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Affiliate Terms & Conditions
This Affiliate Terms and Conditions Agreement (the "Agreement") is entered into by and between you (the "Affiliate") and Wonton Media, Inc., a Washington corporation, doing business as PanchoDog.com ("WMI") upon acceptance of this Agreement evidenced by clicking on the Create Account button on the PanchoDog.com sign-up page.
1. BASIC AGREEMENT
Upon acceptance by Affiliate of the terms and conditions contained herein and continued compliance herewith, Affiliate shall be allowed to participate in the PanchoDog Affiliate Program (the "Program") wherein WMI shall enable Affiliate to use certain intellectual property of WMI on Affiliate's Web sites for marketing and promotional purposes and as consideration for any traffic directed by Affiliate to WMI through Affiliate's marketing and promotional efforts and that converts into revenue to WMI, WMI shall pay Affiliate compensation, as set forth in section 3 below.
1.1 Prohibited Countries: Due to excessive fraud attempts, WMI does not allow webmasters who reside in the following countries to participate in our program: Albania, Armenia, Azerbaijan, Belarus, Bulgaria, China, Costa Rica, Croatia, Czech Republic, Estonia, Georgia, Hungary, India, Indonesia, Japan, Jordan, Kaliningrad, Kazakhstan, North Korea, South Korea, Kyrgyzstan, Latvia, Lithuania, Malaysia, Moldova, Pakistan, Philippines, Romania, Russia, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, and Yugoslavia.
2. RIGHTS GRANTED AFFILIATE
WMI grants Affiliate each of the following:
2.1 The nonexclusive right to refer, direct or send visitors or users of Affiliate's Web site(s) to websites owned, controlled and/or operated by WMI ("WMI Web sites"); and
2.2 A limited nonexclusive, nontransferable and revocable license to access and download promotional banners, and other promotional materials created and owned by WMI for use on Affiliate Web sites for the exclusive purpose of advertising, marketing or promoting WMI Web sites. Affiliate may post as many of these banners and other materials on its site(s) as desired.
2.3 WMI owns and retains all right, title and interest in and to its intellectual property, copyright, trademarks, patents, and in the promotional banners and other material provided by WMI, including all images therein. Upon termination of Affiliate's participation in the Program and/or termination of this Agreement, the grant of right and license set forth in subsection 2.2 above, shall cease and terminate, and Affiliate shall immediately remove all WMI banners, ads, and any and all other WMI intellectual property, copyrighted material, trademarks, and patents, if any, from Affiliate's Web sites.
2.4 Affiliate is not authorized and shall not use WMI's names, trademarks, design logos, banners, ads or other material for any purpose other than as expressly set forth herein or in any modification to this Agreement by WMI.
3. PAYMENT OF COMPENSATION
WMI will pay Affiliate for Web traffic to WMI Target Page(s) from a banner or link posted on web page(s) of Affiliate's site(s) as follows.
3.1 Revenue Share Payments: WMI offers a Revenue Sharing payment plan to Affiliates. Under the Revenue Sharing plan, Affiliates receive a % of the gross receipts from referred accounts, less applicable processing fees and other related fees charged by the third party processors who process charges for WMI.
3.2 All payments are made by check in U.S. dollars. Payments are disbursed within 3-5 business days of the close of the payment periods of each month. Payment will only be sent if the amount due to Affiliate is at least USD $100. Payment will be carried over from period to period until the amount due to Affiliate is at least USD $100. A "Pay Period" is defined as a two week period commencing on the 1st and 16th day of each given month at 12:00 AM and ending two weeks later on the 15th /last day of the month at 11:59 PM Central Standard Time. If Affiliate is a foreign, non United States resident participant, Affiliate may request that WMI withhold payment until the amount due is USD $300 or greater, so as to incur lower banking fees.
3.3 Affiliate agrees, by accepting and negotiating payment received from WMI, that the payment received is payment in full for any and all advertising space and traffic for the Pay Period to which the payment applies.
3.4 Affiliates may chose to be paid by one of the following methods: A) Check via U.S. Postal Service; B) ACH (Automated Clearing House) Transfer (United States Affiliates, only); C) Bank Wire Transfer; or D)Paxum.com.
3.5 A "referral" from an Affiliate Web site entitling Affiliate to a "commission" is defined as follows:
(i) A person who has been directed to an authorized website owned, controlled or operated by WMI ("WMI Web site") through the use of a hypertext transfer link residing on Affiliate's Web site in the form of a banner ad or other promotional link which automatically connects any person who clicks on the banner ad or other promotional link to a WMI Web site, and which banner ad or other promotional link has been supplied to Affiliate as part of the Program; and
(ii) That person who, after having been directed to a WMI Web site through the use of the hyperlink banner ad or other promotional link supplied to Affiliate residing on Affiliate's Website, has been converted into a subscriber or member of a WMI Web site.
3.6 "Webmaster Referral" Program: WMI will also compensate Affiliate for sales generated by other affiliates referred to WMI by the Affiliate. When a new webmaster affiliate signs up for the Program through the approved Webmaster Referral link provided to the Affiliate by WMI, the Affiliate will receive a 10% commission on each sale generated by that referred webmaster affiliate.
(i) Affiliates are prohibited from "referring" their own accounts/sales as such "self-referrals" will result in termination of all Program accounts operated by the Affiliate.
4. RESTRICTIONS ON PAYMENT OF COMPENSATION
4.1 Affiliate is not entitled to a commission for any WMI subscriber sent or referred to a WMI Website in violation of the terms of this Agreement, or for any WMI subscriber who does not fall within the terms of paragraphs 3.5 (i) & (ii).
4.2 Affiliate is not be entitled to a commission from WMI for any subscription which WMI determines is the result of potential fraudulent activity. WMI shall have the right, in its sole and absolute discretion, to expand or modify what it determines to constitute potential fraudulent activity. Without limiting the foregoing, potential fraudulent activity includes without limitation, the following circumstances or activities:
(i) The subscriber used or attempts to use a credit card number that is in a "negative database";
(ii) There are multiple subscriptions from a single Internet Protocol (IP) address within a one (1) month period of time;
(iii) There are sequential or multiple subscriptions under different names, or variations of the same name using the same credit card number, or sequential names or patterns of names using different credit card numbers;
(iv) There is a pattern of "bursting subscriptions" characterized by numerous subscriptions from a website in a relatively short time span (the "bursting period"), where there has been history of few subscriptions from that website before or after the bursting period.
(v) There are sequential or multiple attempts to register or subscribe from a credit card using the same "bin number" and sequential or multiple number strings are used to complete the credit card number.
(vi) There are subscriptions from an IP address that matches the IP address Affiliate used in establishing an account in the Program, or an IP address that is otherwise known to be used by Affiliate.
4.3 WMI has the right to deny or withhold payment from Affiliate, and to terminate Affiliate from the Program, if there is an abnormal number of chargebacks or cancellations of memberships or subscriptions which have been referred to WMI through Affiliate's Web sites. WMI shall determine, in its sole and absolute judgment, what constitutes an abnormal number of chargebacks or cancellations of memberships or subscriptions.
4.4 Affiliate or Referred Webmasters/Affiliates are not entitled to commission in the event the affiliate account becomes inactive: If more than 365 days have transpired and no new sales have been generated by the referred party, then any recurring income the non active referred party generates will cease to pass to the referring affiliate/party. If more than 365 days have transpired and no new sales have been generated by the affiliate, then any recurring income the non active affiliate generated will cease to pass to the affiliate.
5. TERM AND TERMINATION
5.1 This Agreement is not for any specific term or duration of time. Affiliate may terminate this Agreement at any time, for any reason or no reason; and, this Agreement and/or the Program may be terminated by WMI, in its sole and absolute discretion, at any time, for any reason or no reason.
5.2 Affiliate shall terminate participation in the program by notifying WMI by E-mail at email@example.com of Affiliate's intent to terminate participation in the Program.
5.3 In the event this Agreement is terminated, Affiliate shall be entitled to any unpaid commissions or referral fees earned prior to the date and hour of termination. Affiliate shall not be entitled to receive any commissions or referral fees for any "referrals" delivered or received after the date and time of termination.
5.4 If this Agreement is terminated due to Affiliate's breach of any portion of this Agreement, WMI reserves the right to withhold any amounts then due and owing.
6. AFFILIATE'S RESPONSIBILITIES AND DUTIES
6.1 Affiliate shall only use and promote on Affiliate Web sites WMI approved advertising banners, links, and other promotional materials.
6.2 Affiliate shall not use or employ any form of mass unsolicited electronic mailings, newsgroup postings, IRC postings, ICQ postings, adware, spyware, malware marketing, AOL Instant Messenger, Windows Messenger or similar direct-communication facilities, or any other form of "spamming" as a means of promoting Affiliate Web sites or for the purpose of directing or referring users to any web sites owned, operated or controlled by WMI.
Affiliate further acknowledges and agrees that WMI has the right to immediately, and without notice, terminate your participation in the Program if WMI, in its sole and absolute discretion, conclude that Affiliate has engaged in the use of any form of mass unsolicited electronic mail solicitations, newsgroup postings, password selling or trading, warez, IRC posting, ICQ postings, adware, spyware, malware marketing, AOL Instant Messenger, Windows Messenger or similar direct-communication facilities, or any other form of "spamming". NOTE: WMI HAS ZERO TOLERANCE FOR SPAMMING. IF AFFILIATE SPAMS, PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, AFFILIATE WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS OTHERWISE DUE TO AFFILIATE WILL BE FORFEITED TO WMI. AFFILIATES WISHING TO SEND TRAFFIC TO WMI SITES VIA ELECTRONIC MAIL PROMOTIONS MUST DO SO IN COMPLIANCE WITH THE CAN-SPAM ACT (- CLICK HERE TO REVIEW THE TEXT OF THE CAN-SPAM ACT), THE FTC's FINAL RULE REGARDING SEXUALLY EXPLICIT COMMERCIAL EMAIL (- CLICK HERE TO REVIEW THE TEXT OF THE FTC's FINAL RULE) AND THE TERMS LISTED BELOW:
1) All email campaigns must be authorized by WMI prior to the use of such email campaigns to promote WMI Web sites.
2) All email must include the mark SEXUALLY-EXPLICIT: (in this exact form) in the subject heading. This mark in the subject line must be in ASCII format.
3) The SEXUALLY-EXPLICIT: mark must also be included in the initially viewable area (termed the "brown paper wrapper") of the email message. The initially viewable area of the message is defined as the portion of the message that is immediately visible to the recipient withouth taking any affirmative action to view the message, like scrolling down or clicking a link that leads to the sexually explicit material.
4) Sender must EXCLUDE from both the subject heading and intially viewable area of the message any sexually explicit words or visual depictions. Therefore, the subject heading and initially viewable area must EXCLUDE words and/or images that depict the following:
Actual or simulated -
(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal penetration, whether between persons of the same or opposite sex;
(D) Sadistic or masochistic abuse; or
(E) Lascivious exhibition of the genitals or pubic area of any person.
5) In addition to the SEXUALLY-EXPLICIT: mark, the initially viewable area of the email must also include the following:
a. clear and conspicuous notice that email message is for an advertisement or solicitation
b. clear and conspicuous opt-out instructions and link
c. functioning return email address or other internet based mechanism to opt out;
d. clear and conspicuous valid physical postal address of email sender; and
e. instructions as to how to access the sexually explicit materials.
"Clear and conspicuous" means that the recipient must be able to actually read the text without altering it. One cannot, for example, place the physical address (or other required information) in a color that cannot be distinguished from the background, or in a font size that is too small to read.
If you have any questions concerning the PanchoDog mailing terms, please contact firstname.lastname@example.org
6.3 Except as expressly authorized by WMI in writing, Affiliate shall not copy, reproduce, alter, modify, change, broadcast, distribute, transmit or disseminate any banners or other promotional or advertising materials provided by WMI pursuant to this Agreement in whole or in part, in any form or manner, at any time or anywhere in the World.
6.4 Affiliate shall ONLY use Promotional Pictures and Images provided by WMI to promote sites that are included in the Program. For purposes of this Agreement Promotional Pictures and Images means any of the images and/or videos provided by panchodog.com.
6.5 Affiliate may use Promotional Pictures and Images provided by WMI ONLY to promote WMI sites.
6.6 Affiliate shall disseminate, transmit, broadcast or distribute the material provided through the Program only to consenting adults over the age of eighteen (18) years, twenty-one (21) years in those locations where that is the age of majority.
6.7 All content displayed on any web site containing WMI banners or links, and all content displayed on any web site to which Affiliate provides third party links to, must comply with all local laws and community standards. Accordingly, Affiliate shall not include, or link to, any of the following within a website that contains WMI banners or links, or directly or indirectly link any of the following content or material to any WMI website through any hyperlinks maintained or created on Affiliate's Web sites:
(i) Material deemed obscene by WMI, including without limitation, materials depicting bestiality, rape, torture, or sites promoting hatred of any type;
(ii) Any material not in full compliance with the provisions of 18 U.S.C. Sec. 2257;
(iii) Any material that constitutes child pornography, any material in which persons under the age of eighteen are depicted in actual, simulated or suggestive sexual situations, or material that involves depictions of nudity or sexuality by an age inappropriate-looking performer (i.e. someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc. Prohibited material mentioned herein includes the use of the term 'lolita' for any purpose in any fashion including, but not limited to, within meta-based tags;
(iv) Any material deemed by WMI to be threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity;
(v) Any material which constitutes an infringement, misappropriation or violation of any person's intellectual property rights including without limitation, copyrights, trademarks, rights of publicity, patent rights, personal property rights, privacy rights or any other intellectual property right; or
(vi) Any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature, regardless whether damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person.
6.8 Affiliate agrees that whenever it uses the intellectual property of WMI (including, but not limited to images, videos, banners, and trademarks) it will promptly notify WMI of the Internet Web location of such use by providing to WMI the Uniform Resource Locator (“URL”) of each piece or pieces of intellectual property of WMI so used. Affiliate further agrees that failure to promptly notify WMI of each such URL shall constitute a material breach of the Agreement. Affiliate also agrees that use of WMI intellectual property without prompt notification to WMI shall constitute an infringing use of that intellectual property. WMI shall, from time-to-time, provide a means for such reporting. Currently, that reporting means is: email@example.com
7. REPRESENTATIONS AND WARRANTIES
Affiliate hereby represents and warrants each of the following:
7.1 That if Affiliate is an individual person, he/she is over the age of eighteen (18) years;
7.2 This if Affiliate is an entity (i.e., corporation, limited liability company, etc.) that all individuals employed or associated with Affiliate in any way are over the age of eighteen (18) years; and
7.3 That the individual who provides information pursuant to the Program and accepts this Agreement has full, lawful power and authority to enter into and to carry out the terms of this Agreement.
8. UNITED STATES TAXATION
8.1 All United States residents and corporations, and foreign participants who are residents of the United States, are required to provide a completed and signed United States Department of Treasury Internal Revenue Service Form W-9 setting forth information including a United States Federal Employer Identification Number, or Social Security Number.
9. RIGHTS OF WMI
9.1 WMI shall have the right, in its sole and absolute discretion, to terminate the Program and any and all Program Benefits relating to Affiliate's participation in the Program at any time and may do so with or without cause.
9.2 WMI shall have the right, in its sole and absolute discretion, to change or modify the Program, including without limitation, the right to pay an Affiliate participating in the Program based on "click through's" rather than a flat commission or fee for a referral, as defined in section 3. If at any time WMI changes or modifies the Program, Affiliate shall have the right to withdraw and terminate participation in the Program.
10. NO PARTNERSHIP, JOINT OR COLLABORATIVE VENTURE
10.1 Nothing contained in this Agreement shall create or be deemed to create a partnership, joint venture or other business combination or venture of any kind between Affiliate and WMI, its subsidiaries, affiliated entities, successors or assigns; nor shall any term contained in this Agreement constitute or create any agency or employment relationship between Affiliate and WMI, its subsidiaries, affiliated entities, successors or assigns.
10.2 WMI has no control over nor ownership interest in Affiliate or Affiliate's Web sites, and Affiliate has no financial or other interest in WMI, its subsidiaries, affiliated entities or any property owned by such entities, except as expressly set forth herein.
11. NO CONTENT CONTROL, MONITORING OR SUPERVISION
11.1 WMI does not monitor, supervise or review content contained on Affiliate's Web sites. WMI is not responsible for any content appearing or otherwise distributed on, at or in association with Affiliate's Web sites that is provided by Affiliate or independent third parties.
11.2 WMI has no direct or indirect control over the content of performances or services, the manner of performances or services, or the time or duration of provision of performances or services by Affiliate on, at or in association with Affiliate's Web site except as specifically set forth in this Agreement.
12. NO WARRANTY OR GUARANTY
WMI makes no guaranty of any kind with respect to the Program or materials provided by, through or in association with the Program, and all materials are provided to Affiliate "as is", and use of the Program and associated materials is solely at Affiliate's risk. WMI disclaims all warranties, either express or implied including, but not limited to, warranties of merchantability and fitness for a particular purpose with regard to the Program and any and all materials of every kind supplied to Affiliate as part of this Program.
13. NO GUARANTY OF SUCCESS OR PROFITABILITY
WMI cannot guaranty or promise Affiliate any level of success or profitability due to Affiliate's participation in the Program. Affiliate has unilaterally entered into an Internet service business and all risk of loss, cost and expense of Affiliate doing business shall be borne solely by Affiliate.
14. FORCE MAJEURE
Neither party shall be liable for any loss or delay, nor be considered in breach of this Agreement, due to an act of God, fire, natural disaster, terrorist act, strike or other labor stoppage, declaration of war or military intervention, computer system/server failure, network failure, governmental action, or any other cause outside the control of the parties and which cannot be avoided by the exercise of due care.
15. LIMITATION OF LIABILITY
WMI, its subsidiaries, affiliated entities, employees, independent contractors, agents, representatives, assigns and successors shall not be liable to Affiliate, or any other person or entity, for any direct or indirect losses, injuries or incidental, consequential or other damages (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any WMI website, or arising from or in connection with this Agreement or the use of the PanchoDog Program materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of WMI's services, content or Program materials, including without limitation any losses due to server problems or due to incorrect placement of HTML.
Affiliate shall indemnify and hold WMI, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors and any successor-in-interest or assign (the "Indemnified Parties") harmless from any breach of this Agreement by Affiliate, including any use of Program materials other than as expressly authorized in this Agreement. Affiliate agrees that the Indemnified Parties shall have no liability in connection with any such breach or unauthorized use, and Affiliate agrees to indemnify for any resulting loss, damage, judgment, award, cost, expense, and attorneys' fees of the Indemnified Parties. Affiliate shall also indemnify and hold the Indemnified Parties harmless from and against any and all claims brought by third parties arising out of Affiliate's use of the information accessed from a WMI Web site.
17. TRANSFER OR ASSIGNMENT
17.1 This Agreement shall not, under any circumstances, be transferred or assigned by Affiliate to any other person or entity, and any attempted transfer or assignment of a membership shall be void.
17.2 WMI may, at any time, in its sole discretion and without prior notice to Affiliate, transfer or assign this Agreement to an affiliated or non-affiliated person or entity.
This Agreement is subject to change or modification by WMI at any time and changes shall become effective upon notice to Affiliate by e-mail, posting at or via hyperlink to a WMI Website, or by mail. An Affiliate may not alter, delete, add or change or edit any of these terms and conditions, and any such attempted alteration shall be void and of no effect.
19. NOTICES TO WMI OR AFFILIATES
Notices from a WMI Website to Affiliates may be given by means of electronic messages (email), by general posting on the Website, or by conventional mail. Communications from Affiliate to WMI may be made by electronic messages (email) or conventional mail, unless otherwise specified in this Agreement.
All notices to WMI sent by electronic mail shall be to firstname.lastname@example.org.
Notices from WMI shall be deemed delivered when sent by WMI to Affiliate; notices of changes or modifications to this Agreement shall be accepted by Affiliate upon the first use by Affiliate of the Materials provided in the Program after such notice was sent; and, such acceptance of a change or modification shall be deemed to relate back to the date such change or modification was originally sent by WMI.
20. CHOICE OF LAW, ARBITRATION AND ATTORNEY'S FEES
This Agreement shall be governed by the laws of the State of Washington. In the event of any dispute arising under this Agreement, the parties agree to submit such dispute to binding arbitration in accordance with the rules of the American Arbitration Association without regard to the amount in controversy or the nature of relief sought; except that the parties waive their right to a trial de novo following arbitration. The arbitrator shall be chosen by the parties and shall be a person who is experienced in electronic commercial law and transactions. If the parties cannot agree on a single arbitrator, each party shall forthwith select an arbitrator of its choice, and the arbitrators thus appointed shall then forthwith select a third arbitrator who shall be deemed Chief Arbitrator. Any final determination of an arbitrator shall be final and binding upon the parties. Judgment on the award rendered by the Arbitrator may be entered in any state, territory or possession of the United States. With further respect to any arbitration arising hereunder, the substantially prevailing party in any such action shall be entitled to its costs and reasonable attorneys' fees.
The failure of any party hereto to insist upon strict performance of any covenant or agreement contained herein, or to exercise any option or right, shall not be construed to be a waiver or relinquishment of any such option or right, or of any other covenants or agreements, but the same shall be and remain in full force and effect.
If any provision of this Agreement is held to be invalid or unenforceable, in any respect, such invalidity or unenforceability shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement, but, to the contrary, this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
22. ENTIRE AGREEMENT, HEADINGS, AND NEUTRAL CONSTRUCTION
This Agreement and any changes or modifications thereto by WMI and accepted by Affiliate expresses the entire agreement between the parties regarding Affiliate's participation in the Program, and all materials directly and indirectly related thereto, superseding and negating any prior or contemporaneous agreements, whether written or oral. There are no representations, agreements, arrangements or undertakings relating to the matters addressed which are not fully expressed herein. The headings are for convenience only and shall not be construed to give any substantive meaning to the agreement between the parties. This Agreement shall be construed neutrally and as the commemoration of the mutual assent of both parties rather than for or against either party.
23. REVIEW BY ATTORNEY
WMI strongly advises that Affiliate review this Agreement with an attorney before acceptance of its terms so Affiliate is fully apprised of all its rights, duties and obligations under this Agreement. Affiliate acknowledges that nothing herein and no statement by WMI or any employee, representative, agent or other person associated with WMI has in any way prevented or inhibited Affiliate from seeking such independent legal advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair; all terms have been fully disclosed in writing, and Affiliate has been given reasonable opportunity to seek the advice of independent counsel with respect to this Agreement and all transactions associated herewith.
24. ACCEPTANCE AND EXECUTION
By CLICKING ON THE "CREATE ACCOUNT" BUTTON on the PanchoDog.com Sign-Up Page, and by supplying WMI with all the information required to create an account on the Program, Affiliate has accepted all of the terms and conditions set forth herein above.