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AFFILIATE AGREEMENT AND TERMS OF SERVICE
Welcome to the DigiPawn Affiliate Program. This Affiliate Agreement and Terms of Service (“Agreement”) provides the terms and conditions for the DigiPawn Affiliate Program and Your participation in the DigiPawn affiliate program signifies Your acceptance of the terms, conditions, and legally binding nature of this agreement. In this Agreement, We, Us, and Our refer to DigiPawn, Inc. (hereafter “DigiPawn”); You and Your refers to the Affiliate participating in the DigiPawn Affiliate Program (the “Program”); Our Site refers to the website located at the URL http://www.DigiPawn.com; Your Site refers to the Web site utilized by You upon which You establish the links to Our Site; Referral(s) (hereafter “Referrals”) refers to the individual(s) referred by You to Our Site. The term “Advance” refers to service provided by DigiPawn whereby a customer is advanced money in consideration of the payment of finance charges and for which digital collateral is held by DigiPawn (please see the DigiPawn Terms and Conditions for more information on Advances made by DigiPawn). If You do not accept these terms and conditions or have any questions, please contact legal@digipawn.com. Non-compliance with any of these terms and conditions will result in the forfeiture of all monies owed and the possible prosecution of the webmaster. We may amend this Agreement at any time by posting the amended terms on Our Site located at www.DigiPawn.com/aatos. 1. Eligibility for Membership. Our services are only available to individuals who can form legally binding contracts under applicable law. Our services are not available to minors under any circumstances. If You do not qualify, please do not use Our services. We may refuse service to anyone at anytime, at Our sole discretion. To register, You must provide Us with Your legal name and email address. You must also complete the DigiPawn registration to use this site, and you agree that you will be bound by the Terms and Conditions for the use of the DigiPawn sites. The aforementioned DigiPawn Terms and Conditions are incorporated herein by reference as if fully set forth herein. 2. Additional Membership Requirements. If You are a US citizen, You are required to enter a Federal Tax ID or Social Security Number on the registration form. We will register a 1099 for all U.S. domestic entities to whom we issue combined yearly payments of US$600.00 or more. Any falsification of Social Security or Tax ID numbers shall be grounds for denial of payment and immediate account termination. It is Your responsibility to keep all account information with Us up-to-date and accurate. It is also Your responsibility to periodically check Your e-mail to stay informed of changes to Our program. You are solely responsible for providing accurate address/delivery information to ensure proper delivery of payment. Since payments are computer-generated, inaccurate/improper address information will delay payment. 3. Restrictions on Participation. Our Program is not open to webmasters from certain countries and any and all decisions regarding restrictions on participation are Ours alone. At any time, new countries may be added as business circumstances require. 3. Restrictions on Participation. Our Program is not open to webmasters from certain countries and any and all decisions regarding restrictions on participation are Ours alone. At any time, new countries may be added as business circumstances require. 4. Purpose. Our Site serves as a location for making financial Advances (“Advances”) with domains and other intellectual property assets as collateral. Advances are paid to our Customers via check, wire, PayPal, ePassporte and any other way agreed upon by Us and the Customers. We will pay a commission to You based on the dollar amount Advanced to registered customers at Our Site by Referrals from Your Site. Commissions are paid out in accordance with the schedule set forth below. The Referral will be responsible for the payment of all Advances, finance charges and fees as forth at Our Site. based on the dollar amount Advanced to registered customers at Our Site by Referrals from Your Site. Commissions are paid out in accordance with the schedule set forth below. The Referral will be responsible for the payment of all Advances, finance charges and fees as forth at Our Site. 5. Enrollment and Acceptance. You must submit a properly completed program application via Our Site. We will evaluate Your application and will notify You of Your acceptance or rejection as an affiliate immediately. However, We may terminate You from the Program if Your Site: a. contains unlawful material, including, but not limited to materials that may violate another's intellectual property rights, or links to a site that contains such material; b. for any other reason that is deemed to Us to be unsuitable. In this regard, You understand that We reserve the right to conclude that Your site is unsuitable in accordance with Our standards, and We may come to such a conclusion even if it is based upon Our opinion, or mere suspicion or belief, even if other sites have been accepted despite having the same or similar characteristics as Your site. 6. Affiliate Relationship. As an Affiliate, We will make available to You all hyperlinks (Links) necessary to promote and offer the DigiPawn service, which You may display as many times in any area of Your Site as You desire. The Links will serve to identify Your Site as a member of Our Program and will establish a link from Your Site to Our Site. Notwithstanding Our providing the Links, You are free to promote the service offered at Our Site in any manner You choose provided it does not mislead the Referral about the DigiPawn service. 7. Our Responsibilities. We will be responsible for customer service for the DigiPawn service. However, in no event shall DigiPawn be responsible for lost sales due to technical difficulties, or DigiPawn’s denial of service to Referrals, regardless of the reason for the denial of service. Likewise, DigiPawn is not responsible for any Referral declining to do business with DigiPawn, regardless of the reason for the decision. Because of the nature of the pawn business, DigiPawn can and will only pay commissions on actual advances made to Referrals and DigiPawn is not responsible and will not pay any commissions for any Referral in which there is not an advance made. 8. Commission Payments. We will pay You a Commission based on the dollar amount of the Advance made to the Referral resulting from the Referral coming from Your Site. Your entitlement to a Commission will accrue only if the Referral (i) registers for Our Site through the use of a Link on Your Site and (ii) is approved for an Advance, actually completes the process to receive an Advance and actually receives the Advance. You will only be paid from Referrals that are referred from a Web page. Referrals from email or any other source other than a Web page will not be tracked and payment will not accrue. Notwithstanding (i) and (ii), We will pay You a Commission on the first Advance made to a registered customer reentering Our Site from any source, provided they have registered for a DigiPawn user account prior to leaving Our Site on their initial visit to Our Site from a Link on Your Site. 9. Commission. Your Commission will be based on the actual US dollar amount of the Advance made to the Referral. Advances made to the Referral are the only basis for the calculation of commissions payable to You. Only actual Advances made by Us and received by Referrals from Your Site linked to Our Site are subject to the payment of a commission. The Referral does not have to repay the Advance in order for you to receive a commission. The Commission payable to You is Five Percent (5%) of each actual Advance made to the Referral, and will therefore vary based upon the total dollar volume of the Advances made in a given calendar month resulting from Referrals who come to us through the link on Your Site. Commissions are due and payable (“Commissions Due and Payable”) to You no sooner than thirty-one (31) days after the date of the Advance. On the appropriate payment date as set forth below, you will be paid for all Commissions Due and Payable as set out above. 10. Payment Schedule. Commissions Due and Payable will be paid within the first fifteen (15) business days of each month and will include full payment of all Commissions due and payable to You. Commissions will be paid to You in the form of a check, or other payment method that may be offered from time to time. Payment will be made as outlined herein provided that the Commissions Due and Payable to You total at least US$100.00. Otherwise, Your accumulated payout will be carried over to the next month until Your total reaches US$100.00. 11. Statistics. A username and password will be required for you to have the ability to check Your sales statistics in our Webmaster Stats area. 12. Your Responsibilities. You are solely responsible for ensuring that the content of Your Site complies with all applicable copyright and other laws. You must have express permission to use another party’s copyrighted or other proprietary material. We will not be responsible if You use another party’s copyrighted or other proprietary material on Your Site in violation of the law or any agreement, and Your indemnity below will protect Us if You do so. In the event We ever receive a complaint under the Digital Millennium Copyright Act, we will notify You and You must remove the objectionable images or your account will be terminated. Also, under no circumstances, shall You undertake any action that will or have the tendency to mislead Referrals about the DigiPawn service. 13. DigiPawn Policies. Referrals who use the service offered at Our Site through the Program will be deemed to be users of DigiPawn. Accordingly, all of Our terms and conditions, rules, policies, and operating procedures concerning applications, customer service, and Advances made under Our service will apply to those users. We may change Our Terms and Conditions, policies and operating procedures at any time and at Our sole discretion. 14. Licenses. We grant You a non-exclusive, non-transferable, revocable right (i) to access Our Site through the Links on Your Site by any means You choose provided they do not mislead the Referral about the DigiPawn service and (ii) solely in connection with such Links, to use Our logos, trade names, trademarks and similar identifying material relating to Us (collectively, the Licensed Materials), for the sole purpose of establishing a Link to Our Site so users of Your Site can subscribe to the services at Our Site. You may not alter, modify or change the Licensed Materials in any way. a. Other than establishing a Link from Your Site to Our Site, You shall not make any use of any Licensed Materials without first obtaining Our prior written consent. You shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays Us in a negative light. We reserve all of Our rights in the Licensed Materials and of Our other proprietary rights. We, in Our sole discretion, may revoke Your license at any time, by giving You written notice. b. You grant to Us a non-exclusive license to utilize Your company name and logo, as the same may be amended from time to time (the Affiliate Trademarks), to advertise, market, promote and publicize in any manner Your participation in the Program or Our rights hereunder; provided, however,that We shall not be required to so advertise, market, promote or publicize. c. The licenses described in this provision shall expire upon the effective date of the expiration or termination of this Agreement. 15. Obligations Regarding Your Site. You will be solely responsible for the development, operation and maintenance of Your Site. Such responsibilities include, but are not limited to, the technical operation of Your Site and all related equipment; the accuracy and propriety of materials posted on Your Site; and, ensuring that materials posted on Your Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability for all such matters 16. Termination. We may terminate this Agreement at any time, with or without cause, by notifying You in writing to the email address on file, that We desire to terminate this Agreement. You are only eligible to earn commissions on sales occurring during the term of this Agreement. Within one (1) day of any termination of this Agreement, the Links established under this Agreement shall be removed by You and You shall discontinue the use of all Licensed Materials set forth in provision 14 above. You will not be paid on any Advances made to Referrals referred from your site after the termination of this Agreement. 17. Remedies for Misuse of Account. Without limiting any other remedies, We may suspend or terminate Your account if You are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with Our Site. Additionally, If You use, or attempt to use Our Program for purposes of, including but not limited to tampering, hacking, modifying or otherwise corrupting its security or functionality, Your account will be terminated, and You will be subject to damages and other penalties under the laws of the State of Georgia, including criminal prosecution where available (please see Paragraph 18). We also reserve the right to hold payments for transactions We deem suspicious. Furthermore, if You are found to have engaged in any abusive spamming practices, Your account will be subject to immediate termination and denial of payment. 18. Right to Prosecute and Recover Damages. We reserve the right to prosecute a civil and/or criminal action against You for any abusive behavior You engage in regarding Your participation in Our Program. You will also be subject to clean up fees for damages incurred by Us for any violation of any term of this Agreement. We reserve the right to bring legal action to enjoin violations and/or to collect damages, if any, caused by violations of this Agreement. 19. Modification. We may modify any of the terms and conditions contained in this Agreement at any time and in Our sole discretion, but no more often than once a month. It is Your obligation to check this Affiliate Agreement (located at www.DigiPawn.com/aatos) once a month to stay abreast of any changes in this Agreement’s terms and conditions. If any modification is unacceptable to You, Your sole recourse is to terminate this Agreement by expressly stating Your desire to do so in writing and mailed to the address set forth below. Your continued participation in the Program following Our posting of a change notice or new Agreement on Our Site will constitute binding acceptance of the change. 20. No Agency. This Agreement is not intended to establish any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between You and Us. 20. Denial of Service. We do not guarantee continuous, uninterrupted or secure access to Our services, and operation of Our Site may be interfered with by numerous factors outside of Our control. 21. Representations and Warranties. USE OF OUR PROGRAM AND OUR SERVICES ARE FURNISHED AS IS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Each of us (the Warrantor) hereby represents and warrants to the other party as follows:
You hereby represent and warrant to Us that You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to Us the license to use Your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to You or binding upon Your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity. 22. Confidentiality. Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning Us or You or any of Our Referrals provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is in furtherance of the purpose of this Agreement or is generally known or available to the public or through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency provided notice of this delivery is provided to Us, (b) to its accountants, attorneys or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process. 23. Damages Disclaimer; Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.FURTHERMORE, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE UNDER THESE TERMS AND CONDITIONS RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING. OUR LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCES IS LIMITED TO THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT 24. Indemnification. You agree to defend, indemnify and hold Us and Our subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members and other owners harmless from and against any and all liabilities, losses, damages, costs and expenses, including reasonable attorneys fees and court costs associated with any claim or action brought against Us for any third party claims resulting from your use of this service, including breach of any warranties or representations contained herein, or infringement of any trademark, copyright, or other claim of any kind based upon the service provided in accordance with this Agreement. 25. Notification. All notices to Us in connection with this Agreement shall be deemed given as of the day they are received by Us at the following address: DigiPawn, Inc. PO Box 191062 Atlanta, Georgia 31119 USA Attention: Matthew P. Collins All notices to You in connection with this Agreement shall be deemed given as of the day they are dispatched. 26. Breach of Agreement. We may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate Your use of Our Site, if You breach this Agreement in any manner, or if We are unable to verify or authenticate any information You provide to Us. 27. General. This Agreement shall be governed in all respects by the laws of the State of Georgia. All transactions contemplated under this agreement are deemed, by express agreement by Your and Us, to have occurred in Georgia. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form, and any such printed, true, and accurate copy shall be deemed an original document for evidentiary purposes. Our failure to act with respect to a breach by You or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between You and Us with respect to the subject matter hereof. 28. Time for Claims and Arbitration. You agree that, regardless of any statute or law to the contrary, except as prohibited by law, any claim or cause of action arising out of or related to this Agreement, the Site, or DigiPawn's products or Services, must be commenced within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Atlanta, Georgia and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either You or Us may seek any interim or preliminary relief from a court of competent jurisdiction in Atlanta, Georgia necessary to protect the rights or property of You or Us, pending the completion of arbitration. 29. Privacy Policy. Our privacy policy is incorporated herein by reference as if fully set forth herein. |