SpicyGear.com Adult Affiliate Program

Terms and Conditions of the SpicyGear.com Affiliate Program

1. Your Obligations

1.1. You are solely responsible for the development, operation and maintenance of your site(s) and for all materials that appear on your site(s). This responsibility includes, but is not limited to, the technical operation of your site and the accuracy of materials posted on your site. In particular:

o       1.1.1. You agree that the materials posted on your site do not infringe upon the rights of any third parties, including their intellectual property and personal rights.

o       1.1.2. You must not post libellous or illegal material on your site.

o       1.1.3. You must not send spam or unsolicited e-mails for the purposes of generating traffic to the SpicyGear.com site.

o       1.1.4. You will indemnify and continue to indemnify and hold us, and our affiliates, harmless from all claims, damages and expenses relating to the development, operation, maintenance and contents of your site(s).

1.2. You must ensure that Referred Customers are aware that they are purchasing from SpicyGear.com and not from your site. We will provide you with logos and banners to identify you as an Authorized SpicyGear.com affiliate and you must display at least one of these in a prominent position on your site. The design of these banners may change from time to time and you must remove any expired banners if requested to do so.

1.3. To permit accurate tracking, reporting and fee accrual, you must ensure that the Special Links between your site(s) and our site are properly formatted in accordance with such standards and protocols as we may from time to time establish. We will not be liable for paying Referral Fees on purchases that are not correctly tracked and reported because the links between your site and our site are not properly formatted.

2. Our Obligations

   2.1. We are responsible for all aspects of order processing and fulfillment. Among other things, we will process payments, cancellations and returns; and handle customer service. Accordingly, all SpicyGear.com rules, policies, and operating procedures concerning customer orders, customer service, and Product sales will apply to those customers. We will use all reasonable commercial endeavours to fulfill orders from Referred Customers to the highest operational and commercial standards.

      2.2. We will track sales made to Referred Customers who purchase products using Special Links from your site(s) to our site and will supply you with reports summarising this sales activity in such a format as we, in our absolute discretion, may from time to time determine.

• 2.3. We will pay you referral fees on a TWICE MONTHLY basis. On the First and Fifteenth Day following the end of each callender month, we will make payment to you for the referral fees earned on products that were shipped during that month, less shipping charges and any taxes that we are required by law to withhold. However, if the referral fees payable at any payment date are less than $50.00, we will hold those fees until the total amount due is at least $50.00 or (if earlier) until this Agreement is terminated. If the customer returns a Product that generated a referral fee, we will deduct the corresponding referral fee from your next monthly payment.

3. Payments

  3.1. Referral Fees are paid at a commission rate of 15 % on the Net Price of all Qualifying Products sold to Referred Customers (5% on The Sybian).

   3.2. For a product sale to generate a Referral Fee, in the first instance the Referred Customer must follow a Special Links from your site(s) to the SpicyGear.com site; purchase the product on the SpicyGear.com site using our automated ordering system; pass our Credit Card Fraud Screening, accept delivery of the product at the delivery destination specified in the order and remit full payment to SpicyGear.com

  3.3. The program is intended for commercial use but you may purchase products through the Affiliate program for your own use, however, if we feel your site(s) is solely for this purpose we may withdraw all commission earned and terminate this agreement.

3.4 Commisions are only paid on SHIPPED orders. If an order is caught in our credit card fraud department and has not been shipped, no commissions will be paid. SpicyGear.com Reserves the right to refuse shipments and therefor commissions for any reason we deem necessary.

4. Content

   4.1. Each Party will retain all right, title and interest in and to its Content (including, but not limited to, ownership of all copyright database rights and other intellectual property rights). Subject to the terms of this Agreement, each Party hereby grants to the other Party a royalty-free, non-exclusive, non-transferable license to use, reproduce, transmit and publicly display the Content in accordance with this Agreement. Neither Party shall use, reproduce, transmit or display any Content on any other web site or otherwise except as expressly set out in this Clause.

4.2. Except as set out in Clause 4.1, each Party will retain all right, title, and interest in and to its Sites worldwide (including, but not limited to, ownership of all copyright and other intellectual property rights).

5. Trade Marks

5.1. Each Party will retain all right, title and interest in and to its Trade Marks worldwide, subject to the limited licence granted to the other Party in this Agreement.

5.2. Upon the expiration or termination of this Agreement, each Party will cease using the other Party's Trade Marks and remove any and all reference to them.

5.3. Each Party acknowledges and agrees that:

o       5.3.1. all rights in the other Party's Trade Marks belong to that other Party;

o       5.3.2. it shall not acquire or claim any title to or goodwill in any of the other Party's Trade Marks by virtue of the rights granted to it by this Agreement or through its use of the other Party's Trade Marks;

o       5.3.3. it shall not at any time do or omit to do anything which is likely to prejudice the other Party's right in its Trade Marks.

6. Termination

6.1. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn referral fees on sales of Qualifying Products occurring during the term and fees earned up to the date of termination will remain payable only if the related orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

  6.2. Termination of this Agreement will occur if no sales are generated from your site within six months.

   6.3. Upon termination of this Agreement, you must immediately cease use of, return to us, or at our request destroy, any and all of our intellectual or proprietary property, information and/or materials in your possession and, subject to receiving written consent to the contrary from us, remove all hypertext links to our site from your site.

   6.4. No customer shall be considered to be a Shared Customer after the expiry or termination of this Agreement.

7. Confidentiality

    7.1. Each Party shall both during this Agreement and thereafter:

o       7.1.1. keep all Confidential Information strictly confidential;

o       7.1.2. not disclose any Confidential Information to a third party, other than to such of its employees and/or officers as will of necessity require it as a consequence of the performance of that Party's obligations under this Agreement (in which case the relevant Party shall ensure that each such employee and/or officer shall keep such Confidential Information confidential and shall not use any of it for any purpose or disclose it to any person, firm or company other than those for which or to whom that Party may lawfully use or disclose it under this Agreement);

o       7.1.3. use Confidential Information only in connection with the proper performance of this Agreement.

    7.2. Clause 7.1 shall not apply to any Confidential Information to the extent that it:

o       7.2.1. comes within the public domain other than through breach of Clause 4.1;

o       7.2.2. is required or requested to be divulged by any court, tribunal or governmental authority with competent jurisdiction;

o       7.2.3. is disclosed on a confidential basis for the purposes of obtaining professional advice or is known to the receiving Party at the date of this Agreement.

8. Warranty & Indemnity

   8.1. Each Party warrants that:

o       8.1.1. it has the right to license the rights granted to the other Party under this Agreement;

o       8.1.2. it has the right to enter into this Agreement;

o       8.1.3. it has the rights to all materials used upon its Site(s)

   8.2. Each Party (the "Indemnifier) shall indemnify the other Party (the "Indemnified) and hold the Indemnified harmless against all and any direct losses, costs, damages, liabilities, claims, demands and expenses suffered or incurred by the Indemnified, including legal expenses, arising out of or connected with any claim by any third party against the Indemnified arising from:

o       8.2.1. the breach of any warranty or obligation in this Agreement by the Indemnifier;

o       8.2.2. any claim that the Indemnifier's Content and/or Trademarks violate any third party's copyright, database rights, or any other intellectual property rights or contain any defamatory content.

   8.3. Whenever the Indemnifier is required to indemnify the Indemnified under Clause 5.2 above, the Indemnified shall:

o       8.3.1. notify the Indemnifier in writing promptly upon becoming aware of any matter or claim to which the indemnity relates;

o       8.3.2. not make any admission or settlement in respect of such matter or claim without the prior consent of the Indemnifier (such consent not to be unreasonably withheld or delayed); and

o       8.3.3. allow the Indemnifier, where appropriate, to appoint legal advisers of its choice and to conduct and/or settle negotiations and/or proceedings relating to such matter or claim or (where it is not appropriate for the Indemnifier to have conduct of such negotiations and/or proceedings) the Indemnified shall comply with the Indemnifier's reasonable requests in the conduct of any such negotiations and/or proceedings.

    8.4. Except as expressly provided in this Agreement and to the extent permitted by law, no warranty, condition, undertaking or term expressed or implied is given or assumed by either Party and all such warranties, conditions, undertakings and terms are hereby excluded.

9. Limitation of Liability

    9.1. Each Party's liability to the other in contract, tort (including negligence) or otherwise in relation to this Agreement will not exceed the total referral fees paid or payable to you under this agreement provided that neither Party shall exclude or limit liability for death or personal injury resulting from the negligence of that Party.

     9.2. For the avoidance of doubt, in recovering against another Party for any loss or damage suffered by the claimant, loss of profits and loss of business shall not be included as recoverable losses.

10. Dispute Resolution

 10.1. This Agreement shall be governed by and construed in accordance with the laws of the State Of Florida, Hillsborough County.

  10.2. If any dispute or difference shall arise out of or in relation to this Agreement, it must be brought in the state courts located in the State of Florida, Hillsborough County and you irrevocably consent to the jurisdiction of such courts.

11. Notices

        Any notice given under this Agreement shall be in writing and may be delivered to the other Party or sent by email or pre-paid post to the registered office of that Party specified in this Agreement or such other address as may be communicated in writing to the other Party by that Party from time to time for the purposes of this Clause.

12. Force Majeure

Neither Party will be liable for any failure or delay in performing its obligations under this Agreement to the extent that the failure or delay is the result of any cause or circumstance beyond the reasonable control of that Party and that failure could not have been prevented or overcome by that Party acting reasonably and prudently. If by reason of force majeure either Party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 30 (thirty) Business Days, the other Party may terminate this Agreement immediately by written notice.

13. Assignment

        Neither Party shall assign or transfer its rights or obligations under this Agreement without the other Party's prior written consent, such consent not to be unreasonably withheld or delayed.

14. General

        14.1. This Agreement represents the entire terms agreed between the Parties in relation to its subject matter and supersedes all previous representations by or contracts or arrangements between the Parties relating to its subject matter. Any variation to this Agreement must be in writing and signed by both Parties.

        14.2. Both Parties are independent contractors, and nothing in this Agreement will be deemed to create a partnership or joint venture between the Parties. Except as expressly provided for in this Agreement, neither Party shall have any right or authority to and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on the other Party or bind the other Party in any way.

        14.3. No failure or delay by any Party in exercising its rights under this Agreement will operate as a waiver of that right nor will any single or partial exercise by either Party of any right preclude any further exercise of any other right.

        14.4. If any provision of this Agreement is found to be illegal, void or unenforceable by any court having competent jurisdiction, such invalidity of that provision shall not affect the validity of the remaining provisions of this Agreement.

15. Modification of this Agreement

        15.1. We may modify any of the terms and conditions contained in this Agreement, at any time and at our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and program rules.

        15.2. If any modification is unacceptable to you, your only recourse is to terminate the agreement in accordance with Clause 6.1. Your continued participation in the program will be deemed as binding acceptance of the modified agreement.

DEFINITIONS

The following expressions shall have the following meanings and plural forms shall be construed accordingly:

"Affiliate"

Parties associated to SpicyGear.com thorough the Affiliate program

"Agreement"

This co-branded site development agreement and the schedules to it (including this schedule)

"Brand"

The mixture of tangible and intangible values symbolised in the logo and other trade marks of the Party which distinguish the Party's business from other businesses.

"Confidential Information"

All information relating to trade secrets, operations, processes, plans, intentions, product information, know-how, designs, market opportunities, transactions, affairs and/or business of the other Party and/or its customers, suppliers, clients and the terms of this Agreement

"Content"

Any graphics, designs, editorial, logos, banners, creative or other material produced by a Party and submitted to the other Party for inclusion in Co-Branded Pages

"Logo"

The most recent version of the Party's logo identified as such by the Party and provided to the other Party

"Net Price"

The sum actually paid by a Refferred Customer to SpicyGear.com for any Qualifying Product (exclusive of Sales Taxes Collected, any costs of Postage, Handling, Packing, gift wrapping, promotions or other reasonable deductions) and accepted by SpicyGear.com in accordance with its published Standard Terms and Conditions of Trading

"Party"

A party to this Agreement

"program"

Affiliate program

"Qualifying Product"

Any DVD, VHS, Toy or other product item sold on the Go Live, Inc. DBA SpicyGear.com site. E-Gift Cards will attract commission when they are purchased but will be deducted, from the Net Price attracting commission, when they are redeemed

"Referral Fees"

Agreed percentage payable to an affiliate for sales made to their Shared Customers.

"Referred Customer"

Any new customer introduced to SpicyGear.com from your Site who first accesses the SpicyGear.com Site via a hyperlink from your site and who subsequently purchases a Qualifying Product from the SpicyGear.com Site.

"Special Links"

Link that connect directly to an item or page on the SpicyGear.com site and include an Affiliate program id code format given to an affiliate on initial registration with the program.

"Site"

Either the SpicyGear.com Site or your Site, as the case may be

"Spam"

Any commercial email that is unsolicited by the recipient or any unwanted email. Also known as Unsolicited Commercial Email (UCE) or junk email.

"Trade Marks"

The Party's Logo, name, trade marks and/or other marks supplied by the Party to the other Party for inclusion in the Co-Branded Pages remain the trademark of said company.

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