Webmaster Terms and Conditions
Before you can participate in our Realty Cash Program ("Program") you
must first read and agree to all of the following terms and conditions. Please
read the following CAREFULLY. This is a binding legal agreement
("Agreement") between August Communications, a California Corporation,
(hereinafter, "August", "we", or "us") and you the
participant ("You", or "Your").
The following offer to You to participate in the Program is subject to all the
terms, conditions, limitations and waivers below. You acknowledge and agree that
by participating in the August Program You will be bound by all the terms and
conditions in this Agreement.
1. Rights Granted To You By Us. Subject to the terms and conditions set forth in
this Agreement by us, we grant to You, the following:
1.1 The non-exclusive right to direct, refer or send visitors or users of your
Web site to web sites owned, operated or controlled by us.
1.2 A limited, non-exclusive, nontransferable and revocable license to access
and download promotional banners, and other promotional materials created by
August for use on your Web site for the exclusive purpose of advertising,
marketing or promoting websites owned, controlled and/or operated by us;
provided, however, the license herein granted shall automatically and
immediately cease upon the termination of this Agreement.
2. Your Warranties To Us. In consideration of August providing You with Program
benefits, You agree and warrant as follows:
2.1 That You will at no time while You are participating in the Program, or
using any materials provided to You by us, directly or indirectly display or
include on your Web site any advertising or advertising links of any kind which
promote August sites, other than those advertisements or ad links which have
been pre-approved by us, in compliance with this Agreement, and which advertise
August or other sites, companies, products or other wide area network addresses
which we designate.
2.2 That You will not use any form of mass unsolicited electronic mail
solicitations, newsgroup postings, IRC posting or any other form of
"spamming" as a means of promoting your Web site or for the purpose of
directing or referring users to any websites owned, operated or controlled by
us. You further acknowledge and agree that we have the right to immediately, and
without notice, terminate your participation in the Program if we, in our sole
and exclusive judgment, conclude that You have engaged in the use of any form of
mass unsolicited electronic mail solicitations, newsgroup postings, password
selling or trading, warez, IRC posting or any other form of
"spamming". NOTE: WE HAVE ZERO TOLERANCE FOR SPAMMING. IF YOU SPAM,
YOUR PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, YOU WILL BE BARRED FROM
FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS OTHERWISE DUE TO YOU WILL BE
FORFEITED TO US.
2.3 That You will not copy or reproduce, alter, modify or change, broadcast,
distribute, transmit or disseminate any banners or other promotional or
advertising materials provided to You by us pursuant to this Agreement and the
Program in whole or in part, in any manner, at any time anywhere in the world
except as authorized by us in writing;
2.4 That you will ONLY use promotional banners and images provided by us to
promote websites that are included in the Program
2.5 That You will not include, or link to, any of the following within a website
that contains our banners or links (or, directly or indirectly, link any of the
following content or material to any August website through any hyperlinks
maintained or created on your Web site):
(i) material depicting bestiality, rape or torture.
(ii) Any material which is displayed or transmitted in a way as to constitute
harmful matter or indecent communications to minors;
(iii) Any material in which persons under the age of eighteen are depicted in
actual, simulated or suggestive sexual situations;
(iv) Any material not fully in compliance with 18 U.S.C. Sec. 2257 et seq. and
the regulations promulgated thereunder;
(v) Any material which constitutes child pornography or matter which involves
depictions of nudity or sexuality by an age inappropriate-looking performer
(i.e. someone who looks younger than 18 years of age), or by a performer who is
portrayed or made to appear to be a person under the age of 18 years of age by
virtue of the script, make-up, demeanor, costuming, setting, etc. Prohibited
material mentioned herein includes the use of the term 'lolita' for any purpose
in any fashion including, but not limited to, within meta-based tags;
(vi) Any material which is threatening, abusive, hateful, defamatory, libelous,
slanderous, scandalous or injurious to the reputation of any person or entity;
(vii) Any material which constitutes an infringement, misappropriation or
violation of any person's intellectual property rights such as copyrights,
trademark rights, rights of publicity, patent rights, personal property rights,
privacy rights or other rights; or
(viii) Any program, file, data stream or other material which contains viruses,
worms, "Trojan horses" or any other destructive feature, regardless
whether damage is intended or unintended, which may cause damage to any computer
equipment, loss or corruption of data or programs or inconvenience to any
person.
2.6 That all materials of every kind, including photographic, videographic,
audio and textual materials used in direct or indirect association with
materials provided through the Program shall only be transmitted, distributed,
broadcast and otherwise disseminated by You to willing adults and shall at all
times comply with contemporary community standards in the communities into which
they are so disseminated.
2.7 That You shall remain a Program participant until You terminate
participation in the Program by notifying CCBill using their online contact
information of Your intent to terminate Your participation. Alternatively, your
participation in the Program may be terminated by us for any reason and the
Program may be terminated for any reason.
2.8 That You will remain a Program Participant in good standing at all times You
are receiving benefits or are otherwise participating in the Program.
2.9 That You shall cease to be a Participant in good standing and shall be
subject to immediate termination of all Benefits without prior notice if You
fail to perform under or breach any part of this Agreement.
2.10 That if Your participation in the Program is terminated for any reason, You
cease to be a Program Participant in good standing, You change your Web site's
URL or You cease to offer services on the Internet, You shall immediately and
permanently cease all use of all materials provided to You by us through the
Program and that you will remove all files containing materials provided to You
pursuant to the Program from your Web site.
2.11 That You are a person over the age of eighteen (18) years.
2.12 That You are the person who owns or is otherwise is entitled to contract on
behalf of the entity which owns the rights to your Web site.
2.13 That of those residing in the United States, only citizens or resident
aliens of the United States may participate and must supply us with your Federal
Tax ID Number or Social Security Number that is representative of, and exactly
matches the payee name you provide to us. Your failure to supply that
information will constitute a basis for terminating this Agreement and for
forfeiting any commissions or fees to which You would otherwise be entitled
under this Agreement. To comply with IRS reporting requirements, August (via
CCBill, Inc.) uses a credit agency to verify and/or modify Payee Name
information as warranted.
2.14 That upon termination of this Agreement you will immediately cease using
August marks and remove any materials supplied to you or referring to August,
including without limitation any banner ads, from your Web site.
2.15 That You shall hold harmless and indemnify August against any claim for
damages, attorney’s fees, costs, fines, financial penalties, and assessments
resulting from Your failure to use a reasonable degree of care to prevent the
unauthorized use or dissemination of the Confidential Information or resulting
from Your failure to comply with any law governing the safekeeping or protection
of such Confidential Information.
2.16 That all Your warranties, indemnities and obligations, which by their
nature are designed to survive termination, shall extend beyond the termination
of this Agreement.
3. Limitations Of Your Participation In The Program. You acknowledge and agree
that the Program, Your participation in the Program and Program benefits are
subject to the following limitations:
3.1 Only persons over the age of eighteen (18) years may participate in the
Program.
3.2 The Program shall at all times have the right, in its sole and exclusive
discretion, to terminate the Program and any and all Program benefits relating
to your Participation in the Program at any time and may do so with or without
prior notice or cause.
3.3 The Program, in its sole and exclusive discretion, shall have the right at
any time to change or modify the Program, including without limitation, the
right to pay Participants in the Program based on "click-throughs"
rather than a flat commission or fee for a referral, as defined in paragraph
4.1. If at any time August changes the Program, you shall have the right to
withdraw and terminate your participation in the Program.
3.4 The Program has the right to terminate your and any other person's
participation in the Program at any time and may do so with or without prior
notice or cause.
3.5 Program Benefits are not transferable by You and may only be used by You in
association with your Web site while You are participating in the Program and
are a Participant in good standing.
3.6 All Program Benefits materials, including, without limitation, all
advertising banners, photographic materials, recordings, video, sound, and any
other form of intellectual property provided to You as part of this Program
shall remain the property of August and may not be copied or reproduced,
altered, modified or changed, broadcast, distributed, transmitted or
disseminated, sold or offered for sale in any manner, at any time anywhere in
the world except as expressly authorized in writing.
3.7 August is our service mark or trademark. All rights therein are reserved to
us. Nothing herein shall be construed as a grant or assignment to you of any
rights in any of our intellectual property, including, without limitation, any
of our trademarks or service marks.
3.8 TRADEMARKS, COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
a) By entering this Agreement, you acknowledge that any and all trademarks,
trade names, copyrights and other intellectual property rights owned from time
to time by us or any associated entity, used or embodied in or in connection
with the Program shall be and remain at all times our sole property. You shall
not during or at any time after the expiration or termination of this Agreement
in any way question or dispute the ownership by us of any such rights.
b) In the event that new trademarks, trade names or copyrighted materials are
adopted or created during the currency of this Agreement, you hereby expressly
acknowledge that the same shall be and at all times remain our property.
4. Program Benefits. For each person who becomes a subscriber to a website
owned, controlled or operated by August, and who has been tracked and verified
as a "referral" to a August website from your Web site, you will
receive a "referral fee" as follows: Click
here to review Payouts.
4.1 A "referral" from your Website which entitles You to a
"referral fee" shall be defined as follows:
(i) A person who has been directed to an authorized website owned, controlled or
operated through the use of a hypertext transfer link residing on your Web site
which is in the form of a banner ad or other promotional link which
automatically connects any person who clicks on said banner ad or other
promotional link to a August website, and which banner ad or other promotional
link has been supplied to You as part of the Program; or
(ii) A person who after having been directed to an authorized August website
through the use of the hyperlink banner ad or other promotional link supplied to
You residing on your Web site has been converted into a subscriber.
A person shall not be deemed a "referral" entitling you to a
commission or "referral fee" if that person leaves the August web site
after having been directed there through the hyperlink banner ad or other
promotional link (which has been supplied to you ) on your website, without
becoming a August subscriber, even if at some later time that same person
returns to the August web site, not through the banner ad or other promotional
link (which has been supplied to you ) on your Web site, and at that later time
becomes a subscriber to the August web site.
4.2 You acknowledge and agree that You shall not be entitled to a commission or
referral fee for any August subscriber who you sent or referred to a August web
site in violation of the terms of this Agreement, or for any August subscriber
who does not fall within the terms of paragraphs 4.1 (i) or (ii) or who is
excluded under the terms of paragraph 4.1.
4.3 You also acknowledge and agree that You shall not be entitled to a
commission or referral fee from August for any subscription which August
determines is the result of possible fraudulent activity. You further
acknowledge and agree that August shall have the right, in its sole and
exclusive discretion, at any time to expand or modify what it determines to
constitute possible fraudulent activity. Without limiting the foregoing,
possible fraudulent activity shall include without limitation, the following
circumstances or activities:
(i) Where the subscriber has used or attempts to use a credit card number which
is in a negative data base;
(ii) Where there are multiple subscriptions from a single IP address within a
short period of time;
(iii) Where there are sequential or multiple subscriptions under different
names, or variations of the same name using the same credit card number, or
sequential names or patterns of names using different credit card numbers;
(iv) Where there is a pattern of "bursting subscriptions"
characterized by numerous subscriptions from a website in a relatively short
time span (the "bursting period"), where there has been history of few
subscriptions from that website before or after the bursting period.
(v) Where there has been an attempt to put through a credit card with a bin
number that is listed in a negative bin number database; or
(vi) Where there have been sequential or multiple attempts to register or
subscribe from a credit card using the same bin number and sequential or
multiple number strings to complete the credit card number.
4.4 You acknowledge and agree that August shall have the right to deny or
withhold payment from You and to terminate You from the Program if there has
been an abnormal number of chargebacks or cancellations of memberships or
subscriptions which have been referred to August through Your web site. You
further acknowledge and agree that August shall have the right, in its sole and
exclusive judgment, to determine what constitutes an abnormal number of
chargebacks or cancellations of memberships or subscriptions.
4.5 All commissions and referral fees due and payable hereunder shall be payable
in United States Dollars and shall survive termination of this Agreement.
4.6 August reserves the right, in its sole and exclusive discretion, at any time
to alter or modify the Program including the method and terms of all payment
benefits to participants. Upon notice of any change in benefits under the
Program, You shall have the right to withdraw or terminate your participation in
the Program.
5. No Joint Or Collaborative Venture; No Monitoring Or Control Of Your Content
By Us. Nothing in this Agreement is intended by us or You to create or
constitute a joint or collaborative venture or partnership of any kind between
You and us, nor shall anything in this Agreement be construed as constituting or
creating any agency, employment relationship, joint or collaborative venture or
partnership between You and August, its employees, agents or assigns.
5.1 You acknowledge and agree that we shall have no control nor ownership
interests of any kind in your business or your Web site.
5.2 You acknowledge and agree that You shall have no financial or other interest
in August or any property owned by August, its affiliates, agents, successors or
assigns.
5.3 You acknowledge and agree that your relationship with Us shall be restricted
to matters pertaining to the Program exclusively and shall be governed entirely
by the terms and conditions of this Agreement.
5.4 You acknowledge and agree that We have no direct or indirect control over
the content of performances or services, the manner of performances or services,
or the time or duration of provision of performances or services by You on, at
or in association with your Website, except as specifically set forth in this
Agreement.
5.5 You further acknowledge that neither August nor any employee, associate,
agent, assign or successor of August shall exert or provide any direct or
indirect control over, monitoring of, supervision of, prior approval of, or
review of the content appearing or otherwise distributed on, at or in
association with your Website, and that You shall be solely responsible for any
legal liabilities or consequences resulting from the dissemination of that
content on or through your website.
6. No Guarantees Or Warranties Of Any Kind. You acknowledge and agree that
August makes no guaranties or warranties of any kind with respect to the Program
or materials provided by, through or in association with the Program, and all
materials are provided to you "as is", and that use of the Program and
associated materials, including, without limitation is solely at your risk.
August disclaims all warranties, either express or implied including, but not
limited to, express or implied warranties of merchantability and fitness for a
particular purpose, with regard to the Program and any and all materials of
every kind supplied to You as part of this Program.
7. August Limited Liability and Liquidated Damages. You acknowledge and agree
that under no circumstances shall August, its employees, independent
contractors, authors, agents, representatives, assigns and successors be liable
to You, or any other person or entity, for any direct or indirect losses,
injuries or incidental or consequential damages of any kind (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER
PECUNIARY LOSS) with regard to any link to any August website, or arising from
or in connection with the use of the August Program materials, or due to any
mistakes, omissions, delays, errors, interruptions in the transmission, or
receipt of August's services, content or Program materials, including without
limitation any losses due to server problems or due to incorrect placement of
HTML.
7.1 Notwithstanding the foregoing express limitations of liability, you
acknowledge and agree that should August, its officers, employees, successors,
or assigns be held liable to You for damages, injuries or losses of any kind,
directly or indirectly resulting from Your participation in the Program, that
the total dollar amount of liquidated damages for any and all of your claims,
injuries, damages or losses shall not exceed a total of ten dollars ($10.00).
8. No Representations Of Success Or Profitability. You hereby confirm and
acknowledge that You have unilaterally decided to enter into an Internet service
business and acknowledge that it is a high risk business. You further confirm,
acknowledge and expressly agree that neither August, any agent or representative
of August, nor any other person has at any time in the past, represented to You
or has otherwise directly or indirectly communicated in any manner to You any
guarantee, reassurance or any other communication of any kind regarding:
(a) the potential profitability or likelihood of success of your participation
in the Program as set forth in this Agreement or otherwise;
(b) the possibility or likelihood that use of any products and/or services
provided pursuant to this Agreement can or will result in the recoupment of any
funds expended by You for the promotion of your Web site or any other purpose;
or
(c) the existence, nonexistence, size or any other characteristics of any market
for any products or services which involve your participation in the Program
pursuant to this Agreement.
8.1 You expressly acknowledge and agree that the success of any business
endeavors which involve your participation in the Program pursuant to this
Agreement, like any other business endeavor, is subject to numerous factors,
such as the effectiveness of advertising and promotion, your administrative
capabilities, etc., and that the ultimate success or failure of your business
rests with You and not August. You further expressly agree not to raise any
claim of any kind against August and You agree to hold August harmless from any
claim of loss to You directly or indirectly resulting from your decision to
participate in the Program pursuant to this Agreement.
9. No Monitoring Or Supervision Provided By Us. We shall not monitor, supervise
or review, and shall not be responsible for any content appearing or otherwise
distributed on, at or in association with your Web site except for that content
which is supplied to You by us, provided that said content supplied to You by us
has not been altered or modified by You or any other party.
10. Term And Termination Of Agreement. You acknowledge and agree that the term
of this Agreement is at will, and this Agreement and/or the August Program may
be terminated by August, in its sole and exclusive discretion, at any time,
without any advance notice and for whatever reason.
10.1 In the event that this Agreement or the August Program is terminated by
August, You shall be entitled to all unpaid commissions or referral fees earned
by You prior to the date and hour of termination. However, You shall not be
entitled to receive any commissions or referral fees for any
"referrals" delivered or received after the date and time of
termination.
11. Entire Agreement; Modification; Assignment. This Agreement constitutes the
entire agreement between You and August with respect to the subject matter
hereof, and supersedes and cancels all other prior agreements, discussion, or
representations, whether written or oral.
11.1 You agree that August may from time to time, in its sole and exclusive
discretion, modify the type and quality of benefits provided to You hereunder
either with or without notice. Other terms and conditions may be modified by us
at any time upon e-mail notice to You or by posting at a August information web
address location.
11.2 You agree that no modification of this Agreement by You, your employees,
representatives, agents, assigns or successors shall be enforceable or have any
effect unless first reduced to writing and signed by a duly authorized
representative of August.
11.3 You agree that no officer, employee or representative of You or August has
any authority to make any representation or promise in connection with this
Agreement or the subject matter thereof which is not contained expressly in this
Agreement; and You acknowledge and agree that You have not executed this
Agreement in reliance upon any such representation or promise.
11.4 You acknowledge and agree that the failure of August to enforce any of the
specific provisions of this Agreement shall not preclude any other or further
enforcement of such provision(s) or the exercise of any other right hereunder.
11.5 You agree that all promises, obligations, duties and warranties made by You
in this Agreement are personal to You and that neither they nor any benefits
hereunder may be assigned by You to any other person or entity.
11.6 You agree that August may at any time, and without prior notice to you,
freely assign all or part of its duties, obligations and benefits hereunder.
12. Arbitration. Any dispute or claim arising under or with respect to this
Agreement which is incapable of resolution will be resolved by arbitration
before one (1) arbitrator in Los Angeles, California in accordance with the
Rules for Commercial Arbitration of the American Arbitration Association
["AAA"]. The appointing agency shall be the AAA and the arbitrator
shall apply California law to both interpret this Agreement and fashion an
award.
The decision or award of the arbitrator shall be final and binding upon the
parties. Any arbitral award may be entered as a judgment or order in any court
of competent jurisdiction.
NOTICE: YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS
INVOLVING THIS AGREEMENT TO BE DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MAY POSSESS TO HAVE THE
DISPUTE LITIGATED IN A COURT OR JURY TRIAL. IN SO AGREEING YOU ARE ALSO GIVING
UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. NEVERTHELESS YOUR
AGREEMENT TO THIS ARBITRATION IS VOLUNTARY.
13. All Provisions Of This Agreement Not Deemed Unenforceable Shall Survive. In
case any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision(s) had never been included. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision.
14. Review By Your Attorney. We strongly advise that You review this Agreement
with your attorney before You enter into it. You acknowledge and agree that
nothing herein and no statement by us or any employee, representative, agent or
other person associated with us has in any way prevented or inhibited You in any
way from seeking such advice prior to entering into this Agreement. You hereby
acknowledge and agree that the terms of this Agreement are reasonable and fair;
all terms have been fully disclosed in writing, and that You have been given a
reasonable chance to seek advice of independent counsel with respect to this
Agreement and all transactions associated herewith.
16. Acceptance And Execution Of This Agreement. By clicking on the "CREATE
A NEW ACCOUNT" button on each Realty Cash
Affiliate Sign-Up Option Page, and by supplying August with all the required
information to sign You up to the August Program, You are acknowledging that You
agree to all of the terms, conditions, promises, warranties, duties and
obligations set forth in the above Agreement.
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