Affiliate Terms & Conditions for ChatChecks.com
Chat Checks Affiliate Terms & Conditions: Last updated July 6, 2022, Version: 2.2
YOU MUST BE AT LEAST 18 YEARS OLD AND THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU RESIDE TO ENTER INTO THIS AGREEMENT AND PARTICIPATE AS AN AFFILIATE IN THE CHATCHECKS.COM LIVE CHAT AFFILIATE PROGRAM. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. YOUR PARTICIPATION IN THE CHATCHECKS.COM AFFILIATE PROGRAM IS SUBJECT TO THE APPROVAL OF DIGITAL NET PRODUCTIONS, INC. DOING BUSINESS AS CHATCHECKS.COM (“CHAT CHECKS”) AND CHAT CHECKS RESERVES THE RIGHT TO REJECT YOUR PARTICIPATION IN THE PROGRAM OR TERMINATE YOUR PARTICIPATION IN THE PROGRAM AT ANY TIME.
By clicking the “I Accept” button, or continuing to maintain your affiliate relationship with us, you acknowledge that you have read and understood this Agreement and agree to be bound by its terms and conditions.
CHAT CHECKS LIVE CHAT AFFILIATE AGREEMENT
This Chat Checks Affiliate Agreement, together with the Program Rules (as defined below) and any other documents or materials referenced or incorporated herein (collectively, the “Agreement”) constitutes a binding agreement that governs your participation in the Chat Checks Affiliate Program operated by Digital Net Productions, Inc., dba Chat Checks (“Chat Checks”). As used in this Agreement, “we”, “us”, or “our” means Chat Checks, and “Affiliate”, “you” or “your” means the person or entity entering into this Agreement to participate in the Chat Checks Affiliate Program.
Digital Net Productions, Inc. administers the Chat Checks Affiliate Program (“Affiliate Program”) on behalf of certain subsidiaries of ChatChecks.com (the “Chat Network”) that operates websites (each, a “Chat Checks Site”).
The Affiliate Program allows Affiliates to refer internet traffic to a Chat Checks Site from website(s) or advertising networks owned or controlled by the Affiliate (“Affiliate Site”) using a Special Link (defined below). If such traffic results in an Action (as defined below), Affiliates may be paid a commission (“Commission”), which is calculated as a percentage fee.
BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE. YOU FURTHER CONSENT TO THE COLLECTION AND PROCESSING OF CERTAIN PERSONAL AND OTHER INFORMATION ABOUT YOU. THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE CHANGED AT ANY TIME BY US AT OUR DISCRETION, WITH OR WITHOUT NOTICE.
We indicate at the top of the page when this Agreement was last updated. Your continued participation in the Affiliate Program following such changes will be deemed acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement. Upon our request, you agree to sign a non-electronic version of this Agreement.
Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
“Action” means an order, sign-up or other action resulting in a Commission.
“Advertising Assets” means banners, buttons, graphics, white-label creation tools, member thumbnail galleries, HTML or source code, or similar material provided by ChatChecks.com.
“Chargeback” means the return of any funds to a person initiated by a financial institution or service including, but not limited to, a chargeback or reversal.
“Credit” means the return of any funds to a person including, but not limited to, an adjustment, credit, refund or return.
“Lifetime” means for the lifetime of the affiliate account wherein ChatChecks continues to operate as an affiliate program; and so long as the affiliate remains in good standing having not self-terminated their affiliate relationship with Chat Checks, nor having been terminated for violation of any provision of this Affiliate Agreement.
“Member ID” means the Affiliate’s unique identifying name associated with a specific Affiliate or Account.
“Special Link” means a URL that uses, alone or in combination with Advertising Assets, your authorized Member ID and complies with formatting guidelines specified by Chat Checks.
“White-Label” means an Affiliate chat community platform created using the Chat Checks proprietary chat creation tool to develop a customized live chat community platform either on the Affiliate’s sub-domain or using one of the various Chat Checks chat domains.
In order to participate in the Affiliate Program, you will be required to create an account with us (“Account”).
In creating your Account, you certify that all information you provide is complete and accurate. You agree to update such information when required or requested, and you further agree not to use another person’s account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, your Account and password, and you agree to accept sole responsibility for all activities that occur under your Account or password. You agree to notify us immediately of any breach of security or unauthorized use of your Account. We shall not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of your Account, and you agree to indemnify us and hold us harmless for any such unauthorized use. If you are establishing an Account on behalf of a company or other entity, the term “you” includes both you as an individual as well as such company or other entity. You represent and warrant that (a) you have the authority and capacity to enter into this Agreement, (b) you are a business and not a consumer, and (c) if you are entering into this Agreement on behalf of a company or entity, (i) you have the authority to bind such company or entity, and (ii) such company or entity has authorized you to accept this Agreement on its behalf.
LIMITED LICENSE TO USE ADVERTISING ASSETS
Affiliate represents and warrants that it owns and/or operates the Affiliate Site and desires to place Advertising Assets on the Affiliate Site subject to the terms of this Agreement. Chat Checks makes Advertising Assets available to promote the services of one or more of the Chat Checks Sites. Advertising Assets are provided to an individual Chat Checks Site (e.g., links, login boxes, member thumbnails, etc). Such Advertising Assets may contain logos, trademarks, service marks and/or identifying words for the Chat Network, ChatChecks.com and their products and services (“Chat Checks”). You are granted a non-exclusive, non-transferable and revocable license to display these Advertising Assets throughout the Affiliate Site, subject to the terms and conditions of this Agreement and Chat Checks’s policies and procedures. You may not alter, change, add to, or otherwise modify any Advertising Asset provided by us without authorization. This Agreement does not authorize the use of any Advertising Assets for any off-line or non-Internet (i.e., print) advertising or in the use of email marketing or other similar solicitations.
AFFILIATE’S RESPONSIBILITY FOR AFFILIATE SITE AND CONTENT
You will be solely responsible and liable for the development, operation, maintenance and all materials and content that appears on the Affiliate Site. You shall operate and maintain the Affiliate Site in accordance with all applicable laws, rules and regulations. We reserve the right to monitor the Affiliate Site to determine if you are in compliance with this Agreement.
MULTIPLE COMMISSION TYPES
As an Affiliate, your participation in the Chat Checks Affiliate Program will expose visitors to your chat platform to various advertisements. Any referred member Actions may result in income from multiple Program Types (Pay Per Click, Pay Per Upgrade, etc) and be subject to either a one-time Commission or a recurring Commission and Affiliates will be paid accordingly.
In addition to regular Commissions, Affiliates may be entitled to 5% of the revenues generated from websites referred by the Affiliate. These referral Commissions will be at the same times as regular Commission payments.
SPECIAL LINKS; COMMISSION TRACKING AND REPORTING
Special Links permit accurate tracking, reporting, and accrual of your Commission. You may only earn a Commission with respect to activity on the Chat Checks Site occurring directly through your White Label site and/or Special Links. Special Links may be used alone or in combination with Advertising Assets. We will have no obligation to pay you a Commission if you fail to properly format the links as Special Links, including to the extent that such failure may result in any reduction of Commission fee amounts that would otherwise be paid to you under this Agreement.
Each Chat Checks Site uses commercially accepted methods and practices, which may include session cookies, to track a person’s activities while on the Chat Checks Site. For purposes of illustration only, when cookies are used, the cookies are generally set to expire when a person using a Chat Checks Site terminates his or her browser session. If the cookie session expires before the creation of an account on such Chat Checks Site, you will not earn and will not be entitled to receive a Commission based upon any subsequent Actions taken by such person. If a person completes the member registration process and creates an account on one Chat Checks Site, you only receive a Commission for such person’s subsequent Actions on the same Chat Checks Site, and not any other Chat Checks Site. For purposes of illustration only, if (a) a visitor is directed and comes to a Chat Checks Site from a Special Link on Site A, but does not complete the member registration process and create an account and then later returns to the Chat Checks Site from a Special Link from Site B and creates an account, no Commission is earned by or payable to Site A; or (b) if a visitor is directed and comes to a Chat Checks Site from Site A, but does not complete the membership registration process and create an account and later returns to the Chat Checks Site or another Chat Checks Site and creates an account, no Commission is earned by or payable to Site A.
Chat Checks takes commercially reasonable steps to provide you with online access to track and review (a) Actions resulting in Commissions taken by members directed to the Chat Checks Site by the Affiliate Site, (b) Commissions accrued, and (c) certain other information using Chat Checks’s online reporting tools on a password-protected webpage (the “Reports Page”). The Reports Page is usually updated on a daily basis but is not in “real-time” and is subject to final reconciliation, taking into consideration non-completed transactions, Chargebacks, Credits and other potential charges. The form, content and frequency of the Reports Page remain subject to change.
REFUSAL OF CHAT COMMUNITY SERVICES
Chat Checks may refuse to permit any person to establish an Account for any reason and may reject any Action that does not meet the Chat Checks requirements or policies and procedures in effect from time to time. Likewise, chat community members may be banned for any reason including violations of community rules. This will not affect earnings from that member, however, the member will no longer be associated with the Affiliate’s chat community for the purpose of future Commissions.
PAYMENT; COMMISSION PAYMENTS AND SETOFF
Chat Checks’ current policy is to issue any Commission payments earned and owing within approximately thirty (15) days following the end of the two-week pay period when the Commission was earned. All Affiliate Commission are payable in U.S. Dollars.
It is the Affiliate’s responsibility to provide correct payment information including payee address, SSN/EIN and all information required for payment via electronic methods such as Zelle or ACH transfers. Payments issued using information provided by the affiliate shall be considered paid in full, unless returned to Chat Checks via mail, Zelle, ACH, etc.
If the amount accrued to you for any payment of Commissions is less than the minimum amount established by us (the “Commission Payment Floor”), we will hold such payment until the payment period after the total amount accrued is at least equal to the Commission Payment Floor. The Commission Payment Floor is currently $50.00 and subject to change at any time or from time to time in our sole discretion. We will use commercially reasonable efforts to notify you of any such change in the Commission Payment Floor via email, posting a revised version of this Agreement, posting on the Chat Checks Site, or via other methods.
If a Commission is paid or owed and a subsequent Chargeback or Credit occurs, Chat Checks may, in addition to any other remedies, set off the amount of the Chargeback or Credit and any related fees from any subsequent payments owing to you. If there is no subsequent payment due, Chat Checks will send you an invoice for the amount of the setoff amount, and you agree to pay such invoice no later than thirty (30) days following receipt.
In the event that a check issued to you is voided and reissued, Chat Checks reserves the right to charge you a service fee. Chat Checks also reserves the right to void any check that has not been negotiated within six (6) months following the date of its issuance.
TAX INFORMATION POLICY; SUSPENSION
Upon enrollment and completion of your Account as an Affiliate, you may be required to complete certain tax documents, e.g., IRS Form W-8, W-9, SS-4, etc. (the “Required Tax Documentation”). Chat Checks may withhold all Commission payments owing to you until such time as you submit the completed Required Tax Documentation. During the period between when you enroll as an Affiliate and create an Account, and the time you submit the Required Tax Documentation, you may provide Special Links to the Chat Checks Site from the Affiliate Site, Commissions will begin to accrue, and you may have access to the Reports Page. If you fail to submit the Required Tax Documentation within sixty (60) days of your enrollment and establishment of an Account, Chat Checks may suspend your Account until such time as you submit the Required Tax Documentation or, alternatively, Chat Checks may terminate this Agreement immediately and any Commissions accrued shall be forfeited.
OWNERSHIP OF CUSTOMER INFORMATION
Visitors and members of the Chat Checks Site will be considered customers of the Chat Check Network for all purposes, and all Chat Checks Site terms, policies, rules and procedures will govern the customer relationship between the Chat Network and such customers. As between the parties, the Chat Network owns any information pertaining to any person or customer who accesses any Chat Checks Site or White-Label.
LIMITED LICENSE TO USE CHAT CHECKS NETWORK MARKS
Chat Checks hereby grants you a non-exclusive, non-transferable, revocable and limited license to use the logos, trade names, trademarks, service marks, and similar identifying material of Chat Checks Sites solely for the purpose of advertising the Chat Checks Services through the use of Advertising Assets subject to and in accordance with the terms of this Agreement. Without limiting the foregoing, you hereby agree:
(a) To not use or place the Chat Checks Marks on or with any items that are injurious to end-users or their property, including but not limited to, items that could give rise to a claim for a breach of an express or implied warranty or product liability, or which is scandalous, libelous, obscene, an invasion of privacy or otherwise unlawful or tortious;
(b) To use the Chat Checks Marks exactly in the form provided and in conformance with any trademark usage policies, guidelines and quality standards of the Chat Network and not to alter, modify or change the Chat Checks Marks in any way;
(c) To furnish, upon request, at no charge to the Chat Network, a representative specimen of your use of the Chat Checks Marks.
(d) If, at any time, your use of the Chat Checks Marks fails to conform to the Chat Network’ trademark usage policies, guidelines or quality standards, to promptly remove the Chat Checks Marks from the Affiliate Site;
(e) Not to take any Action inconsistent with the Chat Network’s ownership of the Chat Checks Marks;
(f) Not to use Chat Checks Marks in any manner that is disparaging or that otherwise portrays the Chat Network in a negative or misleading light;
(g) Not to create a website or web page that uses the Chat Checks Marks in a manner that is likely to be confused (e.g., similar designs, graphics, look and feel) with one or more websites operated by the Chat Network;
(h) Not to use, register or file an application to register a trademark, service mark, domain name, user name, account name or other proprietary designation incorporating the Chat Checks Marks, or any variation of the Chat Checks Marks, whether they are used alone, in part, or in combination with other words (e.g., “gaychatzone.net”) or are based upon typographical errors or misspellings (e.g., “tranchat.zone”, “b1chat.zone”, etc.) (“Prohibited Designation”); and
(i) To notify Chat Checks promptly upon becoming aware of any improper use of the Chat ChecksMarks and reasonably cooperate with Chat Checks (at Chat Checks’s request) in the protection of the Chat Checks Marks.
You may only use the Chat Checks Marks to the extent that you advertise Chat Checks Services pursuant to this Agreement. We reserve all intellectual property and proprietary rights in and to the Chat Checks Marks, and any and all goodwill generated by your use of the Chat Checks Marks shall inure solely to the benefit of the Chat Network. You recognize the great value of the goodwill associated with the Chat Checks Marks, and you acknowledge and agree that the Chat Checks Marks and all rights therein and goodwill pertaining thereto are valid and belong exclusively to the Chat Network, and that the Chat Network have the exclusive right to use and authorize others to use the Chat Checks Marks.
The license granted to you pursuant to this Section may be revoked at any time for any reason and shall terminate upon expiration or termination of this Agreement.
If you have previously used or registered any Prohibited Designation, upon request, or if no request has been made, upon expiration or termination of this Agreement, you agree to transfer all of your rights in the Prohibited Designation and the associated goodwill to us within ten (10) days thereafter. In such case, we shall pay you a reasonable fee to cover the expenses necessary to transfer the Prohibited Designation, but in no instance will the amount exceed $100 per domain or $500 for all domains. You hereby grant an irrevocable power of attorney coupled with an interest to all or any of the Chat Network to take all steps necessary to effectuate the transfer of the Prohibited Designation to the Chat Network in the event that you fail to comply with the terms of this Section. Without limiting the foregoing, you specifically agree not to use the Prohibited Designations to promote the goods or services of you or any third parties.
You will not receive any Commissions for any traffic derived from the unauthorized use of any Chat Checks Marks. The amount of the Commissions not paid will be determined by us at our sole discretion.
LIMITED LICENSE TO USE YOUR MARKS
You hereby grant to a non-exclusive, transferable, worldwide license to utilize your name(s), titles, logos, and trademarks (“Your Marks”) to advertise, market, promote and publicize in any manner the Chat Checks Services, the Chat Checks Sites and our rights hereunder. However, we shall have no obligation to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of Your Marks and/or have all necessary rights and power to grant to us the license to use Your Marks in the manner contemplated herein, and such grant does and will not (a) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (b) infringe upon any trademark, trade name, service mark, copyright, or any other proprietary right of any other person or entity. This license shall terminate immediately following the effective date of termination of this Agreement.
REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to us that neither you nor the Affiliate Site shall:
(a) Incur, undertake or make any representation, warranty, covenant or agreement on behalf of us or our affiliated entities to or for the benefit of any person or entity;
(b) Contain or promote materials that infringe or violate the copyright or other intellectual property rights of us, our affiliated entities or any third-parties;
(c) Contain any materials that depict persons under the age of eighteen (18), or in any manner that suggests they are;
(d) Promote harmful or indecent matter to minors, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, gender identity, age or any other legally prohibited classification;
(e) Use or benefit from unsolicited sexually explicit advertising;
(f) Contain content that is obscene, defamatory, misleading, libelous, hateful or unlawfully threatening, abusive or harassing or likely to cause disparagement to persons appearing on the Chat Checks Site;
(g) Involve advertising, marketing or business practices that are fraudulent or misleading, or that promote unfair competition;
(i) Own, control or use a URL containing a Prohibited Designation;
(j) Send, transfer or otherwise initiate e-mails in violation of the Can-Spam Act of 2003, as amended (i.e., “spam”), or unsolicited chat messages, e.g., instant messages and group chat rooms; or any downloadable programs or executables that contain viruses, worms, “Trojan horses” or any other destructive features that violate the rights of third-parties, including but not limited to, redirection to unwanted websites, modification of browser settings, interference with site navigation, and/or accessing data;
(k) Violate, or promote violation of, any law, statute, ordinance or regulation (including, but not limited to, the Federal Trade Commission blogger rules); or
(l) Violate an order, judgment decree, or the terms of any other agreement, document or instrument, including but not limited to your merchant or payment processing agreement and any associated card association rules, to which Affiliate (or its assets) are subject or bound.
You further represent and warrant that all information provided to us, including your email address and other contact information and identification of Affiliate Site(s), is at all times complete, accurate, and up-to-date and that you will respond in a timely manner in the event that we attempt to contact you.
You are prohibited from sending any email to advertise on behalf of the Chat Network. You may also not advertise on our behalf in any manner that violates or is otherwise inconsistent with, the section above (titled “Representations and Warranties”).
Any use of sexually explicit content to advertise on behalf of the Chat Network must comply with Section 18 (“Compliance with 18 USC section 2257”).
You may not display, or by any other method use, any photos, videos or any other information pertaining to any members of, or any other persons depicted on, any Chat Checks Site except as allowed using authorized promotional materials.
You are prohibited from advertising, in any manner, the Chat Checks Site or Chat Checks Services through the use of e-mail marketing or links in e-mail. This provision prohibiting such e-mail marketing goes beyond the prohibition of the use of unsolicited e-mail advertising and prohibits you from sending any e-mail messages advertising Chat Checks Site or Chat Checks Services even if such e-mail is permission-based or double opt-in.
We, in addition to any other remedy we may have, reserve the right to suspend or terminate your Account and/or this Agreement, and take any other appropriate disciplinary actions permitted by law, without notice if you (or someone acting on your behalf) violate this Section.
We fully reserve the right at any time to refuse to accept traffic from you for any reason or no reason. In addition, we fully reserve the right to divert any traffic you send to any Chat Checks Site to any other site and your only remedy would be to stop sending traffic to us or to terminate this Agreement without any monetary compensation owing to you.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DIGITAL NET PRODUCTIONS, INC., CHATCHECKS.COM AND THE CHAT CHECKS ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARISING OUT OF ANY AFFILIATES’ PARTICIPATION IN THE AFFILIATE PROGRAM OR USE OF CHAT CHECKS SITE OR CHAT CHECKS SERVICES. FURTHER, DIGITAL NET PRODUCTIONS, INC. AND THE CHAT CHECKS ENTITIES EXPRESSLY DISAVOW ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD AFFILIATE OR ANY AFFILIATE REPRESENTATIVES OR OWNERS HARMLESS IN CONNECTION WITH ANY LAWSUIT OR OTHER PROCEEDING ARISING OUT OF SUCH PARTICIPATION OR USE. IN ADDITION, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE CHAT CHECKS SITE OR SERVICES WILL REMAIN UNINTERRUPTED OR ERROR-FREE OR GENERATE ANY INCOME OR COMMISSIONS WHATSOEVER.
LIMITATION OF LIABILITY
DIGITAL NET PRODUCTIONS, INC., CHATCHECKS.COM AND THE CHAT CHECKS ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, DIGITAL NET PRODUCTIONS, INC. AND THE CHAT CHECKS ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO YOU DURING THE PAST SIX (6) MONTHS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER BASED UPON BREACH OF CONTRACT, NEGLIGENCE, TORT, VIOLATION OF 18 USC SECTION 2257 ET SEQ., ERRORS AND OMISSIONS, COPYRIGHT, TRADEMARK, PATENT, OR ANY OTHER CLAIM OR CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
COMPLIANCE WITH 18 USC SECTION 2257
At all times, the Affiliate Site must comply with 18 USC section 2257. To the extent that we provide you with Advertising Assets that contain a visual depiction of any person that is “sexually explicit” as defined by 18 USC section 2256, your use of such Advertising Assets must also comply with 18 USC section 2257.
Either party may terminate this Agreement at any time by providing notice to the other party pursuant to Section 38 (“Notices”). If you terminate this Agreement, or if we terminate as provided in Section (“Prohibited Activities”) then we shall not pay you any Commission. Upon termination, any and all licenses provided to you under this Agreement shall immediately cease and you shall immediately stop using, amongst other things, any Advertising Assets and Special Links under this Agreement, and you shall immediately remove all Special Links and any other content using or referencing the Chat Checks Services or Chat Checks Entities from the Affiliate Site. Upon termination affiliate Commissions earned up to the termination date will be paid. No future Commissions shall be paid.
NO AGENCY; INDEPENDENT CONTRACTORS
Nothing in this Agreement is deemed to 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 and you are prohibited from holding yourself out as our agent. Affiliate shall not take any action or make any statement that contradicts anything in this Section. It is expressly understood and agreed that Affiliate and Chat Checks are independent contractors in all manners and respects. Affiliate shall not be entitled to any benefits and shall be solely responsible for all taxes, social security taxes, unemployment taxes, workers’ compensation insurance premiums and any other taxes or Commissions and other amounts paid to Affiliate hereunder.
Your Commissions and any software, technology, programming, APIs, specifications, materials, guidelines and documentation, or other information designated “confidential” by any of the Chat Network shall be kept confidential by Affiliate and shall not be disclosed to any third party except as may be required by any court of competent jurisdiction, governmental agency, law, regulation or the rules of any stock exchange. In such event, Affiliate shall if permitted give reasonable advance notice to Chat Checks of the disclosure and redact or seek an appropriate protective order to the extent possible before disclosing the confidential information.
You shall defend (or pay our fees and costs of defense at our sole discretion), indemnify and hold Chat Checks and Chat Network and their respective successors, affiliate entities, assigns, shareholders, officers, directors, employees and applicable third parties (e.g., licensors, licensees, consultants and contractors) (collectively, the “Indemnified Person(s)”) harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) brought against the Indemnified Person(s) and arising out of or related to, your participation in the Affiliate Program, operation of the Affiliate Site, and/or your breach (or any alleged breach) of any term of this Agreement, including but not limited to, Sections (“Limited License to Use Chat Checks Marks”) and (“Representations and Warranties”).
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) PROVIDE TERMS TO OTHERS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETITIVE WITH THE AFFILIATE SITE OR THE CHAT CHECKS SITES WITHOUT OBLIGATION TO YOU. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
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 you have been given a reasonable chance to seek the advice of independent counsel with respect to this Agreement and all transactions associated herewith.
NON-ASSIGNABILITY OF THE AGREEMENT
You may not resell, assign or transfer any of your rights or obligations under this Agreement without our prior written consent. We may resell, assign or transfer our rights and obligations under this Agreement at any time without restriction and without notice or consent.
CHOICE OF LAW
This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of laws rules or principles.
Affiliate hereby consents to exclusive jurisdiction in Oregon and venue in Marion County, Oregon for all arbitration and other proceedings arising out of this Agreement.
ARBITRATION OF DISPUTES
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN AFFILIATE AND DIGITAL NET PRODUCTIONS, INC., CHAT CHECKS OR ANY OF OUR AFFILIATED ENTITIES OR OURS OR THEIR AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, OR ASSIGNS ARISING FROM OR RELATING TO THIS AGREEMENT, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY HEREOF, OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT (INCLUDING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THIS AGREEMENT), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION IN THE STATE OF OREGON.
This Section is subject to the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA), as amended. Any award of the arbitrator shall be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitration proceeding will be limited solely to the dispute or controversy between the parties.
AFFILIATE ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM.
Nothing in this Section shall be deemed to prohibit Chat Checks from seeking an injunction or other equitable relief in any court of competent jurisdiction to protect or preserve its or its licensors’ intellectual property rights or rights in or to confidential information.
CLASS ACTION WAIVER
IN ANY DISPUTE, NEITHER AFFILIATE NOR ANY OTHER PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST CHAT CHECKS OR OTHER PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. AFFILIATE ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM.
REMEDIES ARE CUMULATIVE
All rights, remedies, undertakings, obligations and agreements contained in this Agreement or available at law, in equity or otherwise, shall be cumulative, and none shall be a limitation of any other remedy, right, undertaking, obligation, or agreement.
This Agreement shall be binding upon the parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
Neither party shall be held responsible for delay or failure in performance hereunder caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war, or other causes beyond the affected party’s reasonable control.
The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
Affiliate’s sole remedy for breach of any provision of this Agreement shall be an action at law for monetary damages, and in no event shall Affiliate be entitled to any injunctive or other equitable relief. Chat Checks may bring an action for injunction or other equitable relief to protect its intellectual property rights or rights in or to confidential information and trade secrets.
This Agreement may be executed in counterparts, via any means (including e-mail), all of which shall be effective, but when taken together shall comprise one agreement.
If any provision of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its modified terms.
This Agreement and any accompanying materials and addendums represent the entire understanding between the parties with respect to the subject matter hereof and supersede all previous understandings, written, oral or implied. This Agreement may only be amended with the written consent of the parties, and no oral waiver or amendment shall be effective under any circumstances.
Except as explicitly stated otherwise, legal and other notices shall be delivered to “Digital Net Productions, Inc. dba Chat Checks” by U.S. mail to 3624 Commercial St SE, Unit 4328, Salem, Oregon 97302, USA Attn. Legal, or to you at the email address you provided us (a) at the time of enrollment in the Affiliate Program, or (b) through a subsequent notice of an address change if listed on the Reports Page. Email notices to you shall be deemed given twenty-four (24) hours after the email is sent, unless Chat Checks is notified that the email address is invalid. Alternatively, Chat Checks may provide notice by certified mail, postage prepaid and return receipt requested if your address is listed on the Reports Page. In such case, notice shall be deemed given upon receipt or three (3) days after the date of mailing, whichever is earlier.
Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless granted in writing and signed by an authorized representative of the waiving party.