: October 5, 2010
: October 5, 2010
To participate in the Suite 703 Affiliate Program ("Program") as a Suite 703 Affiliate, you must first agree to be bound by all of the following terms and conditions of the Suite 703 Affiliate Agreement ("Affiliate Agreement"):
NO PERSON UNDER EIGHTEEN (18) YEARS OF AGE MAY DIRECTLY OR INDIRECTLY PARTICIPATE IN THE PROGRAM. YOU HEREBY AFFIRM AND WARRANT THAT YOU ARE CURRENTLY OVER EIGHTEEN (18) YEARS OF AGE AND OVER THE AGE OF MAJORITY IN YOUR COMMUNITY, AND ARE CAPABLE OF LAWFULLY ENTERING INTO THIS AFFILIATE AGREEMENT.
(1) "Affiliate" means a person or entity who markets Suite 703 subscriptions, products, and services through an independent web site in exchange for the payment of a commission based on sales of Suite 703's subscriptions, products, and services.
(2) "Affiliate Code" (or "link code") means a string of alphanumeric text that uniquely identifies an Affiliate, advertising campaign, or other tracking metric.
(3) "Chat Traffic Advertisement" means a pop-up message displayed on a web site for the purpose of attracting users to other commercial sites.
(4) "Licensed Content" means any data, text, images, motion pictures, video clips, audio clips, advertising banners, hyperlinks, and other information offered by Suite 703 to Affiliates in connection with the Program. Licensed Content does not include content on Suite 703's web sites unless it is expressly offered to Affiliates in connection with the Program.
(5) "Promotional Link" means any Uniform Resource Locator ("URL") placed on an Affiliate web site that links to Suite 703 in connection with the Program. Promotional Links must include an Affiliate Code and comply with the terms and conditions of this Affiliate Agreement. Promotional Links are designed to permit accurate tracking, reporting, and accrual of commissions for the Affiliate.
(6) "Qualified Referral" means a user/customer directed from the Affiliate web site by a Promotional Link who signs up for a paid subscription on Suite 703's web site within a single computer session.
(7) "Net Payment" means the gross payment received from a Qualified Referral minus any and all applicable fees. By way of example, if a Qualified Referral signs up for a one (1) month subscription at $24.95, and Suite 703's credit card processing company charges 13.5%, the Net Payment to Suite 703 would equal $21.58 for that subscription sale.
(8) "Spam" or "spamming" generally means the use of electronic messaging systems to send unsolicited bulk messages without consent of the recipients. While the most widely recognized form of spam is e-mail spam, the term is expansive and applies to numerous forms of media including, but not limited to, instant messaging spam, Usenet newsgroup spam, Web search engine spam, spam in blogs, wiki spam, online classified ads spam, mobile phone messaging spam, spam in mobile applications, Internet forum spam, junk fax transmissions, spam on Twitter, spam on Facebook, social networking spam, and file sharing network spam.
B. Binding Agreement
. The terms and conditions of this Affiliate Agreement constitute a binding legal agreement between you, the Affiliate, and La Touraine, Inc. d/b/a Suite 703.
C. Consent to Receive E-mail Communications
. By entering into the Affiliate Agreement, you agree and consent to receive from Suite 703 notifications, updates, and other information about the Program to your e-mail address currently on file with Suite 703, unless you affirmatively opt-out of the Program's default notification setting.
A. Application. To become an Affiliate, you must submit a complete and accurate Program application, in which, among other things, you accurately identify your web site(s).
B. Evaluation of Application. Suite 703 will evaluate your application and notify you of its acceptance or rejection. Your application may be rejected for any reason in Suite 703's discretion, including but not limited to the following: (1) you are under eighteen (18) years of age (and over the age of majority in your community); (2) your application contains inaccurate, incomplete, or false information; (3) your web site incorporates material that is unlawful, defamatory, infringing, obscene, non-adult, harassing, or is otherwise objectionable; or (4) your domain name or site is identical or confusingly similar to a trademark or service mark in which Suite 703 or another person or entity has intellectual property or other legal rights. If your application is accepted and Suite 703 later determines that you violated any of (1), (2), (3), or (4), your Program account will be terminated.
C. Re-application. You may re-apply to the Program if your application is rejected, unless Suite 703 provides otherwise.
Subject to the terms and conditions of this Affiliate Agreement, and after you have been notified that your application has been accepted, you may download and use Licensed Content and Promotional Links on your web site.
As a condition of your participation in the Program, you acknowledge and agree to the following limitations and restrictions:
A. Compliance with Laws
. In connection with your participation in the Program, you will comply with all applicable laws, including local, state, federal, or international laws, rules, and regulations. All content on your site, including Licensed Content, may only be accessed by consenting adults in locations where such content does not violate community standards. All unlawful content is strictly prohibited. You are responsible for all content posted on your site and are prohibited from posting any unlawful content. You further agree to the following:
(1) Depictions of Minors
. You disseminate, post on your web site, or provide any links any matter that involves depictions of nudity or sexuality by an age inappropriate-appearing performer (i.e., a performer 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 by virtue of the script, make-up, costuming, demeanor, setting, etc.
. You disseminate, post on your web site, or provide any links to any obscene material, including without limitation any material depicting bestiality, rape, or torture.
. You disseminate Spam in connection with the Program. Although U.S. federal and state law may not prohibit all forms of spamming, Suite 703 imposes a stricter, no-spam policy for Affiliates of the Program. What constitutes spamming will evolve over time as new technologies and methodologies emerge for spammers to find new ways to abuse the Program. Some of the factors that Suite 703 takes into account when determining what constitutes spamming are:
a. If you have violated a U.S. federal or state anti-spamming law, including any portion of the CAN-SPAM Act of 2003 (15 U.S.C. Ã�Â§Ã�Â§ 7701 et seq.) or any of the federal regulations promulgated thereunder;
b. If you have violated the anti-spamming policy of any third party;
c. If you have sent unsolicited bulk messages to non-consenting recipients;
d. If you have misleading or false information contained in your messages, subject line, or message-headers;
e. If you use automated means to collect, transmit and/or sell the electronic addresses of others;
f. If you use a third party site or program to automatically generate and send messages or content;
g. If the primary purpose of your message is commercial in nature; and,
h. The number of spam or abuse complaints that have been lodged against you.
No one factor is controlling, and Suite 703 will look to the particular circumstances of each case to determine what constitutes spamming. When in doubt, please contact your affiliate manager.
(4) Defamation and Related Conduct
. You will not publish content on your web site that is defamatory, libelous, threatening, abusive, hateful, derogatory, disparaging, or otherwise injurious to any person or entity or to the reputation of any person or entity.
(5) Section 2257
. Your web site must be in full compliance with Section 2257 of Title 18 of the United States Code, "the Records Keeping and Labeling Act," and the regulations promulgated thereunder, including 28 C.F.R. Part 75 ("Section 2257 Requirements").
a. You represent and agree to act as the "Custodian of Records" required to be maintained by the Section 2257 Requirements for any and all images depicting actual sexually explicit conduct of an actual human being that may be used to promote or market the Program regardless of who has produced such images.
b. You shall properly and continuously post the statements in the manner and locations required by the Section 2257 Requirements on the web site you use in connection with the Program.
c. Suite 703 shall make available to you the records required by Section 2257; however, it is your responsibility to obtain those records from Suite 703. Any information in the nature of legal names, dates of birth, home addresses, and other personal information relating to the actors and models that you may receive from Suite 703 for the purpose of meeting Section 2257 Requirements shall be treated by you as "Confidential Information." The Confidential Information is the sole property of Suite 703 and you shall use the Confidential Information solely and exclusively to comply with the Section 2257 Requirements and for no other purpose whatsoever.
d. You agree to take reasonable measures to protect the confidentiality and security of and to avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, you agree to take at least those measures that you take to protect your own confidential information of a similar nature, but in no case less than reasonable care. Without limiting the foregoing, you shall not: (i) copy, reproduce, distribute or disclose to any person, firm or corporation any of the Confidential Information disclosed to you by Suite 703 in any matter whatsoever; (ii) permit any third party to have access to such Confidential Information; or (iii) use such Confidential Information for any purpose other than complying with the Section 2257 Requirements.
e. You shall keep the Confidential Information only as long as is directed by the Section 2257 Requirements and shall thereafter promptly destroy any and all copies of the Confidential Information, shall delete all Confidential Information that may reside on any computer system owned by you or under your control or your representative's control (including backup tapes) and shall destroy any and all other documents that may contain abstracts, excerpts or other portions of the Confidential Information.
f. You represent and agree that each web site operated by you will be in full compliance with Section 2257, including the record-keeping and labeling requirements that must be maintained by you at all times. You acknowledge and agree that any and all content published on your web site is, and shall be, compliant with Section 2257.
B. Intellectual Property Rights
. You represent and agree that you will not publish content on your web site that violates the intellectual property rights or other legal rights of any person or entity, such as copyright, patent, trademark, service mark, trade secret, trade dress, right of privacy, right of publicity, moral right and any other proprietary right.
C. Cybersquatting or Typosquatting
. You represent and agree that you will not register or attempt to register any domain name (including third level domain names or sub-domains) or URL that is identical or confusingly similar to a trademark or service mark in which Suite 703 or another person or entity has intellectual property or other legal rights.
D. Paid Search Advertising Schemes
. You represent and agree that you will not bid on or purchase any online paid advertising schemes that incorporate or are confusingly similar to any of Suite 703's trademarks, service marks, or URLs. By way of example, such prohibited advertising schemes include pay-per-click models, sponsored links, search engine keywords, AdWords, or similar advertising schemes.
E. Other Prohibited Uses
(1) Distribution to Prohibited Areas. You acknowledge and agree that you will not permit Licensed Content or Promotional Links to be accessed, viewed, downloaded, used by, transmitted, broadcast, or otherwise disseminated to any person or entity located in any and all areas prohibited by law.
(2) Misrepresentation of Relationship. You represent and agree that you will not misrepresent your contractual relationship with Suite 703 or imply that any affiliation or relationship exists with Suite 703 except as expressly provided in this Affiliate Agreement. By way of example, you cannot publish any statement indicating that Suite 703 supports, sponsors, endorses, or contributes to your web site other than as expressly provided in this Affiliate Agreement.
(3) Unauthorized Access. Your unauthorized access, viewing, downloading, receipt, duplication, or other unauthorized use of Licensed Content that you directly or indirectly obtain through your participation in the Program shall constitute a material breach of this Affiliate Agreement.
(4) Malicious Code, Viruses, Etc. You represent and agree that you will not use or offer for download any material that contains a virus or malicious code, such as a Trojan Horse, that has the potential of causing disruption or damage to any computer system. You will be responsible for any and all damage caused by any such program.
(5) Links to and Content of Others. You represent and agree that you will not use Suite 703's images, content, or promotional material to promote and/or link to any other site.
(6) Chat Traffic Advertisements. You represent and agree that you will not use Chat Traffic Advertisements in connection with the Program.
A. Grant of Limited License
. Subject to Suite 703's acceptance of your Program application and your agreement to the terms and conditions of this Affiliate Agreement, you will be granted a limited, non-exclusive, royalty-free, non-transferable, non-assignable and revocable license during the term of this Affiliate Agreement to download and use on your site Licensed Content for the exclusive purpose of advertising, marketing, or promoting Suite 703's online services and products. This license is revocable by Suite 703 at any time, in Suite 703's sole discretion, with or without prior notice.
B. Limitations on License
. You may only use Licensed Content in accordance with the Agreement, on one computer at a time. If the Program makes copies of Licensed Content available, you may only download a single copy of such content on your hard disk and upload a single copy on your site. No further copies are permitted. You further agree to the following limitations and restrictions on your use of Licensed Content:
(1) Use Restrictions
. You acknowledge and agree that any and all unauthorized access, viewing, downloading, receipt, duplication, or other use of Licensed Content in which you are directly or indirectly involved, shall constitute a material breach of the Agreement, intentional infringement(s) of Suite 703's and potentially others' trademarks, copyrights, intellectual property, and/or other rights including without limitation, the rights of privacy and publicity.
(2) Other Prohibited Actions
. You acknowledge and agree that you are prohibited from:
a. modifying, translating, reverse engineering, decompiling, and/or disassembling Licensed Content;
b. creating derivative works based on Licensed Content;
c. renting, leasing, or transferring any rights in Licensed Content;
d. removing any proprietary notices or labels on Licensed Content; and
e. making any other unauthorized use of Licensed Content.
(3) Ownership of Licensed Content and Intellectual Property
. Except for public domain material or material otherwise licensed to Suite 703, Licensed Content displayed on or made available through the Program is proprietary content owned by Suite 703, its parent(s), subsidiary(ies), and/or assign(s). All editions of Licensed Content and any other matter used directly or indirectly in connection with the Program are protected by the copyright laws of the United States, international copyright treaties, and other laws and regulations. All title and proprietary rights in and to Licensed Content, or any other matter made available through the Program, shall at all times remain in Suite 703, its parent(s), subsidiary(ies), and assign(s).
C. No License for Other Content on Suite 703
. No license is granted for any content published on Suite 703's web sites unless such content is made available to you through the Program and is designated as Licensed Content by Suite 703.
D. Reservation of Rights
. Other than as expressly granted above, no other rights are granted, including without limitation, any copyright, patent, trademark, service mark, trade secret, trade dress, right of privacy, right of publicity, moral right and any other proprietary right. Suite 703 reserves all rights to select, alter, add, or remove any and all Licensed Content and Promotional Links used in connection with the Program.
E. Termination or Withdrawal of License
. Your license to download and use Licensed Content shall automatically terminate, and all rights shall automatically revert to Suite 703, upon termination of this Affiliate Agreement or your withdrawal from the Program. In such event, you shall delete all copies of Licensed Content that may reside on any computer system and/or web site owned by you or under your control.
You agree to immediately notify Suite 703 if you receive any inquiries or requests for information regarding the following subjects:
- Depictions of Nudity or Sexuality by Minors
- SPAM Complaints
- Copyright Infringement
- Trademark Infringement
- Unfair Business Practices
- Invasion of Privacy Issues
- Fraudulent Activities
- Criminal or Civil Investigations, including subpoenas served upon you
. Suite 703 will pay you commissions of sixty percent (60%) of the Net Payment for each Qualified Referral. Commissions of sixty percent (60%) shall continue to be paid to you for each re-bill of a Qualified Referral throughout the life of the subscription.
(1) Minimum Payout Threshold. The minimum payment amount is one-hundred dollars ($100.00 USD) ("Minimum Payout Threshold"). Any accrued payments totaling less than the Minimum Payout Threshold will be rolled over into subsequent payments until the Minimum Payout Threshold is reached.
(2) Payout Schedule. Commissions are paid by check. So long as the Minimum Payment Threshold is reached, commissions are mailed to the address currently on file with your Program account every two (2) weeks on average, excluding U.S. holidays and weekends.
C. Limitations of Payouts
. Suite 703 will only pay you for Qualified Referrals. That means that commissions may only be paid if a visitor to Suite 703's web site can be tracked by our system from the time a user clicks on a Promotional Link to the time of sale. You will receive no commissions if our system cannot process your Affiliate Code, if a user does not make full payment for services, or if a user is directed to our site by a Promotional Link, but leaves and later returns to sign up for a subscription.
. You will be responsible for payment of any and all taxes attributable to commissions or other payments made to you. As a part of your application, you will be required to provide a Federal Tax Identification Number or Social Security number for IRS reporting requirements.
E. Subject to Change
. Commission rates, payout schedules, and minimum payout limits are subject to change at any time at Suite 703's sole and absolute discretion, with or without prior notice.
A. Affiliate's Representations and Warranties. You represent and warrant that you own or operate a lawful and otherwise valid internet web site that adheres to the terms and conditions of this Affiliate Agreement.
B. Suite 703's Disclaimer of Warranties. SUITE 703 HEREBY DISCLAIMS ALL WARRANTIES AND IS MAKING THE PROGRAM AND LICENSED CONTENT AVAILABLE "AS IS" WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS ARISING FROM THE USE OF, OR INABILITY TO USE, THE PROGRAM AND/OR LICENSED CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUITE 703 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PROGRAM, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SUITE 703 DOES NOT WARRANT THAT THE PROGRAM AND/OR LICENSED CONTENT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM AND/OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
A. Term. The term of this Affiliate Agreement will begin upon acceptance of your Program application and your agreement to the terms and conditions of this Affiliate Agreement and will end when terminated by either party.
B. Notice of Termination. Either party may terminate this Affiliate Agreement at any time, with or without cause, by giving the other party written notice of termination.
C. Survival. The following provisions of this Agreement shall survive the termination or expiration of this Agreement: (1) payment of amounts owing to the Affiliate at the time of termination; (2) representations and warranties; (3) disclaimer and limitation of liability; and (4) indemnification.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SUITE 703 BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RELATED TO YOUR USE OF THE PROGRAM, LICENSED CONTENT AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY SUITE 703, EXCEPTING SUCH INJURY OR DAMAGES CAUSED BY SUITE 703'S FRAUD, WILLFUL INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR VIOLATION OF LAW BY SUITE 703.
You hereby agree to indemnify, defend, and hold harmless Suite 703 and all of its related entities, subsidiaries and parent companies, advertising and promotions agencies, and each of their heirs, successors, officers, directors, shareholders, employees, assigns, agents, attorneys, representatives, and any other person or entity now or hereafter affiliated with them, and each of them (collectively, "Indemnified Parties"), of and from any and all claims, demands, causes of action, obligations, damages, losses to any person (including death) or property, penalties, attorney's fees, costs, and liabilities of any nature whatsoever, whether or not now known, suspected or claimed, arising out of any breach by you or any other user of your Program account, whether or not such user has your permission, of this Affiliate Agreement. Suite 703 reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In such event, you shall cooperate as fully as is reasonably required in the defense of any claim.
A. Entire Agreement. This Affiliate Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings with respect to the subject matter hereof.
B. Modification. Suite 703 reserves the right to unilaterally modify the terms and conditions of this Affiliate Agreement at any time. You agree that any and all modifications to this Affiliate Agreement are effective immediately upon posting on our web site or by notifying you through your Program account currently on file. Any modified version supersedes any prior versions immediately upon such notice, and any prior versions are of no continuing legal effect unless the modified version specifically provides otherwise. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AFFILIATE AGREEMENT AND WITHDRAW FROM THE PROGRAM. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A REVISED AFFILIATE AGREEMENT, OR NOTIFYING YOU THROUGH YOUR AFFILIATE ACCOUNT, SHALL CONSTITUTE YOUR BINDING ACCEPTANCE OF SUCH MODIFICATION.
C. Severability. Should any provision of this Affiliate Agreement be invalid, illegal, or unenforceable in any respect, such provision shall not affect the validity and enforceability of any other part of this Affiliate Agreement.
A. Governing Law. This Affiliate Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to the principles of conflict of laws. This Affiliate Agreement is deemed by the parties to have been executed and delivered in San Diego, California.
B. Forum Selection. The parties hereto agree and consent to personal jurisdiction in the State of California for all actions or proceedings arising in connection with this Affiliate Agreement and further agree that such actions or proceedings shall be tried and litigated exclusively in the State or Federal courts located in the County of San Diego, State of California. The aforementioned forum is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Affiliate Agreement in any jurisdiction other than that specified in this paragraph.
A. Electronic Signatures. You are electronically signing this Affiliate Agreement by either selecting the "I Agree" button below and/or participating as an Affiliate in the Program. You understand and agree that this Affiliate Agreement may not be denied legal effect, validity, or enforceability solely because your electronic signature was used in its formation. You further understand and agree that electronic signatures and records are just as good as their paper equivalent, and therefore subject to the same legal scrutiny of authenticity that applies to paper documents.