This Affiliate Program Agreement (“Agreement”) is made and entered into by and between 31 Titans (“31 Titans” or “we”), and you, (“you” or “Affiliate”), the party submitting an application to become a 31 Titans Affiliate. The terms and conditions contained in this Agreement apply to your participation in the 31 Titans Affiliate Program (“Affiliate Program”), available at any URL that we may designate from to time in writing (which may be electronically), at our sole discretion.
Each Affiliate Program offer (“Offer”) may promote a product or service offered by 31 Titans or by a third party (each such third party a “Client”), and may link to a specific web site for that particular Offer (“Program Web Site”). Individual Offers may have additional terms and conditions as specified on the Offer sign-up page, and such terms and conditions are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
- Enrollment in the Affiliate Program
You must submit an Affiliate Program application from our website. You must accurately complete the application to become an Affiliate (and update us with any changes), and you must not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection into the Affiliate Program. We may accept or reject your application at our sole discretion for any or no reason. This Agreement shall commence upon the date that we accept your application (“Effective Date”).
- Offers and Offer Requirements
Upon approval of Affiliate by 31 Titans, we will make available to you graphic and textual links to the Program Web Site and other creative materials such as text ads, graphic ads, video ads, from and subject lines, and any copy associated with the Campaign (collectively, the “Links”) which you may display on web sites owned or controlled by you, in emails sent by you and in online advertisements (collectively, “Media”).
31 Titans may, in its sole and absolute discretion, terminate or change any Offer, and change or remove any Link for any or no reason, revoke Affiliate’s access to the Affiliate Program, or discontinue the Affiliate Program at any time, for any or no reason, with or without notice. Affiliate shall discontinue use and dissemination of the Links within two (2) business days of 31 Titans’ request.
- Payments and Reporting
- 31 Titans shall pay Affiliate a “Commission” for each Qualified Action. A “Qualified Action” means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) provides all of the information required for such action within the time period allowed by 31 Titans and (v) is not later determined by 31 Titans, in its sole discretion, to be fraudulent, incomplete, unqualified or a duplicate. Affiliate shall not receive Commission for any prospects provided that do not constitute Qualified Actions. 31 Titans’s determination of whether a Qualified Action has occurred is final and conclusive, and at 31 Titans’s sole discretion.
- 31 Titans shall pay Affiliate any Commissions earned under this Agreement once Affiliate is owed more than $50 under the terms of this Agreement. If Affiliate is owed less than $250 under this Agreement, the balance will roll over to the next month, and will continue to roll over monthly until $50 is reached. Affiliate will be paid within ten (10) days after $50 is reached, and shall be paid on a monthly basis thereafter. We reserve the right to charge back to your account or withhold Commissions for any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
- Payment for Commissions is dependent upon Clients first providing such funds to 31 Titans for the corresponding campaign. Therefore, you agree that 31 Titans shall only be liable to you for Commissions to the extent that 31 Titans has received funds from each Client for the campaign for which each Commission is owed to Affiliate. You hereby release 31 Titans from any claim for Commissions if 31 Titans has not received such funds from the Clients.
- 31 Titans shall determine the amount of each Commission and send an invoice to Affiliate for Commissions payable under this Agreement. 31 Titans shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by 31 Titans in its sole discretion. If Affiliate disputes an invoice, Affiliate must submit the dispute to 31 Titans in writing, including evidence supporting the invalidity of the invoice, within thirty (30) days of the date the disputed invoice was sent. 31 Titans shall within ten (10) days of such receipt make a determination based upon the data available to 31 Titans and the data provided by Affiliate as to the validity of the invoice, and 31 Titans’s determination shall be final and binding. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice.
- If Affiliate has an outstanding balance due to 31 Titans under this Agreement or any other agreement between the Affiliate and 31 Titans, whether or not related to the Affiliate Program, 31 Titans may offset any such amounts due to 31 Titans from amounts payable to Affiliate under this Agreement.
- Service Requirements, Representations and Warranties
- 31 Titans represents and warrants that it has full right and authority to enter into this Agreement.
- Affiliate represents and warrants that it has full right and authority to enter into this Agreement.
- Affiliate shall fulfill the obligations under this Agreement in compliance with all laws and regulations, including without limitation the CAN-SPAM Act of 2003 and all state anti-spam laws including California Business & Professions Code Section 17529.5, California Civil Code Section 1798.83, Federal Trade Commission Act, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act, Federal Trade Commission Endorsements Guides, the Restore Online Shoppers’ Confidence Act and all state laws relating to automatic renewal programs, and any other applicable federal, state, and local consumer protection laws, regulations, and standards.
- Affiliate represents and warrants that it has disclosed to 31 Titans, prior to executing this Agreement, the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations or prosecutions by the Federal Trade Commission, any other federal or state governmental or regulatory body or agency, or any industry regulatory authority against Affiliate or any Third Party Affiliate that Affiliate engages to provide services under this Agreement.
- Affiliate owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on all materials that Affiliate uses that 31 Titans does not provide to Affiliate.
- Affiliate shall not use deceit when marketing or distributing Links or Campaigns.
- Affiliate shall display each Link exactly as it is provided by 31 Titans, and Affiliate shall not alter any Link in any way that would affect 31 Titans’s ability to track Affiliate’s actions without 31 Titans’s prior written approval.
- The recipients of all email addresses used by Affiliate in connection with this Agreement have manifested affirmative, direct consent to receive commercial emails from Affiliate and none of the email addresses were obtained through email harvesting or dictionary attacks.
- Affiliate shall not fraudulently add leads or clicks or inflate leads or clicks.
- Affiliate shall not engage in or promote any illegal activities of any kind in association with this Agreement.
- All materials posted on the Media or otherwise used in connection with the Affiliate Program (i) shall not infringe upon the intellectual property or personal rights of any third party and (ii) shall not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that 31 Titans informs you that it considers objectionable (collectively, “Objectionable Content”).
- Affiliate shall not make any representations, warranties or other statements concerning 31 Titans or Client or any of their respective products or services, except as expressly authorized herein.
- If Affiliate creates or designs any Media, Affiliate shall first receive 31 Titans’ prior written approval before disseminating such Media.
- No Links shall appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by 31 Titans in writing.
- Any websites, emails, advertisements, links, or other media properties created or used by Affiliate to promote, display or transmit any Links or Offers shall: not include content that is deceptive or misleading or otherwise fails to comply with applicable federal and state consumer protection laws; not infringe upon the personal rights, patents, trademark, trade name, logo, publicity right, copyright, intellectual property, privacy rights, moral rights, music performance or other music-related rights, or any other right of any third party; not contain content that is an invasion of privacy, degrading, libelous, unlawful, deceptive, profane, obscene, pornographic, tends to ridicule or embarrass, is gratuitous violence, or is in bad taste, at the sole discretion of 31 Titans; not offer incentives, including but not limited to points, rewards, cash, contest entries, and prizes, to consumers in return for their response to the advertisement; not spawn malicious, false, or deceptive pop-ups or exit pop-ups; not use surveys of any kind; not generate proxy server traffic; not contain material that defames, misrepresents, abuses, or threatens physical harm to others; not use offer walls of any kind unless authorized by 31 Titans; not use malware; not serve advertisements, or drive traffic to advertisements, using any adware, spyware, plug-ins, pop-up, pop-under technologies, or similar downloadable application; not use any methods to generate leads or sales that are not initiated by the affirmative action of a consumer; not constitute any advertising via facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages); not constitute any advertising to wireless devices or portable electronic devices by text messaging in any form (including, without limitation, SMS, Smart Messaging, and MMS); not promote any illegal activity including without limitation the promotion of gambling, illegal substances, weapons, counterfeit money, software piracy, phreaking, or hacking; not spoof, or redirect, traffic to or from any adult-oriented web sites, material appealing to the prurient interests, or any other web sites not specifically designated by 31 Titans; not include racial, ethnic, political, hate-mongering, or otherwise objectionable content; not infringe or violate the patents, copyrights, trademark, or any other intellectual property of any third party; not consist of simply a list of links or advertisements; be written in English and contain only English-language content; and be fully functional at all levels and have no “under construction” websites or sections
- Affiliate shall not place 31 Titans ads on any online auction platform (e.g., eBay, Amazon, etc.).
- Affiliate must notify 31 Titans of any complaint received by Affiliate regarding any advertisements used in 31 Titans’ Affiliate program within twenty-four (24) hours or receiving such complaint
- Affiliate Networks
Affiliate represents and warrants that it shall not use sub-Affiliates, third party Affiliates, or its own network without 31 Titans’s prior written consent. If Affiliate maintains its own Affiliate networks and place the Links in its Affiliate network (the “Network”) for access and use by those Affiliates in Affiliate’s Network (each a “Third Party Affiliate”), then the following rules apply.
- Affiliate shall contractually bind, to all terms of this Agreement, all of its Third Party Affiliates who perform services under this Agreement. Thus, Affiliate shall require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. If a Third Party Affiliate fails to adhere to the requirements set forth herein, in addition to other remedies available to 31 Titans, Affiliate may be terminated at 31 Titans’s sole discretion, and Affiliate shall indemnify 31 Titans for any resulting third party claims against it as a result of a violation of this provision.
- Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content.
- Affiliate agrees that for the purposes of this Agreement, the acts and omissions of its Third Party Affiliates shall be deemed Affiliate’s acts and omissions regardless of whether such Third Party Affiliates bound themselves to this Agreement or any other agreement. Affiliate is responsible for breach of this Agreement by any Third Party Affiliates regardless of whether Third Party Affiliates execute this Agreement or any other agreement.
- If either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to 31 Titans the identity and contact information for such Third Party Affiliate.
- Affiliate shall periodically audit Third Party Affiliates in its Network, and permit 31 Titans to audit Third Party Affiliates in Affiliate’s Network including upon written request, to ensure Third Party Affiliates are in compliance with the law and this Agreement. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement.
- Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers upon written notice from 31 Titans.
- Affiliate shall provide 31 Titans with all truthful and complete contact information for Third Party Affiliates, and all Third Party Affiliates must affirmatively accept this Agreement and provide a record of such to 31 Titans.
- If Affiliate or Third Party Affiliate becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, Affiliate will immediately provide notice to 31 Titans of such action, investigation, complaint or other proceeding, in which event 31 Titans may terminate this Agreement immediately and without notice to Affiliate.
- Except as otherwise provided in this Agreement or with the consent of 31 Titans, Affiliate agrees that all information, including, without limitation, the existence and terms of this Agreement, business and financial information, data, reports, research, product plans, products, services, business and financial information, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data customer and vendor lists, and pricing and sales information, concerning 31 Titans or any of its Affiliates provided by or on behalf of any of them shall constitute 31 Titans’s “Confidential Information” and shall remain strictly confidential and secret and shall not be used, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you.
- You shall not disclose to any third party, or permit any other person or entity access to, the Confidential Information except as required by an employee, agent, officer, director, partner, or representative of Affiliate in order to perform the obligations or exercise rights under this Agreement. Affiliate shall use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third parties. The Confidential Information shall be used for the sole purpose of performing its obligations or exercising its rights under this Agreement.
- Affiliate shall immediately notify 31 Titans in writing of all circumstances surrounding any unauthorized possession, use, knowledge, or sharing of Confidential Information.
- If Confidential Information is required to be disclosed by operation of law via a third party or court request such as a subpoena requesting Affiliate to disclose such information, Affiliate shall immediately inform 31 Titans in writing sufficiently in advance of disclosure to allow 31 Titans to challenge disclosure, prior to the time commanded to produce or disclose such Confidential Information, and Affiliate agrees to cooperate in whatever way 31 Titans requests to attempt to protect that information from disclosure by operation of law.
- Affiliate agrees that its obligations in this section are necessary and reasonable in order to protect 31 Titans and its business, and Affiliate agrees that the remedy of damages would be inadequate to compensate 31 Titans for any breach by Affiliate of its obligations set out under this section. Accordingly, in addition to any other remedies that might be available, 31 Titans shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Affiliate, without limiting any other rights and remedies to which 31 Titans may be entitled..
- Limited License & Intellectual Property
Upon approval of Affiliate by 31 Titans, 31 Titans grants Affiliate a nonexclusive, royalty-free, nontransferable, revocable, limited license to use, reproduce, distribute, and publicly display the Links solely in accordance with the terms of this Agreement. Affiliate agrees that 31 Titans owns all rights, title, and interest to the Offers, Links, and user and consumer data collected and derived through the activities of Affiliate pursuant to this Agreement, as well as the software, applications, data, methods of doing business or any elements thereof, any content provided or submitted to Affiliate by 31 Titans, 31 Titans’s name, logos, trademarks, service marks, trade dress, logos, graphics, artwork, text, patents, proprietary technology and any data, reports, information or analyses arising out of such use (collectively, “Proprietary Information”). Proprietary Information shall constitute 31 Titans’s Confidential Information, as defined herein, and is or may be protected by copyright, trademark, trade secret and other intellectual property law. Affiliate agrees that it shall use the Proprietary Information solely to fulfill its obligations under this Agreement.
Affiliate shall have no interest in or right to the Proprietary Information except as set forth herein, and 31 Titans owns and shall retain all rights to, titles and interest in its Proprietary Information. Affiliate may not copy, reproduce, or create derivative works of the Proprietary Information for any purpose outside of this Agreement without 31 Titans’s prior written consent. If instructed to do so by 31 Titans or if Affiliate is terminated by 31 Titans, Affiliate shall immediately destroy and discontinue the use of any Proprietary Information. All rights not expressly granted in this Agreement are reserved by 31 Titans.
This Agreement shall start on the date of our approval of your Affiliate Program application and shall continue until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. 31 Titans may terminate your participation in one or more Offers or this Agreement at any time and for any or no reason, with or without prior notice to you, by disabling the Links or providing you with a written notice. Upon termination of this Agreement, you shall immediately cease all use of and delete all Links, return the Proprietary Information and Confidential Information, and cease representing yourself as a 31 Titans or Client Affiliate for any Offers in which you participated.
In addition to any other rights and remedies available to us under this Agreement, 31 Titans reserves the right to withhold any unpaid Commissions or charge back paid Commissions to your account if (i) 31 Titans determines that Affiliate or a Third Party Affiliate has violated this Agreement, (ii) 31 Titans receives any complaints about your participation in the Affiliate Program which 31 Titans reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program in 31 Titans’s sole discretion. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach.
- Anti-Spam Policy
Affiliate and Third Party Affiliates shall comply with the federal CAN-SPAM Act of 2003 and all state laws and regulations concerning email marketing, including but not limited to Cal. Bus. and Prof. Code 17529.5 et seq. The following provisions apply to email campaigns:
- For all email campaigns, Affiliate must download the 31 Titans. “Suppression List.” Affiliate shall remove all entries appearing on the Suppression List and shall only send emails to the remaining addresses on its email list. No emails shall be sent to any email address associated with any person on the Suppression List. Affiliate shall be responsible for any sending of email messages as well as proper usage of the Suppression List. The Suppression List shall constitute 31 Titans.’s Proprietary Information and Confidential Information, and Affiliate shall not sell, lease, exchange, transfer, release, or use the Suppression List either directly or indirectly for business purposes whatsoever for any purpose other than to fulfill its obligations under this Agreement. Affiliate shall download the Suppression List at least every seven (7) days until this Agreement is terminated, and suppress all email addresses within its database that are in the Suppression List. For any Campaign that includes a domain suppression list, Affiliate shall download the most recent domain suppression list prior to mailing the campaign and will suppress and refrain from sending emails to all domains found on such list. Further, Affiliate shall download and remove domains located on the Federal Communication Commission’s wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all new and current used in all mailings, prior to mailing. Failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to 31 Titans pursuant to this Agreement or otherwise. Affiliate further agrees that it will not mail or market to any suppression files generated through the 31 Titans network, and that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to 31 Titans pursuant to this Agreement or otherwise.
- Emails shall include (a) clear and conspicuous notice of the recipient’s right to opt-out of receiving future emails from 31 Titans, and (b) a functioning return email address or other Internet-based mechanism that a recipient may use to make such an “opt-out request.” The opt-out mechanism must remain active for at least thirty (30) days from the date of the email or the life of the Offer, whichever is longer. Each email unsubscribe request shall be honored within ten (10) days from receipt of request. Affiliate shall maintain electronic or tangible records confirming the removal of each such email address from any applicable email lists for verification by 31 Titans. Within one (1) day of consumer’s opt-out request, Affiliate shall provide the unsubscribe request to 31 Titans via email to [email protected] Titans.com.
- All emails must include a physical address of the sender. We may request, prior to your sending emails containing linking or referencing the Affiliate Program, that you submit the final version of your email to 31 Titans for approval by sending it to your 31 Titans representative and upon receiving written approval from 31 Titans of your email the email may be transmitted to third parties. Affiliate represents and warrants that the recipients of all email addresses used by Affiliate and Third Party Affiliates in connection with this Agreement have manifested affirmative, direct consent to receive commercial emails from Affiliate and 31 Titans.
- Emails must have accurate email header information (including source, destination, date and time, and routing information) and accurate, non-misleading subject lines and from lines. “Subject” and “from” lines used in any email communications must be truthful and non-misleading. Emails shall use only Links provided or pre-approved by 31 Titans in writing. Affiliate shall not remove or alter Links, subject lines or from lines provided by 31 Titans or approved by 31 Titans in writing. All emails sent by Affiliate shall be delivered only to addresses on email lists owned or managed solely by Affiliate (“Affiliate Email Lists”). Affiliate shall maintain at all times during the term of the Agreement, and for a period of four years thereafter, complete and accurate subscriber sign-up/registration data for every email address on each Affiliate Email List. Affiliate agrees that, within twenty-four (24) hours of 31 Titans’s request, Affiliate shall provide, at a minimum, the following subscriber sign-up and registration data for any email address to which any email is sent under this Agreement: (a) subscriber’s IP address; (b) date and time of subscriber’s sign-up/registration; and (c) location and URL of website of subscriber’s sign-up and registration.
- Affiliate shall not send email messages to email addresses that have been improperly obtained, including addressees harvested from the Internet without consent, through scripts or other automated means of registering for multiple email accounts, “scraping” of websites, or by harvesting addresses from the Internet. Affiliate is responsible for knowing the source of its email list. Affiliate shall not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.
- Affiliate shall not use email accounts or domain names that were created using information that falsifies the identity of the registrant. Emails shall include a clear and conspicuous identification that the message is an advertisement or solicitation.
- Affiliate shall not send emails to Canadian email addresses or email addresses corresponding to Canadian users.
- It is solely your obligation to ensure that the email complies with all applicable laws and this Agreement. You agree not to rely upon 31 Titans’s approval of any email or portion thereof your email for compliance with applicable laws, or assert any claim that you are in compliance with the law based upon 31 Titans’s approval or non-objection.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are not limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, click-through or conversion rates that are much higher than industry averages or 31 Titans’s averages; generation of multiple leads from the same IP address; placement of the Links on incentivized websites or using surveys without 31 Titans’s prior written consent; click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; fraudulent leads as determined by 31 Titans; generation of multiple leads using proxy servers; causing any referring URL to be suppressed or blank; paying consumers to complete leads; generation of traffic in a manner other than as set forth in the applicable Campaign; use of any spawning process pop-ups or exit pop-ups; manually creating fraudulent leads; use fake redirects, automated software, or fraud to generate clicks or leads; spoofing, redirecting, or using third parties to relay traffic from other websites to generate leads; or acting in any way to generate fake leads; cookie-stuffing and other deceptive acts or click-fraud. 31 Titans reserves the right, but does not undertake the obligation, to monitor Affiliate or Third-Party Affiliate activity using a combination of its proprietary software and third party monitoring services. 31 Titans reserves the right to withhold Commission, suspend Affiliate, and investigate Affiliate for fraudulent events and prohibited activities at its sole discretion, until Affiliate has provided evidence to 31 Titans’s satisfaction that Affiliate has not engaged in fraud. 31 Titans shall make all determinations about fraudulent activity in its sole discretion.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement within ten (10) business days from the date that the email notifying you of the modification was sent. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, 31 Titans may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from 31 Titans to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
- Independent Investigation
You acknowledge that you have read this Agreement, and that you consulted or had the ability to consult with legal counsel before entering into this Agreement. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer, and you are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
- Affiliate shall indemnify, defend and hold harmless 31 Titans, the Clients and their respective subsidiaries, Affiliates, partners and licensors, directors, officers, employees, shareholders, managers, successors, owners, agents, and assigns against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) (collectively “Claims”) based on (i) any failure or breach of this Agreement by Affiliate or Third Party Affiliate, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, Third Party Affiliate, or a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or 31 Titans or Client intellectual property, Proprietary Information, or Confidential Information; (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links); (iv) improper operation of an Offer by Affiliate or Third Party Affiliate; (v) the negligence or willful misconduct of Affiliate or Third Party Affiliate; (vi) a violation of any laws, rules or regulations in the performance of Affiliate or Third Party Affiliate’s obligations under this Agreement; and (vii) fraud.
- If any Claim is or shall be brought against 31 Titans, in respect to any allegation for which indemnity may be sought from Affiliate, 31 Titans, shall notify Affiliate of any such Claim of which it becomes aware and shall: (a) provide reasonable cooperation Affiliate at Affiliate’s expense in connection with the defense or settlement of any such claim; and (b) be entitled to participate, including in the selection of legal counsel, in the defense of any such Claim. Affiliate shall not agree to any judgment or enter into any settlement that adversely affects 31 Titans’s rights or interests without the prior written consent of 31 Titans.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH HEREIN, 31 Titans EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. 31 Titans DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. 31 Titans EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. WITHOUT LIMITING THE FOREGOING, 31 Titans DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS, AND 31 Titans EXPRESSLY DISCLAIMS BENEFIT THE PARTIES MIGHT OBTAIN FROM THE LINKS, OFFERS, OR THIS AGREEMENT. 31 Titans DOES NOT GUARANTEE CONTINUOUS OR UNINTERRUPTED SERVICE TO THE LINKS OR OFFERS, OR THAT THE INFORMATION PROVIDED BY 31 Titans IS ACCURATE, COMPLETE, OR CURRENT.
- Limitation of Liability
IN NO EVENT SHALL 31 Titans BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF 31 Titans. IN NO EVENT WILL 31 Titans BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT 31 Titans HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. 31 Titans’S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY 31 Titans IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
- Governing Law & Miscellaneous
- This Agreement shall be governed by the law of the State of California, without regard to its conflict of law provisions. If any dispute arises under this Agreement, the parties agree to submit the dispute to binding arbitration in the State of California, conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, 31 Titans may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in the State of California or any other state where personal jurisdiction exists over Affiliate, at 31 Titans’s sole discretion. Affiliate shall be responsible for the payment of all attorney’s fees and expenses incurred by 31 Titans to enforce the terms of this Agreement.
- This Agreement contains the entire agreement between 31 Titans and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that 31 Titans shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether 31 Titans “clicks through” or otherwise indicates its acceptance thereof.
- Affiliate may not assign all or any part of this Agreement without 31 Titans’s prior written consent. 31 Titans may assign this Agreement at any time with notice to Affiliate.
- This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement.
- Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior written consent of both parties.
- If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.
- Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement.
- Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
- No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
- By submitting and application to Affiliate Program, agree to be bound by all of the terms and conditions this Agreement. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.