Earn Google Cash™ AFFILIATE AGREEMENT
This Affiliate Agreement (“Agreement”), by and between CoastWest Holdings Ltd. d/b/a Earn Google Cash, with its principal offices located at Vasilissis Freiderikis, 33 1st Floor P.C. 1066, Nicosia, Cyprus (“Company” or “Earn Google Cash™”), and you (“Affiliate”), sets forth the terms and conditions that govern your participation in the marketing of Company Products (as defined below) by and through the affiliate program owned and operated by the affiliate network through which you are participating (“Affiliate Program”). You agree to the terms and conditions set forth in this Agreement, in their entirety, when you attempt to market the Company Products by and through the applicable Affiliate Program.Affiliate Program.
- This Agreement is effective as of the date that: (a) Affiliate submits an application to the applicable Affiliate Program to market the Company Products by and through that Affiliate Program; (b) that Affiliate Program approves such application; and (c) Affiliate hits the “submit” button at the bottom of this Agreement or takes such other action designated by Company for Affiliate to indicate assent to this Agreement (the “Effective Date”). Notwithstanding the foregoing, Company may terminate Affiliate’s right to market the Company Products at anytime and for any reason, in Company’s sole and absolute discretion.
- As of the Effective Date, Company grants to Affiliate a non-exclusive, non-transferable, revocable and limited license to market certain proprietary Company products and/or services (“Company Products”) solely and exclusively in accordance with this Agreement.
- Affiliate is solely responsible for the development, operation and maintenance of the websites owned, operated and/or controlled by Affiliate (collectively, “Affiliate Websites”), as well as any and all materials and content that appear on the Affiliate Websites, other than the Creative and Disclaimer, as those terms are defined below.
- Affiliate agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Company pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.
- Company, by and through the applicable Affiliate Program, will make available to Affiliate certain advertisements, banners and text links consisting of textual material and/or graphic images relating to the Company Products (the “Creative”) which, subject to the terms of this Agreement, Affiliate may display on its Affiliate Websites and in e-mail messages (“Affiliate E-mails”) delivered to individuals in databases of e-mail addresses owned, operated or controlled by Affiliate (collectively, “Affiliate Databases”).
- Company may change or revise the Creative at any time and Affiliate agrees to use only the most recent version of the Creative provided to Affiliate by and through the applicable Affiliate Program. Company may terminate Affiliate’s right to use the Creative for any reason at any time, in its sole discretion.
- Affiliate agrees that Company may, in its sole discretion, direct the placement of the Creative within the Affiliate Websites. Unless such direction is given, and subject to the terms and conditions of this Agreement, and all applicable laws, rules and regulations, Affiliate may display the Creative as often and in as many areas of the Affiliate Websites as Affiliate desires, in its discretion. Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by Company to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to Creative. Affiliate must immediately remove Creative upon receiving notice from Company or upon the termination or expiration of this Agreement.
- Affiliate shall not alter, modify or expand any Creative in any way, without Company’s prior written consent. Affiliate shall not display any banner, link or other information (general or otherwise) associated with Company or the Company Products other than the Creative provided to Affiliate by Company.
- Affiliates shall not make any representation on its Affiliate Websites, in its Affiliate E-mails or otherwise, concerning the benefits, suitability, health effects, cost or any other aspect of any Company Products that goes beyond the representations, contained in Company's then-current Creative.
- Company retains full and sole ownership of all Creative and other information developed by Company and supplied to Affiliate, from time to time, in connection with this Agreement.
- Affiliate may not allow the Creative to be placed on any non-Affiliate Websites or in any non-Affiliate E-mails without the prior express written consent of Company.
- Company reserves the right to monitor the Affiliate Websites and Affiliate E-mails at any time to determine if Affiliate is in compliance with the terms of this Agreement.
- Affiliate agrees to post and maintain, at all times, on the home page of the Affiliate Websites and in all Affiliate E-mails, in prominent font size and type, the disclaimer provided by Company and/or the Affiliate Program for use in connection with marketing the Company Products, as Company may amend same from time to time (“Disclaimer”).
- Restrictions on Marketing.
- Affiliate shall not use any “incentivized marketing,” create the appearance of incentivized marketing, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with marketing the Company Products, or otherwise attempt to induce Internet users to complete orders for the Company Products through use of any other incentives, without obtaining the prior written approval of Company.
- Affiliate may not, nor knowingly permit any person to, inflate the amount of orders for Company Products (“Orders”) submitted through use of any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person submitting an Order.
- Purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name of Company or any Company Products, or any derivative of any such trademark, service mark or brand name is prohibited and shall be grounds for immediate termination of this Agreement, in addition to any and all remedies otherwise available to Company.
- Affiliate may not target children under the age of eighteen (18) years old.
- Affiliate may not load onto an end-user’s computer programs commonly referred to as adware or spyware, without obtaining Company’s prior written approval and the applicable end-user’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded.
- Affiliate shall comply with any and all additional marketing restrictions published or made available to Affiliate from time to time (“Marketing Restrictions”). Company’s Marketing Restrictions are incorporated herein by reference.
- E-mail Marketing Requirements. If Affiliate uses Affiliate E-mail to market the Company Products, Affiliate must do the following:
- Company’s E-mail Marketing Requirements (the “Requirements”), as set forth in this Section 5, state the minimum standards that Affiliate must adhere to in light of current laws, rules and regulations governing the transmission of e-mail and the best practices in the industry. In the event that any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the Effective Date setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to Affiliate. Affiliate shall: (a) make adequate disclosures as required by law to those end-users in the Affiliate Database regarding its e-mail, privacy and security policies; (b) respond to all complaints within three (3) business day after Affiliate becomes aware of the complaint; (c) provide Company with a copy of every complaint, immediately, upon Affiliate’s receipt thereof; (d) implement any corrective action that Company may require; and (e) comply with any and all legal and/or other requirements that Company may reasonably specify. Affiliate is solely responsible for any and all consumer complaints associated with the e-mail campaigns that it conducts.
- With respect to any suppression list generated by Affiliate through the marketing of the Company Products, or provided to Affiliate by Company or the applicable Affiliate Program (collectively, the “Suppression List”), Affiliate shall: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (b) regularly use such Suppression List to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages; (c) not retain a copy of any Suppression List following termination of this Agreement; (d) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (e) hold any Suppression List in trust and confidence; and (f) not disclose any Suppression List to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of this Agreement with respect to such Suppression List. Affiliate further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commissions (“FCC”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in mailings hereunder; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any mailings hereunder. Affiliate shall provide Company with a copy of the Affiliate-generated Suppression List at least once per week. If no such e-mail addresses are supplied by Affiliate, Company may conclude that no such addresses exist.
- Affiliate represents and warrants that all e-mail addresses in the Affiliate Database were compiled, maintained and will be utilized: (a) in accordance with all local, state and federal laws, statutes and regulations; and (b) with the applicable end-users’ “Affirmative Consent,” as defined in the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), and that all recipients have in fact opted-in to the Affiliate Database.
- Affiliate must, upon the request of Company, be able to supply the name, date, time and IP address where the consumer signed-up and/or gave Affirmative Consent to Affiliate.
- Proprietary Rights . Company grants Affiliate a non-exclusive, non-transferable, revocable and limited license to: (a) access and use the Creative solely and exclusively as contemplated by, and subject to the restrictions of, this Agreement; and (b) in connection with such Creative, to use Company’s logos, trade names, trademarks and similar identifying material (collectively “Company Marks”), solely for the purpose of marketing the Company Products on the Affiliate Websites and in the Affiliate E-mails. Affiliate may not alter, modify or change the Company Marks in any way. Affiliate agrees not to use the Company Marks in any manner that is disparaging or that otherwise portrays Company in a negative light. Affiliate will not now or in the future assert any claim to any goodwill, reputation or ownership of the Company Marks or any other intellectual property belonging to Company. Company may revoke the license granted to Affiliate herein at any time by providing Affiliate with written notice of revocation. Except for the limited licenses granted herein, each party owns all right, title and interest in and to each party’s respective intellectual property, and each party may only use the other party’s intellectual property pursuant to the limited license expressly granted in this Agreement.
- Representations and Warranties. Affiliate hereby represents and warrants that:
- it has the right and full power and authority to enter into this Agreement;
- at all times, Affiliate will comply with the Marketing Restrictions, all applicable state, federal and local laws, rules, ordinances, and Federal Trade Commission enabling regulations (including, without limitation, CAN-SPAM), and laws of foreign jurisdictions, with respect to e-mail marketing, consumer protection, privacy, false or deceptive advertising or misrepresentation, fraud and rights of privacy;
- the execution of this Agreement by Affiliate shall not breach, conflict with, or constitute a default under, any agreement or other instrument applicable to Affiliate or binding upon Affiliate;
- all data, images, graphics, design and content, including subject lines, products and/or services linked to any advertisements it provides and the materials posted on the Affiliate Websites (other than the Creative and Disclaimer): (a) do not violate or infringe upon the rights of any third party, including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights; (b) are not libelous, illegal, abusive, discriminatory, obscene, pornographic, fraudulent, deceptive, misleading or otherwise offensive; and (c) are accurate, do not contain any fraudulent or deceptive materials, and do not falsely represent the product, service or message being communicated; and
- when performing e-mail marketing of Company Products, Affiliate will:
- deliver Affiliate E-mail only to those recipients: (a) who have given Affiliate direct and/or explicit consent to receive e-mail advertising from Affiliate, as defined under applicable law, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; or (b) with whom Affiliate have a preexisting business relationship, as defined under applicable law, and have not unsubscribed to receive e-mail advertising as of the date that the commercial e-mail was transmitted to such recipient;
- not falsify e-mail header and transmission information (including, without limitation, source, destination and routing information);
- not use any subject or from line that is materially false or misleading;
- not use brand names and/or trademarks of another party in the subject or from lines or body of any commercial e-mail transmission;
- not seek or obtain unauthorized access to computers for the purpose of sending any commercial e-mail; and
- include within all Affiliate E-mail: (a) Affiliate’s correct point-of-origin e-mail address, transmission information and routing information; (b) clear, prominent opt-out instructions in the e-mail and in the first line of the text, if required by applicable law; (c) a toll-free telephone number or valid e-mail address at which recipient may contact Affiliate to file complaints and/or opt-out; (d) a functioning unsubscribe link which, when activated by an end-user, actually and permanently removes the end-user’s e-mail address from the Affiliate Database; (e) accurate information regarding the manner in which the recipient opted-in to receive the e-mail; and (f) the identifier and any disclaimers that Company assigned to the e-mail.
Limitation of Liability . IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, THE CREATIVE, DISCLAIMER, SUPPRESSION LISTS, COMPANY PRODUCTS AND ANY OTHER PRODUCTS AND/OR SERVICES SOLD BY COMPANY OR FROM ANY OTHER OBLIGATION RELATING TO THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT WILL NOT EXCEED TWO HUNDRED DOLLARS ($200.00). Term and Termination.
- The term of this Agreement is for one (1) year unless earlier terminated, commencing upon the Effective Date. This Agreement shall automatically renew for successive one (1) year terms unless sooner terminated by either party.
- Either party may terminate this Agreement at any time, with or without cause, by providing the other party with one (1) day’s advance written notice of termination.
- Upon any termination of the Agreement, any and all licenses granted hereunder shall immediately expire.
- Upon termination or expiration of this Agreement, Affiliate shall promptly return to Company all Company Marks and Creative provided under this Agreement and/or through the Affiliate Program. Affiliate shall immediately remove from the Affiliate Websites and Affiliate E-mails all Company Marks, Creative and all references to Company, Company’s website and the Company Products.
Relationship of the Parties. Each of the parties hereto is an independent contractor. Nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties, and neither party shall have the power to obligate or bind the other party in any manner whatsoever.
General Terms and Conditions.
- Governing Law. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of New York, without reference to its conflict of laws rules or principles.
- Venue. This Agreement is performable in New York, New York. Any action brought to enforce or interpret this Agreement, or resulting from a breach of this Agreement, shall be brought only in the state or federal courts of New York, New York, and the parties waive any rights that they might have for venue to lie elsewhere.
- Entire Agreement. This Agreement, together with the Marketing Restrictions, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties.
- Assignment. This Agreement, and all rights granted hereunder, is not transferable or assignable by Affiliate without the prior written consent of Company. Company may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, without Affiliate’s consent. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, the parties and their respective successors and permitted assigns.
- Severability and Reformation. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
- Waiver. A waiver of any default, breach or non-compliance under this Agreement is not effective unless in writing and signed by the party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a party with respect to any default, breach, non-observance or by anything done or omitted to be done by another party. The waiver by a party of any default, breach or non-compliance under this Agreement shall not operate as a waiver of that party’s rights under this Agreement with respect to any continuing or subsequent default, breach or non-compliance (whether of the same or any other nature).
- Modifications. Company may modify any of the terms and conditions contained in this Agreement, at any time and at its sole and absolute discretion, upon posting such changes on the Company website or providing notice to Affiliate by and through the applicable Affiliate Program. All such modifications shall take effect forty-eight (48) hours after Company either posts the modified Agreement or provides notice, as applicable. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate its marketing of the Company Products and terminate this Agreement. Affiliate’s continued marketing of the Company Products, following the posting of, or notice of, any modification, as applicable, will constitute binding acceptance of the change. Affiliate may not modify this Agreement without Company’s prior written consent.
- Survival. Sections 7, 8, 9, 10, 12, and such other provisions set forth in this Agreement that by their very nature should survive termination or expiration of this Agreement, shall survive.