TermsThis Affiliate Program Operating Agreement (the “Agreement”) is made and entered into by and between Global Marketing Consulting LP Affiliate Network (“GiftSendmedia Network” or “we” or “Company” or “Us”) and you, (“you” or “Affiliate”) the person or party submitting an application to become a GiftSendmedia Network affiliate. The terms and conditions contained in this
Agreement apply to your participation with our (“Affiliate Program”). Each Affiliate Program offer (an “Offer”) may be for any offering by GiftSendmedia Network or a third party (each such third party a “Client”) and may link to a specific web site for that particular Offer (“Program Web Site”). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
A. THE GiftSendmedia AFFILIATE PROGRAM PARTICIPATION
A1. Affiliate Application and Account Creation
A1.1 You must submit an Affiliate Program application from our website. You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. You agree to update such information as and when required or requested, and you agree that your account is for your sole use and you shall not allow any other person or party to use your account, nor shall you make use of any other person or party’s account.
A1.2 If you are an individual and not a trading entity, in order to enroll and participate as an affiliate, you must be over eighteen (18) years of age and/or over the age of majority if residing and/or conducting business in states, provinces or countries where the age of majority is greater than eighteen (18) years of age.
A1.3 Your participation in the Affiliate Program is subject to our approval. We reserve the right to reject your application for any reason, including but not limited to the reason that we believe your traffic sources or promotional methods are unsuitable for our Affiliate Program, or if we suspect you may breach this Agreement.
A1.3 If you are, or we believe you to be based in, or otherwise connected to any of the following countries, your application will be automatically rejected: Afghanistan, Albania, Armenia, Azerbaijan, Bangladesh, Bhutan, Costa Rica, Croatia, Cuba, Jordan, Kazakhstan, Korea, Kyrgyzstan, Republic Of Moldova, Mongolia, Pakistan, Syria, Tajikistan, Turkmenistan, United Arab Emirates, Uzbekistan (the “Prohibited Territories”).
A1.4 As described fully in this Agreement below, we reserve the right to suspend or terminate your access to the Affiliate Program at any time for any reason.
A1.5 If your application is accepted, we will provide you with login details for your Affiliate Account. Upon first logging in to your Affiliate Account, you will change its password and ensure that all data contained in your Account is accurate and up to date.
A1.6 Once approved, we will make available to you via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links”) which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in on-line advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site.
A2. Your warranties
In addition to any other warranties or representations made by you under this Agreement, by submitting an application, and by using your Affiliate Account you expressly warrant that:
A2.1 all information contained in your application and Affiliate Account is complete and accurate, and up to date;
A2.2 you are not based in any of the Prohibited Territories, nor do you have any personal or commercial connections to any person or party based in the Prohibited Territories;
A2.3 you have full capacity and authority to enter into this binding Agreement on behalf of yourself or any legal entity on which you claim to act on behalf of;
A2.4 if you are an affiliate network, that you have bound your affiliates to the same conditions and restrictions as you are bound to under this Agreement.
A2.5 you will keeps the login data for your Account at all times strictly confidential and will not share these details with any other party or person. You agree that you will remain fully liable for all activity conducted through your Account. You must promptly inform us of any theft of or unauthorized use of your login data.
B. PAYMENTS AND COMMISSIONS
Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement:
B1. We will pay Affiliate for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, is not using pre-populated fields completes all of the information required for such action within the time period allowed by GiftSendmedia Network and is not later determined by GiftSendmedia Network to be fraudulent, incomplete, unqualified or a duplicate does not later request a refund or initiate a chargeback or reverse a payment. In addition, we may reject an action which is not a lead or sale from the country of origin. We reserve the right to reject any action which is not a Qualified Action under this Agreement as amended from time to time. For all Affiliate Programs where the payable action is a sale (i.e. Pay Per Sale and Pay Per Trial) the we reserve the right to do the following: if an Affiliate is paid for a given Action but the respective sale is refunded afterwards we can deduct the commission amount paid for this Action from any future commission due to the Affiliate. Please note that if a user subscribes using a prepaid card that cannot be rebilled you will receive the exact amount of their payment, not the default Pay Per Sale/Pay Per Trial rate
B2. We will pay you any Commissions monthly, net 15, provided that your account is currently greater than $500 (or $1000 if you have chosen to be paid by bank transfer) (each being “Minimum Balance”). Accounts with a balance of less than the Minimum Balance will roll over to the next month, and will continue to roll over monthly until the Minimum Balance is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. Affiliates are independent contractors and the relationship between the Company and the Affiliate is not one of employment relationship. The Affiliate is solely responsible for any taxes or social security costs due as a result of any payments received from the Company. You understand and agree that, if at any time we believe your account has been compromised, or this Agreement has been, or may have been breached, we reserve the right to withhold making any payment to you until such time as we have concluded our investigation and you agree to fully co-operate with any investigation at your own cost including providing all required identification documents and other documents if so requested. Your failure to promptly comply with any notification will result in your payments being delayed. We may withhold your final payment for a reasonable period of time to make sure that the total commission is calculated accurately and the correct amount is paid.
B3. Payment for Commissions is dependent upon Clients providing such funds to us, and therefore, you agree that we shall only be liable to you for Commissions to the extent that we have received such funds from the Clients. You hereby release us from any claim for Commissions if we have not received such funds from the Clients.
B4. All Commissions will be paid in USD, EUR or GBP, depending on which currency you chose when creating your account. If we receive payment from Clients in another currency to that which you have chosen to be paid in, such currency will be converted into your account`s currency in accordance with our exchange rate policies and procedures based upon http://www.xe.com/currencytables/ rate of currency by the date of Qualified Action.
B5. We shall automatically generate an invoice on your behalf for all Commissions payable under this Agreement and shall remit payment to you based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by us in our sole discretion. In the event that you wish to dispute in good faith any portion of an invoice, you must submit that dispute to us in writing and in sufficient detail within ten (10) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. All payments are made only on the basis of statistics in our tracking system. Any disputes on statistics will be considered by our team of affiliate managers.
B6. If Affiliate has an outstanding balance due to us under this Agreement or any other agreement between the Affiliate and us, whether or not related to the Affiliate Program, Affiliate agrees that we may offset any such amounts due to us from amounts payable to Affiliate under this Agreement.
C. AFFILIATE OBLIGATIONS
C1. In addition to any other warranties or undertakings within this Agreement, you expressly accept, understand and agree to the following affiliate obligations when accessing or otherwise using your account or the Affiliate Program:
C1.1 You have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media. You warrant that all materials posted on your Media or otherwise used in connection with the Affiliate Program are not illegal, do not infringe upon the intellectual property or personal rights of any third party and do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that GiftSendmedia Network informs you that it considers objectionable (collectively, “Objectionable Content”).
C1.2 You will not make any representations, warranties or other statements concerning GiftSendmedia Network or Client or any of their respective products or services, except as expressly authorized herein.
C1.3 You warrant that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by GiftSendmedia Network or Clients or a part of the Program Web Site, without prior written permission from us.
C1.4 You undertake to comply with all obligations, requirements and restrictions under this Agreement laws, rules and regulations as they relate to your business, your Media or your use of the Links the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
C2. You warrant that you will:
C2.2 prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by GiftSendmedia Network or Client, or as required by applicable laws regarding such Offers; and/or
C2.3 never place GiftSendmedia Network ads on any online auction platform (i.e. eBay, Amazon, etc).
C3. The following additional program-specific terms shall apply to any promotional programs set forth below:
C3.1. Email Campaigns:
C3.1.1 Advertising GiftSendmedia Network sites and services through the use of e-mail or links within e-mail is not permitted. GiftSendmedia Network reserves the right to suspend and/or terminate any affiliate account without further notice or pay if it is discovered that the affiliate (or someone acting on his behalf) has violated this rule. If you would like to promote any of GiftSendmedia Network ‘ sites by e-mail please send a request to affiliates@GiftSendmedia.com. Any email marketing which is not previously approved by GiftSendmedia Network , including spamming of any sort and violation of any of the applicable rules and regulations will result in an immediate ban from the affiliate program without pay. It is your responsibility to obtain a copy of our Email policy guidelines before you start promoting any of our campaigns via email marketing. You may get a copy of the guidelines here
C3.1.2 For all email campaigns, Affiliate must download the “Suppression List” from the Offers section of GiftSendmedia Network . Affiliate shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. GiftSendmedia Network will provide an opt-out method in all Links, however, if any opt-out requests come directly to Affiliate, Affiliate shall immediately forward them to GiftSendmedia Network at affiliates@GiftSendmedia.com. Affiliate’s emails containing the Links may not include any content other than the Links, except as required by applicable law.
C3.1.3 Affiliate agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to GiftSendmedia Network pursuant to this Agreement or otherwise. Affiliate further agrees that it will not mail or market to any suppression files generated through the GiftSendmedia Network network, and that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to GiftSendmedia Network pursuant to this Agreement or otherwise.
C3.2. Advertising Campaigns
C3.2.1 No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by GiftSendmedia Network . Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user’s computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-english end user license agreement and the software be easily removed according to generally accepted methods.
C3.2.2 In the event that any campaign contains a Cap (meaning a maximum payout per campaign, or maximum number of clicks/leads/sales accepted per campaign), any and all actions exceeding this Cap will not qualify for payment to you. You are solely responsible for monitoring any Cap.
C3.3. Affiliate Network Campaigns.
For all Affiliate’s that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the “Network”) for access and use by those affiliates in Affiliate’s Network (each a “Third Party Affiliate”). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to GiftSendmedia Network the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of GiftSendmedia Network in the Network upon written notice from GiftSendmedia Network . Unless GiftSendmedia Network has been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by GiftSendmedia Network , Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.
C3.4. Social network usage.
Affiliate is strictly prohibited from using social networking sites including but not limited to Twitter to promote casual products of GiftSendmedia Network for example upforit.com, shagaholic.com, getnaughty.com, iamnaughty.com, amissexy.com. If GiftSendmedia Network suspects that any leads have been earned via such social channels, and a breach of this clause has been committed, Affiliate will not be paid for such leads.
C4. Mobile devices and traffic
C4.1 Desktop and iOS tablet devices traffic is accepted only for web landing pages.
C4.2 Android and iOS devices (excluding iOS tablets) traffic is accepted only for mobile landing pages.
C4.3 iPod touch and iPad devices are prohibited for mobile landing pages.
C5. Private Programs
C5.1 You must obtain approval from our affiliate managers prior to launching any private program.
C5.2 You must not re-launch any private program that has been paused for more than 5 calendar days, without affiliate manager’s permission.
Except as otherwise provided in this Agreement or with the consent of GiftSendmedia Network , you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
E. LIMITED LICENSE & INTELLECTUAL PROPERTY
E1. Affiliates are not allowed to modify the company or websites’ logos in any shape or form. Should you wish to obtain a copy of a specific size/format, you can send your request by email.
E2. Affiliates are not allowed to register any domain names which are identical to or similar to our brands and trademarks, both registered marks and unregistered marks.
E3. Affiliates are specifically prohibited from creating negative sites in order to drive traffic towards our sites e.g. upforitscam.com
E4. Any use of our trademarks, registered and unregistered is prohibited without our express permission.
E5. Affiliates are not allowed to copy or “lift” text or photos or any other content from any of the GiftSendmedia Network websites. If you would like to use some copy to promote one of our sites and have found some useful information on our sites, we ask you to re-phrase the texts. Failure to do so can result in rejection from the affiliate program.
E6. It is prohibited to use any text ads created by affiliate himself unless the creatives have been approved by GiftSendmedia Network affiliate team.
E7. It is prohibited to post any information that does not correspond to the authentic data about the services offered by any GiftSendmedia Network dating site and may affect the Company’s reputation or be a reason for customer complaints (Example: ‘Limited time Offer’/’Offer Expires: today’s_date’ / ‘Free Chatroom’ / or any other paid features available for Premium members only)
E8. Affiliates are prohibited from using any adult, pornographic, sexually explicit or otherwise offensive content to promote GiftSendmedia Network android and iOS applications Any trademarks of Google, Apple companies and their subsidiaries including but not limited to Google Play and iTunes are prohibited to be used on any adult, pornographic, sexually explicit or offensive creatives and promotion pages.
E9. It is prohibited to abuse any third party copyright or trademarks. If we become aware of any affiliate breaching this provision and are contacted by the third party whose rights have been infringed, we shall provide that third party with any and all assistance they require to pursue a claim against you.
E10. We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site. You may not alter, modify, manipulate or create derivative works of the Links or any GiftSendmedia Network graphics, creative, copy or other materials owned by, or licensed to, GiftSendmedia Network in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of GiftSendmedia Network ‘ trademarks, service marks, copyrights, patents or trade secrets.
E11. You agree that GiftSendmedia Network may use any suggestion, comment or recommendation you choose to provide to GiftSendmedia Network without compensation.
E12. All rights not expressly granted in this Agreement are reserved by GiftSendmedia Network .
F1. This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein.
F2. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links.
F3. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice.
F4. We reserve the right to terminate your account if it is idle for two months or more.
F5. Consequences of termination:
F5.1 upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all GiftSendmedia Network or Client intellectual property, and will cease representing yourself as a GiftSendmedia Network or Client affiliate for such one or more Offers.
F5.2 all rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination. However, if this Agreement is terminated by us because you have breached, threatened to breach, or we believe you are intending to breach this Agreement, you are not eligible to receive any Commissions, even if Commission had otherwise been properly due to you as at the date of termination.
G. AFFILIATE REJECTIONS
We fully reserve all of our rights to suspend your account or terminate your account as provided herein for any reason, including but not limited to:
G.1. Our terms and conditions have been breached
G.2. Our PPC Guidelines and Email Policy have not been properly followed
G.3. Your site has been using our brand name to promote a dating site that is not part of our portfolio
G.4. Your site is a free-hosted site
G.5. Your site only contains banners and very little content
G.6. Your site is not relevant to our industry
G.7. Your site is still under construction
G.8. Your site is not available or is returning an error
G.9. Your site contains unacceptable or offensive material
G.10. You are operating an automatic re-direct from your
G.11. Site to one of our domains
G.12. Your website(s) takes payments from customers for the provision of services or goods which are illegal in customer’s territory including prostitution, weapons etc.
G.13. Our website(s) contains illegal photographic material or content
H1. In addition to any other rights and remedies available to us under this Agreement GiftSendmedia Network reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if GiftSendmedia Network determines that you have violated this Agreement, GiftSendmedia Network receives any complaints about your participation in the Affiliate Program which GiftSendmedia Network reasonably believes to violate this Agreement or any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program.
H2. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, GiftSendmedia Network reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
J. ANTI-SPAM POLICY
J1. You must strictly comply with the federal CAN-SPAM Act of 2003 and Data Protection Act 1998 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. From time to time, we may request – prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to GiftSendmedia Network for approval by sending it to your GiftSendmedia Network representative and upon receiving written approval from GiftSendmedia Network of your email the email may be transmitted to third parties.
J2. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon GiftSendmedia Network ‘s approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon GiftSendmedia Network ‘s approval.
K. FRAUD AND SCAMS
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. GiftSendmedia Network shall make all determinations about fraudulent activity in its sole discretion. Affiliate will not fraudulently add leads or clicks or inflate leads or clicks by fraudulentscams traffic generation. Any fraud, attempted or actual, shall be immediate grounds for us to terminate your account and withhold any and all sums outstanding to you.
L. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, GiftSendmedia Network represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to GiftSendmedia Network ‘ own business operations or GiftSendmedia Network ‘ proprietary products or services.
M1. In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. Modifications may include, for example, changes in payment procedures, and your restrictions on account usage. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period.
M2. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, GiftSendmedia Network may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from GiftSendmedia Network to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
N. INDEPENDENT INVESTIGATION
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
Affiliate hereby agrees to indemnify, defend and hold harmless GiftSendmedia Network and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or GiftSendmedia Network or Client intellectual property, or any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
In the event of a claim by you that we are not authorized to provide you with the Links, we hereby agree to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, actual losses (excluding loss of profits), damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) arising from such a claim.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, GiftSendmedia Network EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. GiftSendmedia Network DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. GiftSendmedia Network EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. GiftSendmedia Network DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
Q. LIMITATION OF LIABILITY
IN NO EVENT SHALL GiftSendmedia Network BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF GiftSendmedia Network. IN NO EVENT WILL GiftSendmedia Network BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT GiftSendmedia Network HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. GiftSendmedia Network’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY GiftSendmedia Network IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
E. GOVERNING LAW & MISCELLANEOUS
E1. Affiliate shall be responsible for the payment of all attorneys fees and expenses incurred by GiftSendmedia Network to enforce the terms of this Agreement.
E2. This Agreement contains the entire agreement between GiftSendmedia Network and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that GiftSendmedia Network shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether GiftSendmedia Network “clicks through” or otherwise indicates its acceptance thereof.
E3. Affiliate may not assign all or any part of this Agreement without GiftSendmedia Network ‘s prior written consent. GiftSendmedia Network may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.
E4. The provisions of D, E, F, J, K, L and N to R inclusive shall survive the termination of this Agreement. Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement.
E5. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions.
E6. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
E7. Any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. The London Court of International Arbitration, shall have exclusive jurisdiction to hear and determine any claims, disputes, actions, or suits, which may arise under or out of this agreement. The Parties agree and voluntarily consent to the personal jurisdiction and venue of such courts for such purposes.
If you have any questions or wish us to clarify any of these points, please send us an email to email@example.com