FETISH CASH AFFILIATE PROGRAM AGREEMENT
AFFILIATE PROGRAM AGREEMENT
This Agreement contains the complete terms and conditions that apply to an individual or entity's participation in the FETISH CASH Affiliate Program ("Program") operated by Diamond International (hereinafter, "Company", "we" or "us"). As used in this agreement, "you" or "your" refers to the applicant/participating member. "Product" or "products" mean any Items or Services offered for sale. "Site" means World Wide Web site or URL, and, depending on the context, referring to your site or other means via the Internet that you will link to our program.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND COMPANY. BY CHECKING THE "I Agree to the Terms and Conditions" box on the Fetish Cash Affiliate Program Application, YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AFFILIATE PROGRAM AGRREMENT AND YOU AGREE TO BE BOUND BY THE TERMS HEREOF. YOU CANNOT BECOME A MEMBER OF THE AFFILIATE PROGRAM UNLESS YOU HAVE ACCEPTED EACH AND EVERY TERM HEREOF.
To begin the enrollment process, you will need to submit a completed application via our website at http://www.FetishCash.com. We will then evaluate your application in good faith and will notify you of your acceptance or rejection. We will reject your application and terminate your participation in the program if we determine (at our discretion) that you have provided inaccurate or incomplete signup information, determine that you are under 18 years of age (21 in some jurisdictions) or determine that your site is unsuitable for the Program for any reason, including, but not limited to, if your site incorporates images or content that is unlawful, defamatory, obscene, harassing or otherwise objectionable, such as sites that facilitate illegal activity or promote violence or promote or assist others in promoting copyright infringement (collectively, "Content Restrictions"). Other unsuitable sites include, for example: sites that promote any discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; Promote illegal activities such as child pornography, rape, bestiality, child abuse etc.; or violate intellectual property rights, copyrights, fraud, and inapposite web format. Again, you must be at least eighteen (18) years of age (or older if legal age of majority is more than 18) to participate in this Program.. If we reject your application, you will be given an opportunity to re-apply, if the above guidelines have been met.
As an affiliate website of COMPANY ("Affiliate Site"), you may use any form of promotion you choose, consistent with the terms of this Agreement. You may use banner advertisements, button links and/or text links to our site (the "Links"), however, YOU CANNOT SPAM (please refer to our SPAM POLICY within this Agreement, Section 12). Any activity by you or on your behalf that we determine or reasonably suspect to be the result of an unsolicited bulk e-mail program will result in your immediate termination from the Program and your forfeiting of monies otherwise due you hereunder. Allowable promotional links may contain Company's trade names, service marks, and/or logos for display on your Affiliate Site. Subject to the terms and conditions hereof, you are granted a limited, non-exclusive, non-transferable license to access and download such Links and other designated promotional materials for placement on your Affiliate Site for the sole and exclusive purpose of promoting websites owned, operated or controlled by Company. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Link or Links. A Link may only be visually modified with our consent.
You will place the links we provide you on your site. The full catalog will be hosted from our server. You will be responsible for any additional content you feel necessary to achieve a presence in the Adult Content industry. You may add or delete links from your site at any time without our approval. You may contact us regarding any questions or comments regarding the program at Support@FetishCash.com. Also you may use approved banners designed by our staff at NO COST to you. This program is FREE to qualified applicants.
We will process product orders placed by customers who follow special links from your site. We reserve the right to reject any order or orders that do not comply with the requirements that we periodically may establish. "We" will be responsible for all aspects of order processing, customer service and order fulfillment. Among other things, we will: process payments, maintain website, handle all cancellations and returns and provide customer service. We will track all sales made from clients who purchased subscription using the affiliate site to our catalog.
The Program comes in three forms of commission payout: (a) payout based on revenue sharing, (b) payout based on signup, (c) payout based on active memberships,
(a) Rev Share (Fetish Cash RevShare Program): We will pay you a percentage of all monies earned from a subscriber's recurring membership.
(b) Per Signup (Fetish Cash Pay Per Join (PPJ) Program): We will pay you a commission per sign-up coming from your Links.
(c) Affiliate Referrals (Fetish Cash Webmaster Referrals Program): You will receive commission every time you refer a Webmaster that joins our FC PPJ Program.
The Commission Rate is subject to change from time to time, upon e-mail notice to you. Note that a commission will only be paid if the visitor to our site can be tracked by the system from the time of the Link to the time of the sale. No commission will be paid if the visitor's payment to our site cannot be tracked directly to your site by our system or if full payment for services is not made to us by the customer. No commission will be paid for signups by you or anyone within your organization.
Commissions due and owing to you under the Program will be paid to you directly by COMPANY twice per month: on the 7th day and 21st day of the month. For example, January 1 - January 15 paid on January 21; January 16 - 31 paid on February 7. Payouts under $50.00 per month, or the minimum payment amount specified by you on your application, will carry forward to the following pay period. All revenues will be disbursed in US Dollars and will be mailed to the street address indicated in your application. We will not mail payments to P.O. Boxes!!. You may request and receive payment via bank wire transfer, provided, you pay the costs associated with the wire. Payment via wire is available only for payments of $500 or more for said pay period. If you dispute the manner or amount of calculation of your commission with regard to any given payment period, you must inform COMPANY within sixty (60) days of said payment, otherwise you are deemed to have waived your right to challenge said payment calculation.
You may review the Sales credited to your account by entering your Fetish Cash Webmaster Affiliate Program username and password at the following website: http://www.FetishCash.com. Such statistics are UNOFFICIAL until Fetish Cash/Diamond International issues you your Commission check. You are always encouraged to contact Fetish Cash Webmaster support at Support@FetishCash.com if statistics appear to be in error or if you want our professional assistance in becoming even more effective as a Fetish Cash marketer.
Any WEBMASTER deemed to be in material breach of this Agreement, shall forfeit all Commissions due to it, in the event WEBMASTER creates, assists in the creation of, or knows of, a false generation of Joins. By way of example, and not limitation, WEBMASTER shall not cause or assist in the creation of Joins which the initiator thereof intends to chargeback or for which the initiator intends to request credit.
Fetish Cash does not pay for affiliate test joins. We have no problem with you testing your account by joining yourself. But you must notify Fetish Cash by Email. Please Email us the site, date and username you joined with, so we can cancel the join and payment. We will not pay on a join we feel is a test join.
Customers who buy products through this Program will be deemed to be customers of Fetish Cash.com. Accordingly, all FetishCash.com rules, policies and operating procedures concerning customer orders, customer service and subscription sales will apply to those customers. We reserve the right to change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
We grant you a non-exclusive, revocable right to use such images for which we grant express permission, solely for the purpose of identifying your site as a Program participant. You may not modify any of our images in any way without prior consent from Diamond International. We reserve all rights for all of our images, trade names and trademarks and all other intellectual property rights and copyrights. We may revoke your participations in the Program at any time, with or without giving you written notice.
You grant us a non-exclusive license to utilize your names, titles and logos, trademarks (collectively the "Affiliate Trademarks"), to advertise, market, promote and publicize in any manner our rights hereunder. Notwithstanding anything herein to the contrary, we shall not be required to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use same in the manner contemplated herein, and such grant does not or will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
Although we do allow our Webmasters to send to our program, there are specific requirements you must agree to prior to sending.
PLEASE BE AWARE THAT THE UNITED STATES CONGRESS RECENTLY ENACTED NEW ANTI-SPAM LEGISLATION, ENTITLED THE "CAN-SPAM ACT of 2003" (the "ACT") THAT WILL AFFECT HOW YOU SEND E-MAIL MESSAGES UNDER THIS SITE'S AFFILIATION PROGRAM. AS A RESULT OF THIS NEW LAW, WHICH BECAME EFFECTIVE JANUARY 1, 2004, ANY PROGRAM PARTICIPANT THAT SENDS COMMERCIAL E-MAILS ADVERTISING COMPANY'S PRODUCTS AND SERVICES TO ANY U.S. RECIPIENT MUST COMPLY AS FOLLOWS:
Fetish Cash SPAM and Commercial Email Policy Effective Date:
We will be strictly enforcing this Spam Policy effective Midnight PST 12-31-2003.
WHAT IS SPAM?
Any form of unsolicited advertising through email, newsgroups, IRC posts, and/or instant messaging clients. Any SPAM complaint regarding a Fetish Cash Affiliate is cause for immediate termination. This is a very serious matter. DO NOT send email to anyone who has not made a verifiable request for information.
What types of advertising are considered SPAM?
- Any non verifiable non opt-in emailing. Bulk emailing (sending an email advertisement to persons listed on an email address lead list). Advertising with bulk email services (companies who will send an email advertisement to persons listed on an email address lead list for you) will be grounds for immediate account termination.
- Newsgroup Posting. Posting commercial messages is spam and any complaints from newsgroup moderators about an affiliate will be grounds for immediate account termination.
- IRC / IM / ICQ Clients Unsolicited messages through any media, including chat rooms and instant messages are considered SPAM.
PRE-APPROVAL REQUIRED FOR ALL AFFILIATES USING EMAIL TO PROMOTE FC
Effective 12-31-2003
You must be on our approved list of affiliates that have and will continue to abide by Fetish Cash SPAM POLICIES and the CAN-SPAM Act of 2003 before you can send any email promoting Fetish Cash.
OPT-IN ONLY
All Email addresses must be OPT-IN. Upon request you the affiliate must provide Fetish Cash with original IP and recipients name, physical address (if possible) and where you originally collected the Email address from.
(A) the recipient must have expressly consented to receive the email, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative (active or ex-customers); and
(B) if the email is from a party other than the party to which the recipient communicated such consent, the recipient must have been given clear and conspicuous notice at the time the consent was communicated that the recipient's email address could be transferred to such other party for the purpose of initiating commercial email messages.
NO FALSE OR MISLEADING HEADER INFORMATION
(A) header information must be technically accurate, which includes an originating email address, domain name, or Internet Protocol address.
(B) the `from' line must accurately identify the person who initiated the message, and should not be false or misleading; and
(C) header information should not be misleading, it must identify accurately the computer used to initiate the message, no relaying or retransmitting of messages for purpose of disguising its origin.
NO DECEPTIVE SUBJECT LINES
(A) No email messages where the subject line of the message would be likely to mislead a recipient. Any Email promoting Fetish Cash must have an "SEXUALLY ORIENTED MATERIAL" or similar warning in the subject line.
We are waiting for the US Attorney General to prescribe clearly identifiable marks or notices to be included in or associated with commercial email that contains sexually oriented material, in order to inform the recipient of that fact and to facilitate filtering of such email. This should be available within 120 days of 01-01-2004.
OPT-OUT LINK ON EMAIL REQUIRED
All mail must contain a functioning return email address or other Internet-based mechanism, clearly and conspicuously displayed, that--
(A) a recipient may use to submit, in a manner specified in the message, a reply email message or other form of Internet-based communication requesting not to receive future commercial email messages from that sender at the email address where the message was received; and
(B) remains capable / active of receiving such messages or communications for no less than 30 days after the transmission of the original message.
(C) requests for removal must be honored within 5 days, preferable sooner, or instantaneously.
FC SPAM RULE VIOLATIONS
Any Fetish Cash affiliate who breaks any of the above rules will have their account immediately terminated and all monies earned will be lost.
Where do I report SPAM? To report SPAM please email : Abuse@FetishCash.com
You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site. You are not COMPANY's agent, and we shall have no responsibility for the development, operation and maintenance of your site and for all materials that appear on your site. You shall also be responsible for ensuring that materials posted on your site do not violate or infringe upon any laws, including but not limited to 18 U.S.C. Section 2257, or the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and ensuring that materials posted on your site are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law. In addition to the foregoing, we will immediately terminate your participation in the Program if we believe you have engaged in any of the following:
· Unsolicited bulk e-mail (see Section 5, above), IRC postings, forged header mailings or any other form of mailing, including but not limited to, newsgroups or AOL customers or otherwise violate the anti-UBE policies of ISPs or state law;
· Provide inaccurate or incomplete information to COMPANY concerning your identity, bank account, address or other required information;
· Attempt to cheat, defraud or mislead us in any way;
· Misrepresent to the public the terms and conditions or content of our sites or your sites;
· Promote passwords, MP3, Warez or Software License circumvention applications;
· Ask your surfers to join our site in order to access your site;
· You operate from a foreign country for which COMPANY will not accept accounts, which include: Albania, Armenia, Azerbaijan, Belarus, Brazil, Bulgaria, China, Cost Rica, Croatia, Czech Republic, Estonia, Georgia, Hungary, India, Indonesia, Israel, Japan, Jordan, Kaliningrad, Kazakhstan, Korea, Kyrgyzstan, Latvia, Lithuania, Malaysia, Moldova, Pakistan, Philippines, Romania, Russia, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan and Yugoslavia. This list of countries may change at any time as deemed necessary by COMPANY;
· Generating hits or signups as a requirement to enter or obtain access to goods or services on your (or someone else's) web site
· Engaging any sort of mechanism or effort that falsely generates hits or signups, including signups by the Affiliate. If you wish to perform a test signup you must first E-mail Admin@FetishCash.com
· Own or operate a website in connection with a person who is under 18 years of age; or
IN SHORT, WE EXPECT ** INDEED, DEMAND ** THAT YOU ACT WITH THE HIGHEST ETHICAL STANDARDS UNDER THIS AGREEMENT
We disclaim all liability for these matters. Further, you will indemnify and hold "US" harmless from all claims, damages and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance and contents of your site.
Upon COMPANY's receipt of a proper notice of alleged copyright, trademark, service mark or publicity rights violation by Your participating website (the Notice of Infringement Form used by COMPANY can be found at TCGII Infringement Form, COMPANY will notify You and ask that You provide written documentation of your right to use the allegedly infringing material in your website. That documentation must be: (a) a license of the rights; (b) consent from the rights holder or their agent; or (c) a written statement from You or Your attorney (in either email or fax form) explaining Your claim to have a lawful right, or a legal defense, to display the allegedly infringing material.
If You do provide COMPANY with appropriate rights documentation (a, b or c, above), COMPANY will forward that documentation to the rights holder or their agent, as appropriate. Should the rights. holder/agent not be satisfied, COMPANY will provide the rights holder/agent with Your contact information in order that they may contact You and pursue any remaining dispute with You directly.
If you fail to provide the COMPANY an appropriate written response (a, b or c, above), You will have ten (10) days from the date of COMPANY's original notification to You to remove the complained of content. Should you fail to remove said content within ten days, the referring URL containing the complained of content will be blocked and any funds otherwise due and payable to You relating to the referring URL will be forfeited, UNTIL SUCH TIME AS YOU PROVIDE AN APPROPRIATE WRITTEN RESPONSE. You will also be placed in an "infringer" database, and should repeated complaints be made against you for rights violations, COMPANY has the right to permanently terminate You from the Fetish Cash program.
HOW TO REPORT ALLEGED RIGHTS INFRINGEMENT BY A WEBMASTER PARTICIPATING IN THE FETISH CASH PROGRAM
If you are the holder, or authorized representative of the holder, of a copyright, trademark, service mark, or publicity right that you have reason believe is being infringed by a third party webmaster participating in the Fetish Cash program, please send a message to Abuse@FetishCash.com indicating your contact information (Name, Daytime Phone Number, Email Address) and any information necessary to follow up on your claim.
The term of this Agreement will begin upon our acceptance of your Affiliate Program Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Notice by e-mail, to your e-mail address on our records, is considered sufficient notice for to terminate this Agreement. If this Agreement is terminated because you have violated the terms of this Agreement you are not eligible to receive any commissions payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Program, at any time and in our sole discretion, by posting a change notice or a NEW agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. You will be notified via E-mail of any changes, prior to them being implemented.
IF ANY OF THIS IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS PROGRAM. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING ANY NEW POSTING OF A CHANGE OR NOTICE AND OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE A BINDING ACCEPTANCE OF THE CHANGES.
You and COMPANY are independent contractors, and nothing in this Agreement will create any 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 site or otherwise, that reasonably would contradict anything in this Section. You are not an agent of the COMPANY and COMPANY expressly disclaims responsibility for any conduct by you in violation of our terms of agreement.
We will not be liable for indirect, special, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this Agreement or the Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total commissions paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Affiliate Program or any COMPANY services or other items sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
You hereby represent and warrant to us that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons; and neither violate nor constitute a default under the (i) provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you. Should any law enforcement agency or internet service provider provide COMPANY with notice that you have engaged in transmission of unsolicited bulk e-mails or have otherwise engaged in unlawful conduct or conduct in violation of said service provider's terms of service, we reserve the right to cooperate in any investigation relating to your activities including disclosure of your account information in connection therewith.
We may disclose to you certain information as a result of your participation as part of the Program, which information we consider to be confidential (herein referred to as "Confidential Information"). For purpose of this Agreement, the term "Confidential Information" shall include, but not be limited to, any modifications to the terms and provisions of this Affiliate Program Agreement made specifically for your site and not generally available to other members of the Affiliate Program, website, business and financial information relating to COMPANY, customer and vendor lists relating to COMPANY and any members of the Affiliate Program, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. We make no warranty, expressed or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your or such third person's use of the information.
You hereby agree to indemnify, defend and hold harmless COMPANY, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expense (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party; (ii) the breach of any promise, covenant, representation or warranty made by you herein; or (iii) or any claim related to your site.
Terminated accounts cannot later apply to the Program without our express written consent. This Agreement will be governed by the laws of the United States and the State of California, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. Any dispute regarding any breach of this Agreement shall be litigated in the State of California, County of Orange, as the exclusive forum and venue for any such dispute, and by accepting the terms of this Agreement, you agree to remit to the form, venue, and jurisdiction of the courts of Orange County, California.
The term of your status, as an affiliate program member will begin upon your application and placement of the required link on your web-site. Application will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.
25. Site Interruption and Errors:
We make no representation that the operation of our site will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors.
YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS AND AGREE THERETO. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS PROGRAM OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH ABOVE.
We are the sole owner of all program formats. Any misrepresentation by anyone in the program will be dealt with in a legal and punitive way. You will be sued and prosecuted to the fullest extent of the law.
If you have any questions about this legal age agreement or privacy statement, or the content contained in this site or the practices of this site, or with your dealings with this web site, please contact us at Admin@FetishCash.com
Note:
Your Affiliate Program Application will be accepted for review upon You accepting this Affiliate Program Agreement. By joining our program or any of our adult entertainment sites you agree to receive occasional announcements via email regarding your membership. Any additional questions or comments please contact Support@FetishCash.com or call our Toll-free office number 1-800-722-7888.
