchanged after clicking the
'refresh' button on his or her browser, the Affiliate may presume
that no changes have been made. A changed 'last modified' date
indicates that this Agreement has been updated or edited, and the
updated or edited version supersedes any prior versions
immediately upon posting. Revisions to This Policy. We reserve the
right to revise, amend, or modify this policy, our user terms of
service, and our other policies and agreements at any time and in
any manner. The user should periodically check this web page for
any modifications regarding this Policy by re-visiting this web
page and using the 'refresh' button on the user's browser. The
user should note the date of last revision to this Policy, which
appears at the top of this Policy. The user should periodically
re-visit this web page to determine if any of the terms of this
policy have changed. If the 'last modified' date remains unchanged
after the user has clicked the 'refresh' button on his/her
browser, the user may presume that no changes have been made since
the last reading of the policy. A changed 'last modified' dates
indicates that this Policy has been updated or edited, and the
updated or edited version supersedes any prior versions
immediately upon posting.
6. IMPLEMENTATION
COMPANY and Affiliate acknowledge that 'time is of the essence'
in the commencement of this Agreement. COMPANY will devote all
commercially reasonable efforts to provide Affiliate with all
necessary Materials as soon as reasonably possible.
7. 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 Affiliates by COMPANY on the 15th of
each month, or the first business day following if the date falls
on a weekend or holiday. Payments represent revenues generated
from the previous month. COMPANY shall only remit payment to
Affiliate if such payment exceeds fifty dollars ($50.00) for any
given month. In the event that the amount due Affiliate is less
than fifty dollars ($50.00), COMPANY shall withhold such payment
until such time as the accrued payments exceed fifty dollars
($50.00).
Further details pertaining to the program details such as the
processing, and payouts can be found on the COMPANY'S FAQ Page,
here: www.woofcash.com/default.php?action=helpfaq
which is hereby incorporated by reference and made part of this
Agreement.
Affiliate will provide COMPANY with a Social Security Number or
Federal Tax ID, if requested. Failure to provide COMPANY such
information may result in termination of this Agreement.
8. REPRESENTATIONS AND WARRANTIES Affiliate warrants that
Affiliate is the sole owner of any and all necessary rights,
title, and interest to the content contained on the Affiliate's
website, and that such Website is free of claims to the content by
third parties. You, as the site Operator, warrant and represent
that you own or operate a lawful, and otherwise valid Internet
Website. You further represent that you have the requisite power
and authority to enter into this Agreement and perform the
obligations set forth herein and that you are and adult at least
eighteen (18) years of age; that performance under this Agreement
does not and will not constitute a breach of any existing contract
or obligation undertaken by you; and that there are no outstanding
orders, judgments, decrees, rules or regulations which would
preclude you from entering into this Agreement.
Affiliate further warrants that Affiliate's Website(s)
(including content thereof) and/or Affiliate's participation in
the Program do not now, and will not violate any: a) applicable
law, ordinance, rule or regulation, whether federal, state, local,
or from any jurisdiction applicable or related to this Agreement,
including but not limited to CAN SPAM laws or rules promulgated
thereby; b) any of COMPANY's or third party's intellectual
property rights, including, without limitation, patents,
copyright, trademark, service mark or trade secret or any
contractual rights, and that they do not contain matter which, if
published, will be harassing, libelous, or a violation of any
persons' rights of publicity or privacy or other rights of any
person or entity.
Affiliate further represents that each site is in full
compliance with Section 2257 of Title 18, United States Code, the
'Records Keeping and Labeling Act,' including all applicable
regulations. Affiliate acknowledges that it is Affiliate's legal
obligation to comply with the disclosure provisions of the Records
Keeping and Labeling Act, and that Affiliate must identify a
records custodian and records address for each image appearing on
the Affiliate's website and maintain all required age records,
indexed in the required manner. Affiliate represents and warrants
that any and all content it provides on its website is compliant
with Title 18 U.S.C. ' 2257, and that all models depicted thereon
were at least eighteen (18) years of age when the content was
taken. Affiliate also warrants that all materials shall only be
transmitted and distributed by Affiliate's website to willing
adults.
You shall indemnify COMPANY and its shareholders, officers,
directors, independent contractors, employees and assigns against
any loss, damage, liability (including reasonable legal fees)
which result from the breach or alleged breach of: A) the
Acceptable Use Policy set forth in Section 9, infra; B) any
warranty, obligation or term of this Agreement; or C) arising out
of Affiliate's participation in the Program or Affiliate's use of
any COMPANY Materials or other COMPANY materials not expressly
authorized by this Agreement.
COMPANY makes no representations or warranties other than those
specifically contained herein, and specifically disclaims any
implied warranties, including merchantability or fitness for a
particular purpose. COMPANY makes no representations of success or
profitability and does not monitor or supervise the SITE.
9. 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:
Illegal content is strictly forbidden. Illegal content
includes, but is not limited to: child pornography, incest, warez
content, scat, coffins, defecation, genital mutilation,
sacrilegious, teen modeling, actual or simulated rape, sexual
violence, menstruation, obscenity, bestiality, threats of physical
harm to persons or property, programs containing viruses, pirated
software, wire fraud, drug trafficking, and/or violations of
international export control laws. COMPANY shall not be obligated
to but 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. The
Affiliate agrees to fully comply with the United States Federal
Trade Commission ('FTC') statutes and regulations (if Affiliate
does business in the United States or with United States based
customers), and any related rules, policies, and advisory opinions
issued by the FTC. No commissions will be paid on such
transactions, and may be withheld if such conduct is suspected. In
addition, the Affiliate's account may be terminated in such
circumstances. ' COMPANY may not be promoted on any Site that
encourages password trading, distribution, or hacking. COMPANY may
not be prosecuted through the direct or indirect use of warez
content, spamming, listing on newsgroups, bulk emailing, or hidden
frames. ' Affiliate shall not engage in any activities that may be
harmful to the image, goodwill, or reputation of COMPANY. '
Affiliate shall not directly or indirectly display on Affiliate's
website any advertising links, banners, or promotional materials
for Sites other than those that have been pre-approved in
compliance with this Agreement. ' 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. ' Affiliates shall not use any material that contains
'Trojan Horses,' viruses, or the like, which causes damage to any
computer or programs regardless of intent. Affiliate will be
solely responsible for any damage caused by the aforementioned
destructive materials and the use of such materials may result in
the termination of this Agreement. ' The free areas of the
submitted site must not contain sexual activity or graphic display
of the genitals. All such content must be restricted to the
password-protected areas. ' Affiliate may not circumvent, or
attempt to circumvent, the access screen requiring users to enter
their birth date and requiring agreement to COMPANY' Terms and
Conditions. ' COMPANY enforces a strict, zero tolerance policy
with respect to child pornography. No site may use models under
the age of eighteen (18) or suggest that its models are under the
age of eighteen (18), either through text or other implication.
Any Affiliate suspected of violating this zero tolerance provision
shall be terminated from the Program. ' Affiliate's websites must
contain all information required by 18 U.S.C. '2257, supported by
all required documents. ' Affiliates must provide within 24 hours,
upon request by COMPANY, access to any password protected area
where COMPANY Websites are being or have been promoted. '
Affiliates may not solicit or permit any minor to become a
customer of the Websites. ' Affiliates agree 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. COMPANY shall retain the
discretion to interpret, modify, terminate and/or enforce any of
the general policies for Affiliates.
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.
10. PROMOTIONAL RESTRICTIONS AND SPAM
Affiliate may use any reasonable promotional tool desired, with
the following exceptions:
A. SPAM. The 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
comply with any Spam Policy posted for the SITE, which is hereby
incorporated by reference. Any breach of the SITE's Spam Policy
may result in immediate termination from the Program and
forfeiture of any further commissions or payments. Any violation
of the CAN-SPAM Act is strictly prohibited. Any Affiliate using
unsolicited email, which does not strictly comport with the
provisions of the CAN-SPAM Act, will be immediately terminated as
an Affiliate 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
all of its Affiliates 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.
B. NO DECEPTIVE ADVERTISING. All forms of deceptive or unfair
advertising are prohibited. Any Affiliate who is uncertain as to
the requirements of federal advertising law should obtain legal
advice before engaging in any promotion. More information about
deceptive trade practices can be found here: www.FTC.gov.
11. 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 legal age verification. Therefore, the
SITE adopts the following policies with regard to online age
verification: (1) Users can only access images depicting sexual
activity (i.e. hardcore images) by passing through some form of
online age verification that complies with the requirements of the
Child Online Protection Act, ('COPA'); or (2) Alternatively, users
must be restricted to accessing pages or content, or Material
containing only soft core (i.e. no sexual activity) materials,
which will be separately identified and provided by the SITE.
12. METATAGS Affiliate agrees not to utilize any false,
misleading or infringing metatags tied to the Affiliate's site. An
Affiliate is not permitted to use its domain name and/or its
metatags on the Affiliate's site to garner search engine traffic.
In addition, Affiliate agrees not to utilize any metatags that
would imply or suggest that underage or illegal content may be
found on the submitted website.
13. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
A. NOTICE OF CLAIMED INFRINGEMENT. The SITE respects the
intellectual property of others, and we ask our users to do the
same. We voluntarily observe and comply with the United States'
Digital Millennium Copyright Act. If you believe that your work
has been copied in a way that constitutes copyright infringement,
or your intellectual property rights have been otherwise violated,
please provide SITE's Designated Copyright Agent the following
information:
(a) an electronic or physical signature of the person
authorized to act on behalf of the owner of the copyright or other
intellectual property interest;
(b) description of the copyrighted work or other intellectual
property that you claim has been infringed;
(c) a description of where the material that you claim is
infringing is located on a Site;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that
the disputed use is not authorized by the copyright owner, its
agent, or the law; and
(f) a statement by you, made under penalty of perjury, that the
above information in your Notice is accurate and that you are the
copyright or intellectual property owner or authorized to act on
the copyright or intellectual property owner's behalf. You may
send your Notice of Claimed Infringement to:
Lawrence G. Walters, Esquire Weston, Garrou, DeWitt & Walters
781 Douglas Avenue Altamonte Springs, FL 32714 Phone: (407)
389-4529 Fax: (407) 774-6151 Notice@DMCANotice.com
Please do not sent other inquires or information to our
Designated Agent. Notices will be acted on within 24 ' 48 hours
after receipt.
It is important to understand that knowingly making a material
misrepresentation concerning alleged copyright infringement may
result in significant civil penalties including damages, costs and
attorney's fees incurred by the alleged infringer or COMPANY. In
the event Affiliate's site is taken down pursuant to the DMCA,
re-bills attributed to the noticed site will be suspended during
the 'take down' period. Any repeat violators of the DMCA will be
banned from the Program.
B. NOTICE AND TAKEDOWN PROCEDURES. The SITE implements the
following 'notice and takedown' procedure upon receipt of any
notification of claimed copyright infringement. The SITE reserves
the right at any time to disable access to, or remove any material
or activity accessible on or from the SITE or any Materials
claimed to be infringing or based on facts or circumstances from
which infringing activity is apparent. It is the firm policy of
the SITE to terminate the account of repeat copyright infringers,
when appropriate, and the SITE will act expeditiously to remove
access to all material that infringes on another's copyright,
according to the procedure set forth in 17 U.S.C. '512 of the
Digital Millennium Copyright Act ('DMCA'). The SITE's DMCA Notice
Procedures are set forth in the preceding paragraph. If the notice
does not comply with Paragraph 19 and '512 of the DMCA, but does
comply with three requirements for identifying sites that are
infringing according to '512 of the DMCA, the SITE shall attempt
to contact or take other reasonable steps to contact the
complaining party to help that party comply with the notice
requirements. When the Designated Agent receives a valid notice,
the SITE will expeditiously remove and/or disable access to the
infringing material and shall notify the affected user. Then, the
affected user may submit a counter-notification to the Designated
Agent containing a statement made under penalty of perjury that
the user has a good faith belief that the material was removed
because of misidentification of the material. After the Designated
Agent receives the counter-notification, it will replace the
material at issue within 10-14 days after receipt of the
counter-notification unless the Designated Agent receives notice
that a court action has been filed by the complaining party
seeking an injunction against the infringing activity. The SITE
reserves the right to modify, alter or add to this policy, and all
users should regularly check back to these Terms and Conditions to
stay current on any such changes.
C. It is important to understand that knowingly making a
material misrepresentation concerning alleged copyright
infringement may result in significant civil penalties including
damages, costs and attorneys fees incurred by the alleged
infringer or Affiliate. In the event Affiliate's website is taken
down pursuant to the DMCA, re-bills attributed to the noticed site
will be suspended during the 'take down' period. Any repeat
violators of the DMCA will be terminated and banned from the
Program.
14. CONFIDENTIALITY AND PRIVACY POLICY
A. 'Confidential Information' shall mean any confidential
technical data, trade secret, intellectual property, know-how or
other confidential information disclosed by any Party hereunder in
writing, orally, or by drawing or other form and which shall be
marked by COMPANY 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
Affiliate within ten (10) days of such disclosure.
B. Notwithstanding the foregoing, Confidential Information
shall not include information which: (i) is known to the receiving
party at the same time of disclosure or becomes known to the
receiving party without breach of this Agreement; (ii) is or
become publicly known through no wrongful act of the Affiliate or
any subsidiary of the Affiliate; (iii) is rightfully received from
a third party without restriction on disclosure; (iv) is
independently developed by the receiving party or any of its
subsidiary; (v) is furnished to any third party by the disclosing
party without restriction on its disclosure; (vi) is approved for
release upon a prior written consent of COMPANY; (vii) is
disclosed pursuant to judicial order, requirement of a
governmental agency or by operation of law.
C. The Affiliate agrees that it will not disclose any
Confidential Information to any third party and will not use
Confidential Information of the COMPANY 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 COMPANY. The
Affiliate further agrees that Confidential Information shall
remain the sole property of the COMPANY and that it will take all
reasonable precautions to prevent any unauthorized disclosure of
Confidential Information by its employees. The COMPANY shall grant
no license to the Affiliate with respect to Confidential
Information disclosed hereunder unless otherwise expressly
provided herein.
D. Upon the request of the COMPANY, the Affiliate will promptly
return all Confidential Information furnished hereunder and all
copies thereof.
E. The Parties agree that all publicity and public
announcements concerning the formation and existence of this
Agreement shall be planned and coordinated in COMPANY's sole
discretion. Affiliate shall not disclose any of the specific terms
of this Agreement to any third party without the prior written
consent of the COMPANY. Notwithstanding the foregoing, Affiliate
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 COMPANY.
F. If Affiliate breaches any of its obligations with respect to
confidentiality and unauthorized use of Confidential Information
hereunder, the COMPANY shall be entitled to equitable relief to
protect its interest therein, including but not limited to
injunctive relief, as well as money damages notwithstanding
anything to the contrary to the contrary contained herein.
G. Except as otherwise set forth in this Agreement, COMPANY
shall be entitled to make any public statement, press release or
other announcement relating to the Website without any prior
written approval of Affiliate.
H. COMPANY honors the privacy of its Affiliate's personal
information. Our Privacy Policy is hereby incorporated by
reference. For more information on our Privacy Policy, please
contact us.
15. INTELLECTUAL PROPERTY RIGHTS
A. The parties agree that: (i) each party's marks are and shall
remain the sole property of that party; (ii) nothing in this
Agreement shall convey to either party any right of ownership in
the party's marks; (iii) neither party shall now or in the future
contest the validity of the other party's marks; and (iv) neither
party shall in any manner take any action that would impair the
value of, or goodwill associated with, such marks. The Parties
acknowledge and agree that all use of the other party's marks by a
party shall inure to the benefit of the party whose marks are
being used.
B. Each party hereby grants the other party, during the term of
this Agreement, a non-exclusive, non-transferable license to use
that party's trade names, trademarks, service names, copyrights,
and similar proprietary marks as is reasonably necessary to
perform its obligations under this Agreement, provided, however,
that any promotional materials containing a party's proprietary
marks will be subject to that party's prior, written approval.
C. Each party agrees not to use the other party's proprietary
marks in a manner that disparages the other party or its products
or services, or portrays the other party or its products or
services in a false, competitively adverse or poor light. Each
party will comply with the other party's requests as to the use of
the other party's proprietary marks and will avoid any action that
diminishes the value of such marks. Each party's unauthorized use
of the other's proprietary marks is strictly prohibited.
D. At any time, 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 website 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 website,
then Affiliate must remove the objectionable material, or face
having the applicable pages taken down by SITE.
16. TERMINATION
The following termination rights are in addition to the
termination rights that may be provided elsewhere in this
Agreement:
A. Mutual Right to Termination Upon Notice: Either COMPANY or
Affiliate may immediately terminate this Agreement at any time,
with or without cause, upon written notice to 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 marks and materials referring to or
supplied by COMPANY, including banners and promotional materials.
B. Affiliate's Right to Terminate: Affiliate shall have the
right to terminate this Agreement at any time, however Affiliate
shall only receive its designated portion of revenue earned during
the Term of the Agreement. Such revenue is only payable if the
orders giving rise to them are not canceled or returned. COMPANY
reserves the right to withhold final payment for a reasonable time
to ensure that the correct amount is paid.
17. DISCLAIMERS AND LIMITATIONS
In no event shall COMPANY be liable to the Affiliate 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 COMPANY has been advised of the possibility
of such damages. The foregoing shall apply regardless of the
negligence or other fault of COMPANY 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 COMPANY is held liable
to you for damages, the total amount of liquidated damages for any
and all claims shall not exceed ten dollars ($10.00).
Affiliate shall remain solely responsible for the operation of
their own site, and COMPANY shall remain solely responsible for
operation of the Program and its sites. Each party acknowledges
that the other's site may be subject to temporary shutdowns dues
to causes beyond the operating party's reasonable control.
18. ASSUMPTION OF RISKS
Affiliate expressly agrees that Affiliate's use of the services
is at Affiliate's sole and exclusive risk. The services are
provided on an 'as is, with all faults' and 'as available' basis.
COMPANY expressly disclaims all warranties of any kind, whether
express or implied, including, but not limited to the implied
warranties of merchantability, fitness for a particular purpose,
title and non-infringement. COMPANY makes no warranty that the
services will meet Affiliate's requirements, or that the services
will be uninterrupted, timely, secure, or error free; nor does
COMPANY make any warranty as to the results that may be obtained
from the use of the services or as to the accuracy or reliability
of any information obtained through the services or that defects
in any software, hardware or the services will be corrected.
Affiliate understands and agrees that any use Affiliate makes of
any material and/or data downloaded or otherwise obtained through
the use of the services is at Affiliate's own discretion and risk,
and that Affiliate will be solely responsible for any damage to
Affiliate's computer system or loss of data that results from the
download of such material and/or data.
19. INDEMNIFICATION
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 (a) any
breach of Affiliate's covenants under this Agreement; (b)
Affiliate's use (or misuse) of the Program and/or Materials; (c)
all conduct and activities occurring under Affiliate's user ID and
password; (d) any item or service sold or advertised in connection
with Affiliate Content or Affiliate's information and data; (e)
any defamatory, libelous or illegal material contained within
Affiliate Content or Affiliate's information and data; (f) any
claim or contention that Affiliate Content or Affiliate's
information and data infringes any third party's patent,
copyright, trademark, or other intellectual property rights or
violates any third party's rights of privacy or publicity; (g)
third party access or use of Affiliate Content or Affiliate's
information and data; (h) any claim related to Affiliate's
website; or (i) 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. Affiliate shall not settle
any such claim or liability without the prior written consent of
COMPANY, which shall not be unreasonably withheld.
The Affiliate understands that COMPANY will take drastic
measures to protect itself from any legal or civil litigation
including, but not limited to, removing a Affiliate's web page(s)
or website(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 responding to any
third party complaints, disputes, copyright claims or actions
involving Affiliate or Affiliate's web sites.
20. 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.
21. FORCE MAJEURE
Neither party will be held liable for, or will be considered to
be in breach of or default under this Agreement on account of any
delay or failure to perform as required by this Agreement as a
result of any causes or conditions that are beyond such party's
reasonable control and that such party is unable to overcome
through the exercise of commercially reasonable diligence,
including but not limited to acts of God; war, riot, embargoes,
acts of civil or military authority, or terrorism; fire, flood,
earthquakes, hurricanes, tropical storms or other natural
disasters; fiber cuts; strikes, or shortages in transportation,
facilities, fuel, energy, labor or materials; failure of the
telecommunications or information services infrastructure;
hacking, SPAM, net congestion, or any failure of a computer,
server or software, including Y2K errors or omissions. If any
force majeure event occurs, the affected party will give prompt
written notice to the other party and will use commercially
reasonable efforts to minimize the impact of the event.
22. NOTICE AND PAYMENT
A. Any notice or payment required to be given under this
Agreement may be provided by email to a functioning email address
of the party to be noticed, or personal delivery by commercial
carrier such as FedEx or Airborne. B. Either party may change the
address to which notice or payment is to be sent by written notice
to the other under any provision of this paragraph.
C. When Notice is Effective. Notices shall be deemed effective
upon delivery. Notices delivered by overnight carrier (e.g.,
United States Express Mail or Federal Express) shall be deemed
delivered on the business day following mailing. Notices mailed by
United States Mail, postage prepaid, registered or certified with
return receipt requested, shall be deemed delivered five (5) days
after mailing. Notices delivered by any other method shall be
deemed given upon receipt. Notices by email and facsimile
transmission, with confirmation from the transmitting machine that
the transmission was completed, are acceptable under this
Agreement provided that they are delivered one (1) hour after
transmission if sent during the recipient's business hours, or
9:00 a.m. (recipient's time) the next business day. Either Party
may, by giving the other Party appropriate written notice, change
the designated address, fax number and/or recipient for any notice
or courtesy copy, hereunder.
D. Any correctly addressed notice that is refused, unclaimed,
or undeliverable, because of an act or omission of the Party to be
notified shall be deemed effective as of the first date that said
notice was refused or deemed undeliverable by the postal
authorities, messenger, facsimile machine, email server, or
overnight delivery service. 23. JURISDICTION/DISPUTES This
Agreement shall be governed in accordance with laws of the State
of California. All disputes under this Agreement shall be resolved
by litigation in the courts of California 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 Francisco,
California
24. 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.
25. ASSIGNABILITY Neither party may assign this Agreement or
the rights and obligations hereunder to any third party without
the prior express written approval of the other party which shall
not be unreasonably withheld.
26. WAIVER No waiver by either party of any default shall be
deemed as a waiver of prior or subsequent default of the same of
other provisions of this Agreement.
27. SEVERABILITY If any term, clause or provision hereof is
held invalid or unenforceable by a court of competent
jurisdiction, such invalidity shall not affect the validity or
operation of any other term, clause or provision and such invalid
term, clause or provision shall be deemed to be severed from this
Agreement.
28. INTEGRATION This Agreement constitutes the entire
understanding of the parties, and revokes and supersedes all prior
agreements between the parties and is intended as a final
expression of their Agreement. It shall not be modified or amended
except in writing signed by the parties hereto and specifically
referring to this Agreement. This Agreement shall take precedence
over any other documents which may conflict with this Agreement.
29. ATTORNEY'S FEES In the event any Party shall commence any
claims, suits, or formal legal action to interpret and/or enforce
the terms and conditions of this Agreement, or relating in any way
to this Agreement, including without limitation asserted breaches
of representations and warranties, the prevailing party in any
such action or proceeding shall be entitled to recover, in
addition to all other available relief, its reasonable attorney's
fees and costs incurred in connection therewith, including
attorney's fees incurred on appeal.
30. DISCLAIMER Other than those set forth herein, the parties
make no other warranties or representations including warranties
of merchantability or fitness for a particular purpose. Neither
party represents the other, and both parties have had an
opportunity to seek legal counsel of their choice.
31. BINDING AGREEMENT
The parties acknowledge the legally binding nature of this
Agreement. By clicking on the 'SEND APPLICATION' button on the
following web page: woofcash.com/default.php?action=signup
you are affirmatively stating that you have read and understand
the terms set forth herein and that you agree to be bound by the
terms hereof. You hereby adopt the /s/ mark appearing on the
signature line below, as your electronic signature on this
document.
32. ELECTRONIC SIGNATURES
This Agreement is intended to be governed by the Electronic
Signatures Act (E-SIGN Act). By submitting the Registration Form,
Affiliate thereby affixes his or her electronic signature to this
Agreement, and thereby manifests assent to all terms contained
herein.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally
bound hereby, have each signed this document electronically
pursuant to the E-SIGN Act.
_/s/______________________ COMPANY
_/s/________________________ Affiliate
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