The Commission Rate is subject to
change from time to time, upon e-mail notice to you and commencing the 30-days
following such notice.
4. Commission Payment.
Commissions deemed due and owed to you under the program will be paid to you
directly by Studio-389.com. Commissions can be earned per each new client
referred through the unique affiliate link.
5. Responsibility for Your Site.
You will be solely responsible for the development, operation and maintenance of
your site and for all materials that appear on your site. We shall have no
responsibility for the development, operation and maintenance of your site and
for all materials that appear on your site. You shall also be responsible for
ensuring that materials posted on your site do not violate or infringe upon any
laws, including but not limited to 18 U.S.C. Section 2257, or the rights of any
third party (including, for example, copyrights, trademarks, privacy, or other
personal or proprietary rights), and ensuring that materials posted on your site
are not libelous or otherwise illegal. You must have express permission to use
another party's copyrighted or other proprietary material. We will not be
responsible if you use another party's copyrighted or other proprietary material
in violation of the law. In addition to the foregoing, we will immediately
terminate your participation in the Program if we believe you have engaged in
any of the following:
- Unsolicited mass e-mail
solicitations, IRC postings or any other form of spamming, including but not
limited to, newsgroups or AOL customers or otherwise violate the anti-spamming
policies of Studio-389 or state law;
- Provide inaccurate or incomplete information to Studio-389 concerning your
identity, address or other required information;
- Attempt to cheat, defraud or mislead us in any way;
- Misrepresent to the public the terms and conditions of our sites or your
sites;
You are free to bid on PPC networks
for keywords related to Studio-389 with the intent to direct traffic to
Studio-389.
We do not want affiliates, or for that
matter, any third party, representing themselves as Studio-389 or presenting
themselves in a way that could be confused with Studio-389.
6. Term of the Agreements.
The term of this Agreement will begin upon our acceptance of your Affiliate
Program Application and will end when terminated by either party. Either you or
we may terminate this Agreement at any time, with or without cause, by giving
the other party notice of termination. Notice by e-mail, to your e-mail address
on our records, is considered sufficient notice for to terminate this Agreement.
If this Agreement is terminated because you have violated the terms of this
Agreement you are not eligible to receive any commissions payments, even for
commissions earned prior to the date of termination. If this Agreement is
terminated for any other reason, you are only eligible to earn a commission on
sales occurring during the term of the Agreement, and commissions earned through
the date of termination will remain payable only if the related orders are not
canceled or returned. We reserve the right to withhold your final payment for a
reasonable time to ensure that the correct amount is paid.
7. Modification.
We may modify any of the terms and conditions contained in this Agreement, at
any time and in our sole discretion. Notice of any change by e-mail, to your
address on our records, or the posting on our site of a change notice of a new
agreement, is considered sufficient notice for notifying you of a modification
to the terms and conditions of this Agreement. Modifications may include, but
are not limited to, changes in the scope of available commission fees,
commission schedules, payment procedures, and Affiliate Program rules. All such
modifications shall take effect 48 hours after we serve notice as provided
above, unless we indicate otherwise. If any modification is unacceptable to you,
your only recourse is to terminate this Agreement. Your continued participation
in the Affiliate Program, following our posting of a change notice or new
agreement on our site, will constitute binding acceptance of the change.
8. Relationship of Parties.
You and Studio-389 are independent contractors, and nothing in this Agreement
will 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. You
will not make any statement, whether on your site or otherwise, that reasonably
would contradict anything in this Section. You are not an agent of the
Studio-389 and Studio-389 expressly disclaims responsibility for any conduct by
you in violation of our terms of agreement.
9. Limitation of Liability. We
will not be liable for indirect, special, or consequential damages, or any loss
of revenue, profits, or data, arising in connection with this Agreement or the
Affiliate Program, even if we have been advised of the possibility of such
damages. Further, our aggregate liability arising with respect to this Agreement
and the Affiliate Program will not exceed the total commissions paid or payable
to you under this Agreement.
10. Disclaimers.
We make no express or implied warranties or representations with respect to the
Affiliate Program or any COMPANY services or other items sold through the
Program (including, without limitation, warranties of fitness, merchantability,
non-infringement, or any implied warranties arising out of a course of
performance, dealing, or trade usage). In addition, we make no representation
that the operation of our site will be uninterrupted or error-free, and we will
not be liable for the consequences of any interruptions or errors.
11. Representations and
Warranties.
You hereby represent and warrant to us that this Agreement has been duly and
validly executed and delivered by you and constitutes your legal, valid and
binding obligation, enforceable against you in accordance with its terms; and
that the execution, delivery and performance by you of this Agreement are within
your legal capacity and power; have been duly authorized by all requisite action
on your part; require the approval or consent of no other persons; and neither
violate nor constitute a default under the (i) provision of any law, rule,
regulation, order, judgment or decree to which you are subject or which is
binding upon you, or (ii) the terms of any other agreement, document or
instrument applicable to you or binding upon you. Should any law enforcement
agency or internet service provider provide Studio-389 with notice that you have
engaged in transmission of unsolicited bulk e-mails or have otherwise engaged in
unlawful conduct or conduct in violation of said service provider's terms of
service, we reserve the right to cooperate in any investigation relating to your
activities including disclosure of your account information in connection
therewith.
12. Confidentiality.
We may disclose to you certain information as a result of your participation as
part of the Program, which information we consider to be confidential (herein
referred to as "Confidential Information"). For purpose of this Agreement, the
term "Confidential Information" shall include, but not be limited to, any
modifications to the terms and provisions of this Affiliate Program Agreement
made specifically for your site and not generally available to other members of
the Affiliate Program, website, business and financial information relating to
Studio-389, customer and vendor lists relating to Studio-389 and any members of
the Affiliate Program, other than you. Confidential Information shall also
include any information that we designate as confidential during the term of
this Agreement. You agree not to disclose any Confidential Information and that
such Confidential Information shall also include any information that we
designate as confidential during the term of this Agreement. You agree not to
disclose any Confidential Information and that such Confidential Information
shall remain strictly confidential and secret and shall not be utilized,
directly or indirectly, by you for your own business purposes or for any other
purpose except and solely to the extent that any such information is generally
known or available to the public or if same is required by law or legal process.
We make no warranty, expressed or implied, with respect to any information
delivered hereunder, including implied warranties of merchantability, fitness
for a particular purpose or freedom from patent, trademark or copyright
infringements, whether arising by law, custom or conduct, or as to the accuracy
or completeness of the information and we shall not have any liability to you or
to any other person resulting from your or such third person's use of the
information.
13. Indemnification.
You hereby agree to indemnify, defend and hold harmless Studio-389, officers,
directors, employees, agents, affiliates, successors and assigns, from and
against any and all claims, losses, liabilities, damages or expense (including
attorneys' fees and costs) of any nature whatsoever incurred or suffered by us
(collectively the "Losses"), in so far as such Losses (or actions in respect
thereof) arise out of or are based on (i) any claim or threatened claim that our
use of the Affiliate Trademarks infringes on the rights of any third party; (ii)
the breach of any promise, covenant, representation or warranty made by you
herein; or (iii) or any claim related to your site.
14. Miscellaneous.
Terminated accounts cannot later apply to the Program without our express
written consent. This Agreement will be governed by the laws of the United
States and the State of Florida, without reference to rules governing choice of
laws. Studio-389 reserves the right to institute a reserve fund holding
commissions for a time period deemed necessary in situations where sales
generated by an affiliate consistently have a high chargeback/cancellation
ratio. Studio-389 will be the sole and final arbitrator for any and all disputes
or claims related to the validity of sales. You may not
assign this Agreement, by operation of law or otherwise, without our prior
written consent. Subject to that restriction, this Agreement will be binding on,
inure to the benefit of, and enforceable against the parties and their
respective successors and assigns. Our failure to enforce your strict
performance of any provision of this Agreement will not constitute a waiver of
our right to subsequently enforce such provision or any other provision of this
Agreement.
15. Binding Arbitration.
By participating in this affiliate program, you agree to binding arbitration for
any disputes or claims that arise against Studio-389.com Ltd or its subsidiaries
in conjunction with this program. An arbitration firm selected by Studio-389.com
Ltd will be the sole and final arbitrator for any and all disputes or claims
related or resulting from participation in this program. All decisions rendered
are final. You also are responsible for any and all costs related to such
arbitration.
