Meetcha Affiliate Terms and Conditions
This Marketing Agreement (this “Agreement”) governs your participation in the Referral Program operated by Trade Winds Telephone Company Inc. d/b/a Meetcha.com (“Meetcha”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING THE BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Meetcha owns and operates the dating website located at the URL www.Meetcha.com (the “Meetcha Website”). Meetcha maintains a referral program (the “Referral Program”) whereby individuals or entities are compensated for referring to Meetcha users that purchase paid memberships to use the Meetcha Website (“Premium Users”);
In consideration for the covenants and premises set forth below, the sufficiency of which is hereby acknowledged, You and Meetcha hereby agree as follows:
1. Responsibilities of the Parties. You shall use commercially reasonable efforts to refer Unique Premium Users (as defined below) to Meetcha as set forth herein. In addition to the responsibilities set forth below, the parties may agree to additional responsibilities which responsibilities shall be set forth in a written agreement signed by You and Meetcha.
2.2. If a Unique Premium User with respect to whom Compensation has been paid later receives a refund or charge-back, the amount of such refund or charge-back will be deducted from future Compensation to be paid to You by Meetcha with respect to such Unique Premium User.
2.3. Multiple paid Meetcha memberships purchased using the same credit card account will be considered as a single Unique Premium User for purposes of receiving Compensation. Likewise, multiple Premium Meetcha memberships at the same email address or listing the same street address will be considered as a single Unique Premium User for purposes of receiving Compensation.
2.4. In order to be eligible for compensation pursuant to Section 2.1, you must:
* reside in the U.S.;
* have a U.S. based bank account;
* be a Registered Member or Premium Member of Meetcha, in good standing; an
* have a PayPal account.
3. Unique Premium User. “Unique Premium User” means an individual referred to Meetcha by You, who registers and pays to become a Meetcha Premium Member, provided that the individual meets all of the following qualifications. Such person must:
3.1. register on Meetcha within 90 days of the first referral;
3.2. have not previously been a Meetcha member;
3.3. becomes a Premium User of Meetcha;
3.4. have a U.S. based IP address; and
3.5. use a valid U.S. credit card billing address when paying for his or her Meetcha membership.
4. Referral Process.
4.1. Unique Premium Users may be referred to Meetcha by You by way of:
* Refer-a-friend sharing tools including email, Twitter and Facebook;
* Custom links to the Meetcha site to be provided on your website(s); and
* As otherwise agreed to by you and Meetcha.
4.2. Meetcha will make commercially reasonable efforts to:
* convert each individual referred to Meetcha by You to a Premium User in a timely and efficient manner;
* provide the services purchased by referred Premium Users; namely, access to the full set of features available to Premium Members on Meetcha for the duration of the purchased term;
* manage customer service inquiries associated with the purchased membership; and
* track and provide reporting to You concerning the total number of persons referred, the number of resulting Premium Members, and the total revenue generated through membership purchases by these Premium Members.
4.3. Notwithstanding the foregoing, Meetcha reserves the rights, in its sole discretion:
* to not email any individual referred by You if such individual has previously opted out of receiving emails from Meetcha, or for any other reason as determined in Meetcha’s sole discretion;
* to verify the identity and eligibility of any Premium User participating in the program and to disqualify anyone based on the results of our verification inquiry;
* to reject any person’s application for membership;
* to terminate Your participation in the Program; and
* to modify Meetcha’s membership pricing policies at any time without notice.
4.4. You will present Meetcha in an accurate manner in all communications. You agree to refer users through trackable links.
4.5. You shall comply in all material respects with the CAN-SPAM Act, including, in connection with the distribution of any emails to potential Premium Users providing therein a functioning return electronic mail address or other Internet-based mechanism that (i) enables a recipient of such emails sent by You to request not to receive future commercial electronic mail messages sent by You at the electronic mail address where the email was received, and (ii) remains capable of receiving such requests for a period of at least thirty-one (31) calendar days beginning on the transmission date of such original email (all within the meaning of the CAN-SPAM Act).
5. Term. The Term commences on the date You accept this Agreement and shall continue until either party terminates this Agreement by providing five (5) days written notice to the other party (the “Term”). Notwithstanding the foregoing, this Agreement may be terminated at any time without liability by any of the parties hereto upon 5 days written notice. Sections 6, 7, 8, 9 and 10 of this Agreement shall survive termination.
6. Intellectual Property.
6.1. Meetcha Content. During the Term, Meetcha may develop, create, or use content, the rights to which content Meetcha owns or has licensed from Meetcha licensors (the “Meetcha Content”). As between Meetcha and You, Meetcha shall retain all right, title and interest, including copyrights, in and to the Meetcha Content.
6.2. Meetcha Marks. Meetcha is the owner of certain collective membership marks, trademarks, service marks and trade names (collectively, “Marks”) and United States registrations (the “Meetcha Marks”). Subject to the immediately following sentence, as between Meetcha and You, all right, title and interest in and to the Meetcha Marks shall remain with Meetcha and all goodwill associated with the Meetcha Marks shall remain with and inure solely to the benefit of Meetcha. During the Term, Meetcha grants to You the worldwide, non-exclusive, non-transferable, non-sublicensable and limited license to use and reproduce Meetcha Marks that are delivered to You by Meetcha solely for the purpose of fulfilling Your obligations under this Agreement. You agree to provide notice in appropriate places on all materials using the Meetcha Marks that such Marks are the Marks of Meetcha, and to include the symbol SM, ? or ®, as appropriate. You agree not to take any action inconsistent with Meetcha’s ownership of the Meetcha Marks and further agrees not to adopt, use or attempt to register any trademarks, servicemarks or trade names that are confusingly similar to the Meetcha Marks or in such a way as to create combination marks with the Meetcha Marks. At Meetcha’s request, You will modify or discontinue, in whole or in part, any use of the Meetcha Marks if, in Meetcha’s sole discretion, such use of the Meetcha Marks does not comply with Meetcha’s then-current trademark and servicemark usage policy and guidelines.
7. Representations and Warranties; Disclaimer.
7.1. Warranties by the Parties. Each party represents and warrants that it has full power and authority to enter into and perform this Agreement, that it has the power and authority to grant the rights granted to the other party herein, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
7.2. Disclaimer of Warranties. THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES OF THE PARTIES HEREUNDER AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MEETCHA AND YOU EACH ACKNOWLEDGE THAT THEY HAVE NOT RELIED ON ANY WARRANTIES OR REPRESENTATIONS OTHER THAN THE EXPRESS WARRANTIES AND REPRESENTATIONS IN THIS AGREEMENT.
8. Indemnification and Limitation of Liability.
8.1. Indemnification. You shall, at your expense, indemnify, defend and hold harmless Meetcha from and against any Claim (i) arising from a breach of Your obligations hereunder; or (ii) arising from a breach of a representation or warranty made by You hereunder. You shall have no liability under this Section 8.1. unless Meetcha (a) promptly notifies You in writing of the relevant Claim, (b) gives You full and complete authority, information and assistance to defend such Claim and© gives to You sole control of the defense of such claim and all negotiations for the compromise or settlement thereof (provided such settlement or compromise does not require Meetcha to pay any money, take any action, or admit any wrongdoing).
8.2. Limitation of Liability. IN NO EVENT SHALL EITHER OF THE PARTIES BE LIABLE HEREUNDER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM AN ACT OF A THIRD PARTY OR ANY ACT OR OMISSION OF NO FAULT OF THEIR OWN. EXCEPT FOR A PARTY’S INDEMINIFICATION OBLIGATION UNDER NO CIRCUMSTANCES SHALL THE INDIVIDUAL LIABILITY OF ANY OF THE PARTIES FOR ANY CLAIM ARISING UNDER THIS AGREEMENT EXCEED $25,000.
9.1. Confidential Information. This Section 9 shall apply to all confidential and proprietary information disclosed by the parties to each other orally or in writing, including information disclosed prior to the date hereof, with respect to their respective businesses, operations and proprietary technologies and which relates to the business transactions forming the subject matter of this Agreement (“Confidential Information”); provided, however, that for purposes of this Section 9, Confidential Information shall not be deemed to include information which at the time of disclosure or thereafter (a) is generally available to the public (other than as a result of a disclosure by the receiving party), (b) is available to the receiving party on a non-confidential basis from a source other than the disclosing party, provided such source is not and was not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from transmitting such information to the receiving party by a contractual, legal or fiduciary obligation, (c) has been independently developed by the receiving party, as evidenced by its written records, or (d) which at the time of disclosure, and with respect to such disclosure only, is required to be disclosed pursuant to a requirement of law. Each party agrees (i) to limit disclosure of Confidential Information to those members of its senior management team and advisors whose evaluation or knowledge of such information is reasonably required with respect to the potential business transaction(s), (ii) to use Confidential Information only for the purposes set forth in this Agreement, (iii) not to disclose such Confidential Information to any third party, except as provided herein, and (iv) to use commercially reasonable efforts to protect such Confidential Information.
9.2. Return or Destroy. Upon the written request of the other party, Meetcha or You, as the case may be, shall return to the disclosing party, within ten days, all Confidential Information and all copies thereof if in written or other tangible form, or where impractical to return copies, certify the destruction of the same.
9.3. No License. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any rights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement.
10.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties and set out all the covenants, promises, warranties, representations, conditions, understandings and agreements between the parties pertaining to the subject matter of this Agreement and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no covenants, promises, warranties, representations, conditions, understandings or other agreements, oral or written, express, implied or collateral between the parties in connection with the subject matter of this Agreement except as specifically set forth in this Agreement and any document required to be delivered pursuant to this Agreement.
10.2. Governing Law and Venue. This Agreement shall be governed by the United States federal trademark, servicemark and copyright laws and otherwise by the domestic internal laws of The Commonwealth of Massachusetts without regard to its principles of conflicts of law which might require the application of the laws of any other jurisdiction. Jurisdiction and venue of any actions or proceedings to construe, interpret, enforce or to recover a remedy for the breach of this Agreement shall be in the State and Federal Courts located in The Commonwealth of Massachusetts.
10.3. Amendments. No amendment, supplement or modification of this Agreement shall be binding unless executed in writing by the party or parties to be bound thereby.
10.4. Assignment. Unless otherwise stated in this Agreement, the parties may not assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other parties hereto, provided that Meetcha may assign this Agreement in whole or in part without Your consent to any entity controlling, controlled by or under common control with Meetcha, or to any entity that acquires Meetcha by purchase of stock or by merger or otherwise, or by obtaining substantially all of Meetcha’ assets.
10.5. Successors and Assigns. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns.
10.6. Independent Contractors. The relationship of the parties is strictly that of independent contracting parties, and nothing in this Agreement, or in the relationship contemplated by this Agreement, shall be deemed to make either party an agent, joint venturer or partner of or for the other party.
10.7. Counterparts. This Agreement may be executed in any number of counterparts; any party may execute this Agreement by signing any one such counterpart; but all such counterparts shall together constitute one and the same Agreement. Facsimile counterpart signatures to this Agreement shall be acceptable and binding.
10.8. Public Relations. Meetcha and You may jointly seek public relations and other marketing opportunities that bring awareness to the arrangement. Press releases from any of the parties specifically in connection with the arrangement will require approval of each party, which approval shall not be unreasonably withheld.