Affiliate Legal Agreement
This Affiliate Terms and Conditions Agreement (the "Agreement") is entered into by and between Playboy Plus Entertainment, Inc. ("Playboy") and You (hereinafter referred to as "Your" or the "Webmaster").PLAYBOY RESERVES THE RIGHT TO AMEND THIS AGREEMENT AT ANY TIME AND WILL POST THE AMENDED AGREEMENT HERE. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE POSTING OF ANY CHANGES IN THIS AGREEMENT WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF SUCH RULES, CHANGES OR MODIFICATIONS.
(1) Enrollment. In order to participate in the Playboy Webmasters Affiliate Program (the "Program"), You must be over eighteen (18) years of age or over the age of majority if You reside or conduct business in a jurisdiction where the age of majority is greater than eighteen (18). To enroll, fill out the application. Playboy reserves the right to reject Your application if Playboy determines, in its sole discretion, that any of the following apply:(a) You have provided inaccurate or incomplete information on Your application;(b) You are not the legal age of majority in Your jurisdiction;(c) You are a resident of an ineligible country;(d) Your website and/or marketing plan to be used in connection with the Program is unacceptable to us for any reason, including, without limitation, because Your site incorporates images and/or content Playboy, in its sole discretion, deems unlawful, defamatory, obscene, harassing or otherwise objectionable; and (e) You are operating from a country from which Playboy will not accept accounts, namely: Botswana, China, India, Indonesia, Malaysia, Philippines, Singapore, Thailand, Uzbekistan, Vietnam and Zambia.
(2) Webmaster Responsibilities. As a participating member of the Program, You will promote the various websites included in the Program (the "Sites"). You may promote the Sites through any legal and legitimate form of promotion You choose and You may direct traffic to the site you create to promote the Sites. Practices that could reflect negatively on Playboy or its affiliates are strictly prohibited and may result in Your termination in the Program. You may use banner advertisements, pop-up or pop-under windows, button links, text links placement on web search engines or other similar electronic methods using content and tools made available by Playboy on the www.playboywebmasters.com web site (the "Marketing Tools"). Any copying, downloading or other uses of Playboy property other than from the Playboy Webmaster Site is strictly prohibited. The Marketing Tools must at all times be used in accordance with the Marketing Rules as defined herein at Section 4. You will be solely responsible for the operation, development and general maintenance (including all costs) of the Affiliate Sites.
(3) Marketing Tools License. Subject entirely to Your full compliance with this Agreement, Playboy hereby grants You a limited, non-exclusive, non-transferable, revocable license to use the Marketing Tools to: (a) direct, refer and otherwise send visitors to one or more specified Playboy Sites, using the referring Uniform Resource Locator ("Referring URL") which Playboy will provide to You if we accept your application; and (b) access, copy, use, reproduce and publicly display and store the Marketing Tools. Such license shall immediately and automatically terminate upon expiration or termination of this Agreement.
(4) Marketing Rules. In order to maintain the strength and character of the PLAYBOY trademark and reputation, You must abide with the following marketing rules. Violation of these rules may result in forfeiture of Your commission payments and in Your immediate termination from the Program.
(a) No more than 10 images of Playboy models in any free gallery, with no more than 50 galleries on any one free site; For clarity, no use of international or celebrity pictorials are allowed and are expressly prohibited from use in any manner.
(b) Images of Playboy models and Playboy branding may only be used on sites with non-adult content no more explicit than that contained in Playboy magazine;
(c) Images of Playboy models and Playboy branding (i.e. words only - text links) can be used on free standing marketing items (i.e. tours, landing pages, pop-under ads);
(d) Only Playboy branding (words only - text links) can be used on sites with XXX or otherwise sexually explicit content;
(e) Links appearing on third party sites must direct traffic to the Sites through Your site.
(f) Compliance with all additional terms in the affiliates' members' area as they may be modified from time to time.
(5) Prohibited Practices. The following practices are strictly prohibited and if used by You, may result in forfeiture of Your commission payments and Your immediate termination from the Program.
(a) No use of deceptive or fraudulent language, blind links, misleading or infringing URL's or fraudulent email addresses;
(b) No multiple browser or frames with links to the Playboy Webmaster site;
(c) No forcing exit traffic to Your Site or the Playboy Webmaster Site;
(d) No e-mail marketing without Playboy's prior written approval and no unsolicited bulk e-mail marketing under any circumstances;
(e) No use of any Playboy content, trademarks or materials for the promotion of any site other than the Playboy Sites;
(f) No use of spyware or ad-ware;
(g) No alteration visually, technologically or otherwise of the Marketing Tools or the Referring URL without our express prior written consent;
(h) No use of the Playboy name or any of Playboy's trademarks or any confusingly similar term in your metatags or domain name;
You understand that Playboy's determination of a violation of Sections 4 and 5 of this Agreement shall be in its sole, unfettered discretion. Failure by Playboy to enforce strict performance with any provision in the Agreement will not constitute a waiver of Playboy's right to subsequently enforce such provision or any other provision in the Agreement.
Affiliate acknowledges and agrees that bidding on or purchasing any online paid advertising schemes or acquiring any domain names or URL's in XXX that incorporate or are confusingly similar to any of Playboy’s trademarks, service marks, or URLs or any other related trademarks, service marks, or URLs as determined by Playboy in its sole discretion from time to time is hereby expressly prohibited. By way of example, such prohibited advertising schemes include pay-per-click models, sponsored links, search engine keywords, AdWords, or similar advertising schemes.
(6) Illegal Content. You may not send traffic or cause traffic to be sent from any site which includes any child pornography, bestiality, rape, torture, snuff, death or any other type of obscene and/or illegal material. Further, You may not send traffic or cause traffic to be sent from any site which includes material which constitutes an infringement, misappropriation or violation of any individual or entity's intellectual property rights including, without limitation, copyright, trademark, rights of publicity, patent rights or privacy rights.
(7) Commissions. The Program includes two possible forms of commission payout .You may choose whether such payout is based on a Payment Per Signup or based on a Revenue Share model.
(a) Payment Per Signup. Playboy will pay You a one-time commission of USD$35.00 per Qualified Subscriber (as defined below) on all Playboy sites except Playboy.tv, which pays $25 per Qualified Subscriber (as defined below) who connects from Your links on Your site to the Sites and who signs up for a trial, monthly or other recurring membership to any of the Sites or offering (subject to the limitations below). Re-bills and additional revenue generated from a signup will not be subject to further compensation to You.
(b) Revenue Share. will pay You a revenue share of sixty percent (60%) of subscription revenue received in connection with any Qualified Subscriber, for the life of such Qualified Subscriber's subscription, who connects from Your links on Your sites to a Site and who signs up for a trial, monthly or other recurring membership to any Site or offering (subject to the limitations below). Any additional revenue generated from a signup will not be subject to further compensation to You.
(c) Qualified Subscriber. A Qualified Subscriber shall mean an individual who meets all of the following criteria: (i) Playboy can verify navigated directly to the applicable Site using Your Referring URL; (ii) is not a customer of Playboy at the time of his/her registration on the Site; (iii) registers for a trial subscription or a full-paying monthly subscription for access to the applicable Playboy Site service during such person's visit upon linking to such Site directly from Your Referring URL; (iv) pays the applicable access or subscription fee following successful completion of the registration form; and (v) for any person who signs up for a trial subscription, converts to a fully-paid monthly subscriber of the Site immediately following the trial subscription.
(i) Commission rates are subject to change at Playboy's option;
(ii) Playboy will only pay a commission on those users who Playboy can track on its system from the time of visit to your sites to the time of the sale. It is Your responsibility to ensure the correct usage of the Marketing Tools;
(iii) No commission will be paid to You in instances of credit card Charge Backs (as defined below), cancellations or other refunds;
(iv) No commission will be paid to You for subscribers who are below the age of majority in their resident jurisdiction or who reside in a jurisdiction that otherwise prohibits such person's use of or subscription to a Playboy Site or services offered thereon;
(v) No commission will be paid to You for signups by You or anyone within Your organization, family, or for subscribers who Playboy determines, in its sole discretion, were referred by You in violation of this Agreement or otherwise through actual or possible fraudulent activity
(e) Payment. You acknowledge and agree that before making any payments to You, Playboy may require that You complete an I.R.S. Form W-9 or similar tax form and supply Playboy with a valid Social Security number, U.S. Federal Tax Identification number or other similar evidence of identity and eligibility. Commissions due and owing to You under the Program will be paid to You directly by Playboy on a monthly basis for the prior month's activity. Payments due and owing to You for a pay period of less than $100.00 will be rolled over into subsequent payment periods until at least $100.00 is reached, at which time You will receive payment. Payments will be in the form of a check in U.S. Dollars payable to You as identified in Your application, and will be mailed to the street address indicated in Your application. Playboy will NOT mail to P.O. Boxes. If You dispute the manner or amount of calculation of Your commission with regard to any given payment period, You must inform us in writing within sixty (60) days of the applicable payment, otherwise You are deemed to have waived Your right to challenge said payment calculation.
(f) Charge Backs. A "Charge Back" occurs when a customer reports that unauthorized transactions were made on his/her online payment method account, including but not limited to, credit and/or debit cards. Thereafter, the customer appeals the charges with his/her online payment method/financial institution, claiming fraudulent use of his/her account by a third party. Whenever a customer seeks a Charge Back, Your commission in question will be forfeited and deducted from Your monthly commissions. Should the deduction result in a negative balance for You, You will not earn and/or be paid further commissions until the cost of the Charge Back has been covered. If, however, the Charge Back is refused by the customer's financial institution, the commission shall be returned to You and included in Your next monthly's commission payment.
(g) Taxes. You acknowledge that, except as otherwise stated herein, no income or other taxes or amounts shall be withheld or accrued by us for Your benefit on the commissions that are paid and it shall be Your sole responsibility to remit all applicable taxes.
(8) Compliance with Laws. You hereby represent and warrant that You are and will remain in compliance with all applicable laws, rules and regulations applicable to Your obligations hereunder, including without limitation, compliance with 18 U.S.C. Section 2257 and the CAN SPAM Act of 2003 and that Your sites do not in any way violate the rights of any third party, including without limitation, third party intellectual property rights.
(9) Term. The term of this Agreement will begin once Playboy accepts Your application to be a Webmaster and will terminate as set forth below.
(10) Termination. Playboy may terminate this Agreement in whole or in part by ending the Program or any aspect of the Program at any time, in its sole discretion, and no further commission payments will be due. In addition, either party may terminate this Agreement, at any time, for any reason, by giving the other party written notice of termination. Notice by e-mail, if sent to the e-mail address Playboy has on record for You shall be considered sufficient notice of termination hereunder.
(11) Effect of Termination.(a) If Playboy terminates this Agreement because You have violated any of the terms of this Agreement, You will not be eligible to receive any commission payments, even for commissions earned prior to the date of termination.(b) If this Agreement is terminated for any other reason, You will only be eligible to earn a commission on Qualified Subscribers received during the term of the Agreement up until the date of termination and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. Playboy reserves the right to withhold Your final payment for a reasonable time to ensure the correct amount is paid.(c) Immediately upon termination, You must immediately remove and disable all links, Marketing Tools, and any references to Playboy or the Program. In addition, any and all rights and licenses granted to You by Playboy under this Agreement shall immediately terminate, with such rights automatically reverting to Playboy. You shall also return any and all Confidential Information (as herein defined) and any other Playboy materials in Your possession, custody and control.
(12) Modification. Playboy may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion. Notice of any change by e-mail to the e-mail address Playboy has on record for You, or the posting on the Program website of a revised Agreement shall be considered sufficient for the purposes of this Agreement. All modifications shall take effect twenty-four (24) hours after Playboy serves notice as set forth above, unless Playboy indicates otherwise. If any modifications are unacceptable to You, Your only recourse is to terminate this Agreement by notifying Playboy in writing and terminating all use of any and all links and Marketing Tools. Your continued participation in the Program following Playboy's posting of a revised Agreement on the Program website will constitute binding acceptance of the change.
(13) Relationship of the Parties. You and Playboy are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on Playboy's behalf. You shall not make any statement, whether on Your sites or otherwise that contradicts this paragraph and Playboy expressly disclaims responsibility for any conduct by You in violation of this Agreement.
(14) Limitation of Liability. UNDER NO CIRCUMSTANCES, SHALL PLAYBOY BE RESPONSIBLE FOR ANY DIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF PLAYBOY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, PLAYBOY'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
(15) DISCLAIMERS. PLAYBOY DOES NOT MAKE ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OR DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO THE PROGRAM, ANY PLAYBOY SITE OR ANY SERVICE OR MATERIALS PROVIDED IN CONNECTION WITH THE PROGRAM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PLAYBOY SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY BENEFIT YOU MIGHT OBTAIN FROM THE PROGRAM OR ANY PLAYBOY SITE. PLAYBOY DOES NOT GUARANTEE THAT ACCESS OR REGISTRATION TO ANY PLAYBOY SITE WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR-FREE, AND PLAYBOY WILL NOT BE HELD LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS WHICH MAY OCCUR.
(16) Representations and Warranties. You hereby represent and warrant that the performance by You pursuant to this Agreement is within Your legal capacity and power; that You have been duly authorized by all requisite action on Your part; that You do not require the approval or consent of any other party and that Your performance hereunder will not violate or constitute a default under any (a) provision of law, rule, regulation, order, judgment or decree to which You are subject or which is binding upon You, or (ii) the terms of any other agreement, document or instrument applicable to You or binding upon You. Should any law enforcement agency or internet service provider provide Playboy with notice that You have engaged in a practice that actually or allegedly violates any applicable law, Playboy reserves the right to cooperate in any investigation relating to Your activities including disclosure of Your account information in connection therewith.
(17) Confidentiality. Playboy may disclose to You certain information as a result of Your participation in the Program, which information Playboy considers to be confidential ("Confidential Information"). Confidential Information shall include, without limitation, (a) any modifications to the terms of this Agreement made specifically for Your sites and generally not available to other members of the Program; (b) website, business and financial information relating to Playboy; (c) customer and vendor information and/or lists relating to Playboy; and (d) any members of the Program, other than You. Confidential Information shall also include any information that Playboy designates as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by You for Your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. Should You receive a court notice, complaint or subpoena requesting or seeking to compel disclosure of Confidential Information, You shall immediately inform Playboy and Playboy shall have the right and be given the opportunity to obtain a protective order to prevent disclosure of such Confidential Information. Playboy makes no warranty, express or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information and Playboy shall not have any liability to You or to any such person resulting from Your or such third person's use of the information.
(18) Indemnification. You hereby agree to indemnify, defend and hold harmless Playboy, its affiliated companies, shareholders, officers, directors, employees, agents, affiliates, sponsors and successors and assigns, from and against any and all third party claims, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim or threatened claim that our use of the any of Your intellectual property infringes the rights of any third party or is otherwise unlawful; (ii) the breach of any promise, covenant, representation or warranty made by You herein; or (iii) Your performance under this Agreement, participation in the Program, promotion of the Sites or operation of Your Affiliate Sites.
(19) Assignment. You may not assign this Agreement or any of Your rights or delegate any of Your duties under this Agreement without the prior written consent of Playboy. Any purported assignment or delegation without such required consent shall be null and void and may result in Your termination from the Program.
(20) Waiver. No waiver by Playboy of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any authorized provisions hereof, and no waiver by Playboy shall be effective unless made in writing and signed by an authorized representative of the waiving party.
(21) Governing Law. This Agreement and all its provisions shall be deemed to be made entirely by the parties herein and shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any and all disputes hereunder which are not first resolved between the parties shall be submitted exclusively to the state and federal courts located in Los Angeles County, California having proper jurisdiction and You hereby submit to the personal jurisdiction of such courts. You acknowledge that the terms hereof are fair and reasonable and that You have had a reasonable opportunity to seek the advice of legal counsel with regard to this Agreement and Your performance hereunder.
THIS IS A BINDING AGREEMENT BETWEEN YOU AND PLAYBOY. BY CHECKING THE BOX AT THE END IF THE PROGRAM APPLICATION, YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT AND AGREEING TO BE BOUND BY THE TERMS HEREOF.