This Agreement becomes effective only when and if we accept your application.
SECTION 1 . NATURE, FORMATION, MODIFICATION AND DURATION OF THIS AGREEMENT , AND DEFINITIONS OF PERSONS MENTIONED IN THIS AGREEMENT.
1.1. This Agreement (sometimes called "Terms of Service" in this Agreement) is made and entered into by and between " TRAFFICMANSION.COM" (a business name of TM Marketing Services Limited, a Hong Kong company) (also sometimes called " we", "us", "the Company", “Trafficmansion.com” or “Trafficmansion”, “TM Marketing Services Limited” or “TM Marketing Services” in this Agreement), and "you", a participant in the Affiliate Program administered by us (also sometimes called “ Affiliate”, a concept which under any circumstance shall also be extended to your agents, officers, directors, counsels, consultants, advisors, affiliates, members, managers, control persons, principal shareholders and employees).
1.2. For good and valuable consideration, including, but not limited to our mutual promises in this Agreement, the receipt and sufficiency of which is hereby acknowledged by you and "TRAFFICMANSION.COM"; it will be understood that you will have expressed your assent, consent, and agreement to all of the terms of this Agreement by clicking on the link below ("Yes. I accept the Affiliate Agreement" or any suchlike wording).
1.3. You will become an "Affiliate" by entering into this Agreement if and only when we advise you that we have accepted it. We will, at our sole and absolute discretion, accept or reject your application after reviewing your application and investigating it if necessary.
1.4. Together, you and we are the “P arties”, and individually the “Party ”, as those terms might be used in this Agreement, but it applies only after we accept your application.
1.5. Your participation in the Affiliate Program described in this Agreement is called an “Affiliation”.
1.6. This Agreement is subject to change s by us at any time. Changes may include, only for the purpose of examples, but not limited to, modifications, alterations, and other changes in the measure, scope and amount of commission fees, commission schedules, payment procedures, rules of conduct and performance for Affiliates, and any other kind of change of any nature whatsoever with respect to the terms of this Agreement, whether like those are mentioned or otherwise.
Hereinafter, we will indicate the available procedures calculated and designed to inform you of the changes.
If we decide to change this Agreement, when we do so, you will be able to get notice of it in two possible ways: 1) We might send you a notification of each change at the email address you provided at the time when you applied to become an Affiliate, or if you have updated your email address in your profile, to that email address; 2) We might also post the changes on the following page: http://trafficmansion.com/index.php?page=tos_updates
In any case, we are not obliged to directly notify you of those changes, therefore, it will be under your sole responsibility to check from time to time if there have been any changes on our Terms of Service.
You agree that the above-mentioned are appropriate procedures that will reasonably and effectively communicate notices of the Agreement changes to you.
1.7. You also agree that, should you determine to discontinue the use of the email address that you initially provided to us at the time of registration, substituting that one for another email address, you shall update your online profile with us by changing it to reflect the newly intended email address and by deleting the former email address before you cease monitoring messages in the former email account, ensuring that our emails will always be sent to your active, current, monitored email address.
1.8. You agree that if you use any of the Services offered by this website after we have transmitted an email to you notifying you about the changes and we have posted it to our page (whose URL is set forth above), you thereby give your agreement and consent to the Agreement as it has been changed, regardless of whether you have actually read or received the email notifying you of the change(s) or whether you actually did or did not read the change(s) posted in our webpage. Those changes will become effective to modify this Agreement forty‐eight (48) hours after we transmitted such an email to you, or we have published such information on our page.
If you do not wish to consent to the new changes of the Agreement, you agree that you must immediately notify us in written form of your intention of cancelling your affiliation, therefore, you must, immediately and from that time forward, refrain from publishing, displaying, or using in any fashion a) the name of Trafficmansion.com and any other domain name used or owned by TM Marketing Services Limited, and b) any graphic, text-based content, and any trademark belonging to us.
1.9. This Agreement shall remain in force and effect until or unless it is changed in accordance with the terms of this Section, or if it is otherwise terminated under the terms of this Agreement, or until your Affiliation is terminated for any reason.
1.10. Some of your obligations to us under this Agreement (and as it may, from time to time, be amended) or under any successor Agreement, might survive after any change or after the termination of this Agreement and/or the termination of your Affiliation for any reason.
SECTION 2 . THE OBJECT OF THIS AGREEMENT .
2.1. The purpose of this Agreement is to effect your participation in our Affiliate Program (as our Affiliate) and to govern the relationship thus formed.
2.2. Our Affiliate Program is a cooperative advertising program under which Affiliates drive web traffic to Trafficmansion.com and to other web sites directly or indirectly owned by TM Marketing Services Limited by way of advertising and other promotional operations (with or without the benefit of our promotional materials that we may provide and license to you for use in such advertising), and in consideration of your efforts, you will be compensated by a monetary incentive that is computed as a share of the paid subscription fees. Specifically, this monetary incentive will be estimated, calculated, and paid in accordance with the provisions contained in Section 5.
2.3. An Affiliate may be any person (individual of legal age or legal entity) subject to the terms of this Agreement, who owns or controls the operation of any websites, operations other methods that have been registered and accepted according to the provisions contained in this Agreement, and which are being used for the purpose of promotion, advertising and commercialization of Trafficmansion.com and/or any other websites directly or indirectly owned by us.
SECTION 3 . ENROLLMENT IN THIS PROGRAM .
3.1. You agree to truthfully complete and submit an online Affiliate Program Application Form through the Affiliate Program sign‐up link that can be found on TrafficMansion.com.
3.2. We agree to evaluate your application in good faith and to promptly notify you in writing when we accept or deny your application. As previously mentioned in Section 1, this Agreement will only become effective if you get to become an Affiliate, therefore, your affiliation begins if and only when we accept your application and notify you that your application was accepted.
3.3. We may deny your application for any reason whatsoever or for no reason, which will be decided at our sole and exclusive discretion. This is a program that is intended only for individuals of legal age or legal entities operating legal websites with good ethical business practices and which are compliant with any kind of regulation applicable in the jurisdiction of the territories where Trafficmansion.com or any of its owned web pages operate. We will reject your application if:
we determine that you have provided false, fictitious, inaccurate or incomplete information in your application.
we determine that you are under 18-year-age (or under 21-year-old in any jurisdiction establishing that minimum age for having competence into entering into contracts or prohibiting persons under that age from receiving sexually explicit images).
we determine, in our sole and exclusive discretion, that your site's content (or your other methods’ or operations’ content, if not a website) or your business operations or location are inconsistent with the aims, purposes and direction of our Affiliate Program, including, but not limited to 1) the use of images, videos, audios, programs, scripts, or other content that might be considered unlawful or fraudulent in any respect; 2) the toleration or practice of defamation, obscenity, harassment, violence, fraud, or data protection, security, anti-spam, patent, trademark and copyright infringement, or any illegal activity; 3) the use of operating practices that facilitate, promote or assist others in committing such unlawful activities; 4) or for any other reason, whether like these reasons or otherwise.
3.4. At the time of the application, you must identify and register with us on any website or other promotional operation you wish to Affiliate with our Program. After that event, if you wish to register any other website or operation which has not been initially registered, you shall also apply for its registration (Hereinafter, referred to as “Subsequent Registration”. For further description of the Subsequent Registration process, please, see Sections 6.14.
3.5. The term “operation” as used in this Agreement shall mean a method of promotion, advertising and commercialization, which includes, but is not limited to, popup, banner advertisements, email advertising programs, distributive file-sharing programs, wireless programs, or any other advertising media, method, or technology.
SECTION 4 . UTILIZING LINKS ON YOUR SITE AND OTHER MEDIA PROMOTION .
4.1. As an Affiliate of Trafficmansion.com, we encourage your creativity and initiative and we reward it: You may use any form of promotion and any media you choose that is consistent with the terms of this Agreement. You may use pop-ups, banner advertisements, email marketing, distributive file-sharing programs, wireless technology, button links, iframe ads, and/or text links to our site (the “ Links”).
4.2. You cannot employ deceptive language or misleading URLs in the Links, and you CAN NOT MARKET BY SENDING SPAM E‐MAILS OR ANY OTHER KIND OF UNSOLICITED DIRECT MARKETING, as further detailed in Section 7.2.
4.3. For further description of your obligations and restrictions, please, see Sections 6 and 7 below.
4.4. As more particularly described in Section 5.3., we will grant you, as an Affiliate Program member, a limited license for the use of our names, trademarks, banners, images, and other advertising materials for your use to stimulate promotion.
SECTION 5. OUR OBLIGATIONS TO YOU .
5.1. Commissions .
We agree to pay you:
75% of the first month’s net revenues (the subscription fee actually paid by a subscribing customer whose membership derives from a link on your registered Affiliate website or other registered operation to commence the first period of his or her subscription, less chargebacks, refunds, and processing fees), and;
50% of the recurring net revenues are actually paid by such subscribers when it is automatically renewed their subscription, less chargebacks, refunds, and processing fees.
5. 2. How and When Commissions are Paid .
5.2.1. We agree to pay you commissions due and accrued under this Affiliate Program, which shall be done twice a month as described below.
We will pay you all of your commissions accrued during the 1st (first) through the 15th (fifteenth) day of each month on the 8th of the following month and;
we will pay you all of your commissions accrued from the 15th (fifteenth) day through the last day of each month on the 23rd (twenty-third) day of the following month.
5.2.2. We will pay you via International Wire Transfer when and only the commissions due to you have accrued in an amount to at least one thousand ($1000) dollars. By means of Paxum, this minimum amount shall be fifty ($50) dollars.
In addition to the provisions hereinabove, all the payments received by SWIFT (USD) are subject to a minimum threshold of one thousand ($1000) dollars and a maximum of twenty thousand ($20,000) dollars per week.
When payments being made via International Wire Transfer, an additional wire fee of forty ($40) dollars per transaction will be incurred. Lastly, for all payments received by PAXUM (recommended, both EUR/USD) no additional costs will be applied, nor to the payments received by SEPA (EUR), nor by GBP (UK, only).
5.2.3. Although we may, in our sole and exclusive discretion, offer alternative payment methods (other than the ones listed in Section 5.2.2), these methods, if offered on any occasion, shall only be provided gratuitously for the convenience of Affiliates and their use shall never be a matter of our obligation.
The discontinuation of such alternative methods, and policy changes regarding such alternative payment methods, can be made at any time at our sole and absolute discretion.
5.2.4. It is your duty to examine our computation of your commissions as often as you are paid, and if you intend to dispute our computations, you shall immediately inform us about it by sending an email to your account manager. We agree to promptly investigate your timely claim and to pay the disputed amount or to deny your claim within ninety business ninety (90) days, which shall start running on the next business day in Malta after the notification date.
In this regard, you agree that you should inform us about your claim as set forth above, particularly describing the nature, the amount of the commission that you claim, the reasons to support your claim, as well as any kind of evidence related to these. The referred claim shall be done within sixty (60) natural days in Malta after the first date, upon which, you assert that there are unpaid commissions that should have been paid to you. After such period has elapsed, it must be deemed that you have thereby finally and irrevocably waived any and all claims concerning the amount due, the date of payment, and the manner of payment, notwithstanding any other term or provision of this Agreement and we shall have no duty to you to investigate into your untimely claim.
5.2.5. We reserve the right to withhold any sum due to you as may be required by law or judicial process and to take any action with such sum as we may be required by law or the order of any court of competent jurisdiction. Moreover, Trafficmansion.com will also be entitled to withhold any sum due to you in the event of non-compliance pursuant to Section 10.1, especially, when a breach of any provision in relation to Data Protection Law, Anti-Spam and Email Marketing Laws occurs.
5.2.6. The terms contained in this Section shall survive the termination of this Agreement.
5.2.7. The final payments shall be governed by the provisions of Section 8 of this Agreement.
5. 3. License to Use our Promotional Materials .
5.3.1. From time to time, we will make available for your use certain promotion, advertising and commercial materials which you may use in your promotional work under our Affiliate Program.
These materials may include, but are not limited to, banners, video clips, pictorial images, animations, audio clips, text, or web pages and they are likely to include our Logo, trademarks, service marks, and business names.
5.3.2. For so long as this Agreement remains in force and effect (and only for that period), we grant you a worldwide and nonexclusive license to publish, distribute, copy, perform, adapt, encode or re‐encode and to otherwise use these materials and our logo and trademarks, solely and exclusively for the purposes and objects of this Agreement, in any lawful manner in any media, provided that you don’t delete, remove, or render invisible any watermark or other instance of our logo or trademark, nor remove any copyright notice or information of any character concerning any promotional materials mentioned in this Section, nor breach any provision contained in Title 18 United States Code Section 2257 or any other equivalent regulation which might be applicable in the jurisdiction of the territories where Trafficmansion.com operates, or any of its owned web pages.
The regulations implementing the Title 18 United States Code Section 2257, are also incorporated into this Agreement as though set out in full at this place and may be read and examined at the following link: https://codes.findlaw.com/us/title-18-crimes-and-criminal-procedure/18-usc-sect-2257.html
(The above-mentioned link is only provided as a courtesy, therefore, in the event that this link no longer works, in no case it shall be understood that the regulation contained in it is no longer applicable.)
5.3.3. You acknowledge that the license granted under this Section is nontransferable, non-assignable and non-sublicensable.
5. 4. Acceptance of Conditions of License .
5.4.1. In utilizing links to our Program, you agree that you will fully cooperate with us in order to establish and maintain such links. Once established on a fixed web page, a link and any graphic associated with it shall only be visually modified with our prior written consent.
5.4.2. You agree that you have no right nor powers to transfer, assign, sell, lease or sub-lease any right conferred by this license and you agree that you will not attempt to do so or represent to any person that you may do so.
5.4.3. Termination of this Agreement or your Affiliation for any reason whatsoever also immediately terminates any and all licenses which we have granted to you under this Agreement. You agree to immediately take down and terminate your use of our promotional, advertising and commercial materials when this Agreement or your Affiliation terminates.
SECTION 6 . YOUR OBLIGATIONS TO US .
The following language conveniently summarizes many of your obligations to us. Some or most of the obligations described in this Section are more completely recited in other parts of this Agreement, therefore, the more complete recitation will prevail if there appears to be any conflict between them. That a duty described elsewhere is omitted in this Section does not affect its validity and force.
You promise and represent to us all of the following, subject to all of the terms of this Agreement:
6. 1. Age, Honesty .
6.1.1. You represent to us (if you are a natural person and not a business entity), that you are at least 18-year-old at the present time (or that you are 21-year-old when based in any jurisdiction establishing that minimum age for having competence into entering into contracts or prohibiting persons under that age from receiving sexually explicit images).
6.1.2. You agree that when you apply (if you are a natural person) for being part of our Affiliation Program, your age is at least 18 or 21, alternately, as above-mentioned.
6.1.3. You also agree that all of the other information you will or have provided us for any purpose at any time, before, during or after the term of your affiliation, will be truthful, accurate, and complete.
6. 2. Important Business Representations .
6.2.1. You represent to us and agree:
That you own all permits, authorizations and licenses required by law to operate your business in the way it is currently conducted and will be operated pursuant to and in conformity with this Agreement and that it is not in violation of any applicable law for you to do so; and
That you have entered into no other agreements, contracts, or licenses (and have incurred no obligation to, with, or involving any other person) which are in conflict with the provisions of this Agreement; and
That all persons employed or otherwise engaged in your performance under this Agreement are and will always be at least 18-year-old (or 21-year-old when based in any jurisdiction establishing that minimum age for having competence into entering into contracts or prohibiting persons under that age from receiving sexually explicit images); also, you will not perform or cause any person to perform any act in furtherance of the object of this Agreement in any jurisdiction in which the possession, sale distribution, or transfer of sexually explicit materials is illegal.
6.2.2. If you are entering into this Agreement as a corporation or other business entity, you additionally represent us and agree as follows:
That you have duly incorporated or organized and that you are validly existing as a corporation or other entity under the laws of your governing jurisdiction; and
That performance under this Agreement does not and will not violate your articles, charter or by‐laws, articles of organization, or any agreement or instrument which governs you or to which you are a party, or any law, rule, or regulation applicable to or binding upon you.
6. 3. Duty to Read Our Messages .
6.3.1. You agree to promptly read the email messages and any other communications we might send you. As otherwise provided in Section 1 of this Agreement, if our email announces a change or modification of this Agreement and you do not wish to agree to them, you agree that you must immediately cancel your affiliation: You will be bound by those changes or modifications unless you fail to immediately cancel your affiliation pursuant to what is set forth in Section 1.
6. 4. Duty to Check for Updates to This Agreement .
6.4.1. You agree to click on the Affiliate Program Terms of Service link located online at https://www.trafficmansion.com/site/tos , to check for changes or modifications in these Terms of Service as frequently as you access your Affiliate Program account page on Trafficmansion.com.
(The above-mentioned link is only provided as a courtesy, as a consequence, in the event that this link no longer works, you shall be able to find our Terms of Service on our website, and in no case, it shall be understood that the provisions contained in it are no longer applicable.).
6. 5. Duty to Update Email Information .
6.5.1. The Affiliate understands and acknowledges that any of its non-compliance pursuant to Section 10.1. are of a nature to the cause of serious and irreparable damage to Trafficmansion.com, and the amount of these damages is difficult to estimate, calculate and prove. In this regard, by we shall have the right to charge up to ten times the commission paid to you until the moment when the breach happened (Hereinafter, referred to as “Infringement Penalty”). Pursuant to Section 1, you agree to update your email address through your Affiliate Program account page on Trafficmansion.com as often as it changes. It will be under your sole and absolute responsibility to ensure that the email provided by you is active, is your current one, and that you have access to it.
6. 6. Duty to Read and Understand this Agreement .
6.6.1. You agree to read all the provisions of this Agreement and to ensure that your conduct conforms to the rules and obligations set forth in them in every respect at all times.
6.6.2. You agree to not be in breach of any of the provisions contained in this Agreement.
6.6.3. You agree to seek amplification or explanation from us in regard to any term, wording, or provision that you do not understand or which seems confusing or vague to you and to accept our explanation or interpretation, in our sole and absolute discretion, as authoritative, final, and controlling. Your continued participation in our Affiliate Program thereafter shall constitute your acceptance of our interpretation of any such term, wording, or provision.
6.6.4. You understand that more detailed Affiliate Standards of Conduct are contained in Section 7 of this Agreement and that, by accepting this Agreement, you are bound by them as they are presently articulated and as they may, in the future, be changed or modified in accordance with the terms of this Agreement.
6. 7. Duty to Obey the Law .
6.7.1. You agree to obey the laws of every jurisdiction, nation, state, region, province and/or locality that has authority over you in every activity connected in any way with your Affiliation with Trafficmansion.com. Important details concerning your obligations are contained in this Agreement under Affiliate Standards of Conduct.
6. 8. Our Relationship as Independent Contractors .
6.8.1. You agree that you and TM Marketing Services Limited, doing business as Trafficmansion.com, are independent contractors standing at arm's length, and nothing in this Agreement, nor in any subsequent written or oral statement, nor in any course of conduct or dealings, will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties, except that a written agreement manually signed on paper by you and by an authorized representative of TM Marketing Services Limited, doing business as Trafficmansion.com, may establish such a relationship.
6.8.2. You don’t have and will not have any authority under this Agreement, nor through any future dealings of pattern of conduct, to make or accept any offers or representations on our behalf.
6.8.3. You will not make any statement, whether on your site or in your other operation or otherwise, nor take any action, that would state, imply, or be reasonably understood to suggest the existence of any such relationship or authority as it is disclaimed in this Section, nor shall you remain silent in circumstances under which your silence would reasonably tend to be taken to affirm such a disclaimed relationship or authority, but it will, rather, be your duty to affirmatively disclaim and deny such a relationship.
6.8.4. You shall not be deemed as our agent or any similar figure, and TM Marketing Services Limited expressly disclaims responsibility for any statement or conduct made by you on our behalf.
6.8.5. Without prejudice to or any purpose of limitation of the foregoing, and exclusively for the purpose of example, you will be solely responsible for the development, operation and maintenance of your site or other promotional programs and for all materials that appear in or on it; we shall have no responsibility for the development, operation and maintenance of your site nor the materials that appear on your site .
6.8.6. We shall have no obligation to investigate your site or its Content nor your business operations, but we reserve the right to do so for any reason, for no reason, or whenever credible evidence suggesting a violation of this Agreement comes to our attention.
6. 9. Your Affiliate Password .
6.9.1. You agree that you will not share your password for access to your Affiliate Program account with any other person, nor through oversight or negligence allow any other person to learn it. You will not permit anyone other than yourself or us to gain access to your account. You will notify us immediately through the most rapid and sure means available to you when you learn or suspect that the confidentiality of your password has been compromised.
6. 10. Nontransferability .
6.10.1. You understand that your Affiliation entitles you and only you and your registered websites or other registered operations to participate in this Affiliate Program and that no right or privilege or access granted to you concerning the Program can be sold, assigned, leased, subleased, given, rented, entrusted, or transferred by you to any other person without our prior consent in writing. You promise that you will not do or attempt to do any of those things.
6. 11. Duty of Good Faith, Truthful Cooperation .
6.11.1. You promise that, in all of your dealings with us, you will always be truthful and that you will never attempt to cheat, defraud or mislead us in any way by your statement or that of any other person, by silence calculated or likely to mislead us, or through your or others act or omission.
6.11.2. You also agree that you will diligently, and in good faith, co‐operate with us in any investigation we may conduct concerning our Affiliate Program, including but not limited to the operations, policies, and activities of Affiliates or in respect to matters that may be relevant to the Affiliate Program or participation in it.
6.11.3. You agree that you will provide us with accurate, truthful, and complete statements, information, correspondence, records, and/or documents, promptly upon our request, and if asked to do so, you will provide statements under oath and certify the authenticity of documents. If requested by us to do so, you will truthfully testify in depositions, hearings, and trials. You agree that you will not be entitled to any compensation in consideration of your assistance beyond reimbursement for your out-of-pocket expenses incurred with our knowledge prior to your expenditure of funds.
6.11.4. This provision shall survive the termination of this Agreement for any reason.
6. 12. Duty to Inform Us of Termination .
6.12.1. You agree to tell us when you want to terminate your participation in our Affiliate Program by doing so in writing and actually delivered to your account manager. You shall identify yourself, provide your contact information, indicate your intention to terminate this Agreement and, optionally, detail the reason why you decide to do so.
6.12.2. We agree to promptly review your request and give you an answer within thirty (30) days.
6.12.3. Some of your obligations under this Agreement shall survive after termination of this Agreement, as provided in it.
6. 13. License and Use of Affiliate Logos and Trademarks .
6.13.1. You grant us a nonexclusive, worldwide license to utilize the names, titles logos, service marks, and trademarks you employ, in any media, for the purpose of advertising, marketing, promoting and publicizing, in any manner.
6.13.2. Notwithstanding any term herein apparently to the contrary, we shall not be required to so advertise, market, promote or publicize your operations.
6.13.3. You hereby represent and warrant that you are the sole and exclusive owner of all of the names, titles, logos, service marks, and trademarks that you employ and that you have the right and power to grant to us a valid and unconditional license to use them in the same manner contemplated herein, and that your license to us does not or will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or another proprietary right of any other person or entity. Termination of this Agreement also immediately terminates any and all licenses which you grant to us under this Agreement.
6. 14. Registration of Websites and other Operations.
6.14.1. You must register each website or other operation that is part of this Affiliate Program with us when you apply to become an Affiliate.
6.14.2. Any other website or other operation thereafter to be added to the Affiliate Program must be also registered with us before any use is made of our materials or other intellectual property. This Subsequent Registration shall be made through our online form (if available) or by sending a request to your account manager, which shall at least contain: your identification, contact details, websites or other operations intended to be registered.
6.14.3. We will evaluate your Subsequent Registration applications in good faith and we will promptly notify you in writing when we accept or deny any of them. The websites, methods or other operations contained in those applications shall only be deemed to be part of this Agreement if and only when we accept your Subsequent Registration application and notify you that they were accepted.
SECTION 7. AFFILIATE STANDARDS OF CONDUCT .
You agree with the following provisions:
Compliance with Data Protection Laws
7.1.1. The Affiliate acknowledges that it is, and at all prior times was, in material compliance with all and any applicable statal, federal, national, regional, provincial or local data privacy and security laws and regulations, and that it has taken commercially reasonable actions to prepare to comply with, and since its inception, has been and currently is in compliance with the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679), as well as any other statal, federal, national, regional, provincial or local law or regulation of any jurisdiction which might be applicable in relation to data privacy (collectively, the “Data Protection Laws”).
In the following link, you might consult the Data Protection Laws applicable to each country: https://www.dlapiperdataprotection.com/index.html?t=world-map&c=CA
(The above-mentioned link is only provided as a courtesy, therefore, if this link no longer works, either because it has been removed, or because is temporarily inaccessible, in no case it shall be understood that the referred regulations are no longer applicable.).
7.1.2. To ensure compliance with the Data Protection Laws, the Affiliate must have in place, comply with, and take any appropriate steps reasonably designed to ensure compliance in all material respects with its policies and procedures relating to data protection and the collection, storage, use, disclosure, handling, and analysis of Personal Data (hereinafter, referred to as the “Policies” or “Policy”).
7.1.3. The Affiliate shall have a Privacy Policy which shall be easily accessible to its Users or Customers, as provided in Section 7.1.6.
7.1.4. By way of example, the Privacy Policy must include, at least, the following content:
Who is the site/app owner?
What personal data is being collected? How is that data being collected?
What is the Legal basis for the collection? (e.g. consent, necessary for your service, legal obligation, etc.)
For which specific purposes are the personal data collected? (e.g. analytics, email Marketing, etc.)
The categories of sources from which you collect consumers’ personal information.
Which third parties will you share with or will have access to that personal data? Will any third party collect data through widgets (e.g. social buttons) and integrations (e.g. Facebook connect)?
Where applicable, details relating to cross-border/overseas data transfers and which measures were put into place to facilitate this in a safe and compliant way.
What rights do Users have?
Description of the process for notifying Users and visitors of changes or updates to the privacy policy.
What date the policy is effective from, and any changes since that date.
7.1.5. The Affiliate further certifies that it:
Has not received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Data Protection Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice.
Currently, is not a party to, and/or is not conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Data Protection Law.
Is not a party to any order, decree, or agreement that imposes any obligation or liability under any Data Protection Law.
7.1.6. By using adequate methods, the Affiliate must ensure that its subscribers are aware of and agree to its own Terms and Conditions, Privacy Policy, Cookies Policy, and/or other website Policies, and/or intend to sign up for its Newsletter (Hereinafter, referred to as “Website Content”).
The links of this Website Content must be displayed at all times on the Affiliate’s websites or through its apps, ideally, it must be displayed in the footer of these. Moreover, this Website Content shall also be shown in the initial signup form. By way of example, it shall be understood that the subscribers are aware of the Website Content when completing a form, ticking on the consent checkbox and also clicking on "Sign Up" or “Register here” (or with any suchlike wording). The Affiliate must also make sure that the consent checkbox is unticked when the subscribers access the page, so it’s clear that the User has taken affirmative action to agree to the particular covenant.
7.1.7. Trafficmansion.com shall not be liable for the Affiliate’s violations of any obligations outlined in this Section.
7.1.8. As soon as Trafficmansion.com becomes aware of or has enough reasons to believe that the Affiliate is not complying with the Data Protection Laws, as well as with any other law that amends, revokes, or substitutes them, Trafficmansion.com reserves the right to immediately terminate this Agreement, without the prior written notice required. In that regard, the Affiliate won’t be entitled to claim against Trafficmansion.com any damages whatsoever.
7.2 . Absolute prohibition of email spam and any other kind of unsolicited direct marketing .
7.2.1. Our policy against email spam and other electronic unsolicited direct marketing techniques is critically important to us because spam is seriously and dangerously illegal and any potential connection to these crimes imperils our continued existence.
We have absolutely zero tolerance for spam and we will terminate your Affiliation when we have any suspicion that you are engaged in spamming.
We are unwilling to enter into any relationship with any person who does not take this matter as seriously as we do and who is unwilling to commit to our policy without any reservation.
7.2.2. The term "spam", as used here, includes, but is not limited to, any email, message or other communication of any kind, without limitation, transmitted in violation of the United States CAN-SPAM Act, and all regulations promulgated by the United States Federal Trade Commission in implementation of those statutes (or any other equivalent regulation to the aforementioned which is applicable in the jurisdiction of the territories where Trafficmansion.com operates, or any of the web pages owned by us), as they exist now and as they later may be amended or added to, and any other email, message, or other communication of any kind, without limitation, regardless of its place of origin, which would violate those same provisions of the law were it to be transmitted from within the jurisdiction of the United States of America or of any other country where Trafficmansion.com operates, or any of the web pages owned by us.
7.2.3. The Affiliate undertakes to comply with all applicable laws related to the sending of spam/unsolicited electronic messages, including, but not limited to, the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM), as well as any other statal, federal, national, regional, provincial or local law or regulation of any jurisdiction which might be applicable in relation to anti-spam and e-mail marketing (Hereinafter, referred to as “Privacy and Security Laws” or “Anti-Spam Laws”).
7.2.4. Accordingly, the Affiliate agrees that it (itself or through any agent, employee, contractor or intermediary) will never utilize any kind of spam, including but not limited to, any unsolicited bulk email, any instant message spam, any newsgroup spam, any spam in blogs, any wiki spam, any mobile phone-messaging spam, any internet forum spam, any unsolicited fax transmissions, any file sharing network spam, or any unsolicited posts on social networking sites such as Facebook, Instagram, YouTube, Twitter, LinkedIn and alike.
7.2.5. Without limiting any provision of the previous paragraphs:
The Affiliate must develop:
A commercially reasonable policy or policies regarding anti-spam are consistent with any applicable Anti-Spam Laws.
A consent language for all commercial electronic messages being sent by the Affiliate that complies in all material respects with any applicable Anti-Spam Laws.
The prescribed form and content for all commercial electronic messages being sent by or for the Affiliate in accordance with any applicable Anti-Spam Laws in all material respects.
The Affiliate shall not hide its identity when sending marketing emails, and if the Affiliate is marketing on behalf of another company or organization, it must not conceal their identity either. Therefore, the Affiliate must identify the company behind the message (including, but not limited to the Legal name, Company Registration Number, Address, E-mail, Phone number).
The Affiliate shall have obtained consent, as required by applicable Anti-Spam Laws, from all recipients of the Affiliate’s commercial electronic messages; therefore, the Affiliate shall N OT send unsolicited messages. In no case shall be understood as consent the pre-checked consent boxes. It’s highly recommended that, when a member signs up, the Affiliate sends an initial email to confirm that the User do in fact want to receive emails from the Affiliate.
The Affiliate shall implement a functional and readily performed unsubscribe (or “opt-out”) mechanism, so the Users stop receiving future emails form the Affiliate. This mechanism must have immediate processing capabilities and, except as would not have a Material Adverse Change, all unsubscribe requests must be promptly acted upon (in any case, within the reasonable amount of time set forth in the applicable norm).
This provision shall be done by: a) including in every email sent by the Affiliate an “Unsubscribe” link (ideally, at the bottom of the email); or/and b) including a link directing the subscribers to their "Preferences" page of their account (provided that they have one) where they can unsubscribe.
Once the Users have requested to not receive any more messages from the Affiliate, the Affiliate cannot sell or transfer their email addresses, even in the form of a mailing list. The only exception to this prohibition is when the Affiliate may transfer these email addresses to a company that has been hired to help to comply with the Anti-Spam Laws.
The Affiliate shall monitor the email marketing done on its behalf by another company.
The Affiliate shall not install computer programs on third-party computer systems except in compliance with Anti-Spam Laws in all material respects.
The Affiliate has taken commercially reasonable efforts to ensure that it does not make false or misleading commercial representations online or in any electronic communication (especially, email headers or subject lines). The following standards must be followed (this list is not exhaustive):
The email header must relate to the content in the body of the email and not be deceptive.
A legitimate physical address of the Affiliate must be displayed.
If adult content is comprised in the email, it must be labelled accordingly.
In case of advertisement, the Affiliate shall identify its email as such.
The Affiliate acknowledges that it is not being subject to any complaint, audit, review, investigation, inquiry, or similar proceeding, made under any Anti-Spam Law.
7.2.6. The United States CAN-SPAM Act, Title 15 United States Code Chapter 103 and Sections 7701 through 7713, are incorporated into this Agreement as though set out in full at this place and may be read and examined at the following link: https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title15-chapter103&edition=prelim .
The regulations implementing the CAN-SPAM Act, contained in 16 Code of Federal Regulations Part 316, are also incorporated into this Agreement as though set out in full at this place and may be read and examined at the following link: https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-316 .
The above-mentioned links are only provided as a courtesy, as a consequence, in the event that those links no longer work, either because they have been removed, or because they are temporarily inaccessible, in no case it shall be understood that the referred regulations are no longer applicable.
The target of each link is to reflect the legal text in existence at the time that this Agreement was drafted; your obligations under this Agreement shall be to comply with the laws contained within that Chapter and Part as they now exist and as they may be amended or added to in the future; it is, therefore, prudent that you periodically keep abreast of the current text of those provisions.
7.2.7. Trafficmansion.com shall absolutely not be liable for the Affiliate’s infringements of any obligations outlined in this Section 7.
7.2.8. You acknowledge your understanding of our policy, that one instance of spam in violation of the provisions set out in this Section, as well as when Trafficmansion.com becomes aware of or has enough reasons to believe that the Affiliate is not complying with the Anti-spam Laws, or any other law that amends, revokes or substitutes them, Trafficmansion.com reserves the right to immediately terminate this Agreement, without the prior written notice required, without prejudice of the additional enforcement of the provisions set forth in Section 10 of this Agreement. In that regard, the Affiliate won’t be entitled to claim against Trafficmansion.com any damages whatsoever.
7.3. Intellectual Property Rights Violations Prohibited .
7.3.1. You agree that so long as you participate in our Affiliate Program, you will not use for any promotional, advertising or commercial purpose any Content that infringes the copyright, trademark, patent, trade secret rights, or other intellectual property of any person or which violates the right to privacy of any person, including but not limited to the rights of publicity, publication, false light, the unauthorized public disclosure of private information, or the unauthorized publication, communication, or distribution of Personal Identification Information, nor will you otherwise use any Content in a manner that amounts to a tort against us or a third person including, but not limited to, defamation or intentional infliction of emotional distress.
7.3.2. Without limiting the foregoing, you agree that you will not use any Content for which you do not possess all Publication Rights necessary for your intended use of that Content nor unless you possess written evidence of those Publication Rights.
7.3.3. You agree that so long as you participate in our Affiliate Program, you will not, for any promotional, advertising or commercial purpose, utilize any Content, unless you own all copyrights associated with such content and unless you can prove to us that you own all such copyrights, or through the written permission of all copyright holders associated with the Content signed by such copyright holders, granting you permission or license to use the Content as you wish to use it, establish your right to do so, or unless the Content is in the public domain and you possess written evidence that the content is in the public domain.
7.3.4. You agree that you will not use any content for any promotional, advertising or commercial purpose, unless you have secured and possess full and unconditional written releases and waivers of all of the personal rights of all of the writers, performers, models, photographers, designers, artists, employees, land, building, or property owners, and of all other persons, as may be or may appear to be necessary, for the plenary and free publication of Content germane to this Agreement in a graphic, sexually‐oriented web site without injury or offence to the rights of any person, with regard to any Content germane to this Agreement.
7.3.5. Definitions:
The term"Content", as we use it in this Agreement, means all text, graphic or computer designs, programs, scripts, and any and all fruits of any and all types of still and moving photography, videography, digital image, streams, and/or sound acquisition, and any other method or technical process by which images and/or sound can be recorded, fixed, projected, transmitted, streamed, displayed, or played back, including, without limitation, negatives, prints, digital files, streams, video feeds, illustrations, pictures, designs, paintings and drawings of every kind and nature and every part and element thereof, and the text and voice communication and vocal expression of a performer.
The term " Personal Identification Information" or “Personal Data”, as we use it in this Agreement, means all information personally associated with any identifiable person by law or custom, including without limitation, the name of and images depicting a person, including any person's actual or real name, any aliases, nicknames, professional names, maiden names, or pre‐adoptive names, any email address, the number associated with any bank account, debit card or credit card owned by or issued to any person at any time, any Personal Identification Number or other numbers or codes used for verification or security for any purpose and any username or username/password combination used or issued to be used online for access to any email account or to obtain services from any website or any interactive computer service of any nature whatsoever.
The term "Publication Rights" means the permission of each and every person visually depicted or heard in an audio track, the owner of the places depicted, the owner of any trademark depicted, the owners of any trade secrets used, disclosed, or depicted, the person to whom personal identification information relates or with whom it is associated, and the written license of any and all copyright holders, authors, and inventors possessing any rights whatsoever in the content.
7.4 . Personal Harm Prohibited .
7.4.1. You agree that, so long as you participate in our Affiliate Program, you will not, for any promotional, advertising, or commercial purpose, engage in any conduct that amounts to the abuse, harassment, bullying, stalking or defamation of any person or give any help, encouragement, or assistance to any other person doing these kinds of things, nor communicate any threat to any person, communicate any incitement or threat of suicide, promote racism, bigotry, hatred, animal cruelty, or physical harm of any kind against any group or individual, nor communicate with any person who has asked you not to contact him, her, or it.
7.5. Illegal and Fraudulent Conduct Prohibited.
7.5.1. You agree that, so long as you participate in our Affiliate Program, you will not, for any promotional, advertising or commercial purpose, engage in any conduct that amounts to the violation of any law or the promotion of or facilitation of illegal or fraudulent conduct under the laws of any jurisdiction in which Trafficmansion.com or any other web sites owned by us may be accessed, including, but not limited to solicitation of any offence, the promotion, publication, or distribution of an illegal or unauthorized copy of another person's copyrighted work, including but not limited to pirated computer programs or music files, providing information to circumvent manufacturer‐installed copy‐protection devices, the unauthorized publication, distribution, or communication of any usernames or passwords, or the publication, distribution or communication of links to the place where the same are available.
7.6 . Promotion of Illegal Conduct Prohibited .
7.6.1. You agree that so long as you participate in our Affiliate Program, you will not, for any promotional, advertising or commercial purpose, engage in any advertising, promotion, posting, product, service, relationship, business, commerce, offer, agreement, proposal, message, or communication that is illegal under the laws of any jurisdiction in which Trafficmansion.com or any other web sites owned by TM Marketing Services Limited may be accessed.
7.6.2. Without limitation of the foregoing, you shall comply with the laws of every jurisdiction requiring a Privacy Statement disclosing the uses to which you will apply personal information acquired from users or visitors.
7.7 . Deceptive Practices Prohibited. Fake Profiles and Communications .
7.7.1. You agree that so long as you participate in our Affiliate Program, you will not, for any promotional, advertising or commercial purpose use any unfair, untrue, misleading, unfairly competitive, fraudulent or deceptive act, practice, communication, or statement whether or not criminal under the laws of any jurisdiction in which Trafficmansion.com or any other web sites owned by us may be accessed, or which is calculated to achieve any such purpose.
7.7.2. Without limitation of the foregoing and only for the purposes of an example, when you pursue any promotional, advertising or commercial purpose relating to your activities as an Affiliate (Hereinafter, referred to within this Section as the “Purpose”), it shall be prohibited to you to:
Create, establish, publish and use any fake profiles (which shall mean the use of fictitious information, as well as the use of any kind of information of a real person, which use has not been authorized, and which it actually relates to that real person and whom it describes or depicts in any fashion, accurately or inaccurately) for the purpose to cheat, defraud or mislead us in any way.
Send to any person any type of email, message, or communication for the Purpose.
Create, use, or operate a script, program, method, technique, or software (such as automation bots and/or any kind of artificial intelligence) for the Purpose.
7.7.3. Hereinto, you expressly agree that you will not employ any script, program, method, technique or software (such as automation bots and/or any kind of artificial intelligence) that might automatically generate and/or transmit messages, emails, replies, or other communications (other than your "out of the office" automatic reply to emails or messages stating that you are unavailable at that time and may be reached at a later time).
7.8 . Use of Viruses Prohibited .
7.8.1. You agree that so long as you participate in our Affiliate Program, you will not utilize, publish, distribute, copy, or transmit any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive or invasive program, regardless whether the damage is intended or unintended, which may cause damage to any computer equipment, the loss or corruption of data or programs, an inconvenience to any person, or any alteration of any person's computer's settings or configuration.
7.9 . Protection of Minors.
7.9.1. You agree that so long as you participate in our Affiliate Program, you will not, for any promotional, advertising or commercial purpose, distribute, publish, or solicit any Personal Identification Information or sexual information about any person under the age of 18 or 21, alternately, as local law shall require to be deemed as of legal age, whether with or without the consent of that person.
7.10 . Chain Letters and Ponzi Schemes Prohibited .
7.10.1. You agree that so long as you participate in our Affiliate Program, you will not utilize or participate in chain letters, pyramid schemes and lotteries, nor promote or advertise any of them.
7. 1 1. Information About Dangerous Articles Prohibited .
7.11.1. You agree that so long as you participate in our Affiliate Program, you will not publish or distribute in any of your webpages, operations or platforms of any kind, any type of information concerning the use, possession, sale, distribution, availability, or manufacture of drugs, drug paraphernalia, explosives, weapons, radioactive materials, infectious or weaponized biological agents, toxic gasses, poisons, venoms, or other toxic or hazardous substances.
7.11.2. You will not violate any provision of the United States law or of any other country where Trafficmansion.com operates, or any of the web pages owned by TM Marketing Services Limited, relating to the export of or disclosure of sensitive information, programs or other material so regulated by those laws.
7. 1 2 . Section 2257 Compliance Mandated .
7.12.1. You agree that so long as you participate in our Affiliate Program, you will not, for any promotional, advertising or commercial purpose, utilize, distribute, or publish erotic images unless they comply with the current provisions of Title 18 United States Code Section 2257 and it is implementing federal regulations in force or of any other equivalent regulation to the aforementioned which is applicable in the jurisdiction of the territories where Trafficmansion.com operates, or any of the web pages owned by TrafficMansion, and effect as most recently authoritatively interpreted by the courts of the United States or by the Department of Justice, or by the courts of the territory which is competent in the particular case, regardless of whether those statutes and regulations are ultimately constitutional.
7. 1 3 . Obscenity and Other Prohibited Depictions .
7.13.1. You agree that so long as you participate in our Affiliate Program, you will not, for any promotional, advertising, or commercial purpose create, utilize, distribute, or publish any content depicting or describing bestiality, necrophilia, coprophilia, urine, vomit, blood, gagging, rape or any type of nonconsensual sexual conduct or contact, the simulation of sex with persons under the age of 18 or 21, alternately, as local law shall require, the infliction of apparently serious pain, torture, the sexual penetration of restrained or bound or gagged or blindfolded or suspended persons, corpses, diseases, surgery, violence upon persons or animals or the sexual activity of persons with physical or mental disabilities or handicaps or any other content which is legally obscene in Hong Kong, the United States, Canada, or in any jurisdiction in which Trafficmansion.com or any other web sites owned by TM Marketing Services Limited operates.
7. 1 4 . Child Pornography Prohibited .
7.14. You agree that so long as you participate in our Affiliate Program, you will not create, possess, distribute, or publish any child pornography, as defined by the laws of Hong Kong, the United States, Canada, or in any jurisdiction in which Trafficmansion.com or any other web sites owned by TM Marketing Services Limited operates, nor any depiction or description of nudity, semi‐nudity, or any sexual conduct with, of, or by a person under the age of 18 or 21, alternately, as local law shall require to be deemed as of legal age.
7. 1 5 . Promotion and Protection of Goodwill .
7.15.1. You agree that so long as you participate in our Affiliate Program, you will not take any act that, alone or in its context, would tend to injure or diminish the goodwill or good reputation of TM Marketing Services Limited, its Trafficmansion.com website, or any other web sites owned by TM Marketing Services Limited, or subject it to liability or embarrassment as we may impartially determine in our sole and absolute discretion, whether your conduct is illegal or otherwise, without restriction.
7. 1 6 . Prohibited Jurisdictions .
7.16.1. You represent to us that you are not located in any of the jurisdictions set forth in this Section and that, during the term of this Agreement, you will undertake no promotional advertising or business operations by yourself or through any other person (concerning the websites that you now seek to register or later register with our Affiliate Program) in any of them: Iran, Cuba, the Democratic People's Republic of Korea (North Korea), Sudan, Syria, Crimea Region of Ukraine.
7. 1 7 . Confidentiality .
“Confidential Information” shall mean any data or information developed or acquired by us related in any way to the object of this Agreement regarding the operation of TM Marketing Services Limited and the identity, Personal Identification Information, operations, or methods and techniques of its Affiliates, contractors, agents, models, performers, subscribers, participants, or the principals of any of them, which could reasonably be regarded as confidential and the disclosure of which would be harmful to TM Marketing Services Limited (or those of its Affiliates, contractors, agents, models, performers, subscribers, participants, or the principals of any of them) and, particularly, but without limitation, all information including ideas, concepts, projects and projections, specifications, records, forms, templates, scripts, data, know‐how, models, plans, business and/or marketing plans, programs, algorithms, software (source code, object code and related documentation), products, formulas, systems, methods, processes, discoveries, technological inventions, artistic works, as well as other all other technical or commercial information whether patentable or not, whether copyrightable or not, or in whatever form they may take (digital, analog, hard copy, or otherwise without limitation); without limitation of the foregoing, “Confidential Information” includes any and all unpublished information not generally known in the adult entertainment industry which we have treated as confidential and which we identify to you as confidential when we disclose it to you; Confidential Information remains Confidential Information until TM Marketing Services Limited voluntarily makes the information public without coercion, duress, or as it may be required to do so by law, subpoena, or other judicial process.
Obligations Regarding Confidential Information. You agree as follows :
From time to time, you may be exposed to the Confidential Information of TM Marketing Services Limited.
You agree that you will take all appropriate steps to protect the Confidential Information of TM Marketing Services Limited, from unauthorized disclosure.
You agree that you will not disclose such Confidential Information to any third party, except as may be required by law.
You agree that you will not use any Confidential Information (other than as authorized by this Agreement) without the prior written consent to the such effect of an authorized representative of Trafficmansion.com.
You agree that you shall use the Confidential Information disclosed to you solely for the purpose of carrying out your responsibilities and obligations, through your officer, agents, servants, employees, attorneys, accountants, and contractors under the terms of this Agreement.
You agree that you shall take the same measures to protect the confidential nature of the Confidential Information disclosed to you as you take to protect your own trade secrets and other Confidential Information (but in no event with less than commercially reasonable care).
Your obligation with respect to Confidential Information shall continue until such information is no longer deemed Confidential Information under this Agreement. This provision survives the termination of this Agreement for any reason.
Your obligations of confidentiality hereunder shall not extend to information which you can document that it (a) was previously known by you, prior to any disclosure from TM Marketing Services Limited, doing business as Trafficmansion.com, as evidenced in written documentation or other tangible forms dated prior to such disclosure; (b) is generally available to or known by the trade; (c) was received from any person without restriction and not in violation of any duty of nondisclosure on the part of such person; (d) is used for the purposes of mediation, arbitration, or litigation hereunder; or (e) must be disclosed pursuant to the order of a court, administrative agency, or other governmental body of competent jurisdiction. In that event, you agree that; prior to such disclosure, you shall promptly notify TM Marketing Services Limited, doing business as Trafficmansion.com, by a written form of such required disclosure. Moreover, you agree that you will take reasonable steps to allow TM Marketing Services Limited, doing business as Trafficmansion.com, to seek a protective order with respect to the confidentiality of the information required to be disclosed; and promptly cooperate with and assist TM Marketing Services Limited in connection with obtaining such protective order.
SECTION 8 . TERM AND DURATION OF THIS AGREEMENT. LIQUIDATED DAMAGES .
8.1. The term of this Agreement will begin upon our acceptance of your Affiliate Program Application and will end when terminated by either Party accordingly with this Section or by operation of law.
8.2. Either you or us may terminate this Agreement at any time, for any reason or for no reason, by giving the other Party notice of its intention to terminate this Agreement. In that regard, you shall give us prior written notice of at least ten (10) business days. Our notice by e‐mail to your current registered e‐mail address shall be deemed sufficient to terminate this Agreement.
8.3. If this Agreement is terminated other than by us on the basis of you breaching the terms of this Agreement, we will thereafter pay you only commissions already actually earned at the time of termination and derived from subscriber payments actually made during the term of the Agreement and not thereafter charged back, refunded or otherwise voided, less processing fees; in such case, we shall not pay you any subsequent commissions otherwise payable to you based on future recurring payments.
8.4. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid in consideration of the possibility of chargebacks, refunds, or other events which may affect the final commission payable to you.
8.5. We reserve the right to generally terminate the Affiliate Program described in this Agreement or any part of it, at any time, for any reason or for no reason, with or without prior public notice or notice to you, at our sole and exclusive discretion.
8.6. We reserve the right to withhold any sum due to you, as it may be required by law or judicial process, and to take any action with the sum, as we may be required by law or the order of any court of competent jurisdiction.
8.7. The terms contained in this Section shall survive the termination of this Agreement.
SECTION 9. DISCLAIMER OF ANY WARRANTIES .
TRAFFICMANSION.COM GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OTHER THAN THOSE WHICH ARE IMPLIED BY LAW AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW.
IT DISCLAIMS ANY WARRANTY OF MERCHANTABILITY ANY AND ALL WARRANTIES OF FREEDOM FROM PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, ANY WARRANTY OF NONOBSCENITY AND ANY WARRANTY AS TO PUBLICATION RIGHTS.
TRAFFICMANSION.COM DISCLAIMS ANY IMPLIED WARRANTIES OTHERWISE ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRAFFICMANSION.COM, ITS AGENTS OR EMPLOYEES, SHALL CREATE A WARRANTY.
NO TERM OF THIS AGREEMENT MAY BE MODIFIED OR CHANGED EXCEPT AS EXPLICITLY PROVIDED BY ITS TERMS AND YOU AGREE THAT NO ORAL REPRESENTATION OR STATEMENT OF ANY REPRESENTATIVE OF TRAFFICMANSION.COM IS RELIED UPON BY YOU IN ENTERING INTO THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ALL CONTENT PROVIDED IS PROVIDED “AS IS” WITH NO WARRANTY OF ANY SORT WHATSOEVER.
TRAFFICMANSION.COM MAKES NO REPRESENTATION THAT THE OPERATION OF OUR PROGRAM WILL BE UNINTERRUPTED OR ERROR‐FREE, AND WE DISCLAIM ANY LIABILITY FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
TRAFFICMANSION.COM IS NOT RESPONSIBLE TO YOU FOR ANY DELAY IN TRANSMISSION OF CONTENT OR PROGRAM DOWNTIME, NOR FOR ANY VIRUS, TROJAN HORSE, WORM, OR OTHER DELETERIOUS PROGRAM OR INSTRUCTION THAT YOU MAY RECEIVE AS A RESULT OF YOUR AFFILIATION.
IN NO EVENT SHALL TRAFFICMANSION.COM OR ITS AGENTS, OFFICERS, DIRECTORS, COUNSELS, CONSULTANTS, ADVISORS, AFFILIATES, MEMBERS, MANAGERS, CONTROL PERSONS, PRINCIPAL SHAREHOLDERS AND EMPLOYEES (HEREINAFTER, REFERRED TO AS “RELATED PERSONS”), BE LIABLE TO YOU OR ANY OTHER PERSON FOR LOSS OF BUSINESS, PROFITS OR DATA, OR FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE ANY PART OF OUR AFFILIATE PROGRAM OR THE CONTENTS THEREOF, EVEN IF TRAFFICMANSION.COM WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY OTHER CLAIM BY YOU OR BY ANY OTHER PERSON.
SOME JURISDICTIONS DO NOT PERMIT A DISCLAIMER OF CONSEQUENTIAL DAMAGES; YOU SHOULD CONSULT THE LAWS OF THE RELEVENT JURISDICTION IN ORDER TO DETERMINE THE EFFICACY OF THE FOREGOING DISCLAIMER OF CONSEQUENTIAL DAMAGES.
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A BREACH OF THIS AGREEMENT BY TRAFFICMANSION.COM IS LIMITED TO THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
SECTION 10 . NON-COMPLIANCE, INDEMNIFICATION, DEFENSE AND NOTICE.
10.1. Without any limitation or exception, it must be considered as ‘non-compliance’ (in whichever case, as determined by Trafficmansion.com, in its sole and exclusive discretion), any Affiliate’s breach, violation, infringement, misrepresentation, or default, resulting directly or indirectly from:
Failure to give us prior written notice of at least ten (10) business days of your intention to terminate this Agreement, as mentioned in Section 8.2.
After any applicable notice and/or cure periods, any covenant or undertaking to be performed by the Affiliate hereunder, or any other agreement entered into by the Affiliate.
Any infringement of the CAN-SPAM Act, as well as the GDPR, and any other regulations regarding the data protection, security, anti-spam, e-mail marketing, copyright, trademark, service marks, trade secrets, right of privacy or publicity or any other third party right.
Any other provision contained in this Agreement, as well as any obligations, covenants, representations or warranties of the Affiliate in this Agreement, or other agreement delivered pursuant hereto or in connection herewith, now or after the date hereof.
10.2. Trafficmansion.com, at its sole and absolute discretion, will impose to the Affiliate the sanctions that it may determine to be appropriate, including, but not limited to, cancelling, terminating, or suspending this Agreement, and/or imposing a monetary penalty.
10.3. If we terminate this Agreement because you have violated any provision of this Agreement, we will notify you of the basis for our termination, and we will immediately stop paying you any further commission payments.
10.4. The Affiliate understands and acknowledges that any of its non-compliance pursuant to Section 10.1. are of a nature to the cause of serious and irreparable damage to Trafficmansion.com, and the amount of these damages is difficult to estimate, calculate and prove. In this regard, we shall have the right to charge up to ten times the commission paid to you until the moment when the breach happened (Hereinafter, referred to as “Infringement Penalty”).
The payment of this Infringement Penalty shall firstly be done by withholding any and all unpaid commissions otherwise then payable to you, even for commissions earned prior to the date of termination, and any and all subsequent commissions otherwise payable to you based on future recurring payments. Notwithstanding the foregoing, we shall have the right to bring an action against you to recover any remaining amount in that regard, as well as to any additional damages arising from your breach of this Agreement in case those damages exceed the amount that we have initially withheld on that account.
10.4.1. In addition to Section 10.4., given the importance of compliance with the Privacy and Security Laws, and the Anti-Spam and E-mail Marketing Laws, Trafficmansion.com shall impose on the Affiliate a penalty of one thousand dollars ($1,000) for each separate unlawful email sent by the Affiliate.
10.5. Notwithstanding the previous paragraphs, the Affiliate agrees to defend (through independent attorneys or any legal professional of our own selection, which shall be elected in our sole and absolute discretion, and it shall be previously approved in writing by us), reimburse, indemnify and hold harmless Trafficmansion.com and/or its Related Persons, from and against any and all claims, losses, penalties, causes of action, damages, liabilities, costs, expenses, obligations ( including but not limited to reasonable attorney’s, arbitration or mediation fees and costs; judicial costs and expenses; and other directly or indirectly correlated to any and all Disputes ) of any nature whatsoever incurred or suffered by or imposed upon Trafficmansion.com and/or its Related Persons, which results, arises out of or is based upon Section 10.1.
Hereinto, you expressly agree that all the mentioned fees, costs and expenses shall be exclusively borne by you.
10.6. You also acknowledge that we may also bring an action against you to recover the damages caused to us for any unlawful conduct performed by you and inform the law enforcement agencies or authorities as to your identity, providing to them any and all kinds of evidence in our possession concerning your conduct.
In that regard, you agree that, if given the case, we file an action or enforce litigation, arbitration, mediation, suit or proceeding against you before any competent body, authority or court, based on a violation of any provisions of this Agreement, and in case we prevail, we shall be entitled to recover from you any and all claims, losses, liabilities, damages or expenses (including but not limited to attorneys’, arbitration and/or mediation fees; judicial costs; and other directly or indirectly correlated reasonable costs) of any nature whatsoever incurred or suffered by us.
10.7. You agree to immediately and promptly inform us of any and all claims, lawsuits, subpoenas, or orders concerning us or arising from, your websites and other operations affiliated with our Affiliate Program, and the activities associated in any way with any of them; you promise to so advise us through the most rapid and sure means at your disposal and to co-operate with us in our defence in every regard as otherwise provided in this Agreement.
10.8. The terms of this Section shall survive the termination of the Affiliate’s relationship with Trafficmansion.com.
SECTION 11 . TERMINATED ACCOUNTS .
11.1. Terminated Affiliates are not permitted to apply for participation in our Affiliate Program without seeking permission to do so in writing or via email. Any application by or on behalf of or for the benefit of a terminated Affiliate without prior identification of the terminated Affiliate as such or otherwise hiding or concealing his identity or status as a terminated Affiliate from us is an act of fraud against Trafficmansion.com, therefore, any contract ensuing from such fraud shall be null and void, and, in such case, Trafficmansion.com may withhold any and all commissions and shall have the right to recover any commissions previously paid.
SECTION 12 . NONWAIVER .
12.1. Except as otherwise expressly provided herein, our failure at any time to take action against you, shall not affect our right to do so in the future and, thus, require full performance of this Agreement at any time thereafter, and our waiver of a breach of any provision of this Agreement shall not constitute a waiver of any prior or subsequent breach of this Agreement, nor nullify the effectiveness of any breached provisions, nor our right to demand redress for its losses and damages.
12.2. No waiver of any breach of any term or provision hereof by Trafficmansion.com shall be effective or binding unless made in writing and signed by a representative of TM Marketing Services Limited authorized to give the same and, unless otherwise provided, shall be limited to the specific breach so waived.
SECTION 13. BINDING ON SUCCESSORS .
13.1. This Agreement shall be binding on and shall inure to the benefit of the Parties hereto, and their heirs, administrators, successors, trustees and assigns.
SECTION 14 . SEVERABILITY .
14.1. If any provision hereof is held invalid or unenforceable by arbitration, mediation, or litigation in a court of competent jurisdiction, such invalidity, shall not affect the validity or operation of the Agreement itself, nor any other provision of the Agreement and such invalid provision shall solely be deemed to be severed from this Agreement.
SECTION 15. NOTICE .
15.1. All notices, requests, demands and other communications under this Agreement, unless otherwise specified in this Agreement, shall be in writing and shall be deemed to have been duly given if (i) delivered by email and receipted by the Party to whom said notice or other communication shall have been directed.
SECTION 16 . INTEGRATION .
16.1. This Agreement constitutes the entire agreement of the Parties, revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their agreement.
16.2. This Agreement shall not be modified, changed or amended, except as provided herein or in writing signed by both Parties. This Agreement shall take precedence over any other documents that may be in conflict therewith.
SECTION 17 . PREAMBULATORY MATTER AND HEADINGS .
17.1. The Preamble to this Agreement shall be deemed to form an integral part hereof.
17.2. Section and subsection headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
SECTION 18 . NO DRAFTER .
18.1. All Parties have had the opportunity to have this Agreement reviewed by legal counsel of their own choosing.
18.2. This Agreement shall accordingly be construed mutually and reciprocally, and not more favourably with respect to any Party on the basis of draftsmanship.
SECTION 19. FORCE MAJEURE .
19.1. "Force Majeure" is an external unforeseeable and irresistible event arising from no fault or caused by a Party, making it absolutely impossible to fulfil an obligation.
19.1. No Party shall be deemed responsible for any failure to perform due to reasonably unforeseeable circumstances or to causes beyond its respective reasonable control, including but not limited to acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fibre cuts; strikes, or shortages in transportation, facilities, fuel, energy, labour or materials; failure of the telecommunications or information services infrastructure; hacking, spam, or any failure of a computer, server or software, for such time as a Force Majeure event prevents performance.
SECTION 20 . NON ASSIGNABILIT Y .
20.1. The duties and obligations of each Party under this Agreement are unique and personal; but for the knowledge of each Party concerning the other Parties and their ability and reputation, no such Party would enter into this Agreement.
20.2. Accordingly, the assignment of any right, duty, or obligation under this Agreement is prohibited, except with the written consent of all Parties to this Agreement.
SECTION 21 . NUMBER AND GENDER .
21.1. Where appropriate, the singular number set forth in this Agreement shall be interpreted as the plural number, and the gender shall be interpreted as masculine, feminine or neuter, as the context dictates.
SECTION 22 . CURRENCY .
22.1. The currency used for purposes of this Agreement shall be in United States Dollars.
SECTION 23 . GOVERNING LAW AND DISPUTE RESOLUTION .
23.1. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong without reference to its conflict of law provisions, and the obligation, rights, and remedies of the Parties hereunder, which shall also be determined in accordance with such laws.
23.2. The Parties shall attempt to resolve any dispute, claim, or controversy arising under, out of, or in connection with this Agreement (“Dispute”) amicably.
23.3. Upon receipt of a notice of Dispute as described in Section 15, the Parties will have fifteen (15) days to resolve the Dispute amicably. If the Dispute has not been resolved for any reason within fifteen (15) days from the receipt of a notice of Dispute, either Party may refer the Dispute to a final and binding arbitration process administered as set forth in the following paragraph by sending a written notice of its intent to arbitrate to the other Party.
23.4. Shall the Parties fail to resolve any Dispute, the Dispute shall be settled by arbitration, in accordance with Part V of the Malta Arbitration Act and the Arbitration Rules of the Malta Arbitration Centre as at present in force.
The appointing authority/administrator of the arbitration shall be the Malta Arbitration Centre.
The number of arbitrators shall be one (01).
The place of arbitration shall be Malta.
The language to be used in the proceedings shall be English.
The arbitrator shall decide ex aequo et bono.
SECTION 24 . SIGNATORIES AUTHORIZED TO BIND PARTIES .
24.1. Each signatory to this Agreement, in consideration of the attention, evaluation, and consideration given to the pending application, warrants and swears under the penalties provided in law for false swearing and perjury, that the signatory has the power and legal authority to enter into and execute this Agreement on behalf of any business entity applicant, that the execution by such signatory has been duly authorized by all necessary corporate (or other entity) action, and that this Agreement constitutes a valid, binding obligation on the respective Parties, without the necessity or condition of any further action whatsoever by directors, shareholders, receivers, administrators, owners or other persons of any nature whatsoever, to become enforceable in accordance with this Agreement.
SECTION 25 . EXECUTION.
25.1. The Parties agree that this Agreement may be executed digitally online by you, now applying to participate in our Affiliate Agreement, and it may be accepted by us, TM Marketing Services Limited, by notifying you in writing that your application has been accepted in accordance with the provisions of Section 1 of this Agreement.
It shall be treated in all respects as this Agreement having been executed in the territory of Hong Kong, China.