Updated: April 7, 2016
Last Updated: April 7, 2016
This affiliate agreement is between WHALE TRAFFIC, LLC, a Wisconsin limited liability company (the “Company”), and you, the individual or entity signing up to become an affiliate (the “Affiliate”).
The Company has developed the WhaleCash affiliate marketing program (the “Program”) and wants to market the Program and associated content on the program sites listed at http://whalecash.com/whalecash/site/oursites.php (the “Program Sites”).
The Affiliate wants to participate in the Program.
The parties therefore agree as follows:
1. Enrollment in the Program
The Affiliate must be at least 18-years old or the age of majority in the Affiliate’s place of residence, whichever is greater, to enroll in the Program. If the Affiliate is an entity, all individuals involved in the entity must be at least 18-years old or the age of majority in their place of residence, whichever is greater.
To begin the enrollment process, the Affiliate must fill out and submit the registration form located at http://whalecash.com/join/join.php?action=join_default.
1.3 Evaluation of Application
- (a) The Company will evaluate the Affiliate’s application. The Company may reject the Affiliate’s application for any reason, including if the Company determines that:
- (i) The Affiliate or its owners are under 18-years old and the age of majority in their place of residence;
- (ii) The application contains inaccurate information;
- (iii) The Affiliate’s marketing methods are unsuitable for the Program, including engaging in any of the conduct listed in section 1.3(c);
- (iv) One or more affiliate sites incorporate material that is unlawful, defamatory, libelous, infringing, obscene, harassing, or otherwise objectionable;
- (v) One or more of the Affiliate’s domain names or affiliate sites are identical or confusingly similar to a trademark or service mark in which the Company or another person has intellectual property or other legal rights;
- (vi) One or more affiliate sites promotes or facilitates illegal activity, or violates the rights of others, including copyright, trademark, or other intellectual property rights;
- (vii) One or more affiliate sites encourage password theft or hacking; or
- (viii) The Affiliate or one or more affiliate sites are not otherwise suitable for the Program for any reason.
- (b) If the Company approves the Affiliate’s application, but later determines that the Affiliate did not comply with section 1.3(a), the Company will terminate the Affiliate’s account.
- (c) The Company may decline the Affiliate’s application or cancel the Affiliate’s account if the Company determines that the Affiliate or one or more affiliate sites engages in advertising or marketing methods that does any of the following:
- (i) Promotes sexually explicit materials without complying with governing law;
- (ii) Promotes violence;
- (iii) Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- (iv) Incorporates any materials that infringe or assist others to infringe any copyright, trademark, or other intellectual property rights or to violate any law;
- (v) Is in any way unlawful, harmful, threatening, defamatory, libelous, obscene, harassing, or racially, ethnically, or otherwise objectionable to the Company in its sole discretion;
- (vi) Contains software downloads that potentially enable diversions of commissions from other affiliates in the Program; or
- (vii) Leads customers to mistake the Affiliate for the Company or any other affiliated business or otherwise impersonates or tries to impersonate the Company, its employees, another affiliate, or any other person.
- (d) The Company is not required to notify any prospective affiliate of rejection from the Program.
If the Company rejects the Affiliate’s application for any reason, the Affiliate will not reapply to the Program using the same domain name, URL, email address, company name, or personal name; nor will the Affiliate reapply using a different domain name, URL, email address, company name, or personal name.
2. Affiliate Account
2.1 Account Creation
To participate in the Program, the Affiliate has to create an account. To create an account, the Affiliate must complete the enrollment process by providing the Company with accurate information as prompted by the enrollment form. The Affiliate also will choose a password and a username.
2.2 Responsibility for Account
The Affiliate is responsible for maintaining the confidentiality of the Affiliate’s password and account. Further, the Affiliate is responsible for all activities that occur under the Affiliate’s account. The Affiliate will promptly notify the Company of any unauthorized use of the Affiliate’s account or any other breach of security.
2.3 Liability for Account Misuse
The Company will not be liable for any loss that may incur as a result of someone else using the Affiliate’s password or account, either with or without the Affiliate’s knowledge. The Affiliate could be held liable for losses incurred by the Company or another person due to someone else using the Affiliate’s account or password.
2.4 Use of Other Accounts
The Affiliate will not use anyone else’s account at any time.
2.5 Account Security
The Company cares about the integrity and security of the Affiliate’s personal information. But the Company cannot guarantee that unauthorized persons will never be able to defeat WhaleCash.com’s security measures or use any personal information the Affiliate provides to the Company for improper purposes. The Affiliate acknowledges that the Affiliate provides the Affiliate’s personal information at the Affiliate’s own risk.
Subject to the Company’s approval of the Affiliate in accordance with section 1 and solely for the purpose of directing traffic to the Program Sites, the Company hereby grants the Affiliate a nonexclusive, nontransferable, nonsublicensable license to:
- (a) use, copy, and publicly display the licensed material solely on one or more affiliate sites and solely for the purposes stated in this agreement;
- (b) market, advertise, and promote the Program Sites on one or more affiliate sites; and
- (c) use the Company’s service marks, trademarks, and logos that the Company may make available to the Affiliate as part of the licensed material (those trademarks and logos, collectively, the “Company marks”).
The Affiliate will only use the licensed material in accordance with this agreement and not for any other purpose. The Affiliate will only download a single copy of the licensed material and upload a single copy to the affiliate site. The Affiliate will not make any further copies of the licensed material. The following limitations also apply to the Affiliate’s use of the licensed material:
- (a) Use Restrictions
All unauthorized access or duplication of the licensed material is a breach of this agreement and an infringement of the Company’s and its licensors trademarks, copyrights, and other rights, including privacy and publicity rights.
- (b) Other Prohibited Actions
Unless expressly authorized in advance by the Company in writing, the Affiliate will not:
- (i) Modify, translate, reverse engineer, decompile, or disassemble the licensed material;
- (ii) Create derivative works based on the licensed material;
- (iii) Rent, lease, or transfer any rights in the licensed material;
- (iv) Remove any proprietary notices or labels on the licensed material; or
- (v) Make any other unauthorized use of the licensed material.
3.3 No License for Other Material
The Company does not grant a license for any other material published on the Program Sites unless the Company makes that material available to the Affiliate through the Program and the Company designates it as licensed material.
3.4 Reservation of Rights
Except as expressly granted in this agreement, the Company does not grant any other rights to the Affiliate. The Company reserves all rights to select, alter, add, or remove all licensed material and promotional links used for the Program.
3.5 Termination or Withdrawal of License
On termination of this agreement or the Affiliate’s withdrawal from the Program, the Affiliate’s license to download and use the licensed material will automatically terminate and all rights will automatically revert to the Company. At that time, the Affiliate will promptly delete all copies of the licensed material that might reside on any computer system, storage device, server, or website owned by the Affiliate or under its control.
4. Program Restrictions
4.1 Compliance with Law
The Affiliate will comply with all laws, including the following:
4.2 Prohibited Conduct
The Affiliate is responsible for all content posted on the affiliate sites. The Company prohibits the Affiliate from engaging in the following prohibited conduct:
(a) Depictions of Minors
The Affiliate must not disseminate, post on its affiliate site, or provide links to any matter that involves depictions of nudity or sexuality by an age inappropriate-appearing performer (that is, a performer who looks younger than 18-years old) or by a performer who is portrayed or made to appear as a person under 18-years old by virtue of the script, make-up, costuming, demeanor, setting, etc.
(b) Illegal or Objectionable Content
The Affiliate must not disseminate, post on its affiliate site, or provide links to any obscene material, including any material depicting child pornography, incest, scat, defecation, feces, urination, menstruation, genital mutilation, necrophilia, bestiality, actual or simulated rape, sexual violence, sado-masochistic abuse or bondage, actual violence inflected on individuals by themselves or others, torture, or death. Nor will the Affiliate disseminate, post on its affiliate site, or provide links to any content or materials of the following nature: warez, distribution of pirated content, prostitution or escort services, human trafficking, gambling, or controlled substances (including related paraphernalia).
The Affiliate must not disseminate spam in connection with the Program. Although United States federal and state law does not prohibit all forms of spamming, the Company impose a stricter, no-spam policy for affiliates. What is spamming will evolve over time as new technologies and methodologies emerge for spammers to find new ways to abuse the Program. Some of the facts that the Company takes into account when determining what is spamming include:
No one factor is controlling, and the Company will look to the particular circumstances of each case to determine what is spamming. The Company recommends that the Affiliate review CAN-SPAM Act: A Compliance Guide for Business. When in doubt, don’t do it—you spam, you’re out.
- (i) If the Affiliate has violated a U.S. federal or state anti-spamming law, including any part of the CAN-SPAM Act of 2003 (15 U.S.C. §§ 7701–7713) or any of the federal regulations promulgated under the CAN-SPAM Act (16 C.F.R. Part 316);
- (ii) If the Affiliate has violated any third party anti-spamming policy;
- (iii) If the Affiliate has sent unsolicited bulk messages to nonconsenting recipients;
- (iv) If the Affiliate has misleading or false information contained in its messages, subject line, or message-headers;
- (v) If the Affiliate uses automated means to collect, transmit, or sell the email addresses of others;
- (vi) If the Affiliate uses a third-party website or program to automatically generate and send messages or content;
- (vii) If the primary purpose of the Affiliate’s message is commercial in nature; and
- (viii) The number of spam or abuse complaints that have been lodged against the Affiliate.
(d) Fraudulent and Deceptive Trade Practices
The Affiliate must not engage in any fraudulent, deceptive, or unfair transactions or trade practices. The Affiliate must comply with the Federal Trade Commission (FTC) statutes and regulations and any related rules, policies, and advisory opinions in advertising, marketing, and promoting the Program Sites.
(e) Defamation and Related Conduct
The Affiliate must not publish content on the affiliate site that is defamatory, libelous, threatening, abusive, hateful, derogatory, disparaging, or otherwise injurious to any person or to the reputation of any person.
(f) Federal Record Keeping and Labeling Requirements
- (i) The Affiliate and the affiliate site must comply with the federal record keeping and labeling requirements codified at 18 U.S.C. §§ 2257–2257A and the implementing regulations codified at +28 C.F.R. Part 75 (collectively, the “§ 2257 requirements”).
- (ii) The Affiliate will act as the required “Custodian of Records” under the § 2257 requirements for all content depicting actual sexually explicit conduct of an actual human being that may be used to promote or market the Program Sites regardless of who produced the content.
- (iii) The Affiliate must post a § 2257 statement on the affiliate site in the manner and location required by the § 2257 requirements.
(g) Intellectual Property Rights
The Affiliate must not publish content on the affiliate site that infringes the intellectual property rights or other legal rights of any person, including copyright, patent, trademark, service mark, trade secret, trade dress, right of privacy, right of publicity, moral right, and any other proprietary right.
(h) Cybersquatting or Typosquatting
The Affiliate must not use or register or try to use or register any domain name (including second-level, third-level, fourth-level, fifth-level, and so on), subdomain name, or directory that is identical or confusingly similar to a trademark or service mark in which the Company or another person has intellectual property or other legal rights, including WHALECASH and WHALETRAFFIC.
(i) Paid Search Advertisement Schemes
The Affiliate must not bid on or purchase any online paid advertising schemes that incorporate or are confusingly similar to the Company’s trademarks, service marks, domain names, or URLs, including WHALECASH and WHALETRAFFIC. The prohibited advertising schemes include pay-per-click models, sponsored links, search engine keywords, AdWords, or similar advertising schemes.
The Affiliate must not use any false, misleading, or infringing metatags tied to the affiliate site. In addition, the Affiliate must not use any metatags that would imply or suggest that underage or illegal content may be found on the affiliate site or the Program Sites.
(k) Unethical Marketing Practices
The Affiliate must not try to intercept, direct, re-direct, divert, or usurp traffic (including through the use of user-installed software) from, or divert referral fees from, any other participant in the Program. The Affiliate must not directly or indirectly offer any person any consideration or incentive (including payment of money or granting of any discounts or other benefits) to go to the Program Sites using the promotional links on the affiliate site; nor will the Affiliate require any person to join one or more Program Sites as a prerequisite to accessing other products or services. The Affiliate will not try to directly or indirectly obtain usernames or passwords from end users of the Program Sites, including persons whom the Affiliate referred to the Program Sites.
(l) Misrepresentation of Relationship
The Affiliate must not misrepresent the Affiliate’s contractual relationship with the Company or imply that any relationship exists with the Company except as expressly provided in this agreement. For example, the Affiliate will not publish any statement indicating that the Company supports, endorses, or contributes to the affiliate site except as expressly provided in this agreement.
(m) Unauthorized Access
The Affiliate’s unauthorized access or duplication of any content that the Affiliate obtains directly or indirectly through its participation in the Program is a breach of this agreement.
(n) Malicious Code, Viruses, Ect.
The Affiliate must not use or offer for download any material that contains a virus or malicious code, for example a Trojan Horse, that has the potential of causing disruption or damage to any computer system, network, or server. The Affiliate will be liable to the Company for all damage caused by any program of this nature.
(o) Links to and Content of Others
The Affiliate must not use the licensed material, the Company marks, or any other Company intellectual property to promote or link to any other website.
(p) Chat Traffic Advertisements
The Affiliate must not use chat traffic advertisements during its participation in the Program. The Company will not accept chat traffic under any circumstances.
(q) Use of Unapproved Promotional Materials
The Affiliate must only use the licensed material to promote the Program Sites. The Affiliate must not use any other material, whether created by the Affiliate or others, to promote the Program Sites.
4.3 Breach of Program Restrictions
The Company may withhold commission fees or terminate this agreement if the Affiliate breaches the program restrictions set out in this section 4.
5. Affiliates Duty to Notify
5.1 The Affiliate will promptly notify the Company
- (a) of all URLs where the Affiliate will promote the Program Sites;
- (b) whenever there are inquiries or concerns by any person regarding any questionable activities; or
- (c) if the Affiliate receives any inquiries or requests for information regarding the following:
- (i) obscenity
- (ii) child pornography or depictions of nudity or sexuality by minors
- (iii) spam complaints
- (iv) copyright infringement
- (v) trademark infringement
- (vi) patent infringement
- (vii) deceptive trade practices
- (viii) unfair business practices
- (ix) misleading search terms
- (x) invasion of publicity or privacy issues
- (xi) fraudulent activities, including credit card fraud
- (xii) any criminal investigation unless the Affiliate is prohibited by law from notifying the Company
- (xiii) any civil investigation that pertains to the Affiliate, even if it does not relate to the Affiliate’s relationship with the Company
- (xiv) any civil or criminal subpoena served on the Affiliate, even if it does not relate to the Affiliate’s relationship with the Company
5.2 The Affiliate’s failure to comply with section 5.1 will constitute a breach of this agreement. The Affiliate will be responsible for any damages to the Company based on the Affiliate’s failure to notify the Company as required by section 5.1.
The Company will pay the Affiliate $25 for each qualified signup that occurs during this agreement.
6.2 Referral Fee
The Company will pay the Affiliate a referral fee equal to 3% of the generated income for each new affiliate that the Affiliate refers to the Company and that the Company has accepted into the Program. Any referral fee is subject to the Company’s approval and only available on completion of all application requirements. The referral fee is only available for the duration of the new affiliate’s account with the Company and is conditioned on a membership in good standing.
- (a) Minimum Payout Requirement
The current minimum payment amount is $50 for checks (default option), $50 for Paxum, and $200 for bank wire transfer. The Company will roll over accrued commissions and referral fees totaling less than the minimum payout requirement until the payment owed satisfies the minimum payout requirement for the payment method selected.
- (b) Pay Periods
Subject to the minimum payout requirement for the payment method selected, the Company will pay commissions and referral fees on the 15th of each month for the previous month’s earnings. The Company may change the pay periods on one or more occasions without notice.
- (c) Processing Fees
The Company is not responsible for any third-party fees charged by banks or financial institutions used to receive commissions and referral fees. The Company will deduct a processing fee if the payment method selected carries a processing fee, including $20 for U.S. wire transfers and $30 for international wire transfers.
- (d) Payment Currency
The Company will make all payouts in United States Dollars.
6.4 Payout Limitations
- (a) The Company will pay the Affiliate for qualified signups only, that is the Company will pay the Affiliate commissions only if its system can track a visitor to the applicable Program Site from the time a visitor clicks on a promotional link to the time of signup.
- (b) The Company will not pay the Affiliate a commission
- (i) if its system cannot process the affiliate code;
- (ii) if a visitor does not signup; or
- (iii) if a promotional link directs a visitor to the applicable Program Site, but the visitor leaves and later returns to the applicable Program Site to sign up without going through the promotional link.
- (c) The Company will not pay the Affiliate for any activity that the Company determines is fraudulent, including credit card numbers in a negative bin number database, multiple subscriptions from a single email address, multiple subscriptions with the same credit card number, subscriptions with past memberships to the applicable Program Site, sequential names or patterns of names, many subscriptions from a specific Program Site in a short time span, and multiple attempts to subscribe from the same credit card.
- (d) The Company may also deny or withhold commissions for any signups coming from any practices that breach this agreement. If the Company determines that the Affiliate is engaging in practices that breach this agreement, the Affiliate will not receive any credit or payment and will forfeit all credits or payments earned.
6.5 Abnormal Chargebacks or Cancellations and Other Suspicious Behavior
The Company may deny or withhold any payment to the Affiliate and terminate the Affiliate’s participation in the Program if there has been an abnormal number of chargebacks or cancellations from traffic referred to the Company through one or more affiliate sites. The Company will determine what is an abnormal number of chargebacks or cancellations based on its review of the situation and its experience with other affiliates. In addition, the Company may also deny or withhold payment to the Affiliate and terminate the Affiliate’s participation in the Program due to any other suspicious behavior, including unusual conversion ratios, lack of or low quantity of member logins, or low member usage.
The Affiliate will pay all taxes attributable to the commissions and referral fees earned under this agreement. On one or more occasions, the Company may request the Affiliate to provide tax information depending on the jurisdiction in which the Affiliate resides or is incorporated. The Affiliate will promptly comply with any request by the Company for tax information. If the Company requests tax information from the Affiliate and the Affiliate does not provide it to the Company, the Company may withhold payment from the Affiliate until the Affiliate provides this information or otherwise satisfies the Company that the Affiliate is not a person from whom the Company is required to obtain tax information.
If the Affiliate disputes a payment or the calculation of a commission or referral fee, the Affiliate will notify the Company in writing of any disputes or discrepancies no later than 30 days after the end of the pay period in which the disputed payment occurred. The Affiliate will include in its written notice a detailed statement describing the nature and amount of the dispute and all supporting evidence. The Affiliate will cooperate fully and in good faith with the Company to promptly address and try to resolve the dispute. If the Affiliate fails to timely notify the Company in writing, the parties will consider the Company’s determination correct and binding on the Affiliate, and the Affiliate will not dispute the Company’s determination.
7. Affiliate Site Obligations
- 7.1 The Affiliate will be solely responsible for developing, operating, and maintaining the affiliate site and for all materials that appear on the affiliate site. The Affiliate’s responsibilities include:
- (a) The technical operation of the affiliate site and all related equipment;
- (b) Displaying the promotional links and licensed material on the affiliate site in compliance with this agreement;
- (c) Creating, posting, and ensuring the accuracy of materials posted on the affiliate site, including all materials related to the Company’s online services and content;
- (d) Using the licensed material, the affiliate site, and the materials on the affiliate site in a way that does not infringe any of the Company’s rights or those of any other person (including copyrights, trademarks, privacy, publicity, or other intellectual property or proprietary rights);
- (f) Making sure that any use that the Affiliate makes of the licensed material and the Company marks complies with this agreement.
- 7.2 The Company may monitor signups through the affiliate site to evaluate the Affiliate’s compliance with this agreement. If the Company determines that the Affiliate is not in compliance, the Company may terminate the Affiliate from the Program.
- 7.3 The Company will not be liable to the Affiliate or any other person for the Affiliate’s acts or omissions under section 7.1.
8. Signup Processing; Statistics and Reporting
- 8.1 The Company will process all signups made by visitors who follow promotional links from the affiliate site to the Program Sites. The Company may reject signups that do not comply with the requirements on the Program Sites, as they may be updated on one or more occasions.
- 8.2 The Company will track qualified signups for reporting and commission accrual purposes. The Company will use reasonable efforts to provide the Affiliate with access to real-time traffic reporting, qualified signups, and revenue statistics. The Affiliate acknowledges that in calculating the Affiliate’s earnings, the Company’s good faith determination of any amount owed will be the final and binding determination. The Affiliate will not try to artificially inflate its traffic reporting, qualified signups, and revenue statistics by misleading or abusive practices.
9. Customer Policies and Pricing
Visitors referred by the Affiliate to the Program Sites are the Company’s customers with respect to all activities they undertake in connection with the Program Sites. Thus, as between the Affiliate and the Company, all pricing, terms, rules, policies, and operating procedures concerning customer signups and customer service set out on the Program Sites will apply to those customers, and the Company may change them at any time without notice to the Affiliate.
10. Statement of Fact
10.2 By Company
The Company states that the following facts are accurate:
- (a) It is duly organized, validly existing, and in good standing as a limited liability company under the laws of the state of Wisconsin.
- (b) It has the power to enter into this agreement and to perform its obligations under this agreement.
- (c) It owns or has the right to operate the Program and the Program Sites.
- (d) It owns or has the right to license the licensed material and the Company marks.
11.1 Maintaining Confidentiality
For as long as it remains confidential information, the Affiliate will not
- (a) disclose that confidential information except as contemplated in this agreement or
- (b) use that confidential information other than for purposes of this agreement.
11.2 Permitted Disclosure
The Affiliate will disclose confidential information to only those of its representatives who
- (a) require the confidential information to perform under this agreement (but to the extent practicable, only the part that is required);
- (b) are informed in writing by the Affiliate of the confidential nature of the confidential information; and
- (c) agree in writing to be bound by the obligations of this section 11.
11.3 Precautions Against Unauthorized Disclosure or Use
The Affiliate will take precautions to prevent disclosure or use of confidential information other than as authorized in this agreement. Those precautions must be at least as effective as those taken by the Affiliate to protect its own confidential information or those that would be taken by a reasonable person in the position of the Affiliate, whichever are greater. If the Affiliate complies with its obligations under this section, the Affiliate will not be liable for any losses or liabilities of the Company arising out of misappropriation of confidential information from the Affiliate by any nonparty.
11.4 Unauthorized Disclosure or Use by Representatives
If any one or more representatives of the Affiliate disclose or use confidential information other than as authorized in this agreement, the Affiliate will be liable to the Company for that disclosure or use to the same extent that it would have been had the Affiliate disclosed or used that confidential information.
11.5 Notification of Unauthorized Disclosure and Use
If the Affiliate becomes aware of disclosure or use of confidential information other than as authorized in this agreement, the Affiliate will promptly notify the Company of that disclosure or use and will cooperate with the Company in mitigating any adverse consequences to the Company of that disclosure or use.
11.6 Nondisclosure of Agreement
During this agreement and afterwards until that information becomes public other than because of breach of this section, each party will not disclose to any other person the existence of this agreement and its terms and the nature of the relationship, except to the extent disclosure is required by law. If disclosure is required by law, that disclosure will not constitute a breach of the party in question’s obligations under this section, on the condition that it has complied with section 11.8, as if section 11.8 applied to that disclosure besides disclosure of confidential information.
11.7 Return of Confidential Information
On the termination of this agreement, the Affiliate will promptly, but no later than 30 days after the termination of this agreement:
- (a) Return to the Company all copies of confidential information that, on disclosure, the Company had instructed the Affiliate to return on the termination of this agreement; and
- (b) Destroy all remaining copies of confidential information disclosed to the Affiliate under this agreement.
11.8 Disclosure Required by Law
- (a) If any proceeding is brought to compel the Affiliate or any of its representatives to disclose confidential information, or if the Affiliate or any of its representatives is otherwise required by law to disclose any confidential information, the Affiliate will do the following:
- (i) Unless by doing so the Affiliate would violate any law or an order of a government body, notify the Company of that proceeding or that requirement, as the case may be, promptly after learning of it, taking into account for purposes of determining the Affiliate’s promptness any time constraints that the Company would face in bringing a proceeding to prevent that disclosure or to protect the confidentiality of any information that is disclosed; and
- (ii) At the Affiliate’s expense, cooperate with the Company in any proceeding that the Company brings to prevent that disclosure or to protect the confidentiality of any information that is disclosed.
- (b) It will not constitute a breach of the Affiliate’s obligations under this agreement for the Affiliate or any of its representatives to disclose confidential information as required by law, on condition that the Affiliate has complied with its obligations under section 11.8(a) for that disclosure and has delivered to the Company a written opinion of the Affiliate’s legal counsel prepared at the Affiliate’s expense stating that the disclosure is required by law and that opinion is reasonably acceptable to the Company.
11.9 Nondisclosure of Restriced Information
The Company will not disclose to the Affiliate or any of its representatives any information if doing so would cause the Company to breach a duty to any other person to keep that information confidential or would cause the Company to violate any law or any order of a government body.
11.10 Export Controls
The Affiliate will not export or re-export any confidential information, directly or indirectly, without first obtaining any license required under any export control laws.
11.11 No License
The Company’s disclosure of confidential information will not constitute a grant to the Affiliate or any of its representatives of a license to, or any other interest in, any intellectual property of the Company unless stated in this agreement.
11.12 No Statement about Accuracy
The Company is not making in this agreement any statement about accuracy of any confidential information. The Affiliate acknowledges that because it has not relied on, and will not be relying on, any statements made by the Company to the Affiliate about accuracy of any confidential information, the Affiliate will have no basis for bringing any claim for fraud about those statements.
11.13 Reverse Engineering
The Affiliate will not reverse engineer, disassemble, or create other works from any software or hardware constituting or included in any confidential information.
11.14 Residual Information
Use of residual information for the Affiliate’s benefit by any representatives of the Affiliate to whom confidential information was disclosed in accordance with this agreement will not constitute a breach of the Affiliate’s obligations under this agreement, on condition that the Affiliate did not have its representatives intentionally commit to memory the confidential information in question and on condition that the Affiliate complies with its obligations under section 11.7.
The Company may use the Affiliate’s trade names, trademarks, service marks, or logos in presentations, marketing materials, affiliate lists, financial reports, website listings of affiliates, or advertisements without advance written approval. The Affiliate may use the Company’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features so long as the Affiliate complies with this agreement.
During this agreement and for one year after its termination, the Affiliate will not, either directly or indirectly, (1) solicit, divert, or hire away or try to solicit, divert, or hire away any person employed by the Company; or (2) solicit the business of any affiliate, customer, or partner of the Company, including soliciting or inducing any affiliate, customer, or partner to terminate or reduce its relationship with the Company.
During this agreement and for two years after its termination, the Affiliate will not take any action that is intended, or would reasonably be expected, to harm the Company or its reputation or that would reasonably be expected to lead to unwanted or unfavorable publicity to the Company. But nothing will prevent the Affiliate from making any truthful statement in connection with any legal proceeding or investigation by the Company or any governmental body.
- 16.1 The Company is not making any guarantee of profitability or about the amount of money the Affiliate will earn through the Program. The Affiliate acknowledges that past affiliate earnings does not guarantee or suggest similar future earnings.
- 16.2 The Company is not making any warranty—express or implied—that
- (a) the Program, the Program Sites, the licensed material, or the Company marks will be timely, uninterrupted, or error-free (whether as a result of technical failure, acts or omissions of nonparties, or other causes) or will operate in combination with any other hardware, software, system, or data;
- (b) the Program, the Program Sites, the licensed material, or the Company marks will be suitable or otherwise meet the Affiliate’s requirements or expectations;
- (c) the Program, the Program Sites, the licensed material, or the Company marks will be accurate or reliable;
- (d) errors or defects in the Program, the Program Sites, or the licensed material will be corrected; or
- (e) the servers that make the Program, the Program Sites, and the licensed material available are free of viruses or other harmful components.
- 16.3 The Company offers the Program, the Program Sites, the licensed material, and the Company marks “as is.” The Company is not making any warranty, either express or implied, including implied warranty of merchantability, fitness for a particular purpose, title, privacy, and noninfringement for the Program, the Program Sites, the licensed material, the Company marks, and any other Company products and services, including the information, content, and materials contained on the Program Sites. No advice or information, whether oral or written, obtained from the Company or elsewhere will create any warranty not expressly stated in this agreement.
17. Limit of Liability
- 17.1 The Program, the Program Sites, or the licensed material may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. The Company is not liable for any delays, delivery failures, or other damage resulting from these problems.
- 17.2 The Company will not be liable to the Affiliate for any of the following:
- (a) Errors, mistakes, or inaccuracies of the Program, the Program Sites, or the licensed material;
- (b) Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
- (c) Unauthorized access to or use of the Company’s servers and any personal or financial information stored in them, including unauthorized access or changes to the Affiliate’s account, transmissions, or data;
- (d) Interruption or cessation of transmission to or from the Program or the Program Sites;
- (e) Denial-of-service attack (DoS) or distributed denial-of-service attack (DDoS);
- (f) Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Program, the Program Sites, or the licensed material by any person or that might infect the Affiliate’s computer or affect the Affiliate’s access to or use of the Program, the Program Sites, the licensed material, or the Affiliate’s other services, hardware, or software;
- (g) Incompatibility between the Program, the Program Sites, or the licensed material and the Affiliate’s other services, hardware, or software;
- (h) Delays or failures the Affiliate might experience in starting, conducting, or completing any transmissions to or transactions through or with the Program, the Program Sites, or the licensed material; or
- (i) Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Program or the Program Sites.
- 17.3 The Company will not be liable to the Affiliate for breach-of-contract damages that the Company could not reasonably have foreseen on entry into this agreement. The Company also will not be liable to the Affiliate—regardless of theory of liability and even if the Affiliate advised the Company of the possibility of these damages—for any damages for (1) loss of use, (2) loss of services, (3) loss of profits, (4) loss of revenue, (5) loss of goodwill, (6) loss of contracts, (7) loss of data, (8) loss of privacy, (9) loss of business or opportunity, or (10) cost of obtaining substitute services related to the Program, the Program Sites, the licensed material, or any other Company products and services.
- 17.4 Except as stated in this agreement, neither party will be liable to the other party for indirect, incidental, special, exemplary, or punitive damages arising from or relating to this agreement, regardless of theory of liability and even if that party has been advised of the possibility of these damages, including loss of revenue or anticipated profits or lost business.
- 17.5 The Company’s total cumulative liability to the Affiliate will not exceed the greater of the total amount owed to the Affiliate under this agreement and $250.
18. Scope of Disclaimer and Limitations
The disclaimers and limits stated in sections 16 and 17 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive the Affiliate of any mandatory protections provided to the Affiliate by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the limitation of some damages, or other matters, one or more of the disclaimers or limitations might not apply to the Affiliate.
19. Loss Payment (aka Indemnification)
19.1 In General
The Affiliate will pay the Company for any loss of the Company’s that is caused by the Affiliate’s
But the Affiliate is not required to pay if the loss was caused by the Company’s intentional misconduct.
- (a) use of the Program, the Program Sites, the licensed material, or the Company marks;
- (b) failure to pay taxes in connection with revenues earned under this agreement;
- (c) dispute with any customer, affiliate, or other person;
- (d) breach of this agreement, including any statement of fact;
- (e) infringement of nonparty intellectual property rights;
- (f) violation of any nonparty rights;
- (g) violation of any law, including the laws identified in section 4.1;
- (h) fraudulent or deceptive conduct or trade practices;
- (i) negligent conduct;
- (j) intentional conduct; or
- (k) criminal conduct.
- (a) “Loss” means an amount that the Company is legally responsible for or pays in any form. Amounts include, for example, a judgement, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
- (b) A loss is “caused by” an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
19.3 Company's Duty to Notify
The Company will notify the Affiliate before the 15th business day after the Company knows or should reasonably have known of a claim for a loss that the Affiliate might be obligated to pay. The Company’s failure to give the Affiliate timely notice does not terminate the Affiliate’s obligation, except to the extent that the failure prejudices the Affiliate’s ability to defend the claim or mitigate losses.
19.4 Legal Defense of a Claim
- (a) Company’s Control
The Company has control over defending a claim for a loss (including settling it), unless the Company directs the Affiliate to control the defense.
- (b) Direction to Control
If the Company directs the Affiliate to control the defense, each of the following applies:
- (i) The Affiliate may choose and retain legal counsel.
- (ii) The Company may retain its own legal counsel at its expense.
- (iii) The Affiliate will not settle any litigation without the Company’s written consent if the settlement
- (1) imposes a penalty or limitation on the Company,
- (2) admits the Company’s fault, or
- (3) does not fully release the Company from liability.
- (c) Good Faith
The Affiliate and the Company will cooperate with each other in good faith on a claim.
19.5 No Exclusivity
The Company’s rights under this section do not affect other rights that the Company might have.
20. Dispute Resolution
20.1 Litigation Election
Either party may elect to litigate the following type of case or controversy:
- (a) an action seeking equitable relief, or
- (b) a suit to compel compliance with this dispute resolution section.
Each party will give the other a reasonable opportunity to comply before it claims that the other has not met its obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties relating to this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “dispute notice”). A primary representative designated by each party will try to resolve the dispute. If the parties’ primary representatives fail to resolve the dispute within 15 days after receiving a dispute notice, a vice president (or higher-level officer) of each party will try to resolve it.
- (a) If the vice presidents (or higher-level officers) of the parties are unable to resolve the dispute within 30 days after receiving the dispute notice, either party may, by notice to the other party and the American Arbitration Association, demand mediation under the Commercial Mediation Rules of the American Arbitration Association.
- (b) Mediation will take place in Phoenix, Arizona, U.S.A., unless the parties agree otherwise in writing. Each party will bear its own costs in mediation and the parties will share equally between them all third-party mediation costs unless the parties agree otherwise in writing.
- (c) Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial discussion between the mediator and the parties.
- (a) If the parties fail to settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to this agreement, or the breach of it, by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable.
- (b) A single arbitrator will preside over the arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity, except that the arbitrator will not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator will issue a final award on all issues submitted to the arbitrator. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- (c) Arbitration will take place in Phoenix, Arizona, U.S.A., unless the parties agree otherwise in writing. The parties will bear equally the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case.
- (d) The Federal Arbitration Act, 9 U.S.C. §§ 1–16, governs the interpretation and enforcement of this agreement, plus any post-award proceedings. The arbitrator’s authority to grant relief will be subject to the provisions of this agreement and the American Arbitration Association Code of Ethics for Arbitrators in Commercial Disputes.
- (e) Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
20.5 Equitable Remedies
The Affiliate acknowledges that breach by it of its obligations under this agreement could cause irreparable harm for which damages would be an inadequate remedy. If any breach occurs or is threatened, the Company may seek an injunction, a restraining order, or any other equitable remedy, in each case without posting a bond or other security and without proof of actual damages.
- (a) If a party brings any proceeding seeking an injunction, a restraining order, or any other equitable remedy to which that party is entitled under this agreement, that party will bring that proceeding only in the United States District Court for the District of Arizona or in any state court in Maricopa County, Arizona, U.S.A., and each party hereby submits to the exclusive jurisdiction of those courts for purposes of any proceeding.
- (b) Each party hereby waives any claim that any proceeding brought in accordance with section 20.6(a) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
20.7 Recovery of Expenses
- (a) In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.
- (b) For purposes of section 20.7(a), “prevailing party” means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
20.8 Jury Trial Waiver
Each party hereby waives its right to a trial by jury in any proceedings arising out of or related to the subject matter of this agreement. Either party may enforce this waiver up to and including the first day of trial.
20.9 Civil Action Waiver
The parties will conduct all proceedings to resolve a dispute in any forum on an individual basis only. Neither the Affiliate nor the Company will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
20.10 Limited Time to Bring Claims
A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
21. Term and Termination; Survival
This agreement begins on the Company’s approval of the Affiliate’s application and ends when terminated by either party.
Either party may terminate this agreement for any reason by giving the other party written notice of termination. The Affiliate’s breach of this agreement may result in the Affiliate’s immediate dismissal from the Program, with no obligation to the Company except to pay for earned commissions and referral fees up to the point of termination unless this agreement provides otherwise. The Affiliate will forfeit any commissions or referral fees due if the Company dismisses the Affiliate from the Program because of the Affiliate’s fraudulent activity or for any breach of the program restrictions set out in section 4.
21.3 Effect of Termination
- (a) On termination of this agreement:
- (i) All licenses and rights granted under this agreement terminate, and the Affiliate will promptly remove the licensed material and the Company marks from each affiliate site;
- (ii) Unless otherwise provided in this agreement, the Company will pay all unpaid commissions and referral fees due through the effective date of termination, except that the Company may withhold final payment of commissions and referral fees for a reasonable time to make sure that all qualified signups and referrals are valid; and
- (iii) Neither party will be liable to the other for any damages sustained or arising out of, or alleged to have arisen out of, the termination, whether because of a party’s loss of present or prospective profits, commissions, or payments on anticipated services, or in connection with the establishment, development, or maintenance of the party’s business, or otherwise.
- (b) Termination will not affect the right of either party to receive or recover
- (i) damages sustained because of the breach of this agreement by the other party; or
- (ii) any payments owed or owing under this agreement, including payment earned through the date of termination.
Any part of this agreement that imposes an obligation after termination will survive the termination, including all disclaimers and limitations of liability.
22.1 Entire Agreement
The Company may change this agreement on one or more occasions. The Company will notify the Affiliate through the affiliate portal of any changes to this agreement. Changes will become effective when posted in the affiliate portal, but will not apply to ongoing disputes or to disputes arising out of events occurring before the posted changes. It is the Affiliate’s responsibility to check the affiliate portal periodically for changes to this agreement. If the Affiliate continues to participate in the Program after any change, the Company will consider the Affiliate’s continued participation as acceptance of the change unless the Affiliate notifies the Company in writing of the Affiliate’s disagreement and the reasons for the Affiliate’s disagreement no later than 15 days after the change. The Company will contact the Affiliate no later than 15 days after receiving the notice to address the Affiliate’s issues and try to reach a mutually amicable resolution. If the Company is unable to resolve the Affiliate’s disagreement, the Affiliate’s sole remedy is to terminate this agreement.
22.3 Assignment and Delegation
- (a) Assignments
The Company may assign its rights under this agreement without the Affiliate’s consent. The Affiliate will not assign any of its rights under this agreement, except with Company’s advance written consent.
- (b) Delegations
The Company may delegate any performance under this agreement without the Affiliate’s consent. The Affiliate will not delegate any performance under this agreement, except with the Company’s advance written consent.
- (c) Ramifications of Purported Assignment or Delegation
Any purported assignment of rights or delegation of performance in breach of this section 22.3 is void.
- (a) No Oral Waivers
The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced.
- (b) Effect of Failure, Delay, or Course of Dealing
No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition.
- (c) Each Waiver for a Specific Purpose
A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
The parties intend as follows:
- (a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
- (b) that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
- (c) that if an unenforceable provision is modified or disregarded in accordance with this section, then the rest of the agreement will remain in effect as written; and
- (d) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
- (a) Form
All notices and other communications between the parties will be in writing.
- (b) Method
- (i) Sending Notice to Company
The Affiliate may send notice to the Company by email at email@example.com unless a specific email address is listed on WhaleCash.com for giving notice. The Company may change its contact information on one or more occasions by posting the change on WhaleCash.com. Please check WhaleCash.com for the most current information for sending notice to the Company.
- (ii) Sending Notice to Affiliate
The Affiliate consents to receiving any notice from the Company in electronic form either (1) by email to the email address listed in the Affiliate’s account or (2) by posting the notice on a place on the affiliate portal chosen for this purpose. The Affiliate may change the Affiliate’s contact information by updating the contact information in the Affiliate’s account.
- (c) Receipt
The Company will consider an email notice received by it only when the Company’s server sends a return message to the Affiliate acknowledging receipt. The Company will consider notices sent to the Affiliate by email received when the Company’s email service shows transmission to the Affiliate’s email address. All other notices will be effective on receipt by the party to which notice is given, or on the fifth day after mailing, whichever occurs first.
22.7 Rights and Remedies Cumulative
Any enumeration of a party’s rights and remedies in this agreement is not intended to be exhaustive. A party’s exercise of any right or remedy under this agreement does not preclude the exercise of any other right or remedy. All of the parties’ rights and remedies are cumulative and are in addition to any other right or remedy set out in this agreement, any other agreement between the parties, or which may now or later exist at law or in equity, by statute or otherwise.
22.8 Governing Law
United States federal law and the laws of the state of Wisconsin—without giving effect to its conflicts of law principles—govern all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement.
22.9 Force Majeure
- (a) If a force majeure event prevents a party from complying with any one or more obligations under this agreement, that inability will not constitute a breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party’s inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that force majeure event or (B) develop and keep a reasonable contingency plan to respond to events or circumstances of the same type as that force majeure event, and (3) that party complies with its obligations under section 22.9(b).
- (b) If a force majeure event occurs, the noncomplying party will promptly notify the other party of occurrence of that force majeure event, its effect on performance, and how long the noncomplying party expects it to last. From then on, the noncomplying party will update that information as reasonably necessary. During a force majeure event, the noncomplying party will use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.
22.10 No Third-Party Beneficiaries
This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
22.11 Relationship to the Parties
The parties intend that their relationship will be that of independent contractors and not business partners. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
22.12 Successors and Assigns
This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement.
22.13 Further Assurances
The parties will take any further actions, or sign any further documents, as may be necessary to implement and carry out the intent of this agreement.
The parties may sign this agreement in any number of counterparts. The parties will consider each counterpart an original, and all counterparts, when taken together, will form the same agreement.
22.15 Signatures; Electronic Signatures
- (a) The parties may sign this agreement by fax or electronically instead of an original signature. The parties will consider fax or electronic signatures as original signatures that bind them to this agreement.
- (b) The Affiliate acknowledges that any affirmation, assent, or agreement the Affiliate sends through the affiliate portal in response to a prompt binds the Affiliate. The Affiliate further acknowledges that when the Affiliate clicks on an “I agree,” “I consent,” or other similarly worded “button” or entry field using a mouse, keystroke, or other computer device, this action is the legal equivalent of the Affiliate’s handwritten signature and binds the Affiliate in the same way.
22.16 Entity Authority
- (a) Each individual that signs this agreement for an entity states that the following facts are accurate:
- (i) he or she has full authority to sign this agreement for that entity, and
- (ii) that entity has taken all necessary actions to authorize the signing of this agreement.
- (b) Each entity states that this agreement does not breach that entity’s articles, certificates, bylaws, or any other agreement or law that binds that entity.
22.17 Voluntary Agreement
- (a) The parties have signed this agreement voluntarily and for valid reasons.
- (b) The parties acknowledge that they
- (i) have carefully read this agreement,
- (ii) discussed it with their attorneys or other advisors,
- (iii) understand all of the terms, and
- (iv) will comply with it.
- (c) The parties have relied on the advice of their attorneys or other advisors about the terms of this agreement and waive any claim that the terms should be construed against the drafter.
22.18 No Reliance
Each party acknowledges that in signing this agreement, that party does not rely and has not relied on any statement by the other party or its agents, except those statements contained in this agreement.
22.19 Permission to Send Emails to Affiliates
The Company encourages the Affiliate to give feedback about the Company, the Program, the Program Sites, or the licensed material. But the Company will not treat as confidential any suggestion or idea the Affiliate gives, and nothing in this agreement will restrict the Company’s right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to the Affiliate.
22.21 English Language
The Company has drafted this agreement in the English language, and no translation into any other language will be used to interpret or construe this agreement. All services, support, notices, designations, specifications, and communications will be provided in the English language.
As used in this agreement, the following definitions—irrespective of capitalization or plurality—apply:
- (a) “Access” means visit, use, view, or download.
- (b) “Affiliate” means the person applying for participation in the Program.
- (c) “Affiliate code” means a string of alphanumeric text that uniquely identifies an affiliate, advertising campaign, or other tracking metric.
- (d) “Affiliate site” means one or more affiliate websites designated by the Affiliate to participate in the Program.
- (e) “Chat traffic advertisement” means a popup message displayed on a website to attract users to other commercial websites.
- (f) “Company” means Whale Traffic, LLC, a Wisconsin limited liability company.
- (g) “Confidential information” means the following:
- (i) Information (other than excluded information) relating to the Company and its business that the Company discloses to the Affiliate during this agreement (including individual contact information and information about the Company’s marketing, plans, pricing, products, services, and technical environment); and
- (ii) Derived information.
- (h) “Derived information” means information (including notes, analyses, compilations, and summaries) that is in writing or embodied in an electronic medium and that the Affiliate or any of its representatives derive, in whole or in part, from any information described in section 22.22(g)(i).
- (i) “Excluded information” means information that comes within any of the following categories, with the Affiliate having the burden of establishing that any information constitutes excluded information:
- (i) Other than personally identifiable information, information that is or becomes public other than as a result of breach of any obligation under this agreement;
- (ii) Information that, when it is disclosed, is already in the possession of the Affiliate or any of its representatives as the result of disclosure by a person that was not under an obligation to the Company to keep that information confidential;
- (iii) Information that, after it is disclosed under this agreement, is disclosed to the Affiliate or any of its representatives by a person that was not then under an obligation to the Company to keep that information confidential; and
- (iv) Information that the Affiliate develops independently before the Company discloses equivalent information to the Affiliate.
- (j) “Force majeure event” means, for any party, any event or circumstance, whether or not foreseeable, that was not caused by that party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change in law, or an event or circumstances that results in that party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.
- (k) “Government body” means (1) the government of a country or of a political subdivision of a country; (2) an instrumentality of any government; (3) any other individual, entity, or organization authorized by law to perform any executive, legislative, judicial, regulatory, administrative, military, or police functions of any government; or (4) an intergovernmental organization.
- (l) “Intellectual property” means inventions, concepts, techniques, plans, designs, methodologies, procedures, programs, approaches, ideas, know-how, computer software, technology, writings, graphics, other works of authorship, trademarks, service marks, logos, trade names, and (in the case of the last four) the goodwill associated with each.
- (m) “Intellectual-property right” means any intellectual-property right or industrial-property right existing by law at the relevant time anywhere in the world, including the right to sue for present or past infringement of it. “Intellectual-property right” includes:
- (i) all rights (whether registered or unregistered) in trade secrets; confidential information; inventions, patents; trademarks, service marks, and trade names; Internet domain names; copyrights; designs; rights of publicity; and mask works;
- (ii) any application then pending for an intellectual-property right, including an application for a patent or to register a copyright or trademark;
- (iii) any right to file an application for an intellectual-property right; and
- (iv) any right to claim priority for an application for an intellectual-property right.
- (n) “Law” means all applicable provisions of a constitution, statute, regulation, ordinance, rule, judgment, order, or other obligation, requirement, or prohibition having legally binding effect at the relevant time.
- (o) “Liability” means liability in or for breach of contract, misrepresentation, restitution, or any other cause of action arising out of or related to the subject matter of this agreement.
- (p) “Licensed material” means any images, text, recordings, data, motion pictures, video clips, audio clips, advertising banners, links, computer script, subdomains, or other promotional materials associated with the Program and the Program Sites that the Company makes available to the Affiliate on one or more occasions. Licensed material does not include the material on the Program Sites unless the Company expressly offers it to the Affiliate to use for the Program.
- (q) “Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or government body.
- (r) “Program” means the WhaleCash Affiliate Program.
- (s) “Program Sites” means the sites at whalecash.com/whalecash/site/oursites.php.
- (t) “Promotional link” means any uniform resource locator (URL) placed on an affiliate site that has an affiliate code and links to the Program Sites or any other website related to the Program.
- (u) “Qualified signup” means a signup of a valid referral from the Affiliate that (1) does not result in a refund or reversal in the first 24 hours of signup and (2) does not otherwise breach this agreement.
- (v) “Representative” means, as to an entity, any of that entity’s directors, officers, employees, agents, consultants, advisors, and other representatives.
- (w) “Residual information” means, as to any individual, any confidential information that the individual remembers without any need to refer to that confidential information as fixed in a tangible medium.
- (x) “Spam” or “spamming” means using electronic messaging systems to send unsolicited bulk messages without the consent of the recipients, including (1) instant messaging spam; (2) Usenet newsgroup spam; (3) Web search engine spam; (4) spam in blogs; (5) wiki spam; (6) online classified ads spam; (7) mobile phone messaging spam; (8) spam in mobile applications; (9) Internet forum spam; (10) junk fax transmissions; (11) spam on Twitter; (12) spam on Facebook; (13) social networking spam; and (14) file sharing network spam.
In this agreement, the following usages apply:
- (a) Actions permitted under this agreement may be taken at any time and on one or more occasions in the actor’s sole discretion.
- (b) References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
- (c) References to numbered sections in this agreement also refer to all included sections. For example, references to section 6 also refer to 6.1, 6.1(a), etc.
- (d) References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
- (e) “A or B” means “A or B or both.” “A, B, or C” means “one or more of A, B, and C.” The same construction applies to longer strings.
- (f) “Including” means “including, but not limited to.”
- (g) “$” means United States Dollars.
- (h) Garner’s Modern American Usage (3d ed. 2009) applies to interpret usage, grammar, and syntax not otherwise addressed by this section 22.23.