Please
read the following Webmaster Agreement (the 'Agreement'). When you
enroll to become a webmaster with eTotalHost.com (the 'Program'), you
agree to all of the terms and conditions of this Agreement. Please read
the following terms and conditions carefully, as they form the
agreement between you, the Webmaster, and the Program. IF YOU DO NOT
AGREE TO THESE TERMS AND CONDITIONS, YOU MUST NOT COMPLETE THE
APPLICATION FORM TO BECOME A WEBMASTER. BY COMPLETING THE APPLICATION
FORM TO BECOME AN AFFILAITE, YOU ARE AGREEING TO BE BOUND BY THIS
AGREEMENT.
Enrollment in Program
By
completing the necessary form(s) to enroll in Program, you are
represent and warrant to Program that you are over the age of 18 or the
age of majority in your jurisdiction, whichever is higher ('Age of
Majority'), and that you are capable of entering into this Agreement.
Program reserves the right to either refuse to accept your enrollment
or to immediately terminate your membership to Program, if Program, in
Program's sole and absolute discretion, believes you to be under the
Age of Majority. By completing such form(s) you are also certifying to
Program that the laws in your jurisdiction do not in anyway prohibit
you from entering into this Agreement.
You
understand that your ability to perform under this Agreement is
contingent upon your ability to access the Internet and that you are
solely responsible for any costs associated with your responsibilities
under this Agreement including, but not limited to, setting up any
websites, connecting to the Internet, maintaining any websites and
hosting any websites. You acknowledge and agree that while Program may
offer free hosting at the time that you apply to Program and/or are
accepted to Program, this free hosting service by Program may be
revoked at any time and that you will be required to find and pay for
hosting services for any websites you create under this Agreement.
License Granted
You
are hereby granted a revocable, non-exclusive, non-transferable license
to access and download promotional banners, videos, photographs, other
promotional materials, and/or promotional materials created by you,
provided that such materials are approved by Program in writing
('Promotional Items'), for use on site(s) owned by you ('Referral
Sites'). Such Promotional Items are licensed to you for the limited
purposes of advertising, marketing and promoting Member Sites. Any and
all licenses granted to you pursuant to this agreement shall
immediately cease and revert to Program upon the termination or
cancellation of this agreement.
You
agree not to share any of the Promotional Items with anyone in any way
which is not in accordance with the terms of this Agreement and
applicable law.
NO LICENSE TO USE CERTAIN ADWORDS AND CERTAIN INTELLECTUAL PROPERTY
Although
you are hereby granted a revocable, non-exclusive, non-transferable
license to use the names of our various websites in connection with
referring traffic to such websites ('Site Names' or 'Sites'), you are
not, as a part of this non-exclusive, revocable license, permitted to
bid on, purchase or otherwise register/use the Site
Names or use the words 'Official', 'Officially' or 'Official Site' as
keywords (sometimes referred to as 'AdWords') on Internet search
engines, such as google.com, ask.com, yahoo.com, msn.com, etc.; use the
Site Names in association with any similar or competing website or
service; or register any domain name which incorporates or is a
'misspelling' of any of the Site Names. You agree that in the event you
violate any part of this section of this Agreement, you will be
immediately terminated from the Program, any monies earned but not yet
paid will be forfeited, and that you will cooperate fully in
transferring any items forbidden by this section to Program as the
rightful owner.
Your Website Names
Subject
to the limitations in the paragraph above and pursuant to the license
granted to you herein, Program will permit you to use any and all Site
Names that you may choose in connection with promoting the Sites so
long as such website domain name(s) registered by you does not infringe
on Program's, Program's affiliated entities' or any third party's
intellectual property rights, defame, insult or otherwise harass
anyone, and does not promote or suggest any illegal activity.
You
agree to register with Program all domain names you use, own, create,
manage and/or control in connection with this Agreement. Program will
not compensate you for any referrals to the Sites, for which you would
otherwise be due a payment for under this Agreement, if the referring
site is not registered with Program. Should Program compensate you for
any referral(s) from a site or sites not registered with the Program,
you hereby acknowledge and agree that such payment is in error and that
you are not in any way entitled to further payments for referrals from
such site(s). You further acknowledge and agree to inform Program of
any such payment error and that such erroneous payments may stop at any
time with no liability to you by Program.
You affirm that payments to you are
made in U.S. Dollars (USD).
Representations to Program
You
hereby represent and warrant that you will put safeguards in place,
including, but not limited to an 'age verification' page, so that no
persons who have not yet attained the Age of Majority may view any and
all Promotional Items which may contain explicit images. You further
represent and warrant that you will not 'deep link' so that a person
referred to the Sites does not first have to confirm that he/she is at
least the Age of Majority.
You
further warrant that you have all legal rights, free from any and all
encumbrances and third party claims, to all images, text, script(s),
applications, logos and functional elements appearing on all Referral
Sites.
No Promotion in Violation of Third Party Terms
You
represent and warrant that you will only advertise on services and
providers which permit such advertisement. You understand and agree
that if you advertise for any service or provider which does not permit
such advertising, including, without limitation, Myspace, Craigslist, Facebook,
LinkedIn, your account will be terminated without notice and without pay.
Enrollment with Program
Program
endeavors to evaluate every application to us in good faith and as
quickly as possible. Program reserves the right to deny an application
for any reason, including but not limited to:
1. You supply us with inaccurate or incomplete data, and
2. You are attempting to register from one of the following countries:
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, Poland,
Philippines, Romania, Russia, Singapore, Slovakia, Slovenia, Syria,
Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United
Arab Emirates, Uzbekistan and Yugoslavia.
Ownership of Promotional Items
You
hereby acknowledge and agree that all rights to the Promotional Items
belong solely to Program and/or Program's licensor(s). You further
acknowledge and agree that any Promotional Item(s) created by you and
approved by Program are a specially ordered and commissioned "work made
for hire" within the meaning of the 1976 Copyright Act for the
compensation provided according to the terms of the payout agreement
agreed upon by you and Program.
Emails
From You
Program
does not permit email marketing or promotion of the Sites. You
acknowledge and agree that any email marketing by you will be grounds
for immediate termination from Program, without pay.
From Program
You
acknowledge and agree that it may be necessary for Program to email you
with information regarding your account with Program and changes to
Program. You further acknowledge and agree that while Program has the
right to send such emails to you, Program is under no obligation to do
so regardless of any emails Program may have sent in the past or may
send in the future.
Necessary Information
If
you are a citizen or resident of the United States, you will be
required to supply Program with the Federal Tax ID number or the Social
Security Number which corresponds to the name you provide to us as the
payee under this Agreement.
You
acknowledge and agree that if you fail to provide us with accurate and
complete information with respect to your Federal Tax ID or Social
Security Number, you will not be entitled to any payments from Program
and all monies earned prior to you supplying Program with this required
information will be forfeited by you to Program.
You
understand and agree that you are required by this Agreement to supply
Program with a valid email address and other contact information, a
failure to do so may result in the termination of your membership with
Program.
Independent Entities
Nothing
in this Agreement is intended by you or Program to constitute a joint
venture or collaboration between you and Program. You acknowledge that
you are in no way an agent, employee or similarly situated employment
like relationship. You further acknowledge that you are only an
affiliate of Program and have no authority to act on Program's behalf
or bind Program to any debt or agreement.
Program Benefits
Program
pays out on a monthly basis. Payouts are based upon the amount of valid
referrals from sites registered by you with Program based upon our
ability to track such referrals, which valid referrals result in a
valid subscription to any of the Sites ('Valid Subscriptions'). Payouts
levels will be dependent upon not only the amount of Valid
Subscriptions, but also the type of subscriptions selected. Please see
our page regarding payout levels, dates and other details by clicking
here <insert link>. You acknowledge and agree that these payout
levels may be changed at any time and that the posting of such change
at least ten (10) days prior to such change taking effect shall be
deemed adequate notice to you. You understand and agree that all
payouts by Program to you, must be cashed within ninety (90) days of
such payout's issuance or such will be deemed forfeited by you to
Program.
Change to Payment Information
You
agree to notify Program of any change in your payment information at
least five (5) days before the close of any pay period. No changes to
your information are valid until you have received written confirmation
from Program.
Invalid Subscriptions
You
acknowledge and agree that you shall not be entitled to any
compensation from Program for and subscription if Program determines or
believes, in Program's sole discretion, that such subscription is the
result of possibly fraudulent activity. Following is a list of what
Program deems to constitute fraudulent activity:
- Multiple subscriptions coming from the same I.P. address within a short period of time;
- Multiple or sequential subscriptions with credit cards which have the same bin number;
- Multiple subscriptions from the same credit card number;
- Subscriptions which are cancelled within twenty-four (24) hours of sign-up;
- Credit card used for subscription is in a 'negative' database;
- Credit card with a bin number which is listed in the 'negative' database; and
- A
sudden surge in subscriptions from any or all of your sites, when such
site(s) suddenly has a drastic increase in subscriptions.
You
acknowledge and agree that the foregoing list is not an exhaustive list
of all conduct which may constitute fraudulent activity, for which you
will not be compensated. You further acknowledge and agree that the
foregoing list may be changed at any time, as Program may deem
necessary.
Suspension or Termination
Program
reserves the right to either terminate or suspend your status with
Program in the event that referrals from your sites are subject to a
high rate of 'chargebacks' or cancellations of accounts. Program
further reserves the right to terminate or suspend your account with
Program if you have a high rate of fraudulent activity with respect to
referrals as such are outlined in the immediately preceding section.
Termination
In
addition to reasons for termination mentioned previously herein,
Program reserves the right to immediately terminate your account with
Program, without notice to you, if at any time:
- you purchase or attempt to purchase any of our Site Names as a Google AdWord or any similar advertising device;
-
you advertise on any service or website (such as Myspace or Craigslist)
in a way which is not permitted by such service or website’s Terms of
Use;
- Program has previously terminated you;
- any
of your sites making referrals to Program has content which does not
conform with the laws of the State of Florida and/or the United States;
- the inclusion of any defamatory, obscene, harassing, or content which is otherwise contrary to law;
- any of your sites making referrals to Program promotes, aids or abets the sale, re-sale or trading of Program passwords;
- any
Referral Site promotes, aids, abets or constitutes an infringement,
misappropriation or violation of any person's or entity's intellectual
property rights including, but not limited to, copyrights, trademark
rights, right of publicity, patent rights, personal property rights,
privacy rights or other rights;
-
participating in any activities that may be harmful to the reputation,
image, goodwill and/or reputation of Program and/or the Sites;
- permitting access to or sharing the Promotion Materials to individuals under the Age of Majority;
- attempting to circumvent Program's and/or the Site's age verification pages;
- the
inclusion of any language suggesting that the models appearing on the
Sites are under the age of 18 and/or that such models appear to be
doing any act which is not in conformity with Florida or United States
law;
- a Referral Site has
references to; photographs or video depicting; promotes; or in any way
suggests Program or the Sites contain or endorse: child pornography,
incest, scat, coffins, defecation, urination, genital mutilation,
sacrilegious, teen modeling, actual or simulated rape, sexual violence,
menstruation, obscenity, and/or bestiality;
- the
inclusion of any links or advertisements promoting any activity which
does not conform to the laws of Florida and/or the United States,
including, without limitation, promoting drugs, violence, hate speech,
and/or violence;
- any
material, date, file(s), program or other material which contains
viruses, Trojan Horses or any other destructive script or program on
any of your sites promoting the Sites. Program may immediately
terminate this Agreement and all monies owed to you by Program will be
deemed forfeited by you.
Cancellation
Either
party may terminate this Agreement by delivering to the other written
notice of cancellation. An email sent by Program to the email address
associated with your account shall be deemed adequate notice to you,
whether or not you actually read such email.
Effect of Termination or Cancellation
Immediately
upon termination or cancellation any and all licenses granted to you
herein cease and revert to Program. You agree to immediately remove
from any and all websites owned, controlled, managed, and/or maintained
by you and destroy all copies of the Promotional Items. If at the time
of termination or cancellation you manage, own, operate or otherwise
control a website which incorporates the Site Names or misspellings
thereof, you agree to transfer such websites to the Program within
twenty (20) days of termination or cancellation. Upon the request of
Program, you agree to mail to Program written confirmation that all
Promotional Items have been removed and destroyed. You understand that
your failure to comply with this section will result in irreparable
harm to the Program and the intended third party beneficiary. Program
reserves the right to take any and all legal actions necessary to
enforce the provisions of this section against you including, without
limitation, monetary damages, injunctions, and actions for specific
performance.
Digital Millennium Copyright Act Notice
NOTICE OF CLAIMED INFRINGEMENT
Program
respects the intellectual property of others, and we ask our users to
do the same. We observe and comply with the United States' Digital
Millennium Copyright Act ('DMCA'). If you believe that your work has
been copied in a way that constitutes copyright infringement, or your
intellectual property rights have been otherwise violated, please
provide Program's Designated Copyright Agent the following information:
- an
electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright or other intellectual property
interest;
- description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Sites or Referral Sites;
- your address, telephone number, and email address;
- a
statement by you that you have a good faith belief that the disputed
use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above
information in your Notice is accurate and that you are the copyright
or intellectual property owner or authorized to act on the copyright or
intellectual property owner's behalf.
You may send your Notice of Claimed Infringement to the address at the bottom of this page.
NOTICE AND TAKEDOWN PROCEDURES
Program
hereby implements, and you consent to, the following 'notice and
takedown' procedure upon receipt of any notification of claimed
copyright infringement. Program reserves the right at any time to
disable access to, or remove any material or activity accessible on or
from Program or any Promotional Materials claimed to be infringing or
based on facts or circumstances from which infringing activity is
apparent. It is the firm policy of Program to terminate the account of
repeat copyright infringers, when appropriate, and Program will act
expeditiously to remove access to all material that infringes on
another's copyright, according to the procedure set forth in 17 U.S.C.
512 of the DMCA.
It is
important to understand that knowingly making a material
misrepresentation concerning alleged copyright infringement may result
in significant civil penalties including damages, costs and attorneys
fees incurred by the alleged infringer or Program member. In the event
your Referral Site is taken down pursuant to the DMCA, re-bills
attributed to the noticed ND will be suspended during the 'take down'
period. Any repeat violators of the DMCA will be terminated and banned
from the Program.
NO WARRANTIES
YOU
EXPRESSLY AGREE THAT YOUR PERFORMANCE UNDER THIS AGREEMENT AND USE OF
THE PROMOTIONAL MATERIALS ARE AT YOUR SOLE AND EXCLUSIVE RISK. ALL
MATERIALS AND SERVICES PROVIDED BY PROGRAM ARE ON 'AS IS, WITH ALL
FAULTS' AND 'AS AVAILABLE' BASES. PROGRAM EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. PROGRAM MAKES NO
WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS,
OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR
FREE; NOR DOES PROGRAM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE
OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR
RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT
DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED.
YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR
DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF PROGRAM IS AT
YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS
FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. YOU ALSO AGREE TO BE
SOLELY LIABLE TO PROGRAM FOR THE LOSS OF ANY DATA AND/OR MATERIALS
PROVIDED TO YOU BY PROGRAM, INCLUDING BUT NOT LIMITED TO DAMAGE CAUSED
AS A RESULT OF HACKING AND/OR VIRUSES.
Indemnification
You
agree to defend, indemnify, defend, and hold Program and its
affiliates, successors, assigns, officers, employees, agents,
directors, shareholders and attorneys, harmless from and against any
and all claims and liabilities, including reasonable attorneys' and
experts' fees, related to or arising from (a) any breach by you of this
Agreement; (b) your use (or misuse) of Program's services and/or
Promotional Materials; (c) all conduct and activities occurring using
your account and/or Referral Sites; (d) any item or service sold or
advertised in connection with your Referral Sites; (e) any defamatory,
libelous or illegal material(s) contained within your Content or
material(s) or your information and data; (f) any claim or contention
that any of your Referral Sites contain any information, data or other
materials which infringes any third party's patent, copyright,
trademark, or other intellectual property rights or violates any third
party's rights of privacy or publicity; (g) third party access or use
of the Promotional Materials provided to you information and data; (h)
any claim related to your website(s); (i) any costs incurred on your
behalf as a result of your failure to comply with local or Federal
United States Law; and/or (j) any violation of this Agreement. Program
reserves the right, at its own expense, to participate in the defense
of any matter otherwise subject to indemnification from you, but shall
have no obligation to do so and Program is permitted by this Agreement
to later seek indemnification from you. You shall not settle any such
claim or liability without the prior written consent of Program, which
consent shall not be unreasonably withheld. You understand that Program
will take any and all measures to protect itself from any legal or
civil litigation including, but not limited to, removing your
website(s) from its servers and/or canceling your account, in Program's
sole discretion. You also understand that Program will charge, on an
hourly basis, for any and all time spent responding to any third party
complaints, disputes, copyright claims or actions involving you or your
Referral Sites.
Notice and Account Information
Notice
Any
notice or payment required by or in furtherance of this Agreement may
be provided by email to the email address on file for the party to be
noticed, or personal delivery by commercial carrier such as FedEx or
Airborne. You agree to keep current email and address information on
file with Program for this purpose.
Notice
shall be deemed effective upon receipt by the other party, except as
provided for herein. Notices delivered by overnight carrier (e.g.,
United States Express Mail or Federal Express) shall be deemed
delivered on the business day following mailing. Notices mailed by
United States Mail, postage prepaid, registered or certified with
return receipt requested, shall be deemed delivered five (5) days after
mailing. Notices delivered by any other method shall be deemed given
upon receipt. Notices by email and facsimile transmission, with
confirmation from the transmitting machine that the transmission was
completed, are acceptable under this Agreement provided that they are
delivered one (1) hour after transmission if sent during the
recipient's business hours, or 9:00 a.m. (recipient's time) the next
business day.
In the event that
any correctly addressed notice that is refused, unclaimed, or
undeliverable, because of an act or omission of the party to be
notified shall be deemed effective as of the first date that said
notice was refused or deemed undeliverable by the postal authorities,
messenger, facsimile machine, email server, or overnight delivery
service.
Waiver of Liability
You
hereby waive any and all damages, including interest, on any monies not
received by you as a result of your violation of this section.
Jurisdiction and Costs
You
hereby agree that all disputes arising out of this Agreement shall be
governed by the laws of and governing Miami-Dade County, Florida,
excluding its conflict of law provisions. You and Program hereby agree
that the United Nations Convention on Contracts for the International
Sale of Goods is specifically excluded from application to this
Agreement. You and Program hereby submit to the exclusive jurisdiction
of the state and federal courts Miami-Dade County, Florida for
resolution of all disputes. Exclusive venue for any litigation
permitted under this Agreement shall be with the state and federal
courts located in Miami-Dade County, Florida.
In
the event either you or Program shall commence any claims, suits, or
formal legal action to interpret and/or enforce the terms and
conditions of this Agreement, or relating in any way to this Agreement,
including without limitation asserted breaches of representations and
warranties, the prevailing party in any such action or proceeding shall
be entitled to recover, in addition to all other available relief, its
reasonable attorneys' fees and costs incurred in connection therewith,
including attorney's fees incurred on appeal.
Non-Transferable or Assignable
You
agree and acknowledge that you are not permitted to assign this
Agreement to any third party and any attempt to do so will be deemed as
your notice of termination.
No Waiver
Program's failure to enforce any and all remedies shall not be construed as a waiver thereof.
Headings
Headings
are used herein for ease of reference purposes and shall not be used in
interpreting, construing and/or enforcing this Agreement.
Severability
The
invalidity, illegality or unenforceability of any part of this
Agreement or any of its terms, as determined by a court of competent
jurisdiction, shall not affect the validity or operation of any other
term, clause or provision and such invalid term, clause or provision
shall be deemed to be severed from this Agreement.
Entirety of Agreement
Except
where expressly stated to the contrary herein, this Agreement
constitutes the entire agreement and understanding between you and
Program, and revokes and supersedes all prior agreements between the
parties and is intended as a final expression of their Agreement. This
Agreement shall take precedence over any other documents which may
conflict with this Agreement.
Binding Agreement
You
and Program acknowledge the legally binding nature of this Agreement.
By checking the box next to the 'I agree to the conditions outlined in
the terms of service agreement,', you are acknowledging and
affirmatively stating that you have read and understood the terms of
this Agreement and that you agree to be bound by this Agreement. You
hereby adopt the /s/ mark appearing on the signature line below as your
electronic signature on this document.
IN
WITNESS WHEREOF, the Parties hereto, intending to be legally bound
hereby, have each signed this document electronically pursuant to the
E-SIGN Act.
_/s/______________________
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