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SEXYADS AFFILIATE AGREEMENT
THIS
AFFILIATE AGREEMENT (the “Agreement”) is made and entered into as of the
______ day of __________________, 2007, by and between RICHARDSON-SHAW,
PTY., LTD., d/b/a SEXYADS.COM (“SexyAds”) and _________________
(“Affiliate”).
Recitals
A.
SexyAds operates a membership-based adult personals website designed to
accommodate all sexual preferences and lifestyle choices.
B. Affiliate operates its own
website and/or websites and desires to use such websites to promote the
site and Services of SexyAds.
C. SexyAds desires to engage
Affiliate as an independent contractor to promote its services in the
manner, and in strict compliance with the terms and conditions, as
described herein.
Agreement
In consideration of the promises
and the mutual covenants herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, SexyAds and Affiliate agree as follows:
1. Provision of Services.
During the term hereof, SexyAds
hereby engages Affiliate, and Affiliate hereby agrees to be engaged, as
a non-exclusive Affiliate of SexyAds’ site and services, and agrees to
provide, during the term of this Agreement, the following:
(a) Display SexyAds promotional material,
including banners and/or links on page(s) of Affiliate’s
website(s).
(b) Ensure that all such banners and links
are active and properly formatted, and refer users who “click” or
select such banners or links to the SexyAds website.
2. Affiliate Commissions.
For each verified membership to
the SexyAds website which was originally referred through a Affiliate
site, Affiliate should be eligible to receive fifty percent (50%) of the
initial signup fee, after all third party processing fees have been
deducted. At the present time, such processing charges constitute
fifteen percent (15%) of the gross amount collected. SexyAds reserves
the right to alter the amount deducted for processing charges at any
time, to accommodate changing third party processing fees, or other
considerations. Any chargebacks with respect to any Affiliate referral
will incur a $12.50 fee per referral charged back. For the purpose of
this Agreement, a "chargeback" occurs when a prospective member cancels
credit card payment originally made thereby for membership fees. All
dollar amounts represented herein are in United States dollars and
represent a pass through of the fees SexyAds is charged by its credit
cards processing companies. Payments will be made to Affiliate pursuant
to SexyAds regular commission payment cycle, currently bi-weekly.
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3. Links
Affiliate shall receive, or have made
available thereto, banner, button and/or text links to the SexyAds
website (hereinafter referred to as “Links”). These "Links" may contain
SexyAds’ logos and/or identifying marks. Affiliate’s use of these Links
shall at all times be subject to the terms and conditions hereof.
Affiliate has the discretion to display these Links in accordance with
its own site design, provided that at no time shall Affiliate be
permitted to alter, modify or expand such Links in any way without the
prior written consent of SexyAds. SexyAds shall be responsible for
providing all information necessary to allow Affiliate to make the Links
function as contemplated herein.
4. Memberships/Affiliate Volume
Tracking.
Membership orders placed by customers
following Links on Affiliate’s website(s) will be processed by SexyAds
in a timely fashion. SexyAds reserves the right, in its sole discretion,
to reject orders that do not comply with standards that SexyAds has
established, or may in the future establish, or for any other reason.
SexyAds will at all times retain sole responsibility for all aspects of
membership processing. SexyAds will track the volume and amount of sales
generated through Affiliate’s site and may make unaudited reports,
summarizing this sales activity, available thereto. The form, content,
and frequency of the reports may vary from time to time in SexyAds’ sole
discretion.
All memberships, members and prospective
members, and the relationships related thereto are solely the property
(and clients) of SexyAds. No business relationship implied or otherwise,
shall be deemed to exist between Affiliate and such clients and/or
accounts.
5. Term and Termination.
The term of this Agreement will begin upon
SexyAds’ approval of Affiliate’s application and the subsequent
execution of this Agreement, and will end when terminated by either
party.
Either party may terminate this Agreement
at any time, with or without cause, by giving the other party notice of
termination. Upon such notice, Affiliate agrees to promptly destroy or
return to SexyAds any and all artwork or other proprietary material
pertaining to SexyAds in Affiliate’s possession or control. Furthermore,
Affiliate shall immediately remove from any and all Affiliate sites any
and all SexyAds marks, Links and references.
If this Agreement is terminated by
SexyAds due to a violation of the terms of this Agreement, Affiliate
understands that it shall not be eligible to receive any commission
payments, even for commissions earned prior to the date of termination.
If this Agreement is terminated for any other reason, Affiliate
acknowledges that it shall only be eligible to earn a commission on
sales occurring during the term of the Agreement. Commissions earned
through the date of termination will remain payable only if the related
orders are not canceled or returned. SexyAds reserves the right to
withhold Affiliate’s final payment for a reasonable time to account for
cancellations or changes.
6. Standards/Rejection of Application
SexyAds may terminate this Agreement, or
refuse Affiliate’s application, for any reason, including if it is
determined, in SexyAds’ sole discretion, that such site is unsuitable or
contains objectionable material, including but not limited to a)
unlawful or harmful content; b) threatening or defamatory content; c) a
site that facilitates or promotes illegal activity; d) a site that
promotes fraudulent or unethical business practices; e) if the site
promotes discrimination based on race, sex, religion, nationality,
disability or age; f) incorporates or displays any materials which
infringe or assist others to infringe on any copyright, trademark or
other intellectual property right; g) a site that promotes “warez,”
adult passwords, rape, bestiality, or child
pornography. |
SexyAds prohibits any form of unsolicited
bulk emailing (commonly referred to as “UCE” or "spamming") by any
Affiliate, either related or unrelated to SexyAds. For the purpose of
this Agreement, spamming also includes any similar, abusive behavior
including, but not limited to automatically sending scripted text (and
website URL) disguised as “chat” into any third party chat room,
bulletin board or website (including, but not limited to Yahoo!™
Groups). Sending commercial email messages, or any other sort of
message, in a manner that masks or falsifies the header information,
does not contain an opt-out link, or otherwise is misleading, will be
considered a violation of this provision.
Any report of Affiliate spamming will be
investigated immediately, and SexyAds may, in its sole discretion,
suspend the account of the Affiliate in question pending the review or
investigation of the reported spamming. SexyAds will terminate any
Affiliate found to have engaged in this prohibited behavior, and the
termination provisions above will apply. SexyAds reserves the right to
take any other action it deems necessary in this regard, and further
reserves the right to change these standards from time to time, to be
effective upon notice to Affiliate. Affiliate shall indemnify, and
defend SexyAds for any and all costs associated with any violation of
the law by Affiliate involving unsolicited bulk emailing of any kind,
specifically including, but not limited to, any violation of the
“CAN-SPAM Act of 2003.”
Affiliate's placement of Links and
promotion of SexyAds shall at all times accurately reflect the nature of
SexyAds' website. Any misleading or blind links may, in SexyAds sole
discretion, be considered a violation of the terms hereof.
7. Relationship of Parties.
Nothing in this Agreement shall be
construed to create any partnership, joint venture, agency, franchise,
sales representative, or employment relationship between the parties.
You will have no authority, express or implied, to make, accept, or
negotiate any offers or representations on behalf of SexyAds.
8. Notices.
All notices or demands hereunder shall be
given in writing and will be deemed sufficiently given when transmitted
by electronic mail, via postings on the SexyAds website, or via
facsimile.
9. Ownership of Work Product/Proprietary Materials.
(a) All materials, documents, data, software,
information and inventions supplied to Affiliate by or on behalf of
SexyAds shall be and remain the sole and exclusive property thereof.
All such property shall be delivered to SexyAds by Affiliate,
immediately upon demand, or destroyed, as may be requested.
(b) Affiliate acknowledges that it receives,
for the term of this Agreement, a non-exclusive, non-transferable,
revocable license to (i) access SexyAds’ site through links solely
in accordance with the terms of this Agreement, and (ii) solely in
connection with such links, to use SexyAds’ logos, trade names,
trademarks and other proprietary identifying material, solely for
the purpose of promoting SexyAds as contemplated herein. Affiliate
may not alter, modify or change the above-listed items in any
way. |
Affiliate shall not make any specific use of any SexyAds
proprietary material for purposes other than promoting the business
of SexyAds on behalf of SexyAds. Affiliate agrees not to use such
material in any manner that is disparaging or otherwise portrays
SexyAds in a negative light. SexyAds reserves all rights in its
logos, marks, names and other proprietary material, and all other
intellectual property rights thereto. SexyAds may revoke the rights
granted to Affiliate at any time, for any reason, upon written
notice to Affiliate. All rights granted pursuant to this section
shall terminate upon the effective date of the expiration or
termination of this Agreement.
(c) Affiliate expressly waives any right to challenge
the validity, ownership or scope of any of SexyAds’ logos, trade
names, trademarks and other proprietary identifying material.
(d) Affiliate expressly acknowledges that any images,
logos or concepts that it derives based on its use of SexyAds’
proprietary material under this Agreement shall belong to SexyAds,
and Affiliate hereby waives any claim thereto.
10. Compliance with Applicable Law.
Affiliate shall at all times conduct all
activities undertaken pursuant to this Agreement or in any way
associated with SexyAds in compliance with all applicable Federal, State
or International laws, rules, regulations or ordinances applicable in
any jurisdiction in which Affiliate operates. Affiliate understands and
agrees that any violation of applicable law in any jurisdiction by
Affiliate while acting pursuant to its relationship with SexyAds, such
Affiliate will indemnify and defend any claims brought against SexyAds,
its employees, officers, or related entities. Affiliate agrees to not
only defend in such claim, but to reimburse SexyAds for any expenses
incurred as a result of Affiliate’s violation, including reasonable
attorneys’ fees, court costs, and other expenses associated with
Affiliate’s violation. Affiliate shall notify SexyAds immediately of any
actual or potential violation.
11. Indemnification For Non-Criminal Actions
Brought Against SexyAds.
In addition to indemnifying SexyAds for any
violation of law as noted above, Affiliate also agrees to indemnify and
defend SexyAds in any civil or non-criminal action. The Affiliate shall
perform hereunder at its own risk, and shall notify SexyAds immediately
in the event civil legal action is threatened or filed. The Affiliate
shall indemnify and hold harmless SexyAds from any claim, demand, loss,
liability, damage or expense arising in any way from the Affiliate’s
work.
12. Amendment.
This Agreement may be amended or modified
by SexyAds from time to time. Such amendments shall be enforceable with
respect to Affiliate upon notice to Affiliate, via email or otherwise in
writing. Each party shall have the right to enforce the provisions of
this Agreement in strict accordance with its terms. The failure of
either party at any time to enforce its rights hereunder strictly in
accordance with the same shall not be construed as having created a
custom contrary to the specific provisions hereof or as having in any
way modified or waived same.
13. Entire Agreement.
This Agreement sets forth and constitutes
the entire agreement and understanding between SexyAds and Affiliate
with respect to the subject matter hereof, and it supersedes all
previous oral or written communications, representations, or agreements
between the parties concerning the subject matter hereof.
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14. Assignment.
Neither this Agreement nor any of the
rights and duties of Affiliate or SexyAds hereunder may be assigned or
delegated by either party and any such attempted or purported assignment
shall be null and void, unless the other party shall have consented to
such assignment, in writing.
15. Partial Invalidity.
If any provision in this Agreement (other
than the compensation payable hereunder to Affiliate) is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions will nevertheless continue in full force without
being impaired or invalidated in any way; provided, that, if the
compensation payable hereunder to Affiliate or the obligation to pay
such compensation is held by a non-appealable order of a court to be
illegal or unenforceable, then the entire Agreement shall automatically
terminate upon the date that such order is no longer subject to appeal,
unless both parties agree, in writing, to an amended compensation
arrangement which cures such invalidity.
16. Survival.
The respective rights and obligations of
the parties set forth in this Agreement shall indefinitely survive the
expiration or termination of this Agreement to the extent necessary to
the intended preservation of such rights and obligations.
17. Headings.
The headings in this Agreement are for
convenience only and do not in any way limit or amplify the terms of
this Agreement.
18. Governing Law/Venue.
This Agreement will be governed by and
construed in accordance with the laws of the State of Florida. The
parties agree that the venue for any litigation arising out of this
Agreement shall be brought in any appropriate state or federal court
located in Orlando, Florida, and the parties hereto expressly waive any
other jurisdiction or venue.
19. Counterparts.
This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which
taken together constitutes one and the same Agreement.
20. Use of Names.
(a) Affiliate shall not mention or otherwise use the
name of SexyAds (or any abbreviation or adaptation thereof) in any
publication, press release, promotional materials or other form of
publicity without the prior written approval of SexyAds in each
instance, except in furtherance of its obligations as contemplated
herein. |
(b) During the term hereof, SexyAds may use
Affiliate’s name (including listing Affiliate as an affiliate) in any
filings required to be made by SexyAds with any governmental agency or
other person, or in any reasonable manner in connection with marketing
or promoting the Facility, subject to Affiliate’s prior approval,
which approval shall not be unreasonably withheld. Upon termination of
this Agreement, SexyAds shall promptly discontinue using Affiliate’s,
other than in connection with claims submitted thereafter for services
rendered by Affiliate during the term hereof, and shall immediately
cease listing Affiliate as an affiliate.
21. Force Majeure.
SexyAds shall not be liable to Affiliate
for inaccessibility to any of its services or “downtime” due to, but not
limited to: i) server failure; ii) Internet weather (or other
Internet/ISP problems beyond the control of SexyAds); iii) processor
downtime; iv) routine or emergency maintenance; or v) any other
technical difficulties which may occur in the day-to-day operations of
Internet websites. SexyAds may, but shall not be obligated to, provide
assistance and/or alerts to Affiliates regarding such conditions.
22. Legal Age of Affiliate.
Any Affiliate or representative thereof
must be at least eighteen (18) years of age to participate in any
SexyAds program. Affiliate, by executing this Agreement, affirms that he
or she is at least 18 years old.
23. Miscellaneous.
This Agreement shall be binding on and
shall inure to the benefit of the parties hereto and their respective
successors, assigns and legal representatives.
24. Electronic Signatures.
The parties hereto acknowledge that an
electronic affirmation to be bound by the terms of this agreement shall
serve for all purposes in the manner and with the legal force and effect
of a written signature.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first set forth above.
“SEXYADS”
Richardson-Shaw, Pty. Ltd..
By: ___________________________
Its: ___________________________
Date: _________________________
“AFFILIATE”
______________________________
Affiliate No.: _________________________
Date: _________________________
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