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Welcome to cherrypimps.com. Before you
can become a participant in the cherry pimps AFFILIATE
Program (“Program”) you must first read and agree to all
of the following terms and conditions. Please read the
following CAREFULLY. This is a binding legal agreement
(“Agreement”) between AVALANCHE SERVICES, LLC.
(“AVALANCHE”, “we”, or “us”) and you (“You”).
The
following offer to You to participate in the Program is
subject to all the terms, conditions, limitations and
waivers below. You acknowledge and agree that by
participating in the Program, You will be bound by all
the terms and conditions in this Agreement.
1.
Rights Granted to You by Us. Subject to the terms
and conditions set forth in this Agreement by Us, We
grant to You, the following:
1.1 The nonexclusive right to direct, refer or
send visitors or users of Your Website to websites
owned, operated or controlled by Avalanche.
1.2 A limited nonexclusive, nontransferable and
revocable license to access and download promotional
banners and other promotional materials created by
Avalanche for use on Your Website for the sole and
exclusive purpose of advertising, marketing or
promoting websites owned, controlled and/or operated by
Avalanche. However, the license herein granted
shall automatically and immediately cease upon the
termination of this Agreement or by any action
whatsoever in violation of any of the terms and
conditions set forth herein.
2. Your Warranties to Us.
In consideration of Avalanche providing You with Program
benefits, You agree and warrant as follows:
2.1 That You will at no time while You are
participating in the Program, or using any of the
materials provided to You by Us, directly or indirectly
display or include on Your Website any advertising or
advertising links of any kind whatsoever which promote
Avalanche sites, other than those advertisements or ad
links which have been pre-approved by Us, in compliance
with this Agreement, and which advertise Avalanche or
other sites, companies, products or other wide area
network addresses which We designate.
2.2 That You will not use any form of mass
unsolicited electronic mail solicitations, newsgroup
postings, IRC posting or any other form of "spamming" as
a means of promoting Your Website or for the purpose of
directing or referring users to any websites owned,
operated or controlled by Us. You further acknowledge
and agree that We have the right to immediately, and
without notice, terminate Your participation in the
Program if We, in our sole and exclusive judgment,
conclude that You have engaged in the use of any form of
mass unsolicited electronic mail solicitations,
newsgroup postings, password selling or trading, wares,
IRC posting or any other form of "spamming". NOTE: WE
HAVE ZERO TOLERANCE FOR SPAMMING. IF YOU SPAM, YOUR
PARTICIPATION IN THE PROGRAM WILL BE TERMINATED. YOU
WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM
AND ALL FUNDS OTHERWISE DUE TO YOU WILL BE FORFEITED TO
THE COMPANY, WITHOUT RECOURSE. ANY AFFILIATE WISHING TO
SEND TRAFFIC TO AVALANCHE SITES VIA ELECTRONIC MAIL
PROMOTIONS MUST BE IN COMPLIANCE WITH THE CAN-SPAM ACT
AND ANY AND/OR ALL OTHER INTERNATIONAL, FEDERAL, STATE
AND/OR LOCAL STATUTES, RULES AND REGULATIONS.
2.3 That You will not copy or reproduce, alter,
modify or change, broadcast, distribute, transmit or
disseminate any banners or other promotional or
advertising materials provided to You by Us pursuant to
this Agreement and the Program in whole or in part, in
any manner, at any time anywhere in the World, except as
authorized by Us in writing;
2.4 That You will ONLY use promotional pictures
and images provided by Avalanche to promote sites that
are included in the Avalanche affiliate program.
Furthermore, You shall not place any images whatsoever
in violation of any of the terms and conditions of this
Agreement.
2.5 That You will not include, or link to, any of
the following within a website that contains any
Avalanche banners or links; or, directly or indirectly,
link any of the following content or material to
any Avalanche website through any hyperlinks
maintained or created on Your Website:
(i) Obscene material, including without
limitation any material depicting bestiality, rape,
torture, or other more heinous situations;
(ii) Any material which is displayed or transmitted in a
way as to constitute harmful matter or indecent
communications to minors;
(iii) Any material in which persons actual or digitally
created/altered under the age of eighteen (18) are
depicted in actual, simulated or suggestive sexual
situations;
(iv) Any material not fully in compliance with
the most recent record keeping
requirements of 18 U.S.C. 2257 and the most
recent regulations issued implementing the record
keeping requirements of 18 U.S.C. 2257;
(v) Any material which constitutes child pornography.
Prohibited material mentioned herein includes the use of
the term “Lolita” (or any derivation thereof) for any
purpose in any fashion including, but not limited to,
within meta-based tags.
(vi) Any material which is threatening, abusive,
hateful, defamatory, libelous, slanderous, scandalous or
injurious to the reputation of any person or entity;
(vii) Any material which constitutes an infringement,
misappropriation or violation of any person's
intellectual property rights such as copyrights,
trademark rights, rights of publicity, patent rights,
personal property rights, privacy rights or other
rights; or
(viii) Any program, file, data stream or other material
which contains viruses, worms, “Trojan horses” or any
other destructive feature, regardless whether damage is
intended or unintended, which may cause damage to any
computer equipment, loss or corruption of data or
programs or inconvenience to any person.
2.6
That all materials of every kind, including
photographic, videographic, audio, digital and textual
materials used in direct or indirect association with
materials provided through the Program shall only be
transmitted, distributed, broadcast and otherwise
disseminated by You to willing adults over the age of
majority and shall at all times comply with contemporary
community standards in the communities into which they
are so disseminated.
2.7 That You shall remain a Program Participant
until You terminate participation in the program by
notifying Avalanche by E-mail at support@cherrypimps.com
of Your intent to terminate Your participation; or Your
participation in the Program is terminated for any
reason whatsoever as determined by Avalanche; or the
Program is terminated for any reason.
2.8 That You will remain a Program Participant in
good standing at all times while You are receiving
benefits or are otherwise participating in the Program.
2.9 That You shall cease to be a Participant in
good standing and shall be subject to immediate
termination of all Benefits without prior notice if You
fail to perform under, or breach, any part of this
Agreement.
2.10 That if Your participation in the Program is
terminated for any reason, or You cease to be a Program
Participant in good standing, or You change Your
Website’s URL or You cease to offer services on the
Internet, You shall immediately and permanently cease
all use of all materials provided to You by Us through
the Program and that You will remove all files
containing materials provided to You pursuant to the
Program from Your website.
2.11 That You are a person over the age of
eighteen (18) years of age, or twenty-one (21) years of
age, whichever is applicable.
2.12 That You are the person who owns or is
otherwise is entitled to contract on behalf of the
entity which owns the rights to the Your Website.
2.13 That of those residing in the United States,
only citizens or resident aliens of the United States
may participate and must supply Avalanche with a Federal
Tax ID or Social Security Number that is representative
of, and exactly matches the Payee Name You provide. Your
failure to supply that information will constitute a
basis for terminating this agreement and for forfeiting
any commissions or fees to which You would otherwise be
entitled under this Agreement. To comply with IRS
reporting requirements, Avalanche uses a credit agency
to verify and/or modify Payee Name information as
warranted.
2.14 That upon termination of this Agreement You
will immediately cease using Avalanche marks and remove
any materials supplied to You or referring to Avalanche,
including without limitation any banner ads, from Your
Website.
2.15 That all Your warranties, indemnities and
obligations, which by their nature are designed to
survive termination, shall extend beyond the termination
of this Agreement.
3. Limitations of Your Participation in the Program.
You acknowledge and agree that the Program, Your
participation in the Program and Program Benefits are
subject to the following limitations:
3.1 Only persons over the age of eighteen (18)
years of age, or twenty-one (21) years of age, where
applicable, may participate in the Program.
3.2 Avalanche shall at all times have the right,
in its sole and exclusive discretion, to terminate the
Program and any and all Program Benefits relating to
Your Participation in the Program at any time and may do
so with or without prior notice or cause.
3.3 Avalanche, in its sole and exclusive
discretion, shall have the right at any time to change
or modify the Program, including without limitation, the
right to pay Participants in the Program based on “click
throughs” rather than a flat commission or fee for a
referral, as defined in paragraph 4.1. If at any time
Avalanche changes the Program, You shall have the right
to withdraw and terminate Your participation in the
Program.
3.4 Avalanche has the right to terminate You and
any other person’s participation in the Program at any
time and may do so with or without prior notice or
cause.
3.5 Program Benefits are not transferable by You
and may only be used by You in association with Your
Website while You are participating in the Program and
are a Participant in good standing.
3.6 All Program Benefits materials, including,
without limitation, all advertising banners,
photographic materials, recordings, video, digital,
sound, and any other form of intellectual property
provided to You as part of this Program shall remain the
property of Avalanche and may not be copied or
reproduced, altered, modified or changed, broadcast,
distributed, transmitted or disseminated, sold or
offered for sale in any manner, at any time anywhere in
the World, except as expressly authorized by Avalanche
in writing.
3.7 Nothing herein shall be construed as a grant
or assignment of any rights in any intellectual property
owned, including, without limitation, any of its
trademarks or service marks.
4. Program Benefits. For each person who becomes
a subscriber to a website owned, controlled or operated
by Avalanche, and who has been tracked and verified as a
“referral” to an Avalanche website from Your Website,
You will receive a “referral fee” based on a percentage
of the subscription amount paid. This percentage will
be based on the total number of referrals sent during
the given pay period. Currently the minimum percentage
is 50% ranging all the way to 70% depending on the total
referrals sent. Pay periods currently the 1st
through the 15th and the 16th
through the 31st. Referral checks will be
issued on the 15th for the pay period ending
on the 31st and on the 31st for the pay
period ending on the 15th.
4.1 A “referral” from Your Website that entitles
YOU to a “referral fee” shall be defined as follows:
(i) A person who has been directed to an
authorized website owned, controlled or operated through
the use of a hypertext transfer link residing on Your
Website which is in the form of a banner ad or other
promotional link which automatically connects any person
who clicks on said banner ad or other promotional link
to a Avalanche website, and which banner ad or other
promotional link has been supplied to YOU as part of the
Program; and,
(ii) A person who after having been directed to an
authorized Avalanche website through the use of the
hyperlink banner ad or other promotional link supplied
to You residing on Your Website has been converted into
a subscriber; and,
(iii) A person shall not be deemed a “referral”
entitling You to a commission or “referral fee” if that
person leaves the Avalanche site after having been
directed there through the hyperlink banner ad or other
promotional link (which has been supplied to You ) on
Your Website, without becoming an Avalanche subscriber,
even if at some later time that same person returns to
the Avalanche web site, not through the banner ad or
other promotional link (which has been supplied to You)
on Your Website, and at that later time becomes a
subscriber to the Avalanche site.
4.2
You acknowledge and agree that You shall not be entitled
to a commission or referral fee for any Avalanche
subscriber who You sent or referred to an Avalanche
website in violation of the terms of this Agreement, or
for any Avalanche subscriber who does not fall within
the terms of paragraphs 4.1 (i) & (ii) or who is
excluded under the terms of paragraph 4.1 (iii).
4.3 You also acknowledge and agree that You shall
not be entitled to a commission or referral fee from
Avalanche for any subscription which Avalanche
determines is the result of possible fraudulent
activity. You further acknowledge and agree that
Avalanche shall have the right, in its sole and
exclusive discretion, at any time, to expand or
modify what it determines to constitute possible
fraudulent activity. Without limiting the foregoing,
possible fraudulent activity shall include, but shall
not be limited to, the following circumstances or
activities:
(i) Where the subscriber has used or
attempts to use a credit card number which is in a
negative data base;
(ii) Where there are multiple subscriptions from a
single IP address within a short period of time;
(iii) Where there are sequential or multiple
subscriptions under different names, or variations of
the same name using the same credit card number, or
sequential names or patterns of names using different
credit card numbers;
(iv) Where there is a pattern of "bursting
subscriptions" characterized by numerous subscriptions
from a website in a relatively short time span (the
"bursting period"), where there has been history of few
subscriptions from that website before or after the
bursting period.
(v) Where there has been an attempt to put through a
credit card with a bin number that is listed in a
negative bin number database;
(vi) Where there have been sequential or multiple
attempts to register or subscribe from a credit card
using the same bin number and sequential or multiple
number strings to complete the credit card number.
4.4
You acknowledge and agree that Avalanche shall have the
right to deny or withhold payment from You and to
terminate You from the program if there has been an
abnormal number of chargebacks or cancellations of
memberships or subscriptions which have been referred to
Avalanche through Your Website. You further acknowledge
and agree that Avalanche shall have the right, in its
sole and exclusive judgment, to determine what
constitutes an abnormal number of chargebacks or
cancellations of memberships or subscriptions.
4.5 All commissions and referral fees due and
payable hereunder shall be payable in United States
Dollars and shall survive termination of this Agreement.
4.6 Avalanche reserves the right, in its sole and
exclusive discretion, at any time to alter or modify the
Program including the method and terms of all payment
benefits to Participants. Upon notice of any change in
benefits under the Program, You shall have the right to
withdraw or terminate Your participation in the Program.
5. No Joint or Collaborative Venture. Nothing in
this Agreement is intended by Us or You to create or
constitute a joint or collaborative venture or
partnership of any kind between You and Us, nor shall
anything in this Agreement be construed as constituting
or creating any agency, employment relationship, joint
or collaborative venture or partnership between You and
Avalanche, its employees, agents or assigns.
5.1 You acknowledge and agree that We shall have
no control or ownership interests of any kind in Your
business or Your Website.
5.2 You acknowledge and agree that You shall have
no financial or other ownership interest in Avalanche or
any property owned by Avalanche, its affiliates, agents,
representatives, designees, successors or assigns.
5.3 You acknowledge and agree that Your
relationship with Us shall be restricted to matters
pertaining to the Program exclusively and shall be
governed entirely by the terms and conditions of this
Agreement.
5.4 You acknowledge and agree that We have no
direct or indirect control over the content of
performances or services, the manner of performances or
services, or the time or duration of provision of
performances or services by You on, at or in association
with Your Website except as specifically set forth in
this Agreement.
5.5 You further acknowledge that neither
Avalanche nor any employee, associate, agent, designee,
representative, assign or successor of Avalanche shall
exert or provide any direct or indirect control over,
monitoring of, supervision of, prior approval of, or
review of the content appearing or otherwise distributed
on, at or in association with Your Website, and that You
shall be solely responsible for any legal liabilities or
consequences resulting from the dissemination of that
content on or through Your Website.
6. No Guarantees or Warranties of Any Kind. You
acknowledge and agree that Avalanche makes no guaranties
or warranties of any kind with respect to the Program or
materials provided by, through or in association with
the Program, and all materials are provided to You "as
is", and that use of the Program and associated
materials, including, without limitation is solely at
Your risk. Avalanche disclaims all warranties, either
express or implied including, but not limited to,
express or implied warranties of merchantability and
fitness for a particular purpose, with regard to the
Program and any and all materials of every kind supplied
to You as part of this Program.
7. Avalanche Limited Liability and Liquidated
Damages. You acknowledge and agree that under no
circumstances shall Avalanche, its employees,
independent contractors, authors, designees, agents,
representatives, assigns and successors be liable to
You, or any other person or entity, for any direct or
indirect losses, injuries or incidental or consequential
damages of any kind (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER
PECUNIARY LOSS) with regard to any link to any Avalanche
website, or arising from or in connection with the use
of the Avalanche Program materials, or due to any
mistakes, omissions, delays, errors, interruptions in
the transmission, or receipt of Avalanche's services,
content or Program materials, including without
limitation any losses due to server problems or due to
incorrect placement of HTML.
7.1 Notwithstanding the foregoing express
limitations of liability, You acknowledge and agree that
should Avalanche, its officers, employees, successors,
or assigns be held liable to You for damages, injuries
or losses of any kind, directly or indirectly resulting
from Your participation in the Program, that the total
dollar amount of liquidated damages for any and all of
Your claims, injuries, damages or losses as to Avalanche
shall not exceed a total of Ten Dollars ($10.00).
8. No Representations of Success or Profitability.
You hereby confirm and acknowledge that You have
unilaterally decided to enter an Internet service
business and acknowledge that it is a high risk
business. You further confirm, acknowledge and expressly
agree that neither Avalanche, any agent or
representative of Avalanche, nor any other person has at
any time in the past, represented to You or has
otherwise directly or indirectly communicated in any
manner to You any guarantee, reassurance or any other
communication of any kind regarding:
(a) the potential profitability or
likelihood of success of Your participation in the
Program as set forth in this Agreement or otherwise;
(b) the possibility or likelihood that use of any
products and/or services provided pursuant to this
Agreement can or will result in the recoupment of any
funds expended by You for the promotion of Your Website
or any other purpose; or,
(c) the existence, nonexistence, size or any other
characteristics of any market for any products or
services which involve Your participation in the Program
pursuant to this Agreement.
8.1
You expressly acknowledge and agree that the success of
any business endeavors which involve Your participation
in the Program pursuant to this Agreement, like any
other business endeavor, is subject to numerous factors,
such as the effectiveness of advertising and promotion,
Your administrative capabilities, etc., and that the
ultimate success or failure of Your business rests with
You and not Avalanche. You further expressly agree not
to raise any claim of any kind against Avalanche and You
agree to hold Avalanche harmless from any claim of loss
to You directly or indirectly resulting from Your
decision to participate in the Program pursuant to this
Agreement.
9. No Monitoring or Supervision Provided by Us.
We shall not monitor, supervise or review, and shall not
be responsible for any content appearing or otherwise
distributed on, at or in association with Your Website
except for that content which is supplied to You by Us,
provided that said content supplied to You by Us has not
be altered or modified by You or any other party.
10. Term and Termination of Agreement. You
acknowledge and agree that the term of this Agreement is
at will, and this Agreement and/or the Avalanche Program
may be terminated by Avalanche, in its sole and
exclusive discretion, at any time, without any advance
notice and for whatever reason.
10.1 In the event that this Agreement or the
Avalanche Program is terminated by Avalanche, You shall
be entitled to all unpaid commissions or referral fees
earned by You prior to the date and hour of termination.
However, You shall not be entitled to receive any
commissions or referral fees for any "referrals"
delivered or received after the date and time of
termination.
11. Entire Agreement; Modification; Assignment.
This Agreement constitutes the entire agreement between
You and Avalanche with respect to the subject matter
hereof, and supersedes and cancels all other prior
agreements, discussion, or representations, whether
written or oral.
11.1 You agree that Avalanche may from time to
time, in its sole and exclusive discretion, modify the
type and quality of benefits provided to You hereunder
either with or without notice. Other terms and
conditions may be modified by Us at any time upon e-mail
notice to You or by posting at an Avalanche information
web address location.
11.2 You agree that no modification of this
Agreement by You, Your employees, representatives,
agents, assigns or successors shall be enforceable or
have any effect unless first reduced to writing and
signed by a duly authorized representative of Avalanche.
11.3 You agree that no officer, employee or
representative of You or Avalanche has any authority to
make any representation or promise in connection with
this Agreement or the subject matter thereof which is
not contained expressly in this Agreement; and You
acknowledge and agree that You have not executed this
Agreement in reliance upon any such representation or
promise.
11.4 You acknowledge and agree that the failure
of Avalanche to enforce any of the specific provisions
of this Agreement shall not preclude any other or
further enforcement of such provision(s) or the exercise
of any other right hereunder.
11.5 You agree that all promises, obligations,
duties and warranties made by You in this Agreement are
personal to You and that neither they nor any benefits
hereunder may be assigned by You to any other person or
entity.
11.6 You agree that Avalanche may at any time,
and without prior notice to You, freely assign all or
part of its duties, obligations and benefits hereunder.
12. Arbitration; Choice of Law. Any and all
disputes as to the interpretation of, or any performance
under, this Agreement which are not first resolved
informally, shall be determined by binding arbitration
in accordance with the rules of the American Arbitration
Association or the National Arbitration Forum. The final
award in any such arbitration proceeding shall be
subject to entry as a judgment by any court of competent
jurisdiction, provided that such judgment does not
conflict with the terms and provisions hereof. The
jurisdiction of the arbiter (or arbiters) with respect
to legal matters shall be limited only by the statutory
and common law of the State of California and the United
States.
12.1 This Agreement is deemed executed in
California and all its provisions shall be governed by
and construed according to the laws and judicial
decisions of the State of California and the United
States when applicable.
13. All Provisions of This Agreement Not Deemed
Unenforceable Shall Survive Any Unenforceable
Provisions. In case any one or more of the
provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision(s) had never
been included. The invalidity or unenforceability of any
provision of this Agreement shall not affect the
validity or enforceability of any other provision.
14. This Agreement Shall Be Deemed to be Mutually
Drafted. For purposes of construction of this
Agreement, both Avalanche and You shall be deemed to
have mutually drafted this Agreement and all parts
thereof.
15. Review by Your Attorney. We strongly advise
that You review this Agreement with Your attorney before
You enter into it. You acknowledge and agree that
nothing herein and no statement by Us or any employee,
representative, agent or other person associated with Us
has in any way prevented or inhibited You in any way
from seeking such advice prior to entering into this
Agreement. You hereby acknowledge and agree that the
terms of this Agreement are reasonable and fair; all
terms have been fully disclosed in writing, and that You
have been given a reasonable chance to seek advice of
independent counsel with respect to this Agreement and
all transactions associated herewith.
16. Headings.
The headings in this Agreement are for convenience of
reference only. They are not intended for, and shall not
be used in, interpreting the rights and responsibilities
of the parties hereunder.
17. Acceptance and Execution.
By clicking on the “Create Account” button on the
sign-up page, and providing Avalanche with all the
information required to create an account on the
Program, You have accepted the terms and conditions set
forth herein above.
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