Throughout this Agreement, capitalized terms shall have the meaning ascribed to them in quotes. In addition, the following definitions apply:
1.1. "Advertising" or "Advertisements" means any and all banner advertisements, pop-under placements, text links or other solicitations (including, if approved in advance by VF, VF Emails) through the Internet that promote the VF product and contain a Link to the VF Site.
1.2. "Link" means an embedded graphic, icon or text provided by the VF Affiliate System or VF containing a unique hypertext pointer to the URL address for the VF Site embedded in an Advertisement and which identifies the number of consumers that become Subscribers via the Advertisement.
1.3. "VF Email" means any material you send by electronic mail that promotes the VF product. VF Emails require advance approval by VF per Section 4.3 and are otherwise prohibited.
1.4. "VF product" means VF products currently offered on the VF.
1.5. "VF Site" means the VF Internet site that is currently located at http://www.vaporfi.com and any other additional, substitute or successor site that may be designated by VF under this Agreement.
1.6. "Customer" means a person, with a mailing address within the United States, its territories, or possessions, or Canada who (i) purchases the VF product using a Link and through such Link successfully purchases VF product (i.e., requiring the entry of name, address, email address, and valid payment information) via the VF Site and (ii) has not previously purchased the VF product.
2. Term and Termination
2.1. The term of this Agreement ("Term") will begin upon our acceptance of your application and will end when terminated by either party.
2.2. Either party may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination.
2.3. Upon termination of this Agreement, Affiliate shall immediately cease serving Advertisements.
2.4. No Referral Fees or bonuses shall be due with respect to Customers who register after the date of termination. We reserve the right to withhold your final payment permanently or for a reasonable period of time as necessary to calculate properly any amount that may or may not be due to you.
2.5. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except for those rights and obligations that either by their express terms survives or that are otherwise necessary for the enforcement of the Agreement.
3. Obligations of VF
3.1. Upon acceptance of your application, you will have the ability to access performance reports via your account in the VF Affiliate System. The VF Affiliate System interface will contain certain sales reports and traffic information related to your affiliate relationship with VF. These reports will contain estimates of (i) the number of Internet user click-throughs to the VF Site from use of Advertising; (ii) the Referral Fees payable to you pursuant to Section 3.3, below, and; (iii) the number of Customers generated from use of Advertising.
3.2. VF shall provide you with all Advertising and you shall use only Advertising provided by VF in promoting the VF product. The Advertising available for your use will be made available in the VF Affiliate System. VF shall be solely responsible for creating and modifying all Advertising. If you wish you use Advertising that is not provided by VF, you must first get that approved by VF.
3.3. During the Term, VF shall pay you a fee ("Referral Fee") for each sale from customer you deliver as of the last day of the month, as documented on the reporting system located in the VF Affiliate System. VF reserves the right to adjust the Referral Fee payable to you to the extent of any reporting errors, fraudulent Purchases or intentional manipulations of the registration process, all as determined in our reasonable, good faith discretion. In addition to all other remedies available to it, VF shall have the right to refuse to make any payment to you with respect to any Customer that VF, in its reasonable, good faith discretion, determines was obtained as a result of promotional efforts that were in breach of this Agreement. The Referral Fees payable shall be in accordance with the Referral Fee pricing schedule set forth on the VF Payment Schedule. The VF Payment Schedule is located on the VF Affiliate Site and is available through the VF Affiliate System. VF reserves the right to change the Referral Fees payable hereunder by providing notice to you and reflecting such changes on the VF Payment Schedule. Any changes to the Referral Fees shall become effective upon notice to you. Such notice may be in the form of an email to you or by posting in the VF Affiliate System. See Section 12.3 for information about your obligations regarding notices.
4. Obligations of Affiliate
4.1. As an Affiliate, you are permitted to promote the VF product only through Advertisements offered through the methods listed below. We reserve the right, in our sole and absolute discretion, to remove you from the VF Affiliate Network for any or no reason whatsoever.
4.1.1. Links from your website to the VF Site, and
4.1.2. Links or pop-under placements on websites for which you have received express written permission from such sites to serve such links or placements and as otherwise subject to the limitations set forth in this Agreement.
4.2. All promotional activities undertaken by you to promote the VF product shall be made in accordance with all applicable laws and regulations. You may not use fake or pretend blogs or any unauthorized content in your advertising. Any disclosures (if required by law) must be conspicuously placed so the customer can read them. You shall not complete the registration to or otherwise interact with the VF product on behalf of any third party. You are only permitted hereunder to link third parties to the VF Site. All information obtained at the VF Site from individuals linking to the VF Site shall be the sole and exclusive property of VF and, except as specifically provided herein, you shall neither have access to such information nor use any device, technique or software to obtain information from the VF Site.
4.3. VF has a zero tolerance policy for Spam. You shall not under any circumstances send any unsolicited e-mails containing links to the VF website or to your affiliate landing page, or links that forward or re-direct to your VF affiliate landing page. Failure to comply with the VF anti-spam policy will result in the immediate closure of your affiliate account without notice.
4.4. If you desire to promote the VF product (i) by purchasing, either directly or indirectly, search terms from websites, search engines or other directory or referral services (e.g., MSN, Google, and Yahoo!), (ii) by incorporating keyword text into meta tags or websites or by using other search engine optimization techniques, (iii) by distributing VF Emails, (iv) by advertising on a coupon site where the primary purpose of the site is to offer coupon codes or discount coupons or (v) by offering, either directly or indirectly, any consideration or incentives to potential Subscribers to register for the VF product, including without limitation, payment of money, rebates, discounts or other benefits, you must first get written permission from us, which may be given or withheld in our sole and absolute discretion. We reserve the right to revoke such permission at any time for any or no reason whatsoever.
4.5. You shall not bid or otherwise purchase, either directly or indirectly, the search name "VaporFi" or any misspelling or variant thereof from websites, search engines or other directory referral services.
4.6. You shall not, in any way, utilize pop-over Advertisements or Spyware to promote the VF product. You shall replace any Advertising displayed on your site with any new Advertising provided by VF within ten (10) days after receiving notice from us of the new Advertising. You shall not modify any Advertisement in any way without prior written permission.
4.7. Your site shall not in any way copy or resemble the look and feel of the VF Site, nor shall you create the impression that your site is the VF Site or a part of the VF Site. You shall not use VF or any variation or misspellings thereof in your URL. You shall not frame or permit the framing of any page of the VF Site.
4.8. During the Term, you will not disparage VF, the VF Site or the VF product, or portray these in a derogatory or negative manner. The content of your website will, at all times, be in good taste. You are solely responsible for the development, operation and maintenance of your website and will indemnify, defend and hold VF harmless from any claims arising out of or related to your website.
4.9 You may not advertise VF by way of any health claims or claims that VF is a smoking cessation device. Notwithstanding anything to the contrary in this Agreement, any violation of this section shall result in immediate termination of your account without notice and forfeiture of any unpaid earnings as liquid damages for violation of this section.
5. Sub Affiliates and Agents
If you operate sub affiliate networks, work with Agents or conduct reward programs with users, you agree to the following:
5.1. Any relationships you enter into with third parties, sub affiliates, or agents ("Agents") in connection with your promotion of the VF product are at your sole discretion. VF shall not be a party to any agreement that you have with an Agent and you are not authorized to make any commitments on behalf of VF to such Agents, including commitments regarding payment of fees to the Agents by VF or commitments for licenses to VF's name, logo(s), any provided images, or other intellectual property. Agents are not third party beneficiaries of this Agreement with VF. Any breach by your Agents of the terms and conditions of this Agreement shall be deemed a breach of this Agreement by you and VF shall have full recourse against you with respect to such breach. In the event VF has approved your use of VF Emails, as required under this Agreement, that approval is personal to you only and may not be transferred to an Agent. An Agent may not send any VF Emails without separate approval from VF in each instance.
5.2. You will provide VF with an up-to-date list of your Agents (site name and url) upon request.
5.3. You agree to terminate your relationship with an Agent as it pertains to the VF Affiliate Network if an Agent engages in any activity that is prohibited as provided by this Agreement or if requested by VF, and if you do not terminate such Agent within five (5) business days from VF's request, VF reserves the right to withdraw you and all your Agents from the Affiliate Network and to refuse payment of any monies owing to you hereunder.
5.4. You agree not to use any of the information provided via the VF Affiliate System tracking technology to identify unique individual customer activity conducted by VF, nor to allow others to use the technology to identify such unique customer activity, nor to access such unique customer activity or data. You further agree not to transfer or reuse any data generated by the VF Affiliate System.
5.5. You are solely responsible for technical implementation and maintenance of any linking technology or tracking parameters necessary to utilize the VF Affiliate System. You are responsible for conducting appropriate testing and verification of the VF Affiliate System tracking parameters including link creation, click through, ordering, and reporting as necessary to insure correct and dependable operation of the VF Affiliate System tracking feature. You understand and agree that your failure to properly implement the VF Affiliate System technology feature can and will result in an inability of VF to pay you Referral Fees, for which VF has no obligation.
We may modify any of the terms and conditions contained in this Agreement at any time in our sole and absolute discretion. Modifications may include, but are not limited to, changes in Referral Fees, payment procedures, and permitted promotional activities. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Network following our posting of a change notice or new agreement on our site will constitute binding acceptance of change.
7. Ownership of Advertising and Indemnification
7.1. VF represents that it is the owner of the Advertising and has all ownership or license rights with respect to the contents thereof. VF and Affiliate hereby acknowledge and agree that Affiliate shall have no responsibility with respect to the content of the Advertising supplied by VF hereunder. Any modifications to the Advertising made by Affiliate without the written consent of VF shall void the forgoing and Affiliate shall be liable for any damages arising therefrom.
7.2. Affiliate shall defend, indemnify and hold VF, its directors, officers, employees, agents, affiliates, successors and assigns harmless from and against any and all third party claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees) to the extent arising out of or related to any breach or alleged breach of this Agreement by Affiliate, including without limitation any breach of Affiliate's obligations under Section 4 above, and the confidentiality obligations outlined in Section 11 below.
7.3. Any party seeking indemnification under this Section 7 shall promptly notify the indemnifying party in writing of the claim and shall reasonably cooperate with the indemnifying party with respect to such claim. The indemnifying party will be entitled to control the defense and settlement of any claim against which the other party seeks indemnification with counsel of its own choosing and at its own expense; provided, that the indemnified party will be entitled to approve any non-monetary settlement.
7.4. The indemnity obligations under this Section 7 shall survive termination of this Agreement.
8. Warranty Disclaimer
Except as expressly set forth herein, neither party makes any representations or warranties, express or implied, including any express or implied warranty of merchantability, fitness for a particular purpose, or non-infringement, or any representation or warranty as to any revenues or other economic or non-economic benefit that may accrue to the other party by reason of its participation in this Agreement. Furthermore, VF specifically makes no representation or warranty relative to the performance levels or continuous operation of the VF Site or the VF Affiliate System.
9. Limitation of Liability
NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN RELATED TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
10. Public Announcements
Neither party may make any public announcement about the terms of the Agreement without the other party's prior written approval and consent. The parties agree that there will be no press releases issued in connection with this Agreement and you may not identify or list VF as a provider of Advertising to you without prior written approval from VF.
Each party acknowledges that by reason of its relationship to the other party hereunder it will have access to certain information and materials concerning the other's business, plans, customers, technology, products and services that are confidential and of substantial value to the other party, which value would be impaired if such information were disclosed to third parties. In particular, the parties hereto acknowledge that the information regarding Subscribers obtained during the Term and the effectiveness of Advertising hereunder are highly confidential and valuable to VF. Each party agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such information revealed to it as a result of or arising out of the relationship hereunder (other than to fulfill its obligations under this Agreement). Each party shall take every reasonable precaution to protect the confidentiality of such information. This Section shall survive termination of this Agreement. Notwithstanding anything in this Section to the contrary, any information (i) required by legal process to be disclosed, (ii) already in the public domain or (iii) released through no fault of the parties will not be considered confidential information hereunder.
12. General Provisions
12.1. This Agreement will be governed by the laws of the state of Nevada, without reference to its choice of law rules.
12.2. No waiver of any provision of this Agreement shall constitute a continuing waiver, and no waiver shall be effective unless made in a signed writing.
12.3. Notices and other communications to you, as required or permitted to be given hereunder, shall be posted in the VF Affiliate System and/or otherwise e-mailed to the e-mail address provided in your application and shall be deemed effective upon posting or e-mailing, as applicable. You are responsible for updating your contact information within the VF Affiliate System, and VF has no responsibility for any inability to contact you due to obsolete or incorrect contact information or due to any spam filters or other communication blocking devices you may employ. Notice or other communications to VF shall be sent by e-mail to affiliates and shall be deemed effective one business day after e-mailing.
12.4. This Agreement may not be assigned or otherwise transferred by you without the express written consent of VF.
12.5. The division of this Agreement into separate sections, subsections and/or exhibits and the insertion of titles or headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
12.6. You and VF are independent contractors and nothing in this Agreement will create any partnership, joint venture or agency relationship. You'll have no authority to make or accept any offers, warranties, or representations on our behalf. You will not make any statement, whether on your site or otherwise, that would cause confusion as to our relationship with you or otherwise contradict anything in this Section.
12.7. Each party hereby represents that it has the authority and capacity to enter into this Agreement, including that all individuals executing this Agreement are 18 years of age or older.
The submission of your application shall constitute your agreement to be bound by the terms and conditions of this Agreement.