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LdsHearts.comSM AFFILIATE PROGRAM AGREEMENT
This LdsHearts.comSM
Affiliate Program Agreement (Agreement) describes the entire terms and
conditions for participation in the LdsHearts.com Affiliate Program
(Affiliate Program). The Affiliate Program is operated by Slate Media,
Inc. doing business as LdsHearts.com. In this Agreement, LdsHearts.com
and Slate Media, Inc. are collectively referred to as
"LdsHearts.com. In this Agreement, the term Affiliate refers to you,
and "sponsoring Web site" refers to the Web site from which you
will link to LdsHearts.com. Wherever the Agreement refers to
"you" or "your it means the Affiliate, and "we"
or "our" refer to LdsHearts.com, and our Web site refers to our
LdsHearts.com web site
1. Acceptance of Affiliate’s Application and this Agreement.
Our approval of your
application to become an Affiliate is conditional upon your making
truthful representations in that application. We reserve the right to
immediately cancel this Agreement if we find that you have made false representations
in your application. Your accepting our invitation to become an Affiliate
by checking the acceptance box is equivalent to you or your authorized
agent actually signing this Agreement, which acceptance shows your intent
to be bound by the terms and conditions of this Agreement. By accepting
this Agreement, you represent and warrant you have the necessary and full
rights, power, authority, and capabilities to enter into this Agreement
and to perform its obligations hereunder; and the acceptance and
performance of your obligations under this Agreement will not violate the
rights of any third party, nor any applicable federal, state, and local
law or regulation.
2. Log-In Combination and Tax Identification Number. Upon
our approval of your application and your acceptance of this Agreement,
you should have already chosen a log-in combination so that you may
access your account with us. DO NOT REVEAL YOUR LOG-IN INFORMATION TO
ANYONE. If you are based in the United States of America (“U.S.”) you must provide us with a social security number, employer identification number,
or taxpayer ID number for payment and record keeping purposes. If you
fail to provide us with a valid social security number, employer
identification number, or taxpayer ID, you forfeit your right to a
commission, which is referred to in this Agreement as a “Bounty Fee.” If
you are a non-U.S. based Affiliate, you need not submit a social security
number, employer identification number, or taxpayer ID, but you must
provide us with any tax identification number that your government may
require you to provide to us.
3. Bounty Fees Earned. You will earn Bounty Fees on
customers you refer to us. We have no other obligation to pay you any
other compensation. All of our rules, operating procedures, policies, and
web site use agreements (collectively “Policies”) will apply, without
exception, to all customers you refer to us. We reserve the right to
reject any subscription order that does not comply with our Policies.
b. Price for Subscription. The prices charged for
subscriptions sold under the Affiliate Program will be determined by us
according to our own pricing Policies. Prices may vary from time to time
as determined in our sole discretion without notice to you.
c. Qualifying New Subscription. Only a customer from whom
we actually collect cash for a subscription on our Web site by way of a
valid credit card, check, or money order or other means will qualify as a
new subscriber on which a Bounty Fee will be paid. We reserve the right
to not pay a Bounty Fee on a subscriber who (i) was previously a
LdsHearts.com subscriber, (ii) discontinues a subscription and re-signs
as a new subscriber under the same or a new user name within three (3)
months of dropping the old subscription, or (iii) subscribes as a result
of churning by you. For purpose of this Agreement, the definition of
churning includes, without limitation, the activity of initiating and
canceling subscriptions by you or your agents such that it appears to us
that the activity is not to provide us with customers who are actually
interested in our Web site but instead the activity is primarily to
create Bounty Fees for you.
d. Renewals. You shall not be paid commissions on renewing
subscriptions.
e. Bounty Fee Only for Subscriptions. A qualifying new
subscriber does not include a user of our Web site who purchases any
other services or goods on our Web site (e.g. merchandise) aside from
purchasing subscriptions to LdsHearts.com.
f. Minimum Bounty Fees. You must accrue a minimum of $10.00
in Bounty Fees in any given month. If you accrue less than $10.00 in
Bounty Fees in any given month, those fees have not been earned.
g. Bounty Fee Statements and Payments. A monthly statement
showing the Bounty Fees you have earned will be posted on our Web site.
Within about 30 days of posting the statement, we will send Bounty Fee
payments to you either by check or direct deposit (less any taxes
required to be withheld under applicable law). Checks that are not cashed
within six (6) months or their issuance date shall be void.
h. Refunds, Charge-backs, and Bad Checks. If a subscription
is later refunded to the customer or charged back by the customer, or if
a customer's check does not clear, the Bounty Fee and any associated
return-check and, at our discretion, charge-back fees will be deducted
from the next monthly payment sent to you.
i. Right to Bounty Fee After Expiration of Agreement. You
will receive Bounty Fee payments on subscriptions that are placed during
the term of this Agreement. Bounty Fees earned through the date of
expiration or cancellation of this Agreement will remain payable only if
the subscriptions are not refunded. Payment of the final Bounty Fee
payment to you may be withheld for a reasonable time in order to ensure
that the correct amount is paid.
j. LdsHearts.com Policies Apply to All Orders. Every person
who is referred by you and buys a subscription to LdsHearts.com is deemed
to be our customer. You do not have the authority to make or accept any
offer on our behalf. All of our Policies regarding customer orders,
including pricing and problem resolution, will apply to these customers.
We are not responsible for any representations made by you that
contradict our Policies.
k. Subscription Payment Processing. We will be solely
responsible for processing every subscription order placed by a customer
referred by you. Payment processing, renewal payment processing,
cancellations and refund processing, and related customer service are our
sole responsibility.
l. Tracking of Subscription Sales. We will be solely
responsible for tracking subscription sales referred by you. To protect
our customer privacy, the names or other personal information about
specific customers will not be provided to you but shall be retained
exclusively by us. In addition, all personal information about specific
customers collected by us shall be owned solely and exclusively by us.
You agree that your role as an Affiliate is limited to referring
prospective customers to us, and you agree not to represent that you are
collecting information for LdsHearts.com.
m. Confidentiality. The amount of the Bounty Fees that you
earn are confidential. We reserve the right to terminate this Agreement
if we discover that you have shared the amount of Bounty Fees you have
earned with any third party except as required by law.
4. Intellectual Property Rights. As an Affiliate, you are
allowed to place on the sponsoring Web site a hyperlink to our Web site,
either in text or with one of our pre-approved banners or logos provided
by us. We will not be responsible if you use another party's copyrighted
material in violation of the law. Between us and you, the following will
apply:
a. Limited Non-Exclusive License. We shall retain all
rights, titles, and interests (local and worldwide) in and to our
respective trademarks, service marks, and trade names ("Intellectual
Property") subject to a limited non-exclusive, non-transferable
license necessary to perform this Agreement. We grant to you a
royalty-free, non-exclusive, non-transferable license, during the term of
this Agreement, to include our Intellectual Property solely in connection
with a hyperlink to our Web site.
b. No Alteration of Intellectual Property. You shall use
our Intellectual Property only as provided, and shall not alter the
Intellectual Property in any way, nor shall you act or permit action in
any way that would impair our rights in our Intellectual Property. You
acknowledge that your use of our Intellectual Property shall not create
any right, title, or interest in our Intellectual Property. We shall have
the right to monitor the quality of your use of our Intellectual
Property. Any references to our Intellectual Property shall contain the
appropriate trademark, copyright, or other legal notice provided from
time to time by us.
c. Notices and Goodwill. You may neither alter nor remove
any proprietary notices from our Intellectual Property. Any goodwill
accruing from the use of our Intellectual property shall inure to us.
d. Reservation of Rights. We expressly reserve all
Intellectual Property rights not granted to you herein.
5. Prohibited Content. You agree not to display any of the
following contents or engage in any of the following activities on the
sponsoring Web site. We reserve the right to immediately terminate this
Agreement, and you agree to remove all of our Intellectual Property and
references to our Web site and to sever all hyperlinks to our Web site,
if any of the following content or activity is present on the sponsoring
Web site:
Sexually explicit material (pornography);
Violent images or messages that promote violence;
Promotion of discrimination based on race, sex, religion, national
origin, physical disability, sexual orientation, or age;
Promotion of illegal activities;
Promotion or display of defamatory, libelous, or harmful material or
material that otherwise infringes upon the rights of any third parties;
Content that is inconsistent with our Policies; and
Spamming (repeated, unsolicited e-mails) of your users who have purchased
a LdsHearts.com subscription.
Whether the sponsoring Web site includes or engages in any of the above
listed prohibited contents or activities shall be determined in our sole
judgment, without regard to any legal standard.
6. Modifications to this Agreement. We reserve the right to
change any of the terms and conditions in this Agreement, at any time and
at our sole discretion, upon prior notice to you by posting a notice on
our Web site. Such new terms and conditions will take effect 10 days
after posting. Without limiting the generality of the foregoing, the
Bounty Fee is subject to change without notice other than posting such
change on our Web site. We will not reduce the Bounty Fees on
subscriptions purchased prior to the effective date of the modifications
to this Agreement. You may not change or modify this Agreement.
7. Cancellation of this Agreement.
a. Cancellation and Notice. Either party, acting in their
sole discretion, may choose to cancel this Agreement at any time by
written notice of cancellation to the other, which notice may be sent by
email. Such cancellation will be effective 3 days after notice to the
other party has been sent unless the Agreement is terminated by us for
your violation of Section 1, Acceptance of Affiliate’s Application and
this Agreement, or Section 5, Prohibited Content, above, in which case
termination will be effective immediately upon notice being sent to you.
If you do not generate any Bounty Fees during a consecutive 120 day
period, this Agreement shall be automatically terminated without notice.
b. Removal of Intellectual Property and Hyperlinks. Upon
the termination of this Agreement, for any reason, you agree to remove
all of our Intellectual Property and references to our Web site and to
sever all hyperlinks to our Web site.
8. Warranty Disclaimer. THE WARRANTIES CONTAINED IN THIS
AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
9. Indemnification. You shall defend, indemnify, and hold
harmless LdsHearts.com,its parent, subsidiary, and affiliated companies
and its and their directors, officers, employees, affiliates, and agents,
against any claim, demand, cause of action, debt, or liability, including
reasonable attorney's fees, (individually and collectively “Claim”) to
the extent that (i) the Claim is based upon a breach of your
representations, warranties, or obligations hereunder, (ii) the Claim
arises out of your negligence or willful misconduct, or (iii) the Claim
is based upon your violation of any applicable federal, state, or local
law or regulation in providing products or services hereunder.
10. Independent Contractors. You and LdsHearts.com are
independent contractors with each other, and nothing in this Agreement is
intended to or will create any form of partnership, joint venture,
agency, franchise, sales representative, or employment relationship
between the parties.
11. Assignment. You shall not assign this Agreement, by
operation of law or
otherwise, without our prior written consent. Subject to the foregoing
restriction, this Agreement is binding upon, inures to the benefit of and
is enforceable by the parties and their respective successors and
assigns.
12. Non-Waiver. The failure in any one or more instances of
a party to insist upon performance of any of the terms, covenants or
conditions of this Agreement, to exercise any right or privilege in this
Agreement conferred, or the waiver by said party of any breach of any of
the terms, covenants, or conditions of this Agreement, shall not be
construed as a subsequent waiver of any such terms, covenants,
conditions, rights, or privileges, but the same shall continue and remain
in full force and effect as if no such forbearance or waiver had
occurred. No waiver shall be effective unless it is in writing and signed
by an authorized representative of the waiving party.
13. Limitations of Liability. THIS SECTION DESCRIBES THE
FULL EXTENT OF OUR RESPONSIBILITY FOR ANY CLAIMS A YOU MAKE FOR DAMAGES
CAUSED BY THE FAILURE OF THE LdsHearts.com WEB SITE, OR ANY OTHER CLAIMS
IN CONNECTION WITH US OR THIS AGREEMENT.
a. Limitation on Damages. IN NO EVENT SHALL WE BE LIABLE
FOR DAMAGES, DIRECT OR INDIRECT, INCLUDING INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SUFFERED BY YOU, OR BY A SUBSCRIBER TO LdsHearts.com, OR BY
ANOTHER THIRD PARTY ARISING FROM OUR BREACH OF WARRANTY, BREACH OF
CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL GROUND OF ACTION. FURTHER, WE
WON’T BE LIABLE FOR PUNITIVE, RELIANCE, OR SPECIAL DAMAGES. THESE
LIMITATIONS APPLY EVEN IF THE DAMAGES WERE FORESEEABLE OR LdsHearts.com
WAS TOLD THEY WERE POSSIBLE, AND THESE LIMITATIONS APPLY WHETHER THE
CLAIM IS BASED ON CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR
ANY OTHER LEGAL OR EQUITABLE THEORY. THIS INCLUDES, WITHOUT LIMITATION,
ANY CLAIM FOR LOST BOUNTY FEES ALLEGEDLY RESULTING FROM A SERVICE INTERRUPTION
OF OUR WEB SITE.
b. Sole and Exclusive Remedy. You understand that if you
become dissatisfied with us or our Web site, your sole and exclusive
remedy will be to cancel this Agreement.
14. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH, U.S.A.,
WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS. FOR ANY AND ALL ACTIONS
THAT ARE ALLOWED BY THIS AGREEMENT OR BY THE APPLICABLE RULES OF
ARBITRATION TO BE BROUGHT IN A COURT, THE PARTIES HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS OF
THE STATE OF FLORIDA, LOCATED IN HILLSBORO COUNTY, U.S.A. AND HEREBY
AGREE THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION
OF ANY DISPUTE ARISING UNDER THIS AGREEMENT.
15. Dispute Resolution. IT IS IMPORTANT THAT YOU READ THIS
ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF
DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL
ARBITRATOR INSTEAD OF BEFORE A COURT WITH A JUDGE OR JURY OR THROUGH A
CLASS ACTION.
a. Time Limitation to Bring Claims and Disputes. YOU AGREE
THAT ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT
MUST BE BROUGHT WITHIN ONE YEAR AFTER THE DATE THE BASIS FOR THE CLAIM OR
DISPUTE FIRST ARISES. THIS TIME LIMITATION APPLIES TO ALL MATTERS
SUBMITTED TO A COURT OR ARBITRATION, EXCEPT THIS TIME LIMITATION DOES NOT
APPLY TO YOUR VIOLATION OF SECTION 4, INTELLECTUAL PROPERTY RIGHTS, THE
TIME LIMITATION FOR WHICH SHALL BE GOVERNED BY THE LAW APPLICABLE TO THE
VIOLATION OF THOSE RIGHTS.
b. Small Claims Court and Binding Arbitration. The parties
agree to resolve all claims of $5,000 or less in a small claims court
located in Tampa, Florida, U.S.A. (In the case of court action, each
party agrees to pay all court costs and reasonable attorney fees incurred
by the other party necessary to enforce the other party’s rights under
this Agreement.) All other disputes in excess of $5,000.00 arising out of
or related to this Agreement (whether based in contract, tort, statute,
fraud, misrepresentation, or any other legal or equitable theory) must be
resolved by final and binding arbitration. This includes any dispute
based on any product, service, or advertising having a connection with
this Agreement and any dispute not finally resolved by a small claims
court. The arbitration will be conducted by one arbitrator using the
procedures described below. If any portion of this Dispute Resolution
section is determined to be unenforceable, then the remainder shall be given
full force and effect.
c. Rules of Arbitration. The arbitration of any dispute
involving more than $5,000.00 shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association
(“AAA”), as modified by this Agreement, which are in effect on the date a
dispute is submitted to the AAA. Each party has the right to be
represented by counsel in an arbitration. In conducting the arbitration
and making any award, the arbitrator shall be bound by and strictly
enforce the terms of this Agreement and may not limit, expand, or
otherwise modify its terms.
d. No Joinder Allowed. NO DISPUTE MAY BE JOINED WITH
ANOTHER LAWSUIT OR JOINED IN AN ARBITRATION WITH A DISPUTE OF ANY OTHER
PERSON OR RESOLVED ON A CLASS-WIDE BASIS. YOU WAIVE ANY CLAIMS FOR AN
AWARD OF DAMAGES THAT ARE EXCLUDED UNDER THIS AGREEMENT.
e. Duty to Attempt to Resolve Disputes. Before a party
takes a dispute to arbitration or to small claims court, that party must
first write to the other party and give the other party an opportunity to
resolve the dispute. If the dispute cannot be satisfactorily resolved
within sixty days from the date the other party is notified by the other
of a dispute, then either party may, as allowed by this Agreement, file a
small claims case or contact the AAA in writing at American Arbitration
Association, 1675 Broadway, Suite 2550, Denver, CO 80202-4602 and request
arbitration of the dispute.
f. Arbitration Information and Filing Procedure.
Information about the arbitration process and the AAA’s Arbitration Rules
and its fees are available from the AAA on the Internet at www.adr.org,
or by contacting us at Webmaster@LdsHearts.com. The arbitration shall be
based only on the written submissions of the parties and the documents
submitted to the AAA relating to the dispute, unless either party
requests that the arbitration be conducted using the AAA’s telephonic,
online, or in-person procedures. Any in-person arbitration will be
conducted in Tampa, Florida. Any arbitration shall remain confidential.
Neither you nor LdsHearts.com may disclose the existence, content, or
results of any arbitration or award, except as may be required by law, or
to confirm and enforce an award.
g. Fees and Expense of Arbitration. A party must pay the
applicable AAA filing fee when that party submits a written request for
arbitration to the AAA. The AAA’s filing fee and administrative expenses
for a document arbitration will be allocated according to the AAA’s
Rules. If a party elects an arbitration process other than a document (or
“desk”) arbitration, that party must pay the increased administrative
fees and costs for the selected process over a document arbitration.
Unless applicable substantive law provides otherwise, each party will pay
its own expenses to participate in the arbitration, including attorneys’
fees and expenses for witnesses, document production, and presentation of
evidence. The prevailing party may, however, seek to recover the AAA’s
fees and the expenses of the arbitrator from the other party.
h. Exceptions to Informal Dispute Resolution and Arbitration.
– The requirement of attempting to informally resolve the matter will not
apply if: (i) the expiration of the statute of limitations for a cause of
action is imminent; or (ii) injunctive or other equitable relief is
necessary to enjoin an ongoing injury or to mitigate damages. Further,
the requirement that matters be submitted to arbitration shall not
prohibit a party from seeking injunctive relief pending arbitration.
16. Entire agreement. This Agreement constitutes the entire
agreement between us and you with respect to the Affiliate’s Program.
17. Severability. If for any reason an arbitrator or a
court of competent jurisdiction finds any provision of the Agreement, or
portion thereof, to be unenforceable, that provision shall be enforced to
the maximum extent permissible so as to effect the intent of the
provision, and the remainder of this Agreement shall continue in full
force and effect.
18. Headings. The headings of the sections and their
subsections contained in this Agreement are for the convenience of the
reader only and do not modify the provisions of this Agreement.
19. Survival of Terms. – If for any reason this Agreement
terminates, any right based on prior breach or performance survives,
including, without limitation, those found in the following sections,
which shall continue according to their terms:
a. Section 4, Intellectual Property Rights;
b. Section 8, Warranty Disclaimer;
c. Section 9, Indemnification;
d. Section 14, Limitation of Liability;
e. Section 15, Choice of Law;
f. Section 16, Dispute Resolution; and
g. Section 17, Severability.
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