AFFILIATE TERMS & CONDITIONS
This Affiliate Terms and Conditions Agreement (the "Agreement") is entered into by and between you (the "Affiliate") and Dev8 Entertainment Limited, doing business as sapphiccash.com ("DEV8") upon acceptance of this Agreement evidenced by clicking on the Save Data button on the sapphiccash.com sign-up page.
1. BASIC AGREEMENT
Upon acceptance by Affiliate of the terms and conditions contained herein and continued compliance herewith, Affiliate shall be allowed to participate in the Sapphiccash.com Affiliate Program (the "Program") wherein DEV8 shall enable Affiliate to use certain intellectual property of DEV8 on Affiliate's Web sites for marketing and promotional purposes and as consideration for any traffic directed by Affiliate to DEV8 through Affiliate's marketing and promotional efforts and that converts into revenue to DEV8, DEV8 shall pay Affiliate compensation, as set forth in section 3 below.
1.1 Prohibited Countries: Due to excessive fraud attempts, DEV8 does not allow webmasters who reside in the following countries to participate in our program without prior permission: Albania, Armenia, Azerbaijan, Belarus, Brazil, Bulgaria, Costa Rica, Croatia, Czech Republic, Estonia, Georgia, Hungary, India, Indonesia, Israel, Japan, Jordan, Kaliningrad, Kazakhstan, North Korea, South Korea, Kyrgyzstan, Latvia, Lithuania, Malaysia, Moldova, Pakistan, Philippines, Romania, Russia, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, and Yugoslavia.
2. RIGHTS GRANTED AFFILIATE
DEV8 grants Affiliate each of the following:
2.1 The nonexclusive right to refer, direct or send visitors or users of Affiliate's Web site(s) to Web sites owned, controlled and/or operated by DEV8 ("DEV8 Web sites"); and
2.2 A limited nonexclusive, nontransferable and revocable license to access and download promotional banners, images, videos and other promotional materials created and owned by DEV8 for use on Affiliate Web sites for the exclusive purpose of advertising, marketing or promoting DEV8 Web sites. Affiliate may post as many of these banners and other materials on its site(s) as desired. Affiliate may only use materials provided on the sapphiccash.com website and may not without prior permission use content obtained from the members area of sapphiccash.com sites or any other source.
2.3 DEV8 directly or indirectly owns and retains all right, title and interest in and to its intellectual property, copyright, trademarks, patents, and in the files, promotional banners and other material provided by DEV8, including all images therein. Upon termination of Affiliate's participation in the Program and/or termination of this Agreement, the grant of right and license set forth in subsection 2.2 above, shall cease and terminate, and Affiliate shall immediately remove all DEV8 files, banners, ads, and any and all other DEV8 intellectual property, copyrighted material, trademarks, and patents, if any, from Affiliate's Web sites.
2.4 Affiliate is not authorized to and shall not change DEV8's names, file names, trademarks, design logos, banners, ads or other material for any purpose other than as expressly set forth herein or in any modification to this Agreement by DEV8.
2.5 Affiliate specifically acknowledges and agrees that it shall not modify, edit, resize, redact, or otherwise change any of DEV8ï¿½s names, file names, trademarks, design logos, banners, ads or other material for any purpose whatsoever. Affiliate further acknowledges and agrees that any such change or changes will be a material breach of this Agreement and shall constitute an infringement of DEV8ï¿½s copyrighted and/or trademarked intellectual property.
2.6 Affiliate agrees and covenants to notify DEV8 of all Uniform Resource Locator (URL) a.k.a. ï¿½Web siteï¿½ locations where it has published DEV8ï¿½s names, file names, trademarks, design logos, banners, ads or other material pursuant to this Agreement, specifically identifying the names, file names, trademarks, design logos, banners, ads or other material posted at each URL. Affiliate further acknowledges and agrees that failure to notify DEV8 of these locations constitutes a material breach of this Agreement and each such posting of which Affiliate fails to notify DEV8 shall constitute an infringement of DEV8ï¿½s copyrighted and/or trademarked intellectual property.
3. PAYMENT OF COMPENSATION
DEV8 will pay Affiliate for Web traffic to DEV8 Target Page(s) from a banner or link posted on Web page(s) of Affiliate's site(s) as follows.
3.1 Revenue Share Payments: As an alternative to the per sign-up compensation option, DEV8 offers a Revenue Sharing option to Affiliates. Under the Revenue Sharing option of the Program, Affiliates receive 50% of the gross receipts from referred accounts, less applicable processing fees and other related fees charged by the third party processors who process charges for DEV8.
3.2 Bonus Terms and Conditions: Dev8 Entertainment Limited (hereafter "DEV8") may, from time-to-time, conduct subscription bonus programs via DEV8's Advertising Program (hereafter the “SapphicCash Program”). Each such bonus program shall contain its own remuneration offering, at DEV8ï¿½s sole discretion, in which Affiliate may elect to participate.
3.3 All payments are made in U.S. dollars or European Union Euros. Payments are mailed weekly. A "Pay Period" is defined as a calendar week period.
3.4 Affiliate agrees, by accepting and negotiating payment received from DEV8, that the payment received is payment in full for any and all advertising space and traffic for the Pay Period to which the payment applies.
3.5 A "referral" from an Affiliate Web site entitling Affiliate to a "commission" is defined as follows:
(i) A person who has been directed to an authorized Web site owned, controlled or operated by DEV8 ("DEV8 Web site") through the use of a hypertext transfer link residing on Affiliate's Web site in the form of a banner ad or other promotional link which automatically connects any person who clicks on the banner ad or other promotional link to a DEV8 Web site, and which banner ad or other promotional link has been supplied to Affiliate as part of the Program; and
(ii) That person who, after having been directed to a DEV8 Web site through the use of the hyperlink banner ad or other promotional link supplied to Affiliate residing on Affiliate's Web site, has been converted into a subscriber or member of a DEV8 Web site.
3.6 "Webmaster Referral" Program: DEV8 will also compensate Affiliate for sales generated by other affiliates referred to DEV8 by the Affiliate. When a new webmaster affiliate signs up for the Program through the approved Webmaster Referral link provided to the Affiliate by DEV8, the Affiliate will receive a commission of five-percent (5%) on each sale generated by that referred webmaster affiliate.
Affiliates are prohibited from "referring" their own accounts/sales as such "self-referrals" will result in termination of all Program accounts operated by the Affiliate.
4. RESTRICTIONS ON PAYMENT OF COMPENSATION
4.1 Affiliate is not entitled to a commission for any DEV8 subscriber sent or referred to a DEV8 Web site in violation of the terms of this Agreement, or for any DEV8 subscriber who does not fall within the terms of paragraphs 3.5 (i) & (ii).
4.2 Affiliate is not be entitled to a commission from DEV8 for any subscription which DEV8 determines is the result of potential fraudulent activity. DEV8 shall have the right, in its sole and absolute discretion, to expand or modify what it determines to constitute potential fraudulent activity. Without limiting the foregoing, potential fraudulent activity includes without limitation, the following circumstances or activities:
(i) The subscriber used or attempts to use a credit card number that is in a "negative database";
(ii) There are multiple subscriptions from a single Internet Protocol (IP) address within a one (1) month period of time;
(iii) There are sequential or multiple subscriptions under different names, or variations of the same name using the same credit card number, or sequential names or patterns of names using different credit card numbers;
(iv) There is a pattern of "bursting subscriptions" characterized by numerous subscriptions from a Web site in a relatively short time span (the "bursting period"), where there has been history of few subscriptions from that Web site before or after the bursting period.
(v) There are sequential or multiple attempts to register or subscribe from a credit card using the same "bin number" and sequential or multiple number strings are used to complete the credit card number.
(vi) There are subscriptions from an IP address that matches the IP address Affiliate used in establishing an account in the Program, or an IP address that is otherwise known to be used by Affiliate.
4.3 DEV8 has the right to deny or withhold payment from Affiliate, and to terminate Affiliate from the Program, if there is an abnormal number of chargebacks or cancellations of memberships or subscriptions that have been referred to DEV8 through Affiliate's Web sites. DEV8 shall determine, in its sole and absolute judgment, what constitutes an abnormal number of chargebacks or cancellations of memberships or subscriptions.
5. TERM AND TERMINATION
5.1 This Agreement is not for any specific term or duration of time. Affiliate may terminate this Agreement at any time, for any reason or no reason; and, this Agreement and/or the Program may be terminated by DEV8, in its sole and absolute discretion, at any time, for any reason or no reason.
5.2 Affiliate shall terminate participation in the program by notifying DEV8 by E-mail at firstname.lastname@example.org of Affiliate's intent to terminate participation in the Program.
5.3 In the event this Agreement is terminated, Affiliate shall be entitled to any unpaid commissions or referral fees earned prior to the date and hour of termination. Affiliate shall not be entitled to receive any commissions or referral fees for any "referrals" delivered or received after the date and time of termination.
5.4 If this Agreement is terminated due to Affiliate's breach of any portion of this Agreement, DEV8 reserves the right to withhold any amounts then due and owing.
6. AFFILIATE'S RESPONSIBILITIES AND DUTIES
6.1 Affiliate shall only use and promote on Affiliate Web sites DEV8 approved advertising banners, links, and other promotional materials.
6.2 Affiliate shall not use or employ any form of mass unsolicited electronic mailings, newsgroup postings, IRC postings, adware, spyware, malware marketing or any other form of "spamming" as a means of promoting Affiliate Web sites or for the purpose of directing or referring users to any web sites owned, operated or controlled by DEV8.
Affiliate further acknowledges and agrees that DEV8 has the right to immediately, and without notice, terminate your participation in the Program if DEV8, in its sole and absolute discretion, conclude that Affiliate has engaged in the use of any form of mass unsolicited electronic mail solicitations, newsgroup postings, password selling or trading, warez, IRC posting, adware, spyware, malware marketing or any other form of "spamming". NOTE: DEV8 HAS ZERO TOLERANCE FOR SPAMMING. IF AFFILIATE SPAMS, PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, AFFILIATE WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS OTHERWISE DUE TO AFFILIATE WILL BE FORFEITED TO DEV8. AFFILIATES WISHING TO SEND TRAFFIC TO DEV8 SITES VIA ELECTRONIC MAIL PROMOTIONS MUST DO SO IN COMPLIANCE WITH THE CAN-SPAM ACT (- CLICK HERE TO REVIEW THE TEXT OF THE CAN-SPAM ACT), THE FTC's FINAL RULE REGARDING SEXUALLY EXPLICIT COMMERCIAL EMAIL (- CLICK HERE TO REVIEW THE TEXT OF THE FTC's FINAL RULE) AND THE TERMS LISTED BELOW:
1) All email must include the mark SEXUALLY-EXPLICIT: (in this exact form) in the subject heading. This mark in the subject line must be in ASCII format.
2) The SEXUALLY-EXPLICIT: mark must also be included in the initially viewable area (termed the "brown paper wrapper") of the email message. The initially viewable area of the message is defined as the portion of the message that is immediately visible to the recipient without taking any affirmative action to view the message, like scrolling down or clicking a link that leads to the sexually explicit material.
3) Sender must EXCLUDE from both the subject heading and initially viewable area of the message any sexually explicit words or visual depictions. Therefore, the subject heading and initially viewable area must EXCLUDE words and/or images that depict the following:
Actual or simulated -
(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal penetration, whether between persons of the same or opposite sex;
(D) Sadistic or masochistic abuse; or
(E) Lascivious exhibition of the genitals or pubic area of any person.
4) In addition to the SEXUALLY-EXPLICIT: mark, the initially viewable area of the email must also include the following:
a. clear and conspicuous notice that email message is for an advertisement or solicitation
b. clear and conspicuous opt-out instructions and link
c. functioning return email address or other internet based mechanism to opt out;
d. clear and conspicuous valid physical postal address of email sender; and
e. instructions as to how to access the sexually explicit materials.
"Clear and conspicuous" means that the recipient must be able to actually read the text without altering it. One cannot, for example, place the physical address (or other required information) in a color that cannot be distinguished from the background, or in a font size that is too small to read.
If you have any questions concerning the SapphicCash mailing terms, please contact email@example.com .
6.3 Except as expressly authorized by DEV8 in writing, Affiliate shall not copy, reproduce, alter, modify, change, broadcast, distribute, transmit or disseminate any banners or other promotional or advertising materials provided by DEV8 pursuant to this Agreement in whole or in part, in any form or manner, at any time or anywhere in the World.
6.4 Affiliate shall ONLY use Promotional Pictures and Images provided by DEV8 to promote sites that are included in the Program. For purposes of this Agreement Promotional Pictures and Images means any of the images and/or videos provided in zip file format on the sapphiccash.com Web site.
6.5 Affiliate shall disseminate, transmit, broadcast or distribute the material provided through the Program only to consenting adults over the age of eighteen (18) years, twenty-one (21) years in those locations where that is the age of majority.
6.6 All content displayed on any web site containing DEV8 banners or links, and all content displayed on any web site to which Affiliate provides third party links to, must comply with all local laws and community standards. Accordingly, Affiliate shall not include, or link to, any of the following within a Web site that contains DEV8 banners or links, or directly or indirectly link any of the following content or material to any DEV8 Web site through any hyperlinks maintained or created on Affiliate's Web sites:
(i) Material deemed obscene by DEV8, including without limitation, materials depicting bestiality, rape or torture;
(ii) Any material not in full compliance with the provisions of 18 U.S.C. Sec. 2257;
(iii) Any material that constitutes child pornography, any material in which persons under the age of eighteen are depicted in actual, simulated or suggestive sexual situations, or material that involves depictions of nudity or sexuality by an age inappropriate-looking performer (i.e. someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc. Prohibited material mentioned herein includes the use of the term 'lolita' for any purpose in any fashion including, but not limited to, within meta-based tags;
(iv) Any material deemed by DEV8 to be threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity;
(v) Any material which constitutes an infringement, misappropriation or violation of any person's intellectual property rights including without limitation, copyrights, trademarks, rights of publicity, patent rights, personal property rights, privacy rights or any other intellectual property right; or
(vi) Any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature, regardless whether damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person.
7. REPRESENTATIONS AND WARRANTIES
Affiliate hereby represents and warrants each of the following:
7.1 That if Affiliate is an individual person, he/she is over the age of eighteen (18) years;
7.2 This if Affiliate is an entity (i.e., corporation, limited liability company, etc.) that all individuals employed or associated with Affiliate in any way are over the age of eighteen (18) years; and
7.3 That the individual who provides information pursuant to the Program and accepts this Agreement has full, lawful power and authority to enter into and to carry out the terms of this Agreement.
8. UNITED STATES TAXATION
8.1 All United States residents and corporations, and foreign participants who are residents of the United States, are required to provide a completed and signed United States Department of Treasury Internal Revenue Service Form W-9 setting forth information including a United States Federal Employer Identification Number, or Social Security Number.
9. RIGHTS OF DEV8
9.1 DEV8 shall have the right, in its sole and absolute discretion, to terminate the Program and any and all Program Benefits relating to Affiliate's participation in the Program at any time and may do so with or without cause.
9.2 DEV8 shall have the right, in its sole and absolute discretion, to change or modify the Program, including without limitation, the right to pay an Affiliate participating in the Program based on "click through's" rather than commission as defined in section 3. If at any time DEV8 changes or modifies the Program, Affiliate shall have the right to withdraw and terminate participation in the Program.
10. NO PARTNERSHIP, JOINT OR COLLABORATIVE VENTURE
10.1 Nothing contained in this Agreement shall create or be deemed to create a partnership, joint venture or other business combination or venture of any kind between Affiliate and DEV8, its subsidiaries, affiliated entities, successors or assigns; nor shall any term contained in this Agreement constitute or create any agency or employment relationship between Affiliate and DEV8, its subsidiaries, affiliated entities, successors or assigns.
10.2 DEV8 has no control over nor ownership interest in Affiliate or Affiliate's Web sites, and Affiliate has no financial or other interest in DEV8, its subsidiaries, affiliated entities or any property owned by such entities, except as expressly set forth herein.
11. NO CONTENT CONTROL, MONITORING OR SUPERVISION
11.1 DEV8 does not monitor, supervise or review content contained on Affiliate's Web sites. DEV8 is not responsible for any content appearing or otherwise distributed on, at or in association with Affiliate's Web sites that is provided by Affiliate or independent third parties.
11.2 DEV8 has no direct or indirect control over the content of performances or services, the manner of performances or services, or the time or duration of provision of performances or services by Affiliate on, at or in association with Affiliate's Web site except as specifically set forth in this Agreement.
12. NO WARRANTY OR GUARANTY
DEV8 makes no guaranty of any kind with respect to the Program or materials provided by, through or in association with the Program, and all materials are provided to Affiliate "as is", and use of the Program and associated materials is solely at Affiliate's risk. DEV8 disclaims all warranties, either express or implied including, but not limited to, warranties of merchantability and fitness for a particular purpose with regard to the Program and any and all materials of every kind supplied to Affiliate as part of this Program.
13. NO GUARANTY OF SUCCESS OR PROFITABILITY
DEV8 cannot guaranty or promise Affiliate any level of success or profitability due to Affiliate's participation in the Program. Affiliate has unilaterally entered into an Internet service business and all risk of loss, cost and expense of Affiliate doing business shall be borne solely by Affiliate.
14. FORCE MAJEURE
Neither party shall be liable for any loss or delay, nor be considered in breach of this Agreement, due to an act of God, fire, natural disaster, terrorist act, strike or other labor stoppage, declaration of war or military intervention, computer system/server failure, network failure, governmental action, or any other cause outside the control of the parties and which cannot be avoided by the exercise of due care.
15. LIMITATION OF LIABILITY
DEV8, its subsidiaries, affiliated entities, employees, independent contractors, agents, representatives, assigns and successors shall not be liable to Affiliate, or any other person or entity, for any direct or indirect losses, injuries or incidental, consequential or other damages (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any DEV8 Web site, or arising from or in connection with this Agreement or the use of the SapphicCash Program materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of DEV8's services, content or Program materials, including without limitation any losses due to server problems or due to incorrect placement of HTML.
Affiliate shall indemnify and hold DEV8, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors and any successor-in-interest or assign (the "Indemnified Parties") harmless from any breach of this Agreement by Affiliate, including any use of Program materials other than as expressly authorized in this Agreement. Affiliate agrees that the Indemnified Parties shall have no liability in connection with any such breach or unauthorized use, and Affiliate agrees to indemnify for any resulting loss, damage, judgment, award, cost, expense, and attorneys' fees of the Indemnified Parties. Affiliate shall also indemnify and hold the Indemnified Parties harmless from and against any and all claims brought by third parties arising out of Affiliate's use of the information accessed from a DEV8 Web site.
17. TRANSFER OR ASSIGNMENT
17.1 This Agreement shall not, under any circumstances, be transferred or assigned by Affiliate to any other person or entity, and any attempted transfer or assignment of a membership shall be void.
17.2 DEV8 may, at any time, in its sole discretion and without prior notice to Affiliate, transfer or assign this Agreement to an affiliated or non-affiliated person or entity.
This Agreement is subject to change or modification by DEV8 at any time and changes shall become effective upon notice to Affiliate by e-mail, posting at or via hyperlink to a DEV8 Web site, or by mail. An Affiliate may not alter, delete, add or change or edit any of these terms and conditions, and any such attempted alteration shall be void and of no effect.
19. NOTICES TO DEV8 OR AFFILIATES
Notices from a DEV8 Web site to Affiliates may be given by means of electronic messages (email), by general posting on the Web site, or by conventional mail. Communications from Affiliate to DEV8 may be made by electronic messages (email) or conventional mail, unless otherwise specified in this Agreement.
All notices to DEV8 sent by electronic mail shall be to firstname.lastname@example.org.
Notices from DEV8 shall be deemed delivered when sent by DEV8 to Affiliate; notices of changes or modifications to this Agreement shall be accepted by Affiliate upon the first use by Affiliate of the Materials provided in the Program after such notice was sent; and, such acceptance of a change or modification shall be deemed to relate back to the date such change or modification was originally sent by DEV8.
20. CHOICE OF LAW, ARBITRATION AND ATTORNEY'S FEES
This Agreement shall be governed by the laws of the state of Washington, United States of America. In the event of any dispute arising under this Agreement, the parties agree to submit such dispute to binding arbitration in accordance with the rules of the American Arbitration Association without regard to the amount in controversy or the nature of relief sought; except that the parties waive their right to a trial de novo following arbitration. The arbitrator shall be chosen by the parties and shall be a person who is experienced in electronic commercial law and transactions. If the parties cannot agree on a single arbitrator, each party shall forthwith select an arbitrator of its choice, and the arbitrators thus appointed shall then forthwith select a third arbitrator who shall be deemed Chief Arbitrator. Any final determination of an arbitrator shall be final and binding upon the parties. Judgment on the award rendered by the Arbitrator may be entered in any state, territory or possession of the United States. With further respect to any arbitration arising hereunder, the substantially prevailing party in any such action shall be entitled to its costs and reasonable attorneys' fees.
The failure of any party hereto to insist upon strict performance of any covenant or agreement contained herein, or to exercise any option or right, shall not be construed to be a waiver or relinquishment of any such option or right, or of any other covenants or agreements, but the same shall be and remain in full force and effect.
If any provision of this Agreement is held to be invalid or unenforceable, in any respect, such invalidity or unenforceability shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement, but, to the contrary, this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
22. ENTIRE AGREEMENT, HEADINGS, AND NEUTRAL CONSTRUCTION
This Agreement and any changes or modifications thereto by DEV8 and accepted by Affiliate expresses the entire agreement between the parties regarding Affiliate's participation in the Program, and all materials directly and indirectly related thereto, superseding and negating any prior or contemporaneous agreements, whether written or oral. There are no representations, agreements, arrangements or undertakings relating to the matters addressed which are not fully expressed herein. The headings are for convenience only and shall not be construed to give any substantive meaning to the agreement between the parties. This Agreement shall be construed neutrally and as the commemoration of the mutual assent of both parties rather than for or against either party.
23. REVIEW BY ATTORNEY
DEV8 strongly advises that Affiliate review this Agreement with an attorney before acceptance of its terms so Affiliate is fully apprised of all its rights, duties and obligations under this Agreement. Affiliate acknowledges that nothing herein and no statement by DEV8 or any employee, representative, agent or other person associated with DEV8 has in any way prevented or inhibited Affiliate from seeking such independent legal advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair; all terms have been fully disclosed in writing, and Affiliate has been given reasonable opportunity to seek the advice of independent counsel with respect to this Agreement and all transactions associated herewith.
24. ACCEPTANCE AND EXECUTION
By CLICKING ON THE "SAVE DATA" BUTTON on the sapphiccash.com Sign-Up Page, and by supplying DEV8 with all the information required to create an account on the Program, Affiliate has accepted all of the terms and conditions set forth herein above.