This agreement governs your participation in the Datetronix Webmaster Affiliate Program. To become an affiliate in the Datetronix Webmaster Affiliate Program, you must agree to the following terms. You bind yourself to this agreement by checking the “I agree to all Terms and Conditions” box at the bottom of the signup page. Please understand that if this agreement is provided to you in a language other than English, it is for convenience only and does not reflect submission to or compliance with the laws of any jurisdiction other than the Republic of Cyprus.
1. Mandatory Age RestrictionOur network features dating websites. You must be over 18-years old to participate in the program. No person under 18-years old may participate—directly or indirectly—in the program. You certify that you are currently at least 18-years old, over the age of majority in your community, and capable of lawfully entering into this agreement. You further certify (1) that you are familiar with all laws in your jurisdiction affecting your legal right to access or make available adult-oriented materials; (2) that you have the legal right to access adult-oriented materials and we have the legal right to transmit them to you; and (3) that you will not make any materials from our websites available to a minor or allow a minor to access them from your website.
- 2.1 ApplicationTo participate in the program, you must submit a complete and accurate application, in which, among other things, you must correctly identify your website or websites.
- 2.2 Evaluation of ApplicationWe will evaluate your application and notify you of its acceptance or rejection. We may reject your application for any reason, including the following: (1) you are under 18-years old (or under the age of majority in your community); (2) your application contains inaccurate, incomplete, or false information; (3) your website incorporates material that is unlawful, defamatory, infringing, obscene, harassing, or otherwise objectionable; or (4) your domain name or website is identical or confusingly similar to a trademark or service mark in which we or another person has intellectual property or other legal rights. If we accept your application and later determine that you violated any of the above, we will terminate your program account.
- 2.3 ReapplicationYou may reapply to the program if we reject your application unless we provide otherwise.
2. Enrollment in the Program
3. ProgramSubject to the terms of this agreement, and after we have notified you that we have approved your application, you may download and use licensed content and promotional links on your website.
- 4.1 Compliance with LawsDuring your participation in the program, you will comply with all applicable laws, including local, state, federal, and international laws, rules, and regulations. You will only allow consenting adults in locations where the content does not violate community standards to access the content on your website, including licensed content. We strictly prohibit all unlawful content. You are responsible for all content posted on your website and we prohibit you from posting any unlawful content. You further agree to the following:
- 4.1(A) Depictions of MinorsYou will not disseminate, post on your website, or provide links to any matter that involves depictions of nudity or sexuality by an age inappropriate-appearing performer—that is, a performer who looks younger than 18-years old—or by a performer who is portrayed or made to appear as a person under 18-years old by virtue of the script, make-up, costuming, demeanor, setting, etc.
- 4.1(B) Depictions of MinorsYou will not disseminate, post on your website, or provide any links to any obscene material.
- 4.1(C) SpamYou will not disseminate spam in connection with the program. Although your jurisdiction may not prohibit all forms of spamming, we impose 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 facts that we take into account when determining what constitutes spamming are:
- ► If you have violated a United States 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 under the CAN-SPAM Act;
- ► If you have violated the anti-spamming policy of any nonparty;
- ► If you have sent unsolicited bulk messages to non-consenting recipients;
- ► If you have misleading or false information contained in your messages, subject line, or message-headers;
- ► If you use automated means to collect, transmit, or sell the electronic addresses of others;
- ► If you use a third-party website or program to automatically generate and send messages or content;
- ► If the primary purpose of your message is commercial in nature; and
- ► The number of spam or abuse complaints that have been lodged against you.
- 4.1(D) Defamation and Related ConductYou will not publish (or allow others to publish, including users submitting) content on your website that is defamatory, threatening, abusive, hateful, derogatory, disparaging, or otherwise injurious to any person or to the reputation of any person.
- 4.1(E) Section 2257Your website 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 under it, including 28 C.F.R. Part 75 ("Section 2257 requirements").
- 4.1(E)(1)You will act as the "Custodian of Records" required to be maintained by the Section 2257 requirements for all images depicting actual sexually explicit conduct of an actual human being that may be used to promote or market the program regardless of who has produced the images.
- 4.1(E)(2)You will post the statements in the manner and locations required by the Section 2257 requirements on the website you use for the program.
- 4.1(E)(3)We will make available to you the records required by Section 2257; but it is your responsibility to obtain those records from us. You will treat as “confidential information” any information in the nature of legal names, dates of birth, home addresses, or other personal information relating to the actors and models that you may receive from us to meet Section 2257 requirements. The confidential information is the sole property of us and you will use the confidential information only to comply with the Section 2257 requirements.
- 4.1(E)(4)You will take reasonable measures to protect the confidentiality and security of—and to avoid disclosure and unauthorized use of—the confidential information we disclose to you. “Reasonable measures” means at least those measures that you take to protect your own confidential information of a similar nature, but are not less than reasonable care. You will not: (1) disclose to any nonparty any of the confidential information we disclosed to you in any matter; (2) permit any nonparty to have access to the confidential information; or (3) use the confidential information for any purpose except complying with the Section 2257 requirements.
- 4.1(E)(5)You will keep the confidential information only as long as the Section 2257 requirements direct and from then on you will: (1) promptly destroy all copies of the confidential information; (2) delete all confidential information that may reside on any computer system you own, you control, or your representatives’ control (including backup tapes); and (3) destroy all other documents that may contain portions of the confidential information.
- 4.1(E)(6)You state that each website you operate will be in full compliance with Section 2257, including the record-keeping and labeling requirements that you must always maintain. You state that all content published on your website is, and will, comply with Section 2257.
- 4.2 Intellectual Property RightsYou will not publish content on your website that violates the intellectual property rights or other legal rights of any person, such as copyright, patent, trademark, service mark, trade secret, trade dress, right of privacy, right of publicity, moral right, and any other proprietary right.
- 4.3 Cybersquatting or TyposquattingYou will not register or attempt to register any domain name (including third-level domain names or subdomains) or URL that is identical or confusingly similar to a trademark or service mark in which we or another person has intellectual property or other legal rights in.
- 4.4 Paid Search Advertising SchemesYou will not bid on or purchase any online paid advertising schemes that incorporate or are confusingly similar to any of our trademarks, service marks, or URLs. The prohibited advertising schemes include pay-per-click models, sponsored links, search engine keywords, AdWords, or similar advertising schemes.
- 4.5 Other Prohibited UsesYou will not bid on or purchase any online paid advertising schemes that incorporate or are confusingly similar to any of our trademarks, service marks, or URLs. The prohibited advertising schemes include pay-per-click models, sponsored links, search engine keywords, AdWords, or similar advertising schemes.
- 4.5(A) Distribution to Prohibited AreasYou will not allow a person located in an area prohibited by law to access the licensed content or promotional links. Nor will you broadcast or otherwise disseminate licensed content or promotional links to a person located in an area prohibited by law.
- 4.5(B) Misrepresentation of RelationshipYou will not misrepresent your contractual relationship with us or imply that any relationship exists with us except as expressly provided in this agreement. For example, you cannot publish any statement indicating that we support, endorse, or contribute to your website except as expressly provided in this agreement.
- 4.5(C) Unauthorized AccessYour unauthorized access or duplication of the licensed content that you obtain directly or indirectly through your participation in the program is a material breach of this agreement.
- 4.5(D) Malicious Code, Viruses, Etc.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 are liable to us for all damage caused by any program of this nature.
- 4.5(E) Links to and Content of OthersYou will not use our images, content, or promotional material to promote or link to any other website.
- 4.5(F) Chat Traffic AdvertisementsYou will not use chat traffic advertisements during your participation in the program.
- 4.6 Restricted CountriesAttempting to establish new accounts from Albania, Argentina, Armenia, Azerbaijan, Bahrain, Colombia, Ecuador, El Salvador, Egypt, India, Iran, Iraq, Kaliningrad, Kazakhstan, Kyrgyzstan, Macedonia, Malaysia, Pakistan, Philippines, Saudi Arabia, Syria, Tajikistan, Thailand, Trinidad, Turkmenistan, United Arab Emirates, Uzbekistan, Vietnam, Nigeria, and Bangladesh is restricted.
Application from these countries will be evaluated on an individual basis and approved at the discretion of Company.
4. Program Restrictions
- 5.1 Grant of Limited LicenseIf we approve your application, we will grant you a limited, nonexclusive, royalty-free, nontransferable, nonassignable, and revocable license to download and use the licensed content on your website during the term of this agreement to advertise, market, or promote our online services and products. You will not use the licensed content for any other purpose. We may revoke the license with or without notice.
- 5.2 Limitations on LicenseYou may only use the licensed content according to this agreement, on one computer at a time. If the program makes copies of the licensed content available, you may only download a single copy of the content on your hard disk and upload a single copy to your website. You may not make any further copies. The following limitations and restrictions also apply to your use of the licensed content:
- 5.2(A) Use RestrictionsAll unauthorized access or duplication of the licensed content is a material breach of this agreement. This is also an intentional infringement of our, and potentially others’, trademarks, copyrights, intellectual property, or other rights, including the rights of privacy and publicity.
- 5.2(B)Other Prohibited Actions. You will not:
- 5.2(B)(1)Modify, translate, reverse engineer, decompile, or disassemble the licensed content;
- 5.2(B)(2)Create derivative works based on the licensed content;
- 5.2(B)(3)Rent, lease, or transfer any rights in the licensed content;
- 5.2(B)(4)Remove any proprietary notices or labels on the licensed content; or
- 5.2(B)(5)Make any other unauthorized use of the licensed content.
- 5.2(C) Ownership of Licensed Content and Intellectual PropertyExcept for public domain material or material licensed to us, the licensed content is proprietary content owned by us. All versions of the licensed content and any other matter used for the program are protected by United States copyright laws, international copyright treaties, and other laws and regulations. All title and proprietary rights to the licensed content, or any other matter made available through the program, will always remain in us.
- 5.3 No License for Other Content on DatetronixWe do not grant a license for any content published on the Datetronix websites unless we make that content available to you through the program and we designate it as licensed content.
- 5.4 Reservation of RightsExcept as expressly granted above, we do not grant any other rights. We reserve all rights to select, alter, add, or remove all licensed content and promotional links used for the program.
- 5.5 Termination or Withdrawal of LicenseOn termination of this agreement or your withdrawal from the program, your license to download and use the licensed content will automatically terminate, and all rights will automatically revert to us. At that time, you will delete all copies of the licensed content that may reside on any computer system or website owned by you or under your control.
5. Limited Nonexclusive License
6. Affiliate’s Duty to NotifyYou will immediately notify us if you receive any inquiries or requests for information regarding the following subjects:
- 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 on you
- 7.1 CommissionsThe commissions we pay will pay to you depends on the program you sign up for. The most current and up-to-date information regarding the programs we offer and the different payouts is on our website, www.datetronix.com/programs.html. We incorporate the portions of the website discussing the programs and payouts into this agreement by reference. If a conflict exists between this agreement and the website, the website controls. What follows is a brief description of the programs we offer and their respective payouts:
- ◆Pay per lead (PPL/CPL) program. The pay per lead program pays you a fixed price for every free signup of male members from the specified countries listed on the website.
- ◆Pay per signup/action (PPS/CPA) program. We will pay you between $60 and $100 depending on the number of credit card signups you refer per week (Monday through Friday), whether the signups are web or mobile, and whether the signups are free/$1 trial or full. The more signups, the more you earn.
- ◆Pay per click (PPC/CPA) program. In this program, we will pay you for every visitor you refer to our dating websites.
- ◆RevShare program. We will pay you 70% for each initial and recurring sales for life.
- ◆Two-tier webmaster referral program. For all webmasters that you refer to us, we will pay you 5% of whatever the webmaster generates in sales.
- 7.2 Payouts
- 7.2(A) Minimum Payout RequirementThe current minimum payment amount is $100 for checks, Paxum, and Payoneer. The current minimum payout amount for bank wire transfers is $1,000. You have the option during signup to choose a higher minimum payout up to $10,000. You can also change your minimum payout amount in your account settings. We will roll over accrued payments totaling less than the minimum payout requirement into subsequent periods until the payment owed satisfies the minimum payout requirement.
- 7.2(B) Pay PeriodsWe send payouts on a weekly schedule, in full, for the commission you earned provided the amount owed satisfies the minimum payout requirement. We will send your payout to you within 15 days from the end of each pay period for the previous period’s transactions as depicted below:
- ● Month-01-201X through Month-07-201X will be paid on the 23rd of the same month
- ● Month-08-201X through Month-15-201X will be paid on the 1st of the next month
- ● Month-16-201X through Month-23-201X will be paid on the 8th of the next month
- ● Month-24-201X through last day of month will be paid on the 15th of the next month
- 7.2(C) Processing FeesWe do not charge any fee for checks, Paxum and Payoneer payments. We will deduct a processing fee of $45 per wire for bank wire transfers.
- 7.2(D) Chargebacks and RefundsTo prevent fraud sales, we remove all refunds and chargebacks from your commissions. This rule is across all programs. If your chargebacks or refunds are greater than your last payout, we will hold back your funds until your account stops incurring chargebacks and refunds.
- 7.2(E) Payout CurrencyWe make all payments in U.S. dollars.
- 7.3 Limitations of PayoutsWe will only pay you for qualified signups referred from a webpage. This means that we will only pay you commissions if our system can track a visitor to our website from the time a user clicks on a promotional link to the time of sale. You will receive no commissions (1) if our system cannot process your affiliate code; (2) if a user does not make full payment for services; or (3) if a promotional link directs a user to our website, but leaves and later returns to sign up for a membership (unless the user returns within 24 hours). In addition, we will not pay a commission for sales made using prepaid credit cards, gift cards, certain foreign credit cards that cannot be used for auto-renewal purposes on our dating websites, and any payments from the following countries: Albania, Antigua and Barbuda, Argentina, Bahamas, Bolivia, Brazil, Costa Rica, Croatia, Dominican Republic, El Salvador, Georgia, Greece, Guatemala, Jamaica, Kenya, Korea, Republic of Malaysia, Malta, Mexico, Pakistan, Panama, Philippines, South Africa, Venezuela, and Zambia.
- 7.5 TaxesYou will be responsible for payment of all taxes attributable to commissions or other payments we make to you. If you are in the United States, we may require you to provide a Federal Tax Identification Number or Social Security Number for Internal Revenue Service reporting requirements.
- 7.6 Subject to ChangeWe may change commission rates, payout schedules, and minimum payout limits with or without advanced notice. Please check our website at www.datetronix.com/programs.html for the most up-to-date information. If a conflict exists between this agreement and our website, the website controls.
- 8.1 TermThe term of this agreement will begin on our approval of your application and your agreement to the terms of this agreement. The term will end when terminated by either party.
- 8.2 TerminationEither party may terminate this agreement for any reason by giving the other party written notice of termination. A breach of this agreement will result in termination and immediate dismissal from the program, with no obligation to us except to pay for earned commissions up to the point of termination. However, you will forfeit any money due to you if we dismiss you from the program because of your fraudulent activity or for any intentional violation of the program restrictions.
- 8.3 SurvivalAll provisions that by their nature must survive the termination of this agreement will survive termination of this agreement.
8. Term and Termination
9. Website Service InterruptionDatetronix will use commercially reasonable efforts to keep the websites, the affiliate program, and the service operational. However, certain technical difficulties may, on one or more occasions, result in temporary service interruptions. You will not hold Datetronix liable, and hereby waive and release any claims that you may have against Datetronix, for any interruptions and any consequences of any interruptions.
10. Relationship of PartiesThis agreement does not create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this section. You are not our agent and we expressly disclaim responsibility for any conduct by you in violation of this agreement.
- 11.1 Affiliate’s Representations and WarrantiesYou state that you own or operate a lawful and otherwise valid website that adheres to the terms of this agreement. You further state that the entering into and performance of this agreement is within your legal capacity and power and you do not require the approval or consent of any other person.
- 11.2 Datetronix’s Disclaimer of WarrantiesWe make the program and licensed content available to you “as is,” “with all faults,” and “as available.” You assume the risk of all loss arising from the use of, or inability to use, the program or the licensed content. We make no warranty that the program or the licensed content will meet your needs or requirements. We disclaim all warranties—express, statutory, or implied—regarding the program, including warranties of merchantability, fitness for a particular purpose, workmanlike effort, accuracy, completeness, reliability, security, title, exclusivity, quiet enjoyment, noninfringement, and warranties that the operation of the program or service will be uninterrupted or error-free. There are no warranties of any kind that extend beyond the face of this agreement or that arise because of course of performance, course of dealing, or usage of trade.
11. Representations and Warranties
- 12.1Unless caused by our gross negligence or willful and wanton misconduct, we limit our total liability to you for any claims arising from this agreement, the licensed content, or the program solely to your incidental and direct damages, if any. However, our aggregate liability arising out of this agreement and the program will not exceed the total commissions paid or payable to you under this agreement. Recovery of these damages will be your sole and exclusive remedy. We disclaim any liability for any other damages of any kind arising out of this agreement or your participation in the program.
- 12.2Unless caused by our gross negligence or willful and wanton misconduct, we will not be liable to you for any special, indirect, incidental, consequential, exemplary, or punitive damages arising out of this agreement, the licensed content, or your participation in the program. This exclusion applies even if we knew or should have known about the possibility of these damages to you. The exclusion of special, indirect, incidental, consequential, exemplary, or punitive damages is independent of your exclusive remedy and survives even if your exclusive remedy fails of its essential purpose or a court or tribunal of competent jurisdiction otherwise deems your exclusive remedy unenforceable.
- 12.3The limitations and exclusions in this section apply regardless of the theory of liability you assert—whether strict liability, breach of warranty (express or implied), breach of contract, tort, or any other legal theory.
12. Limitation of Liability
- 13.1 In GeneralYou must pay us for any loss of ours that you caused by your negligence, intentional misconduct, or violation of this agreement. But you need not pay us for a loss caused by our gross negligence or intentional misconduct.
- 13.2 Definitions
- 13.2(A)Loss means an amount that we are legally responsible for or pay in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory or recovery; and includes incidental, direct, and consequential damages.
- 13.2(B)A loss is caused by an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
- 13.3 Our Duty to NotifyWe must notify you before the 20th business day after we know or should reasonably have known of a claim for a loss that you might be obligated to pay. Our failure to give you timely notice does not terminate your obligation, except to the extent that the failure prejudices your ability to defend the claim or mitigate losses.
- 13.4 Legal Defense of a Claim
- 13.4(A)Our Control. We have control over defending a claim for a loss (including settling it), unless:
- 13.4(A)(1)You elect to control the defense as described below, or
- 13.4(A)(2)We direct you to control the defense.
- 13.4(B)Your Election to Control. On receiving a notice of a claim for a loss, you may take control of the defense by notifying us. If you take control, each of the following applies:
- 13.4(B)(1)You may choose and retain legal counsel.
- 13.4(B)(2)We may retain our own legal counsel at our expense.
- 13.4(B)(3)You may not settle any litigation without our written consent if the settlement imposes a penalty or limitation on us, admits our fault, or does not fully release us from liability.
- 13.4(C) Good FaithYou and we must cooperate with each other in good faith on a claim.
- 13.5 No ExclusivityOur rights under this section do not affect other rights we might have.
13. Loss Payment (also known as Indemnification)
14. Limited Time to Bring ClaimsYou must bring any claim you may have against us arising out of this agreement, the licensed content, or your participation in the program within 1 year after the claim arises. If you fail to bring any claim you may have against us within this 1-year period, the claim is forever barred.
- 15.1The laws of the Republic of Cyprus governs all matters arising out of this agreement, the licensed content, or your participation in the program without regard for any choice-of-law rules that might direct the application of the laws of any other jurisdiction.
- 15.2Except for disputes subject to arbitration, all disputes arising under this agreement, the licensed content, or your participation in the program will be subject to the jurisdiction and exclusive venue of the courts in the Republic of Cyprus. The parties agree to submit to the personal jurisdiction of the courts in the Republic of Cyprus to resolve all disputes not subject to arbitration. The parties also agree that the exclusive venue and forum to resolve all disputes not subject to arbitration or the small claims exception will be in the courts in the Republic of Cyprus, and the parties waive any right to seek another venue because of improper or inconvenient forum.
15. Governing Law; Place for Resolving Disputes
- 16.1The parties will submit all disputes, claims, or controversies arising out of this agreement, the licensed content, or your participation in the program to binding arbitration under the relevant arbitration laws of the Republic of Cyprus. The parties expressly waive their right to a trial in a court of law before a judge or a jury and forfeit any right to appeal the decision of the arbitrator for any reason. The parties will refer all disputes to the Cyprus Eurosia Dispute Resolution and Arbitration Center (“CEDRAC”) or, if CEDRAC is unavailable, to the Cyprus Arbitration and Mediation Centre (“CAMC”). Unless the parties agree differently in a writing signed by both parties, the arbitration will take place exclusively in Nicosia, Cyprus before a single arbitrator nominated by CEDRAC, or CAMC if CEDRAC is unavailable. The parties and the arbitrator will conduct the arbitration and any related proceedings in English. The arbitrator will have authority to consider any statutory or other claims available under applicable governing laws that are within the scope of the submission to arbitration and to award all damages or other remedies under applicable law. The final arbitral award will bind the parties. Any court having competent jurisdiction may enter judgment on the award rendered by the arbitrator. This provision does not prohibit a party from bringing proceedings against the other party before Cyprus courts or any other court of competent jurisdiction to compel arbitration or to make a claim for interim or injunctive relief.
- 16.2As an alternative to arbitration, you may pursue your claim or dispute in a small claims court in your jurisdiction of residence if the claim or dispute meets all of the requirements for the small claims court. If you elect to file a small claims action, the matters raised in the small claims action will not be subject to arbitration unless the case is removed from the jurisdiction of the small claims court and the removal is not made to circumvent the small claims exception. If your jurisdiction of residence does not have a small claims court, then the matter must be submitted to binding arbitration.
16. Arbitration of Disputes; Exception for Small Claims
- 17.1 Entire AgreementThis agreement makes up the entire agreement of the parties regarding the subject matter of this agreement. This agreement supersedes all earlier agreements and understandings regarding the subject matter of this agreement. A printed version of this agreement and of any notice given in electronic form will be admissible in any proceedings based on or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- 17.2 Copy of this AgreementYou may—and we recommend that you—print this agreement on your printer or save it to your computer. If you are having trouble printing a copy, please contact us and we will send you a copy.
- 17.3 ModificationsWe may unilaterally modify this agreement on one or more occasions for any reason. It is your responsibility to periodically check the website to review the most current agreement. We will try to email these changes to you through your email account we have on file or post changes on our website 5 days before they become effective, but we do not guarantee we will do so. Changes will become effective on the effective date noted at the top of the modified agreement. The modified agreement supersedes any earlier version unless the modified version specifically states otherwise. By continuing to participate in the program after we post changes to this agreement, the modified agreement will bind you even if you have not actually read it or are otherwise unaware of it. If you do not agree to the changes or find them otherwise unacceptable, your only recourse is to terminate this agreement and withdraw from the program.
- 17.4 AssignmentWe may assign this agreement without notice to you. You may not assign, delegate, or sublicense any of your rights or duties without our advanced written consent. Any attempt to do this without our advanced written consent will be void.
- 17.5 WaiverIf we do not enforce any right or provision in this agreement, that is not to be deemed a waiver of our right to do so in the future.
- 17.6 SeverabilityIf any provision of this agreement is for any reason held unenforceable, that provision will be modified to the extent necessary to make it enforceable without losing its intent. If no modification is possible, that provision will be severed from the rest of this agreement.
- 17.7 Cumulative RemediesAll rights and remedies provided in this agreement are cumulative and not exclusive, and the assertion by a party of any right or remedy will not preclude the assertion by the party of any other rights or the seeking of any other remedies available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
- 17.8 Successors and RepresentativesThis agreement binds and inures to the benefit of the parties and their respective heirs, personal representatives, successors, and (where permitted) assignees.
- 17.9 Force MajeureNeither party is response to the other for any failure to perform because of unforeseen circumstances or causes beyond the party’s reasonable control, including:
- 17.9(A)Acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters;
- 17.9(B)War, riot, arson, embargoes, acts of civil or military authority, or terrorism;
- 17.9(C)Fiber cuts;
- 17.9(D)Strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials;
- 17.9(E)Failure of the telecommunications or information services infrastructure; and
- 17.9(F)Hacking, SPAM, or any failure of a computer, server, network, or software for so long as the event continues to delay performance.
- 17.10 Expenses and Costs of EnforcementIf a court or tribunal of competent jurisdiction determines that a party violated this agreement, the breaching party must reimburse the prevailing party for all actual costs and reasonable attorney fees incurred in enforcing this agreement.
- 17.11 Notices
- 17.1(A) Sending Notice to UsHacking, SPAM, or any failure of a computer, server, network, or software for so long as the event continues to delay performance.
- 17.1(B) Sending Notice to You—Electronic NoticeYou consent to receiving any notice from us in electronic form either: (1) by sending email to the email address you specified when you signed up; or (2) by posting the notice on a location on the website designated for this purpose. We will deem notices sent to you by email received when our email service indicates transmission to your email address. You confirm that the email address you specified when you signed up is a current and valid email address for receiving notice, and that your computer has hardware and software configured to send and receive email through the Internet and to print any email message you receive. You may change this consent at any time and request paper notice by normal postal delivery, but if you do, we may cancel your membership at any time because of the increased costs. If we do agree to send postal notice, we may collect the reasonable cost and postage for sending postal notice.
- 17.12 Voluntary AgreementThe parties have signed this agreement voluntarily and for valid reasons, and in doing so do not and have not relied on any statement or promise by any other party, except those expressed in this agreement. The parties acknowledge that they have carefully read this agreement, discussed it with their attorneys or other advisors, understand all of the terms and conditions, and agree to be bound by it. The parties have relied on the advice of their attorneys or other advisors about the terms and conditions of this agreement, and waive any claim that the terms and conditions should be construed against the drafter.
- 17.13 Electronic SignaturesThe Electronic Signatures in Global and National Commerce Act (E-Sign Act) governs this agreement. You are electronically signing this agreement by either selecting the “I Agree” button below or participating as an affiliate in the program. You understand 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 that your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature. You have the right to withdraw your consent to use the E-Sign Act by emailing us.
17. General Provisions
- 18.1“Access” means visit, use, view, or download.
- 18.2“Affiliate” means a person who markets Datetronix subscriptions, products, and services through an independent website in exchange for the payment of a commission based on sales of Datetronix’s subscriptions, products, and services.
- 18.3“Affiliate code” (or “link code”) means a string of alphanumeric text that uniquely identifies an affiliate, advertising campaign, or other tracking metric.
- 18.4“Chat traffic advertisement” means a popup message displayed on a website to attract users to other commercial websites.
- 18.5“Licensed content” means any images, text, data, motion pictures, video clips, audio clips, advertising banners, hyperlinks, or other information obtained from Datetronix for the program and only under the terms of this agreement. Licensed content does not include content on Datetronix’s websites unless Datetronix expressly offers it to affiliates for the program.
- 18.6“Person” means an individual or an entity (including partnerships and other associations, whether incorporated or unincorporated).
- 18.7“Promotional link” means any Uniform Resource Locator (“URL”) placed on an affiliate website that links to a Datetronix website that relates to the program. Promotional links should include an affiliate code and must comply with the terms of this agreement. We have designed the promotional links to permit accurate tracking, reporting, and accrual of commissions for the affiliate.
- 18.8“Qualified signup” means a signup of a valid referral from an affiliate that does not result in a refund or reversal in the first 24 hours of membership and is not in violation of the terms of this agreement.
- 18.9“Net payment” means the gross payment received from a qualified signup less all applicable fees. For example, if a qualified signup purchases a 1-month membership at $35, and our credit card process company charges 13.5%, the net payment to us would equal $30.28 for that membership sale.
- 18.10“Spam” or “spamming” generally means the use of electronic messaging systems to send unsolicited bulk messages without consent of the recipients. While email spam is the most widely recognized form of spam, the term is expansive and applies to numerous forms of media including: (1) instant messaging spam; (2) Usenet newsgroup spam; (3) Web search engine spam; (4) spam in blogs; (5) wiki spam; (6) online classified ads spam; (7) mobile phone messaging spam; (8) spam in mobile applications; (9) Internet forum spam; (10) junk fax transmissions; (11) spam on Twitter; (12) spam on Facebook; (13) social networking spam; and (14) file sharing network spam.
- 19.1Actions permitted under this agreement may be taken at any time and from time to time in the actor’s sole discretion.
- 19.2References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
- 19.3References to numbered sections in this agreement also refer to all included sections. For example, references to section 6 also refer to sections 6.1, 6.1(A), etc.
- 19.4In computing periods from a specified date to a later specified date, the words “from” and “commencing on” (and the like) mean “from and including,” and the words “to,” “until,” and “ending on” (and the like) mean “to but excluding.”
- 19.5References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
- 19.6“A or B” means “A or B or both.” “A, B, or C” means “A or B or C or any combination.” The same construction applies to longer strings.
- 19.7“Including” means “including, but not limited to.”
In this agreement, unless otherwise stated or the context otherwise requires, the following usages apply: