DADDYBUXXX WEBMASTER AFFILIATE AGREEMENT
Last Modified August 19, 2008
THIS AGREEMENT was made between Pantheon Productions, LLC (“COMPANY,” “we/us/our,””), and the undersigned Affiliate, (“Affiliate” or “you/your”), on the date the online registration form is submitted to and approved by COMPANY. This Agreement governs the Affiliate Agreement for Daddybuxxx (www.daddybuxxx.com) (the “SITE”), and any additional sites that COMPANY may publish or control. IMPORTANT! By accessing, using, viewing, reading, printing, installing, or downloading any material from the SITE, or becoming an affiliate member of the SITE, you agree to be bound by these Terms and Conditions. This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-Sign Act). You manifest your agreement to these Terms and Conditions by any act demonstrating your assent thereto, including clicking any button containing the words “I agree” or similar syntax. You may submit a paper copy of this transaction and print this form for your personal records. You have the right to withdraw your consent to use the E-Sign Act by emailing us. Your consent to use the E-Sign Act is limited to providing the information on this form. Access to this electronic record requires a simple browser program such as Internet Explorer™, Netscape™, Opera™ or Mozilla™ and a computer.
1. The terms and conditions of this Agreement are subject to change by COMPANY at any time at its sole discretion. Any continued performance under this Agreement, following our posting of a change notice or new agreement on our SITE, shall constitute confirmation of Affiliate’s acknowledgment and assent to any such modifications. Please consult this Agreement as posted on SITE regularly and read them carefully before using the SITE. You affirm that you have read this Agreement and understand, agree and consent to its Terms and Conditions.
You are solely responsible for obtaining access to the SITE and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the SITE (i.e., computers, modems, and software, including the most recent versions of Internet browsers, applications, and plug-ins).
W I T N E S S E T H:
WHEREAS, COMPANY has developed an affiliate membership software program for its SITE and intends to market its affiliate membership software program and associated documentation for the Program, (collectively, the “Program”), through its Website(s), various online and traditional media, and elsewhere;
WHEREAS, Affiliate desires to become an affiliate member of the Program, subject to the terms and conditions stated herein; and,
WHEREAS, Affiliate has determined that it is in its interest to enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and conditions herein set forth, and with the intent to be legally bound thereby, Affiliate hereby agrees as follows:
GRANT OF LICENSE AND AFFILIATE’S CONTENT SITE agrees to provide access to, and membership in, the Program to Affiliate and to provide Affiliate with the ability to market, advertise and promote certain content, images, recordings, video, audio, links, computer script, advertising banners, and other promotional materials (hereinafter, “Materials”) that are associated with the Program from time to time, and hereby grants a non-exclusive, non-assignable, restricted, revocable license to use such Materials solely for the purposes set forth in this Agreement. The SITE reserves the unequivocal right to select, alter, delete, add to, or remove any and all Materials for use by Affiliate in its sole discretion. SITE’s Materials may not be used in violation of any term contained in this Agreement. Affiliate’s license to use the Materials shall automatically terminate, and all such rights shall automatically revert to SITE upon cancellation of the Affiliate’s membership or withdrawal from the Program by the Affiliate. Affiliate may not copy, download, upload or otherwise reproduce, alter, modify, change, broadcast, distribute, transmit, disseminate, assign or otherwise transfer, sell or offer for sale in any manner, the Materials at any time anywhere in the world except as expressly authorized by the SITE in writing. Upon acceptance into the Program, SITE will begin providing users with the information necessary to participate in the Program. Logos, graphics or text may be created by the Affiliate, with SITE’s prior written permission. The SITE reserves the right to require any text, online agreement, documents, notices, disclaimers, or age verification devices that may be necessary or desirable to protect the SITE’s or the Affiliate’s legal interests.
The Affiliate shall be solely responsible for all content available on or through its website served by COMPANY’s services by and through the COMPANY software, and shall at all times be subject to the terms of this Agreement. COMPANY shall have no obligations with respect to the content available on or through any participating website, including but not limited to, any duty to review or monitor any such content. Thus, Affiliate is solely responsible for the content on Affiliate’s website. COMPANY owns the rights to any and all content and Materials located on Affiliate’s site, which in any way relate to content provided by COMPANY. As more fully described infra, COMPANY shall remain the owner of all intellectual property rights pertaining to the Materials, which may be licensed from third party content producers. Any and all derivative works generated by Affiliate shall inure to the benefit of COMPANY, which shall be considered the owner or license holder of such derivative works, to the extent permitted by law.
Affiliate’s license to use this material shall automatically terminate, and all such rights shall automatically revert to COMPANY upon cancellation of the Affiliate’s membership or withdrawal from the Program by the Affiliate.
Upon acceptance into the Program, COMPANY will begin providing users with the information necessary to participate in the Program and begin promoting the COMPANY Website(s).
2. ENROLLMENT PROCEDURE
To begin the enrollment procedure, you must submit a completed COMPANY Application form through our Affiliate website located at: www.daddybuxxx.com (“Affiliate Website”). We reserve the discretion to accept or reject applications for any reason including, but not limited to: 1) unlawful content appearing on your site; 2) defamatory, obscene, child pornographic, harassing, or otherwise objectionable content appearing on your site; 3) if your site promotes or facilitates illegal activity, or violates the rights of others such as copyright, trademark, other intellectual property infringement, right to privacy, right to publicity, or other similar rights; 4) if you encourage password theft or hacking; 5) your site does not receive a sufficient number of unique hits; 6) if your site or content found thereon violates our Acceptable Use Policy, See Section 9, infra; or, 7) if COMPANY deems your application or Website to be unsuitable for any reason.
3. AFFILIATE’S NOTIFICATION DUTY
Affiliate agrees to notify COMPANY of the URL’s where the SITE will be promoted upon request.
This Agreement and the provisions hereof, shall be in full force and effect commencing on the date accepted by the Affiliate and continuing until terminated by either of the parties in accordance with the Termination provisions set forth infra. Acceptance is effective upon clicking “I Accept” or any similar syntax, and/or the installation or opening of any COMPANY software or any other COMPANY product.
5. COMPENSATION AND BENEFITS
Affiliates will be compensated as follows, which may be altered from time to time with notice. The programs and benefits are described below. Percentage Share. Affiliate receives sixty percent (60%) of all sales and re-bills Affiliate generates, as more fully described on the Affiliate Website. Additional or modified promotional benefits or restrictions may be implemented from time to time, and notices of such benefits or restrictions shall be conspicuously stated on the Affiliate Website. Affiliate agrees to check back periodically to review the current compensation and benefits pertaining to this program. Affiliate further agrees to periodically review the Program details for any changes, which are effective immediately upon posting. Compensation is subject to proper technical specification with the burden of error placed on the Affiliate. Affiliate will be compensated with a commission or referral fee according to the terms of this Agreement. Affiliates agree that COMPANY, in its sole discretion, may deny or withhold payment and terminate Affiliate’s membership due to suspicious behavior including but not limited to numerous charge backs or subscription cancellations. The Affiliate should note the date of last revision to this Agreement. Affiliate agrees to periodically review this Agreement using the “refresh” button in the Affiliate’s browser. If the date of last revision remains unchanged after clicking the “refresh” button on his or her browser, the Affiliate may presume that no changes have been made. A changed “last modified” date indicates that this Agreement has been updated or edited, and the updated or edited version supersedes any prior versions immediately upon posting. We reserve the right to revise, amend, or modify this policy, our user terms of service, and our other policies and agreements at any time and in any manner.
COMPANY and Affiliate acknowledge that “time is of the essence” in the commencement of this Agreement. COMPANY will devote all commercially reasonable efforts to provide Affiliate with all necessary Materials as soon as reasonably possible.
7. BILLING AND DISBURSEMENT
COMPANY reserves the right to determine the manner in which payments will be processed, and the identity of any third party processor used for billing purposes. Determination of the third-party billing service shall be made at the convenience of COMPANY, and may be changed unilaterally by COMPANY at COMPANY’S sole convenience.
Disbursements are made to Affiliates weekly by COMPANY’s payment processor, CCBill. Payments represent revenues generated from the previous week.
Affiliate will provide COMPANY with a Social Security Number or Federal Tax ID, if requested. Failure to provide COMPANY such information may result in termination of this Agreement.
8. REPRESENTATIONS AND WARRANTIES
Affiliate warrants that Affiliate is the sole owner of any and all necessary rights, title, and interest to the content contained on the Affiliate’s website, and that such Website is free of claims to the content by third parties. You, as the site Operator, warrant and represent that you own or operate a lawful, and otherwise valid Internet Website. You further represent that you have the requisite power and authority to enter into this Agreement and perform the obligations set forth herein and that you are and adult at least eighteen (18) years of age; that performance under this Agreement does not and will not constitute a breach of any existing contract or obligation undertaken by you; and that there are no outstanding orders, judgments, decrees, rules or regulations which would preclude you from entering into this Agreement.
Affiliate further warrants that Affiliate’s Website(s) (including content thereof) and/or Affiliate’s participation in the Program do not now, and will not violate any: a) applicable law, ordinance, rule or regulation, whether federal, state, local, or from any jurisdiction applicable or related to this Agreement, including but not limited to CAN SPAM laws or rules promulgated thereby; b) any of COMPANY’s or third party’s intellectual property rights, including, without limitation, patents, copyright, trademark, service mark or trade secret or any contractual rights, and that they do not contain matter which, if published, will be harassing, libelous, or a violation of any persons’ rights of publicity or privacy or other rights of any person or entity.
Affiliate further represents that each site is in full compliance with Section 2257 of Title 18, United States Code, the “Records Keeping and Labeling Act,” including all applicable regulations. Affiliate acknowledges that it is Affiliate’s legal obligation to comply with the disclosure provisions of the Records Keeping and Labeling Act, and that Affiliate must identify a records custodian and records address for each image appearing on the Affiliate’s website and maintain all required age records, indexed in the required manner. Affiliate represents and warrants that any and all content it provides on its website is compliant with Title 18 U.S.C. § 2257, and that all models depicted thereon were at least eighteen (18) years of age when the content was taken. Affiliate also warrants that all materials shall only be transmitted and distributed by Affiliate’s website to willing adults.
You shall indemnify COMPANY and its shareholders, officers, directors, independent contractors, employees and assigns against any loss, damage, liability (including reasonable legal fees) which result from the breach or alleged breach of: A) the Acceptable Use Policy set forth in Section 9, infra; B) any warranty, obligation or term of this Agreement; or C) arising out of Affiliate’s participation in the Program or Affiliate’s use of any COMPANY Materials or other COMPANY materials not expressly authorized by this Agreement.
COMPANY makes no representations or warranties other than those specifically contained herein, and specifically disclaims any implied warranties, including merchantability or fitness for a particular purpose. COMPANY makes no representations of success or profitability and does not monitor orsupervise the SITE.
9. ACCEPTABLE USE POLICY FOR AFFILIATES
Affiliate agrees to be bound by the following general policies in connection with all content with which COMPANY’S Materials are associated:
Illegal content is strictly forbidden. Illegal content includes, but is not limited to: child pornography, incest, warez content, scat, coffins, defecation, genital mutilation, sacrilegious, teen modeling, actual or simulated rape, sexual violence, menstruation, obscenity, bestiality, threats of physical harm to persons or property, programs containing viruses, pirated software, wire fraud, drug trafficking, and/or violations of international export control laws. COMPANY shall not be obligated to but reserves the right to review and/or reject any content created and/or posted by Affiliate. • Any fraudulent, deceptive or unfair transactions or trade practices are strictly forbidden. The Affiliate agrees to fully comply with the United States Federal Trade Commission (“FTC”) statutes and regulations (if Affiliate does business in the United States or with United States based customers), and any related rules, policies, and advisory opinions issued by the FTC. No commissions will be paid on such transactions, and may be withheld if such conduct is suspected. In addition, the Affiliate’s account may be terminated in such circumstances. • COMPANY may not be promoted on any Site that encourages password trading, distribution, or hacking. COMPANY may not be prosecuted through the direct or indirect use of warez content, spamming, listing on newsgroups, bulk emailing, or hidden frames. • Affiliate shall not engage in any activities that may be harmful to the image, goodwill, or reputation of COMPANY. • Affiliate shall not directly or indirectly display on Affiliate’s website any advertising links, banners, or promotional materials for Sites other than those that have been pre-approved in compliance with this Agreement. • Affiliate may not attempt to cheat, defraud or mislead COMPANY in any way. • Violation of the restricted nonexclusive license provided in this Agreement is prohibited and may result in termination of Affiliate’s account. • Affiliate may not use COMPANY’s material or images to promote other sites. • Affiliates shall not use any material that contains “Trojan Horses,” viruses, or the like, which causes damage to any computer or programs regardless of intent. Affiliate will be solely responsible for any damage caused by the aforementioned destructive materials and the use of such materials may result in the termination of this Agreement. • COMPANY enforces a strict, zero tolerance policy with respect to child pornography. No site may use models under the age of eighteen (18) or suggest that its models are under the age of eighteen (18), either through text or other implication. Any Affiliate suspected of violating this zero tolerance provision shall be terminated from the Program. • Affiliate’s websites must contain all information required by 18 U.S.C. §2257, supported by all required documents. • Affiliates must provide within 24 hours, upon request by COMPANY, access to any password protected area where COMPANY Websites are being or have been promoted. • Affiliates may not solicit or permit any minor to become a customer of the Websites. • Affiliates agree to indemnify and hold COMPANY harmless from any and all liabilities, claims, damages (including attorney’s fees), threatened or incurred as a result of Affiliate’s activities or omissions. COMPANY shall retain the discretion to interpret, modify, terminate and/or enforce any of the general policies for Affiliates.
Suspected violation of any of the Acceptable Use Policies may result in termination from the Program and forfeiture of any past or future commissions or payments, whether earned or unearned.
10. PROMOTIONAL RESTRICTIONS AND SPAM
Affiliate may use any reasonable promotional tool desired, with the following exceptions:
A. SPAM. The Affiliate agrees not to use the facilities and capabilities of SITE to solicit the performance of any activity that is prohibited by the CAN-SPAM Act dealing with illegal distribution of Unsolicited Commercial Bulk Email (“UCBE”), commonly known as “spam,” nor shall Affiliate forge or use without authorization, any mail header information. Affiliate agrees to comply with any Spam Policy posted for the SITE, which is hereby incorporated by reference. Any breach of the SITE’s Spam Policy may result in immediate termination from the Program and forfeiture of any further commissions or payments. Any violation of the CAN-SPAM Act is strictly prohibited. Any Affiliate using unsolicited email, which does not strictly comport with the provisions of the CAN-SPAM Act, will be immediately terminated as an Affiliate and no commissions will be paid to any such offending Affiliate. If such conduct is suspected, any commissions will be withheld. COMPANY reserves the right to conduct random audits of all of its Affiliates to determine whether this provision is being complied with, and any suspected offending activity will result in immediate termination and suspension of all payments. Any violation will result in the forfeiture of any payments due.
B. NO DECEPTIVE ADVERTISING. All forms of deceptive or unfair advertising are prohibited. Any Affiliate who is uncertain as to the requirements of federal advertising law should obtain legal advice before engaging in any promotion. More information about deceptive trade practices can be found here: www.FTC.gov.
Affiliate agrees not to utilize any false, misleading or infringing metatags tied to the Affiliate’s site. An Affiliate is not permitted to use its domain name and/or its metatags on the Affiliate’s site to garner search engine traffic. In addition, Affiliate agrees not to utilize any metatags that would imply or suggest that underage or illegal content may be found on the submitted website.
A. “Confidential Information” shall mean any confidential technical data, trade secret, intellectual property, know-how or other confidential information disclosed by any Party hereunder in writing, orally, or by drawing or other form and which shall be marked by COMPANY as “Confidential” or “Proprietary.” If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure and reduced to writing and delivered to Affiliate within ten (10) days of such disclosure.
B. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the same time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or become publicly known through no wrongful act of the Affiliate or any subsidiary of the Affiliate; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiary; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of COMPANY; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. The Affiliate agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of the COMPANY for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement and for a period of five (5) years thereafter, without the prior written consent of the COMPANY. The Affiliate further agrees that Confidential Information shall remain the sole property of the COMPANY and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. The COMPANY shall grant no license to the Affiliate with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon the request of the COMPANY, the Affiliate will promptly return all Confidential Information furnished hereunder and all copies thereof.
E. The Parties agree that all publicity and public announcements concerning the formation and existence of this Agreement shall be planned and coordinated in COMPANY’s sole discretion. Affiliate shall not disclose any of the specific terms of this Agreement to any third party without the prior written consent of the COMPANY. Notwithstanding the foregoing, Affiliate may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the COMPANY.
F. If Affiliate breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential Information hereunder, the COMPANY shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary to the contrary contained herein.
G. Except as otherwise set forth in this Agreement, COMPANY shall be entitled to make any public statement, press release or other announcement relating to the Website without any prior written approval of Affiliate.
13. INTELLECTUAL PROPERTY RIGHTS
A. The parties agree that: (i) each party’s marks are and shall remain the sole property of that party; (ii) nothing in this Agreement shall convey to either party any right of ownership in the party’s marks; (iii) neither party shall now or in the future contest the validity of the other party’s marks; and (iv) neither party shall in any manner take any action that would impair the value of, or goodwill associated with, such marks. The Parties acknowledge and agree that all use of the other party’s marks by a party shall inure to the benefit of the party whose marks are being used.
B. Each party hereby grants the other party, during the term of this Agreement, a non-exclusive, non-transferable license to use that party’s trade names, trademarks, service names, copyrights, and similar proprietary marks as is reasonably necessary to perform its obligations under this Agreement, provided, however, that any promotional materials containing a party’s proprietary marks will be subject to that party’s prior, written approval.
C. Each party agrees not to use the other party’s proprietary marks in a manner that disparages the other party or its products or services, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party will comply with the other party’s requests as to the use of the other party’s proprietary marks and will avoid any action that diminishes the value of such marks. Each party’s unauthorized use of the other’s proprietary marks is strictly prohibited.
D. At any time, COMPANY may, at its sole discretion, require a copy of any and all legal documentation showing rightful ownership, or licensed distribution for any item displayed on the Affiliate’s website so as to resolve any copyright or other legal claims that may arise. If Affiliate is unable to provide ownership or licensing information to the complaining party and/or website, then Affiliate must remove the objectionable material, or face having the applicable pages taken down by SITE.
The following termination rights are in addition to the termination rights that may be provided elsewhere in this Agreement:
A. Mutual Right to Termination Upon Notice: Either COMPANY or Affiliate may immediately terminate this Agreement at any time, with or without cause, upon written notice to the other party. In the event that COMPANY terminates this Agreement for breach, Affiliate shall not be entitled to receive any further commissions or payments, including commissions earned prior to the date of termination. Further, upon termination, Affiliate shall immediately cease using any marks and materials referring to or supplied by COMPANY, including banners and promotional materials.
B. Affiliate’s Right to Terminate: Affiliate shall have the right to terminate this Agreement at any time, however Affiliate shall only receive its designated portion of revenue earned during the Term of the Agreement. Such revenue is only payable if the orders giving rise to them are not canceled or returned. COMPANY reserves the right to withhold final payment for a reasonable time to ensure that the correct amount is paid.
15. DISCLAIMERS AND LIMITATIONS
In no event shall COMPANY be liable to the Affiliate for any indirect, special, incidental, punitive or consequential damages, including but not limited to, loss of profits, loss of data, loss of business or other loss arising out of or resulting from this Agreement, even if the COMPANY has been advised of the possibility of such damages. The foregoing shall apply regardless of the negligence or other fault of COMPANY and regardless of whether such liability sounds in contract, negligence, tort or any other theory of liability. Notwithstanding the aforementioned limitations of liability, you agree that if COMPANY is held liable to you for damages, the total amount of liquidated damages for any and all claims shall not exceed ten dollars ($10.00).
Affiliate shall remain solely responsible for the operation of their own site, and COMPANY shall remain solely responsible for operation of the Program and its sites. Each party acknowledges that the other’s site may be subject to temporary shutdowns dues to causes beyond the operating party’s reasonable control.
16. ASSUMPTION OF RISKS
Affiliate expressly agrees that Affiliate’s use of the services is at Affiliate’s sole and exclusive risk. The services are provided on an “as is, with all faults” and “as available” basis. COMPANY expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. COMPANY makes no warranty that the services will meet Affiliate’s requirements, or that the services will be uninterrupted, timely, secure, or error free; nor does COMPANY make any warranty as to the results that may be obtained from the use of the services or as to the accuracy or reliability of any information obtained through the services or that defects in any software, hardware or the services will be corrected. Affiliate understands and agrees that any use Affiliate makes of any material and/or data downloaded or otherwise obtained through the use of the services is at Affiliate’s own discretion and risk, and that Affiliate will be solely responsible for any damage to Affiliate’s computer system or loss of data that results from the download of such material and/or data.
Affiliate agrees to defend, indemnify, defend, and hold COMPANY and its affiliates, successors, assigns, officers, employees, agents, directors, shareholders and attorneys, harmless from and against any and all claims and liabilities, including reasonable attorneys’ and experts’ fees, related to or arising from (a) any breach of Affiliate’s covenants under this Agreement; (b) Affiliate’s use (or misuse) of the Program and/or Materials; (c) all conduct and activities occurring under Affiliate’s user ID and password; (d) any item or service sold or advertised in connection with Affiliate Content or Affiliate’s information and data; (e) any defamatory, libelous or illegal material contained within Affiliate Content or Affiliate’s information and data; (f) any claim or contention that Affiliate Content or Affiliate’s information and data infringes any third party’s patent, copyright, trademark, or other intellectual property rights or violates any third party’s rights of privacy or publicity; (g) third party access or use of Affiliate Content or Affiliate’s information and data; (h) any claim related to Affiliate’s website; or (i) any violation of this Agreement. COMPANY reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from Affiliate, but shall have no obligation to do so. Affiliate shall not settle any such claim or liability without the prior written consent of COMPANY, which shall not be unreasonably withheld.
The Affiliate understands that COMPANY will take drastic measures to protect itself from any legal or civil litigation including, but not limited to, removing a Affiliate’s web page(s) or website(s) from its servers for any reason deemed appropriate by COMPANY. Affiliate also understands that COMPANY will charge, on an hourly basis, for any and all time spent responding to any third party complaints, disputes, copyright claims or actions involving Affiliate or Affiliate’s web sites.
18. RELATIONSHIP OF THE PARTIES
The relationship between COMPANY and Affiliate under this Agreement is that of independent contractors and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any manner or thing whatsoever.
19. FORCE MAJEURE
Neither party will be held liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence, including but not limited to acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, net congestion, or any failure of a computer, server or software. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
20. NOTICE AND PAYMENT
A. Any notice or payment required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, or personal delivery by commercial carrier such as FedEx or Airborne.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
C. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient’s business hours, or 9:00 a.m. (recipient’s time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
D. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
This Agreement shall be governed in accordance with laws of the State of California. All disputes under this Agreement shall be resolved by litigation in the courts of California and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it. Venue for any litigation arising out of this Agreement shall be in San Francisco, California.
22. AGREEMENT BINDING ON SUCCESSORS
The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, and successors.
Neither party may assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
27. ATTORNEY’S FEES
In the event any Party shall commence any claims, suits, or formal legal action to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney’s fees and costs incurred in connection therewith, including attorney’s fees incurred on appeal.
Other than those set forth herein, the parties make no other warranties or representations including warranties of merchantability or fitness for a particular purpose. Neither party represents the other, and both parties have had an opportunity to seek legal counsel of their choice.
29. BINDING AGREEMENT
The parties acknowledge the legally binding nature of this Agreement. By clicking on the “Sign Up Now!” button on the following web pages: http://www.daddybuxxx.com, http://www.daddybuxxx.com/signup.html or http://www.daddybuxxx.com/program.html you are affirmatively stating that you have read and understand the terms set forth herein and that you agree to be bound by the terms hereof. You hereby adopt the /s/ mark appearing on the signature line below, as your electronic signature on this document.
30. ELECTRONIC SIGNATURES
This Agreement is intended to be governed by the Electronic Signatures Act (E-SIGN Act”). By submitting the “Registration Form,” Affiliate thereby affixes his or her electronic signature to this Agreement, and thereby manifests assent to all terms contained herein.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each signed this document electronically pursuant to the E-SIGN Act.