NAUGHTY
REVENUE AFFILIATE AGREEMENT
Date
Last Modified:
November
08, 2018
Effective
Date:
September
21, 2010
To
participate in the NAUGHTY REVENUE AFFILIATE PROGRAM ("Program")
as an affiliate of La Touraine, Inc. (“LTI”), you must first
agree to be bound by all of the following terms and conditions of
this Naughty Revenue Affiliate Agreement (the “Agreement”):
-
Mandatory
Age Restriction.
NO
PERSON UNDER EIGHTEEN (18) YEARS OF AGE MAY DIRECTLY OR INDIRECTLY
PARTICIPATE IN THE PROGRAM. YOU HEREBY AFFIRM AND WARRANT THAT YOU
ARE CURRENTLY AT LEAST EIGHTEEN (18) YEARS OR OLDER, OVER THE AGE OF
MAJORITY IN YOUR COMMUNITY, AND ARE CAPABLE OF LAWFULLY ENTERING INTO
THIS AFFILIATE AGREEMENT.
II.
General Provisions.
A.
Definitions.
(1)
"Affiliate" means an authorized person or entity who
markets LTI’s subscriptions/memberships, products, and/or services
through an independent web site in exchange for the payment of a
specified fee, based on sales of LTI's subscriptions/memberships,
products, and/or services (a “Referral Fee”).
(2)
"Affiliate Code" (or "link code") means a string
of alphanumeric text that uniquely identifies an Affiliate,
advertising campaign, or other tracking metric.
(3)
"Chat Traffic Advertisement" means a pop-up message
displayed on a web site for the purpose of attracting users to other
commercial sites.
(4)
“Membership” or “Subscription” generally means paid access to
an LTI site. LTI offers Subscriptions/Memberships to its websites in
a variety of price points, durations, and structures, which may
change from time-to-time in LTI’s sole discretion. Memberships are
further described in the terms of service for each of LTI’s sites
and the exact price, duration and other additional terms of
Membership will be made available at the time of a user’s purchase.
Typically, Memberships are available as either Short-Term Memberships
or Access Memberships.
(5)
"Licensed Content" means any images, text, data, motion
pictures, video clips, audio clips, advertising banners, hyperlinks
or other information obtained from LTI in connection with the Program
and only in accordance with the terms of this Agreement. Generally,
Licensed Content is exclusively available for download from
www.naughtyrevenue.com
and related sub-domains. Licensed Content does
not
include content published on the tour and/or membership areas of
LTI's web sites, unless it is expressly offered to an Affiliate by
LTI in writing in connection with the Program. Requests for Licensed
Content that has not been made available by LTI may or may not be
processed and will be granted or denied in LTI’s sole discretion.
(6)
"Promotional Link" means any Uniform Resource Locator
("URL") placed on an Affiliate web site that links to an
LTI site that relates to the Program. Promotional Links should
include an Affiliate Code and must comply with the terms and
conditions of this Agreement. Promotional Links are designed to
permit accurate tracking, reporting, and accrual of Referral Fees for
the Affiliate.
(7)
"Qualified Referral" means a user or customer directed from
an Affiliate web site by a Promotional Link who signs up for a paid
Access Membership to an LTI web site within a single computer
session. Note: a user’s purchase of a Short-Term Membership does
not qualify as a Qualified Referral unless and until the Short-Term
Membership converts to an Access Membership.
(8)
“Short-Term Membership” generally means a Membership, which
provides a user short-term access (the initial term is always less
than thirty days, but typically three or seven days) to the relevant
LTI site. If a Short-Term Membership is not cancelled before the
expiration of the initial term, then it converts to a Monthly Access
Membership. At any point during the Short-Term Membership, a user
can convert to a Monthly Access Membership or an Annual Access
Membership.
(9)
“Access Membership” generally means a longer-term Membership,
which usually provides a user access to an LTI site for an initial
term of: (i) one month (“Monthly Access Membership”) or (ii) one
year (“Annual Access Membership”). Access Memberships recur on
a monthly basis until cancelled in accordance with relevant the terms
of service.
(10)
"Net Payment" means the gross payment received from a
Qualified Referral minus any and all applicable fees. By way of
example, if a Qualified Referral signs up for a Monthly Access
Membership at $24.95, and LTI's credit card processing company
charges 13.5%, the Net Payment to LTI would equal $21.58 for that
subscription sale.
(11)
"Spam" or "spamming" generally means the use of
electronic messaging systems to send unsolicited bulk messages
without consent of the recipients. While e-mail spam is the most
widely recognized form of spam, the term is expansive and applies to
numerous forms of media including, without limitation, instant
messaging spam, Usenet newsgroup spam, Web search engine spam, spam
in blogs, wiki spam, online classified ads spam, mobile phone
messaging spam, spam in mobile applications, Internet forum spam,
junk fax transmissions, spam on Twitter, spam on Facebook, social
networking spam, and file sharing network spam.
B.
Binding
Agreement
.
The terms and conditions of this Agreement constitute a binding legal
agreement between you, the Affiliate, and La Touraine, Inc. d/b/a
Naughty America and other related trade names (“LTI”). Your
relationship to LTI is that of an independent contractor, and no
partnership, joint venture, employment, agency, or other relationship
is intended or created by this Agreement. The manner and means by
which you choose to complete the services described herein are in
your sole discretion and control. You shall be exclusively
responsible for payment of all taxes incidental to the Referral
Fee(s) paid to you by LTI, including but not limited to federal and
state income taxes. LTI will not withhold any amounts for payment of
taxes from the compensation paid to you.
C.
Consent
to Receive E-mail Communications
.
By entering into the Agreement, you agree and consent to receive
notifications, updates, and other information about the Program from
LTI to your e-mail address currently on file, unless you
affirmatively opt-out of the Program's default notification setting.
III.
Enrollment in the Program.
A.
Application
.
To become an Affiliate, you must submit a complete and accurate
Program application, in which, among other things, you must correctly
identify yourself and/or your company, your web site(s) and provide
other identifying information. LTI reserves the right in its sole
discretion to revise the Program application and expand the amount
and type of information required to create or maintain an account.
Failure to complete an updated application may result in termination
of your account.
B.
Evaluation
of Application
.
LTI will evaluate your application and notify you of its acceptance
or rejection. Your application may be rejected for any reason in
LTI's sole and absolute discretion, including but not limited to the
following: (1) you are under eighteen (18) years of age (or under the
age of majority in your community); (2) your application contains
inaccurate, incomplete, or false information; (3) your web site
incorporates material that is unlawful, defamatory, infringing,
obscene, non-adult, harassing, or is otherwise objectionable; or (4)
your domain name or site is identical or confusingly similar to a
trademark or service mark in which LTI or another person or entity
has intellectual property or other legal rights. If your application
is accepted and LTI later determines that you violated any of (1),
(2), (3), or (4), your Program account will be terminated.
C.
Re-application
.
You may re-apply to the Program if your application is rejected,
unless LTI provides otherwise.
IV.
Program.
Subject
to the terms and conditions of this Agreement, and after you have
been notified that your application has been accepted, you may
download and use Licensed Content and Promotional Links on your
approved web site(s).
V.
Program Restrictions.
As
a condition of your participation in the Program, you acknowledge and
agree to the following limitations and restrictions. Failure to
adhere to these limitations and restrictions and/or other breach of
this Agreement may result in immediate suspension or termination of
your account, disabling of your Affiliate Code, and/or termination of
this Agreement. You hereby acknowledge and agree that you shall not
be entitled to a Referral Fee for any referrals sent while in
violation of the these restrictions or the terms of this Agreement,
related to any Fraudulent Activity (as defined below), or for any
prohibited users. The foregoing shall not interfere with LTI’s
ability to pursue all other rights and remedies available to it under
the law. LTI shall not be responsible for monitoring, supervising or
reviewing your sites and shall further not be responsible for any
content appearing on or available through your site(s) other than
unaltered Licensed Content.
A.
Compliance
with Laws
.
In connection with your participation in the Program, you will comply
with all applicable laws, including local, state, federal, or
international laws, rules, and regulations. You agree that all
content on your site, including Licensed Content, may only be
accessed by consenting adults in locations where such content does
not violate community standards. All unlawful content is strictly
prohibited. You are responsible for all content posted on your site
and are prohibited from posting any unlawful content. You further
agree to the following:
(1)
Depictions
of Minors
.
You
WILL
NOT
disseminate,
post on your web site, or provide any links to any matter that
involves depictions of nudity or sexuality by a minor, an age
inappropriate-appearing performer (i.e., a performer 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 by virtue of the
script, make-up, costuming, demeanor, setting, etc.
(2)
Obscenity
.
You
WILL
NOT
disseminate,
post on your web site, or provide any links to any inappropriate
material, including without limitation any material depicting
bestiality, rape, torture and/or content which is obscene.
(3)
Fraudulent
Activity
.
You WILL NOT be entitled to a commission or referral fee for any
subscription that LTI determines is the result of possible fraudulent
activity (“Fraudulent Activity”). You acknowledge and agree that
LTI shall have the right, in its sole and absolute discretion, at any
time to expand or modify what it determines to constitute possible
Fraudulent Activity. Possible Fraudulent Activity shall include
without limitation, the following circumstances or activities:
(i)
Where a user has used or attempts to use a credit card number that is
in a negative database;
(ii)
Where there are multiple subscriptions from a single IP address
within a short period of time;
(iii)
Where 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)
Where there is a pattern of numerous subscriptions from a website in
a relatively short period of time (a "Sales Surge Period"),
where there has been history of few subscriptions from that website
before or after the Sales Surge Period.
(v)
Where there has been an attempt to process a credit card with a bin
number that is listed in a negative bin number database; or
(vi)
Where there have been sequential or multiple attempts to register or
subscribe from a credit card using the same bin number and sequential
or multiple number strings to complete the credit card number.
LTI
has the right to deny or withhold payment from you and to terminate
you from the Program if there has been an abnormal number of
chargebacks or cancellations of memberships referred to LTI through
your site. You further acknowledge and agree that LTI shall have the
right, in its sole and absolute discretion, to determine what
constitutes an abnormal number of chargebacks or cancellations of
memberships.
(3)
Spam
.
You
WILL
NOT
disseminate
Spam in connection with the Program. Although U.S. federal and state
law may not prohibit all forms of spamming, LTI imposes a stricter,
no-spam policy for Affiliates of the Program. What constitutes
spamming will evolve over time as new technologies and methodologies
emerge for spammers to find new ways to abuse the Program. Some of
the factors that LTI takes into account when determining what
constitutes spamming are:
a.
If you have violated a U.S. federal or state anti-spamming law,
including any portion of the CAN-SPAM Act of 2003 (15 U.S.C. § 7701
et seq.) or any of the federal regulations promulgated
thereunder;
b. If you have violated the anti-spamming
policy of any third party;
c. If you have sent
unsolicited bulk messages to non-consenting recipients;
d.
If you have misleading or false information contained in your
messages, subject line, or message-headers;
e.
If you use automated means to collect, transmit and/or sell the
electronic addresses of others;
f.
If you use a third party site or program to automatically generate
and send messages or content;
g.
If the primary purpose of your message is commercial in nature;
and,
h. The number of spam or abuse complaints that have
been lodged against you.
No
one factor is controlling, and LTI will look to the particular
circumstances of each case to determine what constitutes spamming.
When in doubt, don't do it. Bottom line: If you Spam, you are out.
(4)
Defamation
and Related Conduct
.
You will not publish content on your web site that is defamatory,
libelous, threatening, abusive, hateful, derogatory, disparaging, or
otherwise injurious to any person or entity or to the reputation of
any person or entity.
(5)
Section
2257
.
Your web site must be in full compliance with Section 2257 of Title
18 of the United States Code, "the Records Keeping and Labeling
Act," and the regulations promulgated thereunder, including 28
C.F.R. Part 75 (collectively, "Section 2257 Requirements").
a.
You represent and agree to act as the "Custodian of Records"
of the records required to be maintained by you under the Section
2257 Requirements.
b.
You shall properly and continuously post the statements in the manner
and locations required by the Section 2257 Requirements on the web
site you use in connection with the Program.
c.
LTI shall make available to you the relevant records required by
Section 2257; however, it is your responsibility to obtain those
records from LTI and to meet your own obligations under Section 2257
Requirements. Any information in the nature of legal names, dates of
birth, home addresses, and other personal information relating to the
actors and models that you may receive from LTI for the purpose of
meeting Section 2257 Requirements shall be treated by you as
"Confidential Information." The Confidential Information is
the sole property of LTI and you shall use the Confidential
Information solely and exclusively to comply with the Section 2257
Requirements and for no other purpose whatsoever.
d.
You agree to take reasonable measures to protect the confidentiality
and security of and to avoid disclosure and unauthorized use of the
Confidential Information of the other party. Without limiting the
foregoing, you agree to take at least those measures that you take to
protect your own confidential information of a similar nature, but in
no case less than reasonable care. Without limiting the foregoing,
you shall not: (i) copy, reproduce, distribute or disclose to any
person, firm or corporation any of the Confidential Information
disclosed to you by LTI in any matter whatsoever; (ii) permit any
third party to have access to such Confidential Information; or (iii)
use such Confidential Information for any purpose other than
complying with the Section 2257 Requirements.
e. You
shall keep the Confidential Information only as long as is directed
by the Section 2257 Requirements and shall thereafter promptly
destroy any and all copies of the Confidential Information, shall
delete all Confidential Information that may reside on any computer
system owned by you or under your control or your representative's
control (including backup tapes) and shall destroy any and all other
documents that may contain abstracts, excerpts or other portions of
the Confidential Information.
f. You represent and agree
that each web site operated by you will be in full compliance with
Section 2257, including the record-keeping and labeling requirements
that must be maintained by you at all times. You acknowledge and
agree that any and all content published on your web site is, and
shall be, compliant with Section 2257.
B.
Intellectual
Property Rights
.
You represent and agree that you will not publish content on your web
site that violates the intellectual property rights or other legal
rights of any person or entity, such as copyright, patent, trademark,
service mark, trade secret, trade dress, right of privacy, right of
publicity, moral right and any other proprietary right.
C.
Cybersquatting
or Typosquatting
.
You represent and agree that you will not register or attempt to
register any domain name (including third level domain names or
sub-domains) or URL that is identical or confusingly similar to a
trademark or service mark in which LTI or another person or entity
has intellectual property or other legal rights.
D.
Paid
Search Advertising Schemes
.
You represent and agree that you will not bid on or purchase any
online paid advertising schemes that incorporate or are confusingly
similar to any of LTI's trademarks, service marks, or URLs. By way of
example, such prohibited advertising schemes include pay-per-click
models, sponsored links, search engine keywords, AdWords, or similar
advertising schemes.
E.
Other
Prohibited Uses
.
(1)
Distribution
to Prohibited Areas
.
You acknowledge and agree that you will not permit Licensed Content
or Promotional Links to be accessed, viewed, downloaded, used by,
transmitted, broadcast, or otherwise disseminated to any person or
entity located in any and all areas prohibited by law.
(2)
Misrepresentation
of Relationship
.
You represent and agree that you will not misrepresent your
contractual relationship with LTI or imply that any affiliation or
relationship exists with LTI except as expressly provided in this
Agreement. By way of example, you cannot publish any statement
indicating that LTI supports, sponsors, endorses, or contributes to
your web site other than as expressly provided in this Agreement.
(3)
Unauthorized
Access
.
Your unauthorized access, viewing, downloading, receipt, duplication,
or other unauthorized use of Licensed Content that you directly or
indirectly obtain through your participation in the Program shall
constitute a material breach of this Agreement.
(4)
Malicious
Code, Viruses, Etc
.
You represent and agree that you will not use or offer for download
any material that contains a virus or malicious code, such as a
Trojan Horse, that has the potential of causing disruption or damage
to any computer system. You will be responsible for any and all
damage caused by any such program.
(5)
Links
to and Content of Others
.
You represent and agree that you will not use LTI's images, content,
or promotional material to promote and/or link to any other site.
(6)
Chat
Traffic Advertisements
.
You represent and agree that you will not use Chat Traffic
Advertisements in connection with the Program.
VI.
Limited Non-Exclusive License.
A.
Grant
of Limited License
.
Subject to LTI's acceptance of your Program application and your
agreement to the terms and conditions of this Agreement, you will be
granted a limited, non-exclusive, royalty-free, non-transferable,
non-assignable, non-sublicensable and revocable license during the
term of this Agreement to download and use on your site Licensed
Content for the exclusive purpose of advertising, marketing, or
promoting LTI's online services and products. This license is
revocable by LTI at any time, in LTI's sole discretion, with or
without prior notice.
B.
Limitations
on License
.
You may only use Licensed Content in accordance with the Agreement,
on one computer at a time. If the Program makes copies of Licensed
Content available, you may only download a single copy of such
content on your hard disk and upload a single copy on your site. No
further copies are permitted. You further agree to the following
limitations and restrictions on your use of Licensed Content:
(1)
Use
Restrictions
.
You acknowledge and agree that any and all unauthorized access,
viewing, downloading, receipt, duplication, or other use of Licensed
Content in which you are directly or indirectly involved, shall
constitute a material breach of the Agreement, intentional
infringement(s) of LTI's and potentially others' trademarks,
copyrights, intellectual property, and/or other rights including
without limitation, the rights of privacy and publicity.
(2)
Other
Prohibited Actions
.
You acknowledge and agree that you are prohibited from:
a.
Modifying, translating, reverse engineering, decompiling, and/or
disassembling Licensed Content;
b.
Creating derivative works based on Licensed Content;
c.
Renting, leasing, or transferring any rights in Licensed Content;
d.
Removing any proprietary notices or labels on Licensed Content; and
e.
Making any other unauthorized use of Licensed Content.
(3)
Ownership
of Licensed Content and Intellectual Property
.
Except for public domain material or material otherwise licensed to
LTI, Licensed Content displayed on or made available through the
Program is proprietary content owned by LTI, its parent(s)
subsidiary(ies), and/or assign(s). All editions of Licensed Content
and any other matter used directly or indirectly in connection with
the Program are protected by the copyright laws of the United States,
international copyright treaties, and other laws and regulations. All
title and proprietary rights in and to Licensed Content, or any other
matter made available through the Program, shall at all times remain
in LTI, its parent(s), subsidiary(ies), and assign(s).
C.
No
License for Other Content on LTI
.
No license is granted for any content published on LTI's web sites
unless such content is made available to you through the Program and
is designated as Licensed Content in writing by LTI.
D.
Reservation
of Rights
.
Other than as expressly granted above, no other rights are granted,
including without limitation, any copyright, patent, trademark,
service mark, trade secret, trade dress, right of privacy, right of
publicity, moral right and any other proprietary right. LTI reserves
all rights to select, alter, add, or remove any and all Licensed
Content and Promotional Links used in connection with the
Program.
E.
Termination
or Withdrawal of License
.
Your license to download and use Licensed Content shall automatically
terminate, and all rights shall automatically revert to LTI, upon
termination of this Agreement and/or your withdrawal from the
Program. In such event, you shall delete all copies of Licensed
Content that may reside on any computer system and/or web site owned
by you or under your control.
VII.
Affiliate's Notification Duty.
You
agree to immediately notify LTI if you receive any inquiries or
requests for information regarding the following subjects:
-
Obscenity
-
Depictions
of Nudity or Sexuality by Minors
-
SPAM
Complaints
-
Copyright
Infringement
-
Trademark
Infringement
-
Unfair
Business Practices
-
Invasion
of Privacy Issues
-
Fraudulent
Activities
-
Criminal
or Civil Investigations, including subpoenas served upon you
VIII.
Referral Fees and Payout Structure.
A.
Referral
Fees
.
LTI will pay you Referral Fees according to the then-current rates
and structures posted on
www.naughtyrevenue.com
(“Posted Rates”). The Posted Rates are hereby expressly
incorporated into this Agreement by this reference.
The
structure of Referral Fee payments may vary from time-to-time and
from one Affiliate to another. Potential structures of Referral Fees
may include the following:
-
Revenue
Share
– Under a Revenue Sharing structure (“RevShare”), LTI will pay
you Referral Fees based on a percentage of the Net Payment for each
Qualified Referral. Referral Fees in the amount of that percentage
shall continue to be paid to you for each re-bill of a Qualified
Referral throughout the life of the Membership and the term of this
Agreement.
LTI
offers Memberships to its websites at a variety of price points,
durations, and structures, including without limitation Short-Term
Memberships, Monthly Access Memberships and Annual Access
Memberships. As noted above, Short-Term Memberships are not
Qualified Referrals unless and until they convert to an Access
Membership.
LTI
may offer these and other Membership models for various price points
on its websites and may or may not offer Affiliates discounted price
points for various Membership models. Discounts on Membership prices
may come with corresponding reductions in related Referral Fees.
B.
Payouts
.
(1)
Minimum
Payout Threshold
.
The minimum payment amount is one-hundred dollars ($100.00 USD)
("Minimum Payout Threshold"). Any accrued payments totaling
less than the Minimum Payout Threshold will be rolled over into
subsequent payments until the Minimum Payout Threshold is reached.
(2)
Payout
Schedule
.
Referral Fees are paid by check or Paxum. So long as the Minimum
Payment Threshold is reached, Referral Fees are mailed to the address
currently on file with your Program account every two (2) weeks on
average, excluding U.S. holidays and weekends.
(3)
Checks
Void After 90 Days
.
Checks issued by LTI expire and are void after ninety (90) days from
the date of issue. Please present your checks to your financial
institution promptly. If you fail to present your check within those
ninety (90) days, your check is considered stale.
(4)
Reissued
Checks
.
If receipt of your check is significantly delayed, or the check is
lost in the mail, you may request that we resend you a new check. To
issue a new check a stop payment fee of $20.00 will apply in order to
void the first check. To request that a check be reissued, please
contact your affiliate manager, or submit a ticket to
https://ltiaffiliates.zendesk.com/hc/en-us/requests/new.
C.
Limitations
of Payouts
.
LTI will only pay you for Qualified Referrals. That means that
Referral Fees may only be paid if a visitor to LTI's web site can be
tracked by our system from the time a user clicks on a Promotional
Link to the time of sale. You will receive no Referral Fees if our
system cannot process your Affiliate Code, if a user does not make
full payment for services, or if a user is directed to our site by a
Promotional Link, but leaves and later returns to sign up for a
subscription.
D.
Taxes
.
You will be responsible for payment of any and all taxes attributable
to Referral Fees or other payments made to you. As a part of your
application, you will be required to provide a Federal Tax
Identification Number or Social Security number for IRS reporting
requirements.
E.
Subject
to Change
.
Referral Fee rates, payout schedules, and minimum payout limits are
subject to change at any time at LTI's sole and absolute discretion,
with or without prior notice.
If
any
change
is
unacceptable
to
you,
your
only
recourse
is
to
terminate
this
Agreement
and
withdraw
from
the
Program.
Your
continued
participation
in
the
program
following
our
posting
revisions
related to
Referral
Fees,
or
notifying
you
through
your
affiliate
account,
shall
constitute
your
binding
acceptance
of
such
modification.
In addition to the types of changes outlined above, the Parties may
amend this Agreement only by a signed written agreement of the
Parties that identifies itself as an amendment to this Agreement,
except that LTI may unilaterally amend this agreement on one or more
occasions as it deems it is necessary in LTI’s sole discretion. LTI
will notify you of any amendments in writing. Amendments will not
apply to ongoing disputes or to disputes arising out of events
occurring before the applicable amendment. If you continue to
participate in the Program after any amendment, LTI will consider
your continued use as acceptance of the amendment unless you notifies
LTI in writing of your disagreement no later than ten (10) business
days after the amendment. LTI will contact you no later than five
business days to address the your disagreement and try to reach a
mutually amicable resolution. If the Parties cannot reach a
resolution, you may terminate this agreement effective immediately as
its sole remedy.
IX.
Representations and Warranties.
A.
Affiliate's
Representations and Warranties
.
You represent and warrant that you own or operate a lawful and
otherwise valid Internet web site that adheres to the terms and
conditions of this Agreement. You otherwise hereby represent and
warrant to LTI that you have the experience and ability to perform
the services required by this Agreement, that you will perform such
services in a professional and competent manner, and that you have
the power to enter into and perform this Agreement.
B.
LTI's
Disclaimer of Warranties
.
LA TOURAINE, INC. HEREBY DISCLAIMS ALL WARRANTIES AND IS MAKING THE
PROGRAM AND LICENSED CONTENT AVAILABLE "AS IS" WITHOUT
WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR
LOSS ARISING FROM THE USE OF, OR INABILITY TO USE, THE PROGRAM AND/OR
LICENSED CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LA
TOURAINE, INC. EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE PROGRAM, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT. LTI DOES NOT WARRANT THAT THE PROGRAM
AND/OR LICENSED CONTENT WILL MEET YOUR REQUIREMENTS OR THAT THE
OPERATION OF THE PROGRAM AND/OR SERVICE WILL BE UNINTERRUPTED OR
ERROR-FREE.
X.
Term and Termination.
A.
Term
.
The term of this Agreement will begin upon acceptance of your Program
application and your agreement to the terms and conditions of this
Agreement and will end when terminated by either Party.
B.
Notice
of Termination
.
Either party may terminate this Agreement at any time, with or
without cause, by giving the other party written notice of
termination. A breach of this Agreement may result in suspension or
termination and immediate dismissal from the Naughty Revenue
Affiliate Program, with no obligation to La Touraine, Inc. other than
to pay in due course for valid Referral Fees earned in accord with
this Agreement up to the point of termination. LTI shall have no
obligation to pay Referral Fees accrued while you were operating in
breach of this Agreement. LTI shall be permitted to delay payment of
Referral Fees during such time as it investigates your potential
breach of this Agreement or potential Fraudulent Activity. Either
party may terminate this Agreement at any time, with or without
cause, by giving the other party written notice of termination.
C.
Survival
.
The following provisions of this Agreement shall survive the
termination or expiration of this Agreement: (1) payment of amounts
owing to the Affiliate at the time of termination; (2)
representations and warranties; (3) disclaimer and limitation of
liability; and (4) indemnification.
XI.
Limitation of Liability.
EXCEPT
FOR CLAIMS ARISING FROM A LTI’s GROSS NEGLIGENCE, FRAUD, WILLFUL
INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR VIOLATION OF LAW: (a)
IN NO EVENT SHALL LTI BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS,
LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, DOWNTIME OR
INTERRUPTION OF YOUR BUSINESS, SPECIAL, INCIDENTAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES, SUFFERED BY YOU ARISING OUT OF OR
RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT PRODUCT
LIABILITY OR OTHERWISE, AND WHETHER OR NOT LTI HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH LOSS, INJURY AND/OR DAMAGES, AND WHETHER
SERVICES ARE PROVIDED BY LTI, AND (b) LTI’S MAXIMUM AGGREGATE
LIABILITY TO YOU RELATED TO OR IN CONNECTION WITH THIS AGREEMENT
SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE BY LTI TO YOU
HEREUNDER DURING THE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING
RISE TO SUCH CLAIM.
XII.
Indemnification.
You
hereby agree to indemnify, defend, and hold harmless LTI and all of
its related entities, subsidiaries and parent companies, advertising
and promotions agencies, and each of their heirs, successors,
officers, directors, shareholders, employees, assigns, agents,
attorneys, representatives, and any other person or entity now or
hereafter affiliated with them, and each of them (collectively,
"Indemnified Parties"), of and from any and all claims,
demands, causes of action, obligations, damages, losses to any person
(including death) or property, penalties, attorney's fees, costs, and
liabilities of any nature whatsoever, whether or not now known,
suspected or claimed, arising out of any breach by you or any other
user of your Program account, whether or not such user has your
permission, of this Agreement or solely your actions hereunder. LTI
reserves the right, at its own expense, to assume the exclusive
defense and control of any matter otherwise subject to
indemnification by you. In such event, you shall cooperate as fully
as is reasonably required in the defense of any claim. You may not
agree to any settlement that imposes any obligations or liability on
LTI without LTI’s express written consent.
XIII.
Miscellaneous.
A.
Entire
Agreement
.
This Agreement constitutes the entire agreement between the parties
and supersedes all prior agreements and understandings with respect
to the subject matter hereof.
B.
Confidentiality
.
You understand that LTI, its related entities, and/or clients (the
“Disclosing Party”) has disclosed or may disclose business,
technical or financial information relating to the Disclosing Party’s
or its Representatives (as defined below) business and operations
that is proprietary and/or not publicly available (hereinafter
referred to as “Confidential Information”). You agree: (i) to
take reasonable precautions to protect such Confidential Information;
and (ii) not to use (except in performance hereunder or as otherwise
permitted herein) or disclose any Confidential Information to any
third party, other than to your employees, independent contractors,
agents, representatives, or consultants (“Representatives”) whose
duties justify their need to know the Confidential Information for
the purpose of you performing under this Agreement, so long as such
disclosure is in accordance with this provision and any
non-disclosure agreement between you and LTI. LTI agrees that the
foregoing shall not apply with respect to any information after five
(5) years following the disclosure thereof or any information that
you can document: (a) is or becomes generally available to the
public; (b) was in your possession or known by you prior to receipt
from LTI; (c) was rightfully disclosed to you without restriction by
a third Party; (d) was independently developed without use of any
Confidential Information; or (e) is required to be disclosed by law.
C.
Waiver
.
LTI’s failure to enforce any provision of this Agreement shall not
in any way be construed as a waiver of any such provision as to
future violations thereof, nor prevent LTI thereafter from enforcing
each and every other provision of this Agreement.
D.
Modification
.
LTI reserves the right to unilaterally modify the terms and
conditions of this Agreement at any time. You agree that any and all
modifications to this Agreement are effective immediately upon
posting on our web site or by notifying you through your Program
account currently on file. Any modified version supersedes any prior
versions immediately upon such notice, and any prior versions are of
no continuing legal effect unless the modified version specifically
provides otherwise. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR
ONLY RECOURSE IS TO TERMINATE THIS AFFILIATE AGREEMENT AND WITHDRAW
FROM THE PROGRAM. YOUR CONTINUED PARTICIPATION IN THE PROGRAM
FOLLOWING OUR POSTING OF A REVISED AFFILIATE AGREEMENT, OR NOTIFYING
YOU THROUGH YOUR AFFILIATE ACCOUNT, SHALL CONSTITUTE YOUR BINDING
ACCEPTANCE OF SUCH MODIFICATION.
E.
Headings
.
The headings of sections in this Agreement are provided for
convenience of reference only and are not intended to be part of or
affect the meaning or interpretation of this Agreement or any section
thereof.
F.
Severability
.
Whenever possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
invalid, illegal, or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity,
illegality, or unenforceability will not affect any other provision.
G.
Representation
by Counsel; Interpretation; Authorization
.
LTI and you each acknowledge that each Party to this Agreement has
been represented by counsel in connection with the same and with
respect to the transactions contemplated hereby or have expressly
waived such representation. Accordingly, any rule of law or any
legal decision that would require interpretation of any claimed
ambiguities in this Agreement against the Party that drafted it has
no application and is expressly waived.
XIV.
Disputes.
A.
Governing
Law; Dispute Resolution
.
The validity, construction, performance, and breach of this Agreement
shall be governed by the internal laws of the State of California,
without regard to conflicts or choice of law principles. Provided,
except as otherwise set forth herein, that the Federal Arbitration
Act will govern all provisions relating to arbitration.
The
Parties agree that any and all disputes or controversies of any
nature between them arising at any time that cannot be resolved
between the Parties themselves shall be determined by confidential
(to the extent permitted by law), final and binding arbitration in
Los Angeles County, California, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA")
before three (3) neutral arbitrators ("Arbitrators")
mutually agreed upon by the Parties. If the Parties are unable to
agree on Arbitrators, then AAA shall appoint the Arbitrators. The
Parties shall be entitled to conduct discovery in accordance with the
California Code of Civil Procedure then in effect, provided that (i)
the Arbitrators must authorize all such discovery in advance based on
findings that the material sought is relevant to the issues in
dispute and that the nature and scope of such discovery is reasonable
under the circumstances, and (ii) discovery shall be limited to
depositions and production of documents unless the Arbitrators finds
that another method of discovery (e.g., interrogatories) is the most
reasonable and cost efficient method of obtaining the information
sought. The Arbitrators shall have the power to enter monetary
damages and equitable relief as determined by the Arbitrators.
Judgment upon the award rendered in any such arbitration may be
entered in any court of competent jurisdiction, or application may be
made to such court for a judicial acceptance of the award and
enforcement, as the law of such jurisdiction may require or allow.
Nothing in this section shall prevent either Party from seeking
interlocutory and/or injunctive relief from a court of competent
jurisdiction. Class action lawsuits and/or class-wide arbitrations
aren’t allowed. Nor is combining individual proceedings without the
consent of all Parties. If the class action waiver is found to be
illegal or unenforceable as to all or some parts of a dispute, then
those parts won’t be arbitrated, but will proceed in court, with
the rest proceeding in arbitration.
The
fees payable to AAA and the Arbitrators hereunder shall be borne
equally by the Parties, provided that the prevailing Party shall be
entitled to reimbursement by the other Party for reasonable
attorneys' fees, expert witness fees, and any and all other
reasonable costs and expenses incurred in the arbitration.
THE
PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL
CLAIMS AND ISSUES ARISING OUT OF OR RELATING TO THIS AGREEMENT
WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR
FRAUDULENT INDUCEMENT THEREOF.
XV.
Execution of Agreement.
A.
Electronic
Signatures
.
You are electronically signing this Agreement by either selecting the
"I Agree" button below and/or participating as an Affiliate
in the Program. You understand and agree that this Agreement may not
be denied legal effect, validity, or enforceability solely because
your electronic signature was used in its formation. You further
understand and agree that electronic signatures and records are just
as good as their paper equivalent, and therefore subject to the same
legal scrutiny of authenticity that applies to paper documents.
