By joining any one of our webmaster affiliate programs ("Affiliate Program(s)"), you ("Affiliate"; "You") are entering into a binding and enforceable contract with Bimarian Ltd, doing business as, VIPOffers.com, ("Company"; "We"). This Agreement sets forth the Terms and Conditions AND PROGRAM RULES under which you may participate in the Program. By participating in the Program and clicking "I AGREE" on the Sign-Up Form you are affirmatively stating that you have read, understood and ACCEPT this Agreement and AGREE to be bound by all of the Terms and Conditions AND your individual account PROGRAM RULES set forth below:
1. You have read and accept the payment and other terms and conditions of the specific Affiliate Program and your individual account PROGRAM RULES which can be found in the 'Stats' area of your account
2. All Affiliates, contacts and payees must have reached the age of majority under applicable law where they reside and/or do business, and must be no younger than 18 years of age in any case. You represent and warrant that you have reached the age of majority under the laws of the state or locality where you reside and/or do business.
3. Under the Program Rules, and subject to the Terms and Conditions set forth in this Agreement, we grant you the following:
3.1 The non-exclusive, non-transferable, revocable right and permission to create authorized links from your web site to a Company web site. You will receive a commission or referral fee for referrals of traffic to a Company web site according to the Program Rules for the specific Affiliate Program you have accepted provided that you have complied in all material respects with the Terms and Conditions of this Agreement.
3.2 The nonexclusive, non-transferable, revocable right and license to display on your web site proprietary Company materials including but not limited to content; banners; text links; graphic images and text (hereafter collectively referred to as "Program Materials") solely for the purpose of promoting the products and services associated with the Program and encouraging visitors to your web site to click through to the Company web site.
3.3 You acknowledge and agree that the Company is, and shall remain, the exclusive owner of these Program Materials provided to you by Company pursuant to the provisions of the Agreement, and that the Program Materials may not be copied, reproduced, altered, modified, changed, broadcast, distributed, transmitted, disseminated or offered for sale or rental in any manner, at any time, anywhere in the world, except at expressly authorized by Company in writing.
3.4 You acknowledge and agree and warrant to the Company that your agreement to these terms and conditions constitutes an agreement that You shall not access, or attempt to access any Program Materials and/or ant Company web site in a manner not expressly authorized by the Company. You agree and warrant that You shall at no time access view download, receive or otherwise use, or cause or enable others to access, view, download, receive or otherwise use Program Materials and/or any Company web site directly or indirectly in places which the Company does not authorize such access, viewing, downloading, receipt or other use.
3.5 You hereby acknowledge that you understand that the Company does not authorize the accessing, viewing, downloading, duplication, receiving, transmission, broadcasting or other use of the Program Materials and/or Company web site to or by and person, INCLUDING YOU, who is located in any of the areas designated as PROHIBITED AREAS below.
3.6 You further acknowledge that you understand and agree that any and all unauthorized access, viewing, downloading, receipt, duplication or other use of Program Materials and/or any Company web site, in which You are directly or indirectly involved, including, but not limited to accessing, viewing, downloading, receiving or other use of materials in PROHIBITED AREAS in any manner shall constitute intentional infringement(s) of the Company's and potentially others' intellectual property rights and other rights in such materials and shall further constitute a violation of Company's trademark and other rights including, but not limited to rights of privacy.
3.7 Company reserves all of its rights in its trade names and trademarks, service marks and all intellectual property rights associated with the Program Materials. Nothing herein shall be construed as a grant or assignment of any rights in any intellectual property owned by Company, including, without limitation, any of its trademarks or service marks.
3.8 You agree that this license can be terminated or revoked at any time for any reason, or for no reason, upon notice by Company to you and you agree upon receipt of such notice immediately to cease using all Program Materials and removing all such Materials and references to Company and/or its web sites from your web sites and any promotional, advertising or marketing materials of any kind.
3.9 All of the following areas constitute PROHIBITED AREAS from which no Program Materials and/or any Company web site may be accessed, viewed, downloaded or otherwise received:
All parts of every geophysical place corresponding to a political entity or part thereof in which the access, viewing, downloading, dissemination of, or other use of the materials contained in the Site would constitute a violation of any law, regulation rule or custom.
4. In consideration of Company providing you with Program Materials and the other benefits of the Affiliate Program, you hereby represent and warrant to Company as follows:
4.1 That your web site and all materials, content, goods and services offered through and in associations with your web site do not and shall not at any time:
* violate any law, statute, ordinance or regulation or promote illegal activities;
* contain or promote obscene materials or child pornography;
* contain any materials which depict persons in a manner to suggest that they are under the age of eighteen years;
* contain or promote harmful or indecent matter to minors;
* promote violence;
* promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
* contain content which is defamatory, libellous, hateful or unlawfully threatening, abusive or harassing;
* include any of the Company's trademarks or service marks, or variations or misspellings thereof, in your domain names; or
* send unsolicited instant messages, unsolicited bulk, junk, Spam e-mail or any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature.
4.2 That you have full authority to enter into this Agreement;
4.3 That you will provide accurate and complete information to Company concerning your identity, bank account, address or other required information;
4.4 That all obligations owed to third parties with respect to the activities contemplated to be undertaken by you pursuant to this Agreement are or will be fully satisfied by you, so that the Company will not have any obligations with respect thereto;
4.5 That nothing on, in or associated with your web site violates any laws, regulations, rules or customs, including but not limited to violation of regulations set forth at 18 U.S.C. Section 2257 et seq., or violate or infringe any rights of any person or entity, including any intellectual property rights, including, without limitation any copyrights, patent rights, trademark rights, trade secret rights, or rights of publicity, or any person's or entities' privacy rights or any other personal or proprietary rights of any kind; and
4.6 That you will comply with all applicable federal, state and local laws in the performance of your obligations hereunder; and that each email address submitted by you has originated with a customer of yours and has not been created or obtained fraudulently or in contravention of the Terms and Conditions of this Agreement.
5. You must complete the required fields during the Sign-Up process, and provide us with your full name and valid contact information including e-mail and mailing address (no P.O. box). We will e-mail you notices about our Programs and your account based on the information that you provide to us.
6. We will send out payment at least twice/month and within 5 business days of the end of each pay period. For anything under your minimum pay amount, we will carry that amount to the following pay period. All revenues will be disbursed in US Dollars.
6.1 In the event that payments to us by our processors are delayed for any reason, we will have a reasonable period of time for receipt of such payments, and for payments to you regarding said payments.
7. If you reside in the U.S. or its territories, you may be required to complete a W9 form with the correct information and enter a Federal Tax ID or Social Security Number or we will be forced to withhold tax as required by law. We may register a 1099 for all U.S. domestic entities to which we issue combined yearly payments of $600.00 or more. Failure to provide this information will cause your payment to be delayed or withheld.
8. If we find that you have violated any Program terms and conditions, including other webmaster affiliate programs not operated by Company, we reserve the right in our sole and absolute discretion to cancel your participation in any and all Programs, at any time, without prior notification, and you will not be paid for any of the Programs in which you have participated or allowed back into any of our Programs.
8.1 You acknowledge and agree that Company shall have the right to deny or withhold payment from you and to terminate you from the Program if there has been an abnormal number of chargebacks or cancellations of memberships or subscriptions which have been referred to Company's web sites through your web site. You further acknowledge and agree that Company shall have the right, in its sole and exclusive judgment, to determine what constitutes an abnormal number of chargebacks or cancellations of memberships or subscriptions.
9. You AGREE that ANY of the following actions by you or anyone under your control will result in ALL of your accounts being terminated without pay, ALL of your unpaid commissions being FORFEITED to Company, and will further result in you being precluded from ever participating in any of our Programs:
- Dissemination of unsolicited bulk E-mail, Instant Messages, Chatroom, Newsgroup, ICQ or IRC postings or any other forms of SPAM;
- Promoting or dealing in content such as: Warez, passwords, MP3, bestiality, rape, child pornography, violence, or any other illegal activity. This includes use of prohibited content in hidden meta tags, text, links, graphic(s) or any HTML;
- Attempting to mislead or defraud Company in any way;
- Directing traffic by using a misleading domain name on the Internet that may either deceive a person into viewing material that is obscene in nature or deceive a minor into viewing material that is harmful to minors on the Internet;
- Hijacking traffic;
- Providing incorrect or incomplete account information;
- Generating hits or signups as a requirement to enter or obtain access to goods or services on your (or someone else's) web site;
- Engaging any sort of mechanism or effort that falsely generates hits or signups, including signups by the Affiliate. If you wish to perform a test signup you must first E-mail us via the e-mail address provided in your account documentation
- Violating or infringing any rights of any person or entity, including without limitation, any copyrights, trademark rights, patent rights, rights of publicity, privacy rights or any other intellectual, personal or property right violation or infringement;
- Cheating or defrauding any other affiliate program or sponsor;
- Hosting on non-adult free hosts that do not permit adult content. This includes (but is not limited to) Geocities, Angelire, Tripod, Xoom, CJB.net, or Hypermart;
- Misrepresenting our site(s) in any manner, including but not limited to, misrepresenting the cost of membership, terms of membership, or content contained within our site(s);
- Misusing our site Terms and Conditions, including but not limited to, instructing the member to signup and cancel is also not permitted in any way, shape or form;
- Unauthorized modification, alteration or use of Program Materials in violation of the terms of this Agreement.
- Attempting to establish new accounts from Albania, Argentina, Armenia, Azerbaijan, Bahrain, Belarus, Brazil, Bulgaria, China, Colombia, Costa Rica, Croatia, Czech Republic, Ecuador, El Salvador, Egypt, Estonia, Georgia, Hong Kong, Hungary, India, Indonesia, Iran, Iraq, Israel, Japan, Jordan, Kaliningrad, Kazakhstan, Korea (North and South), Kyrgyzstan, Latvia, Lithuania, Macedonia, Malaysia, Moldova, Pakistan, Philippines, Poland, Romania, Russia, Saudi Arabia, Singapore, Slovakia, Slovenia, Spain, Syria, Taiwan, Tajikistan, Thailand, Trinidad, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Venezuela, Vietnam, and Yugoslavia.
Application from these countried will be evaluated on an indivisual basis and approved at the discretion of Company
10. Accounts that are terminated without pay will have a stop placed on all outstanding funds.
11. Company files will prevail in determining all statistics including but not limited to the amount of valid hits, signups, referrals, cancellation, credits and any commissions or referral fees owned to any Affiliate pursuant to this Agreement. Any discrepancies or errors must be brought to our attention within 30 days or else they will be deemed permanently waived.
12. We reserve the right to cooperate in any investigation relating to activities involving any violation of these Terms and Conditions, including disclosure of your account information to third parties in connection therewith.
13. COPYRIGHT POLICY CLAIMS OF INFRINGEMENT; DESIGNATED AGENT/DMCA NOTICE. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights or otherwise have a valid basis under the law, including "fair use". Without limiting the foregoing, if you believe that your work has been copied and posted on the Company service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information consistent with the Digital Millennium Copyright Act (DMCA): an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the our site or in our electronic messages including if feasible the URLs of web pages and/or hyperlinks; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Company's Copyright Agent for Notice of claims of copyright infringement can be reached as follows by e-mailing the program administrator.
It is the intention of Company to fully comply with the DMCA, including the Notice and "take down" provisions and to benefit from the safe harbors immunizing it from liability to the fullest extent provided by law, and to the extent the Notice and "take down" requirements above deviate from the requirements under the DMCA then the Notice requirements as provided by the DMCA shall control and are herein incorporated by reference.
14. You will indemnify, defend and hold us harmless from any and all damages, losses and costs (including attorneys' fees) resulting from any act taken by you in violation of these Terms and Conditions, and/or any failure to act when required to under these Terms and Conditions.
15. Nothing in this Agreement is intended by us or you to create or constitute a joint or collaborative venture or partnership of any kind between you and us, nor shall anything in this Agreement be construed as constituting or creating any agency, employment relationship, joint or collaborative venture or partnership between you and Company, its employees, agents or assigns.
15.1 You acknowledge and agree that we shall have no control or ownership interests of any kind in your business or your web site.
15.2 You acknowledge and agree that you shall have no financial or other interest in Company or any property owned by Company, its affiliates, agents, successors or assigns.
15.3 You acknowledge and agree that your relationship with us shall be restricted to matters pertaining to the Program exclusively and shall be governed entirely by the terms and conditions of this Agreement.
15.4 You acknowledge and agree that we have 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 you on, at or in association with your web site except as specifically set forth in this Agreement.
15.5 You further acknowledge that neither Company nor any employee, associate, agent, assign or successor of Company shall exert or provide any direct or indirect control over, monitoring of, supervision of, prior approval of, or review of the content appearing or otherwise distributed on, at or in association with your web site, and that you shall be solely responsible for any legal liabilities or consequences resulting from your dissemination of that content, including the Program Materials, on or through your web site.
16. You acknowledge and agree that Company makes no guaranties or warranties of any kind with respect to the Program or Program Materials provided by, through or in association with the Program, and all Program Materials are provided to you "as is", and that your participation in the Program and use of the Program Materials, is solely at your risk. Company disclaims all warranties, either express or implied including, but not limited to, express or implied warranties of merchantability and fitness for a particular purpose, with regard to the Program and any and all Program Materials of every kind supplied to You as part of this Program.
17. You acknowledge and agree that under no circumstances shall Company, its employees, independent contractors, authors, agents, representatives, assigns and successors be liable to you, or any other person or entity, for any direct or indirect losses, injuries, special or incidental or consequential damages of any kind (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOODWILL, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any Company web site, or arising from or in connection with the use of the Program Materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of Company's services, content or Program Materials, including without limitation any losses due to server problems, computer or other equipment failure, or due to incorrect placement of HTML., regardless whether based upon breach of contract, negligence 18 USC 2257 errors and omissions, copyright, trademark, patent, or any other claim or cause of action, In the event of any network downtime, computer or technical error we will not be held responsible for any lost hits, signups, traffic or income.
You agree to fully comply with 18 USC 2257 et seq,("2257") including but not limited to its notice and recordkeeping requirements, as a condition precedent to your participation in this affiliate program or providing any traffic or links from your web pages to our Sites, graphics, web pages, and content or making use of the Program Materials. You agree to immediately provide to us as requested, in our sole discretion, record keeping documents and data needed for us to comply with 2257 or for us to audit, from time to time, your compliance with such statute.
To the extent that we have, or in the future will, provide you with advertising or promotional material or Program Materials or other content that contains a visual depiction of any persons or "models" that is "sexually explicit content" as defined or referred to by 18 USC § 2256 and § 2257, you are only authorized to use such advertising or promotional material or Program Materials or other content ONLY in a manner that is exempt from the record-keeping requirements encompassed in 18 USC § 2257. Consequently we may not provide you with copies of any identification documentation related to certain persons or models or Program Materials. IF YOU ARE NOT EXEMPT, EITHER AS A "MERE DISTRIBUTOR" OR UNDER ANY OTHER EXEMPTION UNDER 18 USC § 2257 (h) (3), YOU ARE NOT AUTHORIZED TO USE, AND PLEASE REFRAIN FROM USING, ANY SEXUALLY EXPLICIT CONTENT MATERIAL OR CONTENT OR PROGRAM MATERIALS PROVIDED OR MADE AVAILABLE BY US IN THE PAST AND AT ANY TIME IN THE FUTURE AS WELL AS LINKS TO THE SAME - IF YOUR SITE CONTAINS ANY SUCH MATERIAL OR CONTENT OR PROGRAM MATERIALS OR LINKS TO THE SAME, YOU HEREBY WARRANT AND REPRESENT THAT YOU WILL REMOVE IT IMMEDIATELY AND NO LATER THAN JUNE 22, 2005 AND REFRAIN FROM USING ANY SUCH MATERIAL CONTENT OR PROGRAM MATERIALS OR LINKS TO THE SAME GOING FORWARD. WE WILL NOT INDEMNIFY, DEFEND YOU OR IN ANY OTHER WAY BE HELD RESPONSIBLE FOR YOUR UNAUTHORIZED USE OF ANY SEXUALLY EXPLICIT CONTENT.
17.1 Notwithstanding the foregoing express limitations of liability, you acknowledge and agree that should Company, its officers, employees, successors, or assigns be held liable to you for damages, injuries or losses of any kind, directly or indirectly resulting from your participation in the Program, that the maximum total dollar amount of liquidated damages for any and all of your claims, injuries, damages or losses shall not exceed a total of ten dollars ($10.00).
18. You hereby confirm and acknowledge that you have unilaterally decided to enter an Internet service business and acknowledge that it is a high risk business. You further confirm, acknowledge and expressly agree that neither Company, any agent or representative of Company, nor any other person has at any time in the past, represented to you or has otherwise directly or indirectly communicated in any manner to you any guarantee, reassurance or any other statement of any kind regarding:
- The potential profitability or likelihood of success of your participation in the Program as set forth in this Agreement or otherwise;
- The possibility or likelihood that use of any products and/or services provided by Company pursuant to this Agreement can or will result in the recoupment of any funds expended by you for the promotion of your web site or any other purpose; or
- The existence, nonexistence, size or any other characteristics of any market for any products or services which involve Your participation in the Program pursuant to this Agreement.
18.1 You expressly acknowledge and agree that the success any of its business endeavors which involve your participation in the Program pursuant to this Agreement, like any other business endeavor, is subject to numerous factors, such as the effectiveness of advertising and promotion, your administrative capabilities, etc., and that the ultimate success or failure of your business rests with you and not Company. You further expressly agree not to raise any claim of any kind against Company and you agree to hold Company and its agents, officers, directors, and employees harmless from any claim of loss to you directly or indirectly resulting from your decision to participate in the Program pursuant to this Agreement.
19. We shall not monitor, supervise or review, and shall not be responsible for any content appearing or otherwise distributed on, at or in association with your Website including any Program Materials or content which you have received from us. You assume the full and sole responsibility and liability for the decision to display or include content on your website, to distribute or make the content available to the viewers of your website in various geographical areas, and for all decisions relating to the manner in which you permit or restrict access to your website.
20. We reserve the right to alter or modify the Terms and Conditions at any time without prior notice to you. It is your responsibility to refer to this document from time to time so that you may be informed of any changes to the Terms and Conditions. Ignorance of the Terms and Conditions is no excuse to any action taken by us, or to your failure to act, under these rules.
21. Either party may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Upon termination of this Agreement you shall immediately cease using Company name(s), Company's marks and remove all Company banners from your site.
22. We reserve the right to cancel this Agreement at any time, for any reason, without prior notification. In such cases you will be notified immediately and paid for accumulated funds up to that point in time, unless otherwise forfeited under this Agreement. Notice by e-mail, to the e-mail address we have on file for you is considered sufficient notice for to terminate or cancel this Agreement.
23. This Agreement constitutes the entire agreement between you and Company with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral.
23.1 You agree that Company may from time to time, in its sole and exclusive discretion, modify the type and quality of benefits provided to you hereunder either with or without notice. We may modify other terms and conditions at any time upon e-mail notice to you.
23.2 You agree that no modification of this Agreement by you, your employees, representatives, agents, assigns or successors shall be enforceable of have any effect unless first reduced to writing and signed by Company's duly authorized representative.
23.3 You agree that no officer, employee or representative of you or Company has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement; and you acknowledge and agree that you have not executed this Agreement in reliance upon any such representation or promise.
23.4 You acknowledge and agree that the failure of Company to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder.
23.5 You agree that all promises, obligations, duties and warranties made by you in this Agreement are personal to you and that neither they nor any benefits hereunder may be assigned by you to any other person or entity.
23.6 You agree that Company may at any time, and without prior notice to you, freely assign all or part of its duties, obligations and benefits hereunder.
24. By accepting these terms and conditions and becoming an Affiliate, you agree that this Agreement and all disputes or controversies as to the interpretation of or any performance arising under, or related to this Agreement shall be governed by and construed under the laws of Cyprus. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
24.1 You further agree that notwithstanding any judicially or statutorily created choice of law rule that would otherwise require the application of the law of some other jurisdiction, all provisions of this Agreement and all matters or controversies of any kind arising out of, or related to this Agreement or the rights or liabilities of the parties hereto shall be governed solely by the substantive statutory and common law of the state of Cyprus.
24.2 Any and all disputes or controversies of any kind, including but not limited to any performance, duty, obligation or liability arising under or related to this Agreement, which are unable to be resolved informally, shall be determined by binding arbitration in Nicosia Cyprus, before a single retired judge or other qualified indivisual that the parties may agree upon, with the arbitration governed by the Cyprus Rules of Civil Procedure relating to discovery. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the State of Cyprus.
24.3 The parties agree that the venue for all legal disputes, controversies, and actions of any kind arising under or related to this Agreement shall be Nicosia, Cyprus.
25. For purposes of construction of this Agreement, both Company and you shall be deemed to have mutually drafted this Agreement and all parts thereof.
26. If any provision of this Agreement is held void or unenforceable to any extent, such provision shall be deemed excised and removed to make the remaining provisions enforceable. Unless otherwise specifically provided, the provisions of this Agreement shall survive its termination.
27. Either party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such party, including, without limitation, acts of God, nature, any government agency(ies), war, civil disturbance, labor disputes or shortages, electrical or mechanical breakdowns, inability or refusal of a common carrier to provide communications capabilities, or any other cause beyond either party's direct control, including but not limited to, the issuance of an order by any regulatory, administrative, judicial or legislative prohibiting or interfering with either party from carrying on its day-to-day operations as contemplated under this Agreement.
28. We strongly advise that you review this Agreement with your attorney before you enter into it. You acknowledge and agree that nothing herein and no statement by us or any employee, representative, agent or other person associated with us has in any way prevented or inhibited you in any way from seeking such 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 that you have been given a reasonable chance to seek advice of independent counsel with respect to this Agreement and all transactions associated herewith.
29. By CLICKING ON THE "I ACCEPT" BUTTON below, and by supplying Company with all the required information to sign you up to an Affiliate Program, you are acknowledging that you agree to all of the terms, conditions, promises, warranties, duties and obligations set forth in the above Agreement.