1. Acceptance of the Affiliate Dating Partner Application and this Agreement
Our approval of your application to become an Affiliate Dating Partner is conditional upon your making truthful representations in that application. We reserve the right to immediately cancel this Agreement if we find that you have made false representations in your application. You accept our invitation to become an Affiliate Dating Partner by checking the acceptance box is equivalent to you or your authorized agent actually signing this Agreement, and acceptance shows your intent to be bound by the terms and conditions of this Agreement. By accepting this Agreement, you represent and warrant that you have the necessary and full rights, power, authority, and capabilities to enter into this Agreement and to perform its obligations hereunder; and the acceptance and performance of your obligations under this Agreement will not violate the rights of any third party, nor any applicable federal, state, and local law or regulation.
2. Log-In Combination and Tax Identification Number
Upon our approval of your application and your acceptance of this Agreement, we will provide you with a log-in combination so that you may access your account with us. Do not reveal your log-in information to anyone. If you are based in the United States of America, you must provide us with a social security number, employer identification number, or taxpayer ID number for payment and record keeping purposes. If you fail to provide us with a valid social security number, employer identification number, or taxpayer ID, you forfeit your right to a commission, which is referred to in this Agreement as a Bounty Fee. If you are a non-U.S. based Affiliate Dating Partner, you need not submit a social security number, employer identification number, or taxpayer ID, but you must provide us with any tax identification number that your government may require you to provide to us.
3. Bounty Fees Earned
You will earn Bounty Fees on customers you refer to us, as set forth below. We have no other obligation to pay you any other compensation. All of our rules, operating procedures, policies, and website use agreements (collectively Policies) will apply, without exception; to all customers you refer to us. We reserve the right to reject any subscription order that does not comply with our Policies. a. Amount of Bounty Fee. Our Bounty Fee is subject to change by us. Until we change the Bounty Fee, you will earn the whole of one current base monthly subscription price on our website for each customer you refer to our website when they make their first subscription payment to us. The bounty fee you earn is calculated for each referral we receive from you that makes a subscription payment. We may change the Bounty Fee by posting a notice on our website. b. Price for Subscription. The prices charged for subscriptions sold under the Affiliate Dating Partner Program will be determined by us according to our own pricing Policies. Prices may vary from time to time as determined at our sole discretion without notice to you. c. Qualifying New Subscription. Only a customer from whom we actually collect cash for a subscription on our website by way of a valid credit card, check, or money order or other means will qualify as a new subscriber on which a Bounty Fee will be paid. We reserve the right to not pay a Bounty Fee on a subscriber who (i) was previously a PSFun.com subscriber, (ii) discontinues a subscription and re-signs as a new subscriber under the same or a new username within three (3) months of dropping the old subscription, or (iii) subscribes as a result of churning by you. For purpose of this Agreement, the definition of churning includes, without limitation, the activity of initiating and canceling subscriptions by you or your agents such that it appears to us that the activity is not to provide us with customers who are actually interested in our website but instead the activity is primarily to create Bounty Fees for you. We reserved the right to deny a Bounty Fee when we determine, in our absolute and sole discretion, that a subscription is the result of churning. d. Renewals. You shall not be paid commissions on renewing subscriptions. e. Refunds, Charge-backs, and Bad Checks. If a subscription is later refunded to the customer or charged back by the customer, or if a customer's check does not clear, or if there is any associated return-check, at our discretion, charge-back fees will be deducted from the next monthly payment sent to you. f. PSFun.com Policies Apply to All Orders. Every person who is referred by you and buys a subscription to PSFun.com is deemed to be our customer. You do not have the authority to make or accept any offer on our behalf. All of our Policies regarding customer orders, including pricing and problem resolution, will apply to these customers. We are not responsible for any representations made by you that contradict our Policies. g. Subscription Payment Processing. We will be solely responsible for processing every subscription order placed by a customer referred by you. Payment processing, renewal payment processing, cancellations and refund processing, and related customer service are our sole responsibility. h. Tracking of Subscription Sales. We will be solely responsible for tracking subscription sales referred by you. To protect our customer privacy, names or other personal information about specific customers will not be provided to you but shall be retained exclusively by us. In addition, all personal information about specific customers collected by us shall be owned solely and exclusively by us. You agree that your role as an Affiliate Dating Partner is limited to referring prospective customers to us, and you agree not to represent that you are collecting information for PSFun.com. i. Confidentiality. The amounts of the Bounty Fees that you earn are confidential. We reserve the right to terminate this Agreement if we discover that you have shared the amount of Bounty Fees you have earned with any third party except as required by law.
4. Intellectual Property Rights
As an Affiliate Dating Partner, you are allowed to place on the sponsoring website/app a hyperlink to our website, either in text or with one of our pre-approved banners or logos provided by us. You are not allowed to place any content that may violate other parties' copyright, trademark, trade-name, patent or other intellectual property rights. You agree that you shall be wholly responsible for any liabilities, claims, demands, causes of action, damages, and costs (including but not limited to attorney's fees) caused directly or indirectly by your use or violation of another party's copyright, trademark, trade-name, patent or other intellectual property rights. Between us and you, the following will apply: a. Limited Non-Exclusive License. We shall retain all rights, titles, and interests (local and worldwide) in and to our respective trademarks, service marks, and trade names ("Intellectual Property") subject to a limited non-exclusive, non-transferable license necessary to perform this Agreement. We grant to you a royalty-free, non-exclusive, non-transferable license, during the term of this Agreement, to include our Intellectual Property solely in connection with a hyperlink to our website. b. No Alteration of Intellectual Property. You shall use our Intellectual Property only as provided, and shall not alter the Intellectual Property in any way, nor shall you act or permit action in any way that would impair our rights in regards to our Intellectual Property. You acknowledge that your use of our Intellectual Property shall not create any right, title, or interest in our Intellectual Property. We shall have the right to monitor the quality of your use of our Intellectual Property. Any references to our Intellectual Property shall contain the appropriate trademark, copyright, or other legal notice provided from time to time by us. c. Notices and Goodwill. You may neither alter nor remove any proprietary notices from our Intellectual Property. Any goodwill accruing from the use of our Intellectual property shall inure to us. d. Reservation of Rights. We expressly reserve all Intellectual Property rights not granted to you herein. e. As an Affiliate Dating Partner, you understand and agree you shall not conduct or initiate any search or marketing activities on behalf of or using the PSFun.com trademarks, service marks, or trade names, including without limitation any variations thereof. You agree that all traffic to and from any search engines must link directly to your sponsoring website/app rather than to the PSFun.com website. You agree and hereby confirm that the sponsoring website/app is independently owned and operated by you, is not merely a link to the PSFun.com website, and that the sponsoring website/app provides unique content and services distinct from those offered on the PSFun.com website. Notwithstanding the above, both parties, you and us may agree that we will provide to you certain website/app design and creation, maintenance, servicing and hosting services regarding the sponsoring website/app in accordance with our prevailing fee schedule, terms and conditions. You agree that you shall not under any circumstances do or conduct the following actions: 1. bid on the PSFun.com service marks, trademarks, or trade names, or any variations thereof on any search engine; 2. include the PSFun.com service mark or any trademark or trade name of PSFun.com, or any variation thereof, in any search engine marketing; 3. use the PSFun.com service mark, or any trademark or trade name of PSFun.com or any variation thereof, or any website page titles or meta tags; 4. direct traffic from search engine results directly to a page of PSFun.com or any page of any website that is co-branded with PSFun.com. f. Use of PSFun.com Profiles. You may not use any profiles or other information regarding PSFun.com users on your sponsoring website/app or anywhere else for any reason whatsoever. Doing so may result in immediate termination of this Agreement or suspension of your participation in the Affiliate Dating Partner Program.
5. Prohibited Content
You agree not to display any of the following contents or engage in any of the following activities on the sponsoring website/app. We reserve the right to immediately terminate this Agreement, and you agree to remove all of our Intellectual Property and references to our website and to sever all hyperlinks to our website, if any of the following content or activity is present on the sponsoring website/app: * Sexually explicit material (pornography); * Violent images or messages that promote violence; * Promotion of discrimination based on race, sex, religion, national origin, physical disability, sexual orientation, or age; * Promotion of illegal activities; * Promotion or display of defamatory, libelous, or harmful material or material that otherwise infringes upon the rights of any third parties; * Content that is inconsistent with our Policies, and Spamming (repeated, unsolicited e-mails) of your users who have purchased a PSFun.com subscription.
6. Modifications to this Agreement
We reserve the right to change any of the terms and conditions in this Agreement, at any time and at our sole discretion, upon prior notice to you by posting a notice on our website. Such new terms and conditions will take effect 10 days after posting. Without limiting the generality of the foregoing, the Bounty Fee is subject to change without notice other than posting such a change or changes on our website. We will not reduce the Bounty Fees on subscriptions purchased prior to the effective date of the modifications to this Agreement. You may not change or modify this Agreement.
7. Cancellation of this Agreement
a. Cancellation and Notice. Either party, acting at their sole discretion, may choose to cancel this Agreement at any time by written notice of cancellation to the other, which notice may be sent by email. Such cancellation will be effective 3 days after notice to the other party has been sent unless the Agreement is terminated by us for your violation of Section 1, Acceptance of Affiliate Dating Partner Application and this Agreement, or Section 5, prohibited Content, above, in which case termination will be effective immediately upon notice being sent to you. If you do not generate any Bounty Fees during a consecutive 120 day period, this Agreement shall be automatically terminated without notice. b. Removal of Intellectual Property and Hyperlinks. Upon the termination of this Agreement, for any reason, you agree to remove all of our Intellectual Property and references to our website and to sever all hyperlinks to our website.
8. Warranty Disclaimer
The warranties contained in this agreement are in lieu of all other warranties or conditions, express or implied, including without limitation, those of merchantability or fitness for a particular purpose.
9. Indemnification
You shall defend, indemnify, and hold harmless to PSFun.com, its parent, subsidiary, and Affiliate Dating Partner companies and their directors, officers, employees, Affiliate Dating Partners, and agents, against any claim, demand, cause of action, debt, or liability, including reasonable attorney's fees, (individual and collective Claims) to the extent that (i) the Claim is based upon a breach of your representations, warranties, or obligations hereunder, (ii) the Claim arises out of your negligence or willful misconduct, or (iii) the Claim is based upon your violation of any applicable federal, state, or local law or regulation in providing products or services hereunder.
10. Independent Contractors
You and PSFun.com are independent contractors with each other, and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. As an independent contractor, you acknowledge and agree that you are wholly responsible for any claims, expenses, actions, causes of action, disputes, liabilities, or other legal responsibilities of whatever nature caused by or arising out of your ownership and operation of the sponsoring website/app.
11. Assignment
You shall not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to the foregoing restriction, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.
12. Non-Waiver
The failure in any one or more instances of a party to insist upon performance of any of the terms, covenants or conditions of this Agreement, to exercise any right or privilege in this Agreement conferred, or the waiver by said party of any breach of any of the terms, covenants, or conditions of this Agreement, shall not be construed as a subsequent waiver of any such terms, covenants, conditions, rights, or privileges, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
13. Limitations of Liability
This section describes the full extent of our responsibility for any claims you make for damages caused by the failure of the PSFun.com website, or any other claims in connection with us or this agreement. a. Limitation on Damages. In no event shall we be liable for damages, direct or indirect, including incidental or consequential damages, suffered by you, or by a subscriber to PSFun.com, or by any other third party arising from our breach of warranty, breach of contract, negligence or any other legal ground of action. Further, we won't be liable for punitive, reliance, or special damages. These limitations apply even if the damages were foreseeable or PSFun.com was told they were possible, and these limitations apply whether the claim is based on contract, tort, statute, fraud, misrepresentation, and or any other legal or equitable theory. This includes, without limitation, any claim for lost bounty fees allegedly resulting from a revised interruption of our website. b. Sole and Exclusive Remedy. You understand that if you become dissatisfied with us or our website, your sole and exclusive remedy will be to cancel this Agreement.
14. Choice of Law
This agreement shall be governed by and construed in accordance with the laws of the state of California, U.S.A., without regard to its conflicts of laws provisions.
15. Dispute Resolution/Waiver of Representative Action
By entering into this Agreement, you agree that, if any dispute arises out of or in any way related to this Agreement, any and all such disputes shall be resolved by submission to binding arbitration in San Francisco, California U.S.A. before a retired judge or justice with ADR Services, Inc. pursuant to the ADR Services Arbitration Rules in effect at the time of any such dispute. You and we agree that the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, ability to enforce, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. If the parties are unable to agree on an ADR Services retired judge or justice, or a different retired judge within fifteen (15) calendar days of a demand for arbitration filed with ADR Services by either of us, ADR Services will follow the procedure in its Arbitration Rules to name a retired judge or justice who will act as the sole arbitrator. Any decision of the arbitrator may be confirmed by a court of competent jurisdiction and the ensuing judgment may thereafter be enforced in the same manner as a judgment in a civil action. The ensuing judgment may also be appealed pursuant to applicable federal law or California Code of Civil Procedure section 1294.2, as may be applicable. This arbitration provision is governed by the Federal Arbitration Act. Except as otherwise required under applicable law: (1) you and we expressly intend and agree that neither will assert any class actions or representative actions, nor will such actions or procedures apply in any arbitration pursuant to this Agreement; (2) you and we agree that neither will assert class action or representative action claims against the other in arbitration or in any other proceeding or action; and (3) you and we shall only submit your own individual claims in arbitration and will not seek to represent the interests of any other person. You are entitled to seek the advice of your own legal counsel before entering into this Agreement as well as at any time after you enter into this Agreement.
16. Entire Agreement
This Agreement constitutes the entire agreement between us and you with respect to the Affiliate Dating Partners Program.
17. Severability
If for any reason an arbitrator or a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the provision, and the remainder of this Agreement shall continue in full force and effect.
18. Headings
The headings of the sections and their subsections contained in this Agreement are for the convenience of the reader only and do not modify the provisions of this Agreement.
19. The Commission Payment Agreement
For our program, we issue checks/PayPal payments at the beginning of each month with a $100 minimum (This means that if you are to earn $60 one month, the $60 is added to next month's payment until $100 is reached; if the Affiliate Dating Partner is to earn $240, we will pay $240).
20. Chargebacks and Creditbacks
We will not pay any Affiliate Dating Partner who has chargebacks and creditback rates of 7% or greater. Creditback is defined as customers who cancel their memberships and receive a credit. Chargeback is defined as a refund of payment for customers after the credit card has been processed.
21. Conversion of Commission Schedule
After reviewing Affiliate statistics, we will automatically convert Affiliates whose upgrading ratios are lower than 2%. For example, after reviewing affiliate statistics, we convert affiliates whose upgrading ratios are below 2% from "Per Lead Payout" to "Per Sale Payout" without notification. After the conversion, the commission for the previous month is recalculated under Per Sale Payout. If you do not agree with our decision to change the schedule, your affiliate membership will be terminated.
22. Anti-Spamming Policy
a. Email PSFun.com maintains a policy of not participating in mass unsolicited email transmission (referred to herein as "spamming"). In addition, this policy prohibits the use of any form of email transmission to advertise PSFun.com services by you. As an Affiliate Dating Partner, you agree to comply with such anti-spamming policy during the term of this agreement. You also agree not to use spam to promote your link to the PSFun.com website. Any violation or breach of this anti-spamming policy by you may result in an immediate cancellation of this agreement and your status as an Affiliate Dating Partner. b. Two-Way E-Media As an Affiliate Dating Partner, you agree not to post any messages that promote the PSFun.com affiliate sponsoring website/app on unrelated Two-Way E-Media (which includes, but is not limited to, newsgroups, electronic forums, unmoderated mailing lists, Twitter, Facebook, and other social media) and to Two-Way E-Media whose charters prohibit commercial content. Notwithstanding the above, you may post messages to Two-Way E-Media that expressly permits commercial content related to internet marketing. In such cases, where posting on Two-Way E-Media is permitted under this agreement, you agree not to post more than six (6) messages per day on each permitted social platform for all of your accounts. You agree to investigate and determine in advance which Two-Way E-Media platforms are permitted under the terms of this agreement. In the event of your breach or violation of these obligations with respect to Two-Way E-Media, such breach or violation may result in an immediate cancellation of this agreement and your status as an Affiliate Dating Partner.
23. Termination
We reserve the right to close your Affiliate site/app if it doesn't bring ten qualified profiles or one premium member in any continuous six month period. You will be able to use the banner option only to promote our affiliate program.