This Affiliate Agreement together with any Insertion Order which is incorporated by reference as if fully set forth (this Affiliate Agreement and any Insertion Order collectively “Agreement”) is entered into by and between Gotham Club, LLC (“Company”), and _______________________________ (“You” or “Your”) (individually each a “Party” and together the “Parties”) on this date ___________________, or the date the company began to receive traffic, whichever is sooner.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties AGREE as follows:
1. Assent; Background; General System Use. By participating as an affiliate of Company with respect to this website (the “Site”), you hereby agree that you have read and understand, and agree to be bound by this Agreement. You agree to use the Site and any additional services offered by Company in the future only in accordance with this Agreement. Company reserves the right to make modifications to the Site and amend the terms and conditions of this Agreement at any time as specified otherwise in this Agreement. Your continued use of the Site after any such modification and amendment constitutes Your consent to such modification or amendment. Company will post offers of advertising programs sponsored by Company or its affiliates on the Site (“Program(s)”). The Programs will specify the amount and terms under which You will receive payment when the Program's requirements are fulfilled. Payment is generated from a specified event (“Event”) identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads. The definition of the Event associated with a Program is set forth in the Program's specifications, and such definition governs this Agreement. If You accept a Program, You agree to place that Program's advertising creative on Your media properties, such as Your media properties such as Your website, affiliated websites or email distribution lists in accordance with the terms of the accepted Program. Company may change a Program at any time upon reasonable notice to You. Similarly, You may drop previously accepted Programs at any time unless Company specifies otherwise. Company is responsible for displaying and administering all active Programs and tracking the payments owed. Company will compile, calculate and electronically deliver data required to determine Your billing and compensation. Company's figures and calculations are final and binding. Any questions regarding the data provided by Company must be submitted in writing within 30 days of delivery to You, otherwise the information will be deemed accurate and accepted as delivered to You.
2. License. You and any third party business entity You represent must receive approval from Company before becoming an affiliate partner (“Affiliate”) of Company. Also, only websites, affiliated websites and email distribution lists that have been reviewed and approved by Company may be used by You for any purpose related to this Agreement. Company reserves the right to withhold or refuse approval for any reason whatsoever. To receive approval by Company to be used by You for any purpose related to this Agreement, all websites, affiliated websites and email distribution lists must (i) be content-based, not simply a list of links or advertisements and have a purpose other than the purposes related to this Agreement; (ii) be written in English and contain only English language content; (iii) have a top-level domain name; (iv) not offer incentives to users to click on ads including but not limited to awarding them cash, points, prizes, contest entries or similar offers; (v) be fully functional at all levels and never display a message on any page similar to “under construction”; (vi) not generate pop-ups and exit pop-ups. Further, the content of Your websites, affiliated websites and email distribution lists must not infringe on intellectual property or harm personal rights. Unacceptable content includes but is not limited to (vii) racial, ethnic, political, hate-mongering or otherwise objectionable content; (viii) investment, money-making opportunities or advice not permitted under law; (ix) gratuitous violence or profanity; (x) material that defames, abuses, or threatens physical harm to others; (xi) promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money or anything similar; (xii) software pirating; (xiii) hacking or phreaking; (xiv) any illegal activity whatsoever; or (xv) spoofing, redirecting, or trafficking from adult-related websites.If You receive approval by the Company based upon the foregoing criteria, Company grants You a non-transferable, non-exclusive limited license to use the Site and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein. You acknowledge and agree that You do not have, nor will claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof. You may only access the Site via web browser, email or other manner approved by Company. You agree not to alter Site integration tags. If the Company determines You or anyone on Your behalf has altered Site integration tags, Company will have no obligation to make any payment to you under this Agreement.
3. Affiliate Fraud. Company actively monitors Affiliate traffic for fraud. If Company detects fraud, Your account will be made inactive and Company will have no obligation to make any payment to You under this Agreement pending further investigation. If You fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation as determined solely by Company, including but not limited to pre-population of forms or any other mechanism not approved by Company, You will forfeit all payment for all Programs and Your account will be terminated. You agree Company reserves sole judgment in determining fraud. It is Your obligation to prove to Company that You are not committing fraud. Company will withhold all payment due under this Agreement until You have provided evidence to the sole satisfaction of Company that You are not defrauding the Company’s system. Company flags accounts that (i) have click-through rates that are much higher than industry averages and where solid justification is not evident; (ii) have only click programs generating clicks with site traffic which does not support the number of clicks reported; (iii) have shown fraudulent leads as determined by Company’s clients; or (iii) use fake redirects, automated software, and/or fraud to generate clicks or leads from a Program. Company can forward on suspect affiliate and fraudulent activities to relative authorities at Company’s sole discretion.
4. Payment. You will be paid for each occurrence of an Event. The Parties understand and agree that payment will be owed to You from the merchant on terms of NET 30 EOM. All accounts will be paid in US dollars ($US). No payment will be issued for any amounts less than $20 US Dollars. Your account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number. All payments are based on actual figures as defined, accounted and audited by the merchant. Company will facilitate payment by disbursing the earned portion of lump sum aggregate payments to You upon receipt of payment from the merchant. In the event Company fails to receive payment due from the merchant it shall have no payment obligation to You. If the merchant does not pay on time, Company will notify You and offers its best efforts in matters related to collections. Company will not pay for any Events occurring before a Program is initiated, or after a Program terminates. Invoices submitted to Company and payments made to You are based on Events as reported by Company. Company will not be responsible for payment to You for Events unrecorded due to Your error. Company has the right to deduct from payment owed to You amounts incurred for refunds and chargebacks resulting from the occurrence of an Event.
5. Termination. This Agreement will commence upon Your acceptance and remain in effect until terminated. This Agreement may be terminated by either Party upon three (3) days' notice. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Company reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason. Company also reserves the right to terminate Your access to the Site at any time without notice. Reasons for termination or suspension may include but are not limited to fraudulent, inaccurate or expired contact information and fraudulent lead data or transactions as set forth in this Agreement. Termination notice may be provided via e-mail and will be effective immediately. All payments due will be paid during the next billing cycle. If You defraud the system, as determined solely by Company, You will not be entitled to payment.
6. Your Representations and Warranties. You represent and warrant that: (i) You have all necessary rights and authority to enter into and perform this Agreement whether on Your behalf or on behalf of a third party business entity represented by You; (ii) You will at all times adhere to the Company Standard Email Marketing Standard Operating Procedures attached to this Agreement as Exhibit A and incorporated by reference as if fully set forth herein; (iii) You will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, the CAN-SPAM Act of 2003 (“CAN-SPAM”), Canada’s Anti-Spam Legislation (“CASL”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§ 17529 et seq. (“California’s Anti-Spam Act”), the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the United States Federal Food, Drug, and Cosmetic Act at 21 U.S.C. §§301 et seq. as amended or supplemented including the Dietary Supplement Health and Education Act of 1994 and the Nutrition Labeling and Education Act or any U.S. state law or the law of any jurisdiction in which You do business or participate in any Program under this Agreement, the Utah and Michigan “Child Protection Registry” laws, the Child Protection and Obscenity Enforcement Act, 18 U.S.C. § 2257 (“Section 2257”), and the United Kingdom Data Protection Act of 1998 (as amended) (“UK Data Protection Act”); (iv) You will not market any Program via text messaging, as defined below, without express written consent of Company; (v) You are familiar with and understand the record-keeping requirements of Section 2257, that You have verified that any models, actors, actresses, or other persons who appear in any visual depiction of actual or simulated sexually-explicit conduct in any of Your media properties were eighteen (18) years of age or older when said visual depictions were created, that You are the custodian of all age verification records for any such models, actors, actresses, or other persons, and that You have created and maintained such records as required by Section 2257 and will provide Company with copies of all such records upon request; (vi) You will not post any specific messages to newsgroups, chat rooms, bulletin boards or any other places unless expressly approved in writing from Company or unless messages are generic in nature and do not mention a specific client or offer which are also expressly approved in writing from Company; (vii) You own or have the legal right to use and distribute all content, copyrighted material, products, and services displayed on Your media properties and that the content contained therein will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (viii) You will not use deceit when marketing or presenting offers to consumers. You will not make any claims about any benefits of the product whatsoever, use any misleading words, images or other media or anything else that could be potentially misconstrued by a potential or existing customer. You will not use any images you do not have the rights to in any advertising. You will not use any names or faces of people in any of your advertising, unless You personally have express written permission from said person. You assume full legal liability breaking any of these agreements. ; (ix) You will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service (“Site Data”); (x) if instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Site Data; (xi) You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs; (xii) You agree to display all creative exactly as it appears on the Program and will not alter any creative that has been submitted to the Site; (xiii) If You are notified that fraudulent activities may be occurring on Your media properties, and You do not take action to stop the fraudulent activities, then You are responsible for all associated costs and legal fees resulting in these fraudulent activities; (xiv) If any errors or undesirable results occur due to no fault of Company, Company will not be responsible for losses and You will not be compensated; and (xv) You will pay, when and as due, any and all taxes including without limitation all federal, state, province, franchise, and local sales taxes incurred as a result of any Program or any other activity which is the subject of this Agreement and will indemnify and hold harmless Company for any claims, losses, costs, fees, liabilities, damages, or injuries suffered by Company arising out of Your failure to pay any tax when and as due.
7. Non-disclosure. All information submitted by end-user customers pursuant to a Program is proprietary to and owned by Company or its affiliates. Such customer information is confidential and may not be disclosed by Company. In addition, You acknowledge that all non-public information, data and reports received from Company hereunder or as part of the services hereunder are proprietary to and owned by Company. All proprietary information is protected by copyright, trademark and other intellectual property law. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary information in any manner. These non-disclosure obligations are intended by the Parties to survive the termination of this Agreement.
8. LIMITATION OF LIABILITY; NO WARRANTY. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, OPERATION OF A PROGRAM, OR YOUR DISPLAY OF ANY PROGRAM CREATIVE ON YOUR MEDIA PROPERTIES, INCLUDING BUT NOT LIMITED TO BROKEN IMAGES, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY INFORMATION, CONTENT AND SERVICES ON THE SITE AND OTHERWISE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN 'AS IS' BASIS WITH NO WARRANTY. YOU USE THE SITE AND RUN PROGRAMS AT YOUR OWN RISK. UNLESS OTHERWISE STATED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, THE OPERATION OF THE SITE, THE INFORMATION, SERVICES, AND CONTENT INCLUDED ON THE SITE INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE SITE OR PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT.
9. Indemnity. You will indemnify, defend and hold Company, its employees, directors and officers, harmless from and against any and all claims, allegations, liabilities, costs, damages, demands, penalties, or expenses, including without limitation reasonable attorneys' fees, by third parties, including without limitation government entities, arising out of Your, Your agents’, or Your marketing affiliates’: (a) improper use of the Site; (b) improper operation of a Program; or (c) any breach or violation of Your representations and warranties herein or any other provision of this Agreement. The indemnification obligation is specifically intended to survive termination of this Agreement.
10. Eligibility. You must be at least eighteen (18) years old to participate as an affiliate of Company. By participating as an Affiliate, You represent and warrant that You are at least 18 years old and are otherwise legally qualified to enter into and form contracts under applicable law. If You are participating as an Affiliate on behalf of a third party business entity, You further represent and warrant that you are authorized to act and enter into contracts on behalf of that entity.
11. Integration. This Agreement constitutes the entire agreement between Company and You regarding the subject matter of this Agreement. No prior or contemporaneous written, electronic, or oral representation form a part of this Agreement, and this Agreement supersedes any and all prior and contemporaneous electronic, oral or written agreements, negotiations, understandings, and representations made by You and Company relating in any way to the subject matter of this Agreement.
12. Amendments. This Agreement may be amended at any time and from time to time by Company without individual notice to You. The latest Agreement will be posted on the Site, and You agree to review amendments to this Agreement, if any, prior to each use of the Site.
13. Assignment. Company may assign this Agreement to a subsidiary or business successor. You may not assign this Agreement without the prior written consent of Company, which shall not be unreasonably withheld.
14. Severability. If any provision of this Agreement is held invalid, unenforceable or void, the remainder of the Agreement will not be affected thereby and will continue in full force and effect.
15. Interpretation. Each Party has read and understood all parts of this Agreement. Each Party warrants and represents that they execute this Agreement knowingly, voluntarily and with a full understanding of the terms of the Agreement. Accordingly, the Parties agree that no rule of contract interpretation that runs against the drafter will be applied in any subsequent dispute over the terms and conditions contained in this Agreement. If any provision of this Agreement should, by its nature, survive the termination of this Agreement, both Parties agree to its survival.
16. Governing Law; Fees. This Agreement will be governed by and interpreted in accordance with the domestic laws of the United States and the State of New York applicable to contracts made and performed in New York, without regard to conflict of law principles. Company will be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement.
17. Arbitration; Class Action Waiver. Any dispute related to, to enforce, construe, or interpret this Agreement will be resolved amicably through good faith negotiation. Any effort to resolve a dispute which has not been resolved through good faith negotiation will be conducted exclusively by binding arbitration governed by the United States Federal Arbitration Act (“FAA”). You are giving up the right to litigate all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the Parties may enforce an arbitrator’s award. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. You agree not to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
18. Force Majeure. Neither Party will be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of that Party.