Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
- "Action" means an order, sign-up or other action resulting in a Commission, as more thoroughly defined in the Program Rules (which may vary by FFN Site).
- "Advertising Assets" mean banners, buttons, graphics, html or source code, or similar material provided by an FFN Entity.
- "Chargeback" means the return of any funds to a person initiated by a financial institution or service including, but not limited to, a chargeback or reversal.
- "Credit" means the return of any funds to a person including, but not limited to, an adjustment, credit, refund or return.
- "PID" and/or "GPID" (e.g., g12345, p12345) means the unique identifying number associated with a specific Affiliate or Account.
- "Special Link" means a URL that uses, alone or in combination with Advertising Assets, your authorized PID or GPID and otherwise complies with any formatting guidelines specified by Medley.
In order to participate in the Affiliate Program, you will be required to create an account with us ("Account").
In creating your Account, you certify that all information you provide is complete and accurate. You agree to update such information when required or requested, and you further agree not to use another person's account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, your Account and password, and you agree to accept sole responsibility for all activities that occur under your Account or password. You agree to notify us immediately of any breach of security or unauthorized use of your Account. We shall not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of your Account, and you agree to indemnify us and hold us harmless for any such unauthorized use. If you are establishing an Account on behalf of a company or other entity, the term "you" includes both you as an individual as well as such company or other entity. You represent and warrant that (a) you have the authority and capacity to enter into this Agreement, (b) you are a business and not a consumer, and (c) if you are entering into this Agreement on behalf of a company or entity, (i) you have the authority to bind such company or entity, and (ii) such company or entity has authorized you to accept this Agreement on its behalf.
- LIMITED LICENSE TO USE ADVERTISING ASSETS.
Affiliate represents and warrants that it owns and/or operates the Affiliate Site and desires to place Advertising Assets on the Affiliate Site subject to the terms of this Agreement. Medley makes Advertising Assets available to promote the services of one or more of the FFN Site. Advertising Assets are provided to an individual FFN Site (e.g., banners.adultfriendfinder.com, banners.penthouse.com). Such Advertising Assets may contain logos, trademarks, service marks and/or identifying words for the FFN Entities, FFN Site and their products and services ("FFN Services"). You are granted a non-exclusive, non-transferable and revocable license to display these Advertising Assets throughout the Affiliate Site, subject to the terms and conditions of this Agreement and Medley's policies and procedures. You may not alter, change, add to, or otherwise modify any Advertising Asset provided by us. This Agreement does not authorize the use of any Advertising Assets for any off-line or non-Internet (i.e., print) advertising or in the use of email marketing or other similar solicitations.
- AFFILIATE'S RESPONSIBILITY FOR AFFILIATE SITE AND CONTENT.
You will be solely responsible and liable for the development, operation, maintenance and all materials and content that appears on the Affiliate Site. You shall operate and maintain the Affiliate Site in accordance with all applicable laws, rules and regulations. We reserve the right to monitor the Affiliate Site to determine if you are in compliance with this Agreement.
- MULTIPLE REFERRAL PROGRAM TYPES; MINIMUM THRESHOLD.
As an Affiliate, you may participate in multiple Programs Types and be subject to one or more Commission rate schedules ("Schedules"). A current list of Programs Types and Schedules are posted on the applicable FFN Site. Your participation in a specific Program Types may require you to meet minimum thresholds based upon various factors including, but not limited to, the duration, fees paid, conversion ratio, etc. Commissions may be modified for, or excluded from, certain trial, promotional and similar offers. The prices charged to customers of any FFN Site are subject to change at any time. You may not include price information on the Affiliate Site related to any product or service provided by any FFN Entity or FFN Site. We will use reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product or service that we offer.
SPECIAL LINKS ON AFFILIATE SITE; COMMISSION TRACKING AND REPORTING.
Special Links permit accurate tracking, reporting, and accrual of your Commission. You may only earn a Commission with respect to activity on the FFN Site occurring directly through Special Links. Special Links may be used alone or in combination with Advertising Assets. We will have no obligation to pay you a Commission if you fail to properly format the links as Special Links, including to the extent that such failure may result in any reduction of Commission fee amounts that would otherwise be paid to you under this Agreement.
Each FFN Site uses commercially accepted methods and practices, which may include session cookies, to track a person's activities while on the FFN Site. (To learn more about cookies, see http://en.wikipedia.org/wiki/HTTP_cookie.) Such methods and practices are designed to determine when an Action occurs. Unless otherwise expressly provided in the Program Rules for the Program Type, in order for a Commission to be earned, a person referred from the Affiliate Site to an FFN Site must be tracked by such FFN Site from the time the Special Link to the FFN Site is activated (i.e., "clicked") until the person completes the member registration process and creates an account with such FFN Site. We will not be liable to you or any other person for any Commissions or other amounts if we are unable to determine that an Action has occurred, whether due to a visitor's or member's browser settings, lack of PID or GPID, antivirus software or otherwise. For purposes of illustration only, when cookies are used, the cookies are generally set to expire when a person using an FFN Site terminates his or her browser session. If the cookie session expires before the creation of an account on such FFN Site, you will not earn and will not be entitled to receive a Commission based upon any subsequent Actions taken by such person. If a person completes the member registration process and creates an account on one FFN Site, you only receive a Commission for such person's subsequent Actions on the same FFN Site, and not any other FFN Site. For purposes of illustration only, if (a) a visitor is directed and comes to an FFN Site from a Special Link on Site A, but does not complete the member registration process and create an account and then later returns to the FFN Site from a Special Link from Site B and creates an account, no Commission is earned by or payable to Site A; or (b) if a visitor is directed and comes to an FFN Site from Site A, but does not complete the membership registration process and create an account and later returns to the FFN Site or another FFN Site and creates an account, no Commission is earned by or payable to Site A.
Medley takes commercially reasonable steps to provide you with online access to track and review (a) Actions resulting in Commissions taken by members directed to the FFN Site by the Affiliate Site, (b) Commissions accrued, and (c) certain other information using Medley's online reporting tools on a password-protected webpage (the "Reports Page"). The Reports Page is usually updated on a daily basis but is not in "real-time" and is subject to final reconciliation, taking into consideration non-completed transactions, Chargebacks, Credits and other potential charges. The form, content and frequency of the Reports Page remain subject to change.
- NO COMMISSION PAID.
Not all paid products or services appearing on a given FFN Site entitle you to a Commission. Any FFN Entity may refuse to permit any person to establish an Account for any reason and may reject any Action that does not meet the FFN Entity's requirements or policies and procedures in effect from time to time. For purposes of illustration only, an FFN Entity may reject an order for goods or services based upon a credit card with insufficient funds. You shall not earn or be entitled to receive any Commission (a) attributable to any revenue collected by us arising out of any tax, royalty and/or duty that we, or those acting on our behalf, collect from any person using an FFN Site, (b) paid by us for any SMS, merchant processing or similar fees or (c) results in Chargebacks or Credits.
PAYMENT; COMMISSION PAYMENT FLOOR AND SETOFF.
Medley's current policy is to issue any Commission payments earned and owing in accordance with the Program Rules for the Program Type within approximately thirty (30) days following the end of the calendar month when the Commission was earned. All Commission are payable in U.S. Dollars. To the extent we receive non-U.S. Dollar currency for Actions, such currency will be converted into U.S. Dollars in accordance with Medley's exchange rate policies and procedures.
If the amount accrued to you for any payment of Commissions is less than the minimum amount established by us (the "Commission Payment Floor"), we will hold such payment until the payment period after the total amount accrued is at least equal to the Commission Payment Floor. The Commission Payment Floor is currently $50.00 and subject to change at any time or from time to time in our sole discretion. We will use commercially reasonable efforts to notify you of any such change in the Commission Payment Floor via email, posting a revised version of this Agreement, posting on the FFN Site, or via other methods. If you have not earned or accrued referral fees in at least the amount of the Commission Payment Floor in the six (6) months prior to any given monthly payment period, or if your Account is suspended as provided herein, we reserve the right, in our sole discretion without notice to you, and without waiver by us, to charge you an Account maintenance fee in an amount up to $500 per six (6) month period. The account maintenance fee charged may be deducted and offset against any unpaid Commissions.
If a Commission is paid or owed and a subsequent Chargeback or Credit occurs, Medley may, in addition to any other remedies, terminate this Agreement for cause and/or setoff the amount of the Chargeback or Credit and any related fees from any subsequent payments owing to you. If there is no subsequent payment due, Medley will send you an invoice for the amount of the setoff amount, and you agree to pay such invoice no later than thirty (30) days following receipt.
In the event that a check issued to you is voided and reissued, Medley reserves the right to charge you a service fee. Medley also reserves the right to void any check that has not been negotiated within six (6) months following the date of its issuance.
- TAX INFORMATION POLICY; SUSPENSION.
Upon enrollment and completion of your Account as an Affiliate, you may be required to complete certain tax documents, e.g., IRS Form W-8, W-9, SS-4, etc. (the "Required Tax Documentation"). Medley may withhold all Commission payments owing to you until such time as you submit the completed Required Tax Documentation. During the period between when you enroll as an Affiliate and create and Account, and the time you submit the Required Tax Documentation, you may provide Special Links to the FFN Site from the Affiliate Site, Commissions will begin to accrue, and you may have access to the Reports Page. If you fail to submit the Required Tax Documentation within sixty (60) days of your enrollment and establishment of an Account, Medley may suspend your Account until such time as you submit the Required Tax Documentation or, alternatively, Medley may terminate this Agreement immediately and any Commissions accrued shall be forfeited.
- ORDER PROCESSING; OWNERSHIP OF CUSTOMER INFORMATION.
The FFN Entities are solely responsible for processing and fulfilling all orders for customers of the FFN Site, including but not limited to, order entry, payment processing, shipping, cancellations, creditbacks, returns and related customer service. Visitors and members of the FFN Site will be considered customers of the applicable FFN Entities for all purposes, and all FFN Site terms, policies, rules and procedures will govern the customer relationship between the FFN Entities and such customers. As between the parties, the FFN Entities own any information pertaining to any person or customer who accesses any FFN Site.
NON-EXCLUSIVE LIMITED LICENSE TO USE FFN MARKS.
The applicable FFN Entity grants you a non-exclusive, non-transferable, revocable and limited license to use the logos, trade names, trademarks, service marks, and similar identifying material specified by such FFN Entity on the applicable FFN Site or in such FFN Entity's Program Rules ("FFN Marks") solely for the purpose of advertising the FFN Services through the use of Advertising Assets in accordance with Section 3, subject to and in accordance with the terms of this Agreement. Without limiting the foregoing, you hereby agree:
- to refrain from purchasing, bidding on, or otherwise obtaining or using keywords incorporating or otherwise based upon the FFN Marks on search engines (e.g., google.com, yahoo.com, bing.com);
- to not use or place the FFN Marks on or with any items that are injurious to end-users or their property, including but not limited to, items that could give rise to a claim for a breach of an express or implied warranty or product liability, or which is scandalous, libelous, obscene, an invasion of privacy or otherwise unlawful or tortious;
- to use the FFN Marks exactly in the form provided and in conformance with any trademark usage policies, guidelines and quality standards of the FFN Entities and not to alter, modify or change the FFN Marks in any way;
- to furnish, upon request, at no charge to the FFN Entities, a representative specimen of your use of the FFN Marks;(e) if, at any time, your use of the FFN Marks fails to conform to the FFN Entities' trademark usage policies, guidelines or quality standards, to promptly remove the FFN Marks from the Affiliate Site;
- not to take any Action inconsistent with the FFN Entities' ownership of the FFN Marks;
- not to use the FFN Marks in any manner that is disparaging or that otherwise portrays the FFN Entities in a negative or misleading light;
- not to create a website or web page that uses the FFN Marks in a manner that is likely to be confused (e.g., similar designs, graphics, look and feel) with one or more websites operated by the FFN Entities;
- not to use, register or file an application to register a trademark, service mark, domain name, user name, account name or other proprietary designation incorporating the FFN Marks, or any variation of the FFN Marks, whether they are used alone, in part, or in combination with other words (e.g., "californiafriendfinder") or are based upon typographical errors or misspellings (e.g., "freindfinder", "Panthouse", etc.) ("Prohibited Designation"); and
- to notify Medley promptly upon becoming aware of any improper use of the FFN Marks and reasonably cooperate with Medley (at Medley's request) in the protection of the FFN Marks.
You may only use the FFN Marks to the extent that you advertise FFN Services pursuant to this Agreement. We reserve all intellectual property and proprietary rights in and to the FFN Marks, and any and all goodwill generated by your use of the FFN Marks shall inure solely to the benefit of the FFN Entities. You recognize the great value of the goodwill associated with the FFN Marks, and you acknowledge and agree that the FFN Marks and all rights therein and goodwill pertaining thereto are valid and belong exclusively to the FFN Entities, and that the FFN Entities have the exclusive right to use and authorize others to use the FFN Marks.
The license granted to you pursuant to this Section may be revoked at any time for any reason and shall terminate upon expiration or termination of this Agreement.
If you have previously used or registered any Prohibited Designation, (i) upon request, or (ii) if no request has been made, upon expiration or termination of this Agreement, you agree to transfer all of your rights in the Prohibited Designation and the associated goodwill to us within ten (10) days thereafter. In such case, we shall pay you a reasonable fee to cover the expenses necessary to transfer the Prohibited Designation, but in no instance will the amount exceed $100 per domain or $500 for all domains. You hereby grant an irrevocable power of attorney coupled with an interest to all or any of the FFN Entities to take all steps necessary to effectuate the transfer of the Prohibited Designation to the FFN Entities in the event that you fail to comply with the terms of this Section. Without limiting the foregoing, you specifically agree not to use the Prohibited Designations to promote the goods or services of you or any third parties.
You will not receive any Commissions for any traffic derived from the unauthorized use of any FFN Marks. The amount of the Commissions not paid will be determined by us in our sole discretion.
- NON-EXCLUSIVE LIMITED LICENSE TO USE YOUR MARKS.
You hereby grant the FFN Entities a non-exclusive, transferable, world-wide license to utilize your name(s), titles, logos, and trademarks ("Your Marks") to advertise, market, promote and publicize in any manner the FFN Services, the FFN Site and our rights hereunder. However, we shall have no obligation to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of Your Marks and/or have all necessary rights and power to grant to us the license to use Your Marks in the manner contemplated herein, and such grant does and will not (a) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (b) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate immediately following the effective date of termination of this Agreement.
REPRESENTATIONS AND WARRANTIES.
You hereby represent and warrant to us that neither you nor the Affiliate Site shall:
- incur, undertake or make any representation, warranty, covenant or agreement on behalf of us or our affiliated entities to or for the benefit of any person or entity;
- contain or promote materials that infringe or violate the copyright or other intellectual property rights of us, our affiliated entities or any third-parties;
- contain any materials that depict persons under the age of eighteen (18), or in a manner that suggests they are;
- promote (i) harmful or indecent matter to minors, (ii) violence, (iii) discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or any other legally prohibited classification;
- use or benefit from unsolicited sexually explicit advertising;
- contain content that is obscene, defamatory, misleading, libelous, hateful or unlawfully threatening, abusive or harassing or likely to cause disparagement to persons appearing on the FFN Site;
- involve advertising, marketing or business practices that are fraudulent or misleading, or that promote unfair competition;
- own, control or use a URL containing a Prohibited Designation;
- send, transfer or otherwise initiate (i) e-mails in violation of the Can-Spam Act of 2003, as amended (i.e., "spam"), or unsolicited chat messages, e.g., instant messages and group chat rooms; or (ii) any downloadable programs or executables that contain viruses, worms, "Trojan horses" or any other destructive features that violate the rights of third-parties, including but not limited to, redirection to unwanted websites, modification of browser settings, interference with site navigation, and/or accessing data;
- violate, or promote violation of, any law, statute, ordinance or regulation (including, but not limited to, the Federal Trade Commission blogger rules); or
- violate an order, judgment decree, or the terms of any other agreement, document or instrument, including but not limited to your merchant or payment processing agreement and any associated card association rules, to which Affiliate (or its assets) are subject or bound.
You further represent and warrant that all information provided to us, including your email address and other contact information and identification of Affiliate Site(s), is at all times complete, accurate, and up-to-date and that you will respond in a timely manner in the event that we attempt to contact you.
You are prohibited from sending any email to advertise on behalf of the FFN Entities. You may also not advertise on our behalf in any manner that violates, or is otherwise inconsistent with, Section 14 ("Representations and Warranties").
Any use of sexually explicit content to advertise on behalf of the FFN Entities must comply with Section 18 ("Compliance with 18 USC section 2257").
You may not display, or by any other method use, any photos, videos or any other information pertaining to any members of, or any other persons depicted on, any FFN Site.
You are prohibited from advertising, in any manner, the FFN Site or FFN Services through the use of e-mail marketing or links in e-mail. This provision prohibiting such e-mail marketing goes beyond the prohibition of the use of unsolicited e-mail advertising and prohibits you from sending any e-mail messages advertising FFN Site or FFN Services even if such e-mail is permission based or double opt-in.
You are prohibited from bidding on, or otherwise purchasing, any keywords on any search engines (e.g., google.com, yahoo.com, bing.com) to promote, market or advertise any FFN Site.
We, in addition to any other remedy we may have, reserve the right to suspend or terminate your Account and/or this Agreement, and take any other appropriate disciplinary actions permitted by law, without notice if you (or someone acting on your behalf) violate this Section.
We fully reserve the right at any time to refuse to accept traffic from you for any reason or no reason. In addition we fully reserve the right to divert any traffic you send to any FFN Site to any other site and your only remedy would be to stop sending traffic to us or to terminate this Agreement without any monetary compensation owing to you.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MEDLEY AND THE FFN ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARISING OUT OF ANY AFFILIATES' PARTICIPATION IN THE AFFILIATE PROGRAM OR USE OF FFN SITE OR FFN SERVICES. FURTHER, MEDLEY AND THE FFN ENTITIES EXPRESSLY DISAVOW ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD AFFILIATE OR ANY AFFILIATE REPRESENTATIVES OR OWNERS HARMLESS IN CONNECTIONWITH ANY LAWSUIT OR OTHER PROCEEDING ARISING OUT OF SUCH PARTICIPATION OR USE. IN ADDITION, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE FFN SITE OR FFN SERVICES WILL REMAIN UNINTERRUPTED OR ERROR-FREE OR GENERATE ANY INCOME OR COMMISSIONS WHATSOEVER.
- LIMITATION OF LIABILITY.
MEDLEY, AND THE FFN ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, MEDLEY AND THE FFN ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO YOU DURING THE PAST SIX (6) MONTHS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS WHETHER BASED UPON BREACH OF CONTRACT, NEGLIGENCE, TORT, VIOLATION OF 18 USC SECTION 2257 ET SEQ., ERRORS AND OMISSIONS, COPYRIGHT, TRADEMARK, PATENT, OR ANY OTHER CLAIM OR CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
- COMPLIANCE WITH 18 USC SECTION 2257.
At all times, the Affiliate Site must comply with 18 USC section 2257. To the extent that we provide you with Advertising Assets that contain a visual depiction of any person that is "sexually explicit" as defined by 18 USC section 2256, your use of such Advertising Assets must also comply with 18 USC section 2257.
- ACCURACY OF DOMAIN REGISTRATION.
The domain registration (i.e., "whois") information of the Affiliate Site that contain Special Links (the "Domain Information") shall be publically available, i.e., not blocked or redacted by your registrar, and contain current and accurate contact information, e.g., the Affiliate's name, address, telephone number, email address, and such other information that would provide any third-party with a reasonable expectation of contacting you during normal business hours. We reserve the right to disclose Domain Information to anyone when it is not publically available, current and/or accurate.
- TERM; TERMINATION.
Either party may terminate this Agreement at anytime by providing notice to the other party pursuant to Section 38 ("Notices"). If you terminate this Agreement, or if we terminate as provided in Section 14 ("Prohibited Activities"), or pursuant to Section 8, then we shall not pay you any Commission. Sections 1, 4, 8, 9, 10, 13, 14, 15, 16, 17, 19 - 38 shall survive expiration or termination of this Agreement. Upon termination, any and all licenses provided to you under this Agreement shall immediately cease and you shall immediately stop using, amongst other things, any Advertising Assets and Special Links under this Agreement, and you shall immediately remove all Special Links and any other content using or referencing the FFN Services or FFN Site from the Affiliate Site.
In the event of termination under this Section, Medley reserves the right to charge you a termination fee in order to cover certain costs and processing fees associated with closing your affiliate account.
- NO AGENCY; INDEPENDENT CONTRACTORS.
Nothing in this Agreement is deemed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf and you are prohibited from holding yourself out as our agent. Affiliate shall not take any action or make any statement that contradicts anything in this Section. It is expressly understood and agreed that Affiliate and Medley are independent contractors in all manners and respects. Affiliate shall not be entitled to any benefits and shall be solely responsible for all taxes, social security taxes, unemployment taxes, workers' compensation insurance premiums and any other taxes or Commissions and other amounts paid to Affiliate hereunder.
Your Commissions, and any software, technology, programming, APIs, specifications, materials, guidelines and documentation, or other information designated "confidential" by any of the FFN Entities shall be kept confidential by Affiliate and shall not be disclosed to any third party except as may be required by any court of competent jurisdiction, governmental agency, law, regulation or the rules of any stock exchange. In such event, Affiliate shall if permitted give reasonable advance notice to Medley of the disclosure and redact or seek an appropriate protective order to the extent possible before disclosing the confidential information.
You shall defend (or pay our fees and costs of defense at our sole discretion), indemnify and hold Medley and FFN Entities and their respective successors, affiliate entities, assigns, shareholders, officers, directors, employees and applicable third parties (e.g., licensors, licensees, consultants and contractors) (collectively, the "Indemnified Person(s)") harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) brought against the Indemnified Person(s) and arising out of or related to, your participation in the Affiliate Program, operation of the Affiliate Site, and/or your breach (or any alleged breach) of any term of this Agreement, including but not limited to, Sections 11 ("Non-Exclusive Limited License to Use FFN Marks") and 13 ("Representations and Warranties").
- INDEPENDENT INVESTIGATION.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, INCLUDING THE PROGRAM RULES AND ANY ACCOMPANYING ADDENDUM, AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) PROVIDE TERMS TO OTHERS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETITIVE WITH THE AFFILIATE SITE OR THE FFN SITE WITHOUT OBLIGATION TO YOU. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
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.
- NON-ASSIGNABILITY OF THE AGREEMENT.
You may not resell, assign or transfer any of your rights or obligations under this Agreement without our prior written consent. We may resell, assign or transfer our rights and obligations under this Agreement at any time without restriction and without notice or consent.
- CHOICE OF LAW.
This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws rules or principles.
Affiliate hereby consents to exclusive jurisdiction in California and venue in Santa Clara County, California for all arbitration and other proceedings arising out of this Agreement.
- ARBITRATION OF DISPUTES.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN AFFILIATE AND MEDLEY OR ANY OF OUR AFFILIATED ENTITIES OR OURS OR THEIR AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, OR ASSIGNS ARISING FROM OR RELATING TO THIS AGREEMENT, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY HEREOF, OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT (INCLUDING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THIS AGREEMENT), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS before a retired judge in Santa Clara County, California. In the event such a JAMS proceeding is unavailable for any reason, such disputes shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA before a single retired judge. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. This Section and Section 28 below are subject to the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA), as amended. Any award of the arbitrator shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. The arbitration proceeding will be limited solely to the dispute or controversy between the parties. AFFILIATE ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM. Nothing in this Section 27 shall be deemed to prohibit Medley from seeking an injunction or other equitable relief in any court of competent jurisdiction to protect or preserve its or its licensors' intellectual property rights or rights in or to confidential information.
- CLASS ACTION WAIVER.
IN ANY DISPUTE, NEITHER AFFILIATE NOR ANY OTHER PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST MEDLEY OR OTHER PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. AFFILIATE ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM.
- REMEDIES ARE CUMULATIVE.
All rights, remedies, undertakings, obligations and agreements contained in this Agreement or available at law, in equity or otherwise, shall be cumulative, and none shall be a limitation of any other remedy, right, undertaking, obligation, or agreement.
- AGREEMENT BINDING.
This Agreement shall be binding upon the parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
- FORCE MAJEURE.
Neither party shall be held responsible for delay or failure in performance hereunder caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war, or other causes beyond the affected party's reasonable control.
The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
- INJUNCTIVE RELIEF.
Affiliate's sole remedy for breach of any provision of this Agreement shall be an action at law for monetary damages, and in no event shall Affiliate be entitled to any injunctive or other equitable relief. Medley may bring an action for injunction or other equitable relief to protect its intellectual property rights or rights in or to confidential information and trade secrets.
This Agreement may be executed in counterparts, via any means (including facsimile and e-mail), all of which shall be effective, but when taken together shall comprise one agreement.
If any provision of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its modified terms.
This Agreement and any accompanying materials and addendums represent the entire understanding between the parties with respect to the subject matter hereof and supersede all previous understandings, written, oral or implied. This Agreement may only be amended with the written consent of the parties, and no oral waiver or amendment shall be effective under any circumstances.
Except as explicitly stated otherwise, legal and other notices shall be delivered to Medley.com Incorporated by U.S. mail at 220 Humboldt Court, Sunnyvale, CA 94089 Attn. Legal, or to you at the email address you provided us (a) at time of enrollment in the Affiliate Program, or (b) through a subsequent notice of an address change if listed on the Reports Page. Email notices to you shall be deemed given twenty-four (24) hours after email is sent, unless Medley is notified that the email address is invalid. Alternatively, Medley may provide notice by certified mail, postage prepaid and return receipt requested if your address is listed on the Reports Page. In such case, notice shall be deemed given upon receipt or three (3) days after the date of mailing, whichever is earlier.
Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless granted in writing and signed by an authorized representative of the waiving party. For purposes of this Agreement, Medley's authorized representatives are limited to its Chief Financial Officer or Chief Operating Officer.
- AMENDMENT TO PUBLISHED COMMISSION SCHEDULES.
Any modification to any published Program Rules, Program Types, or other documentation that would modify the rate, amount, or calculation of Medley’s Commission Schedules must use the form entitled “Affiliate Commission Modification Order (‘ACMO’)” and be signed by both parties, including on behalf of Medley by an employee holding the title of Director or higher.