ADAM & EVE CASH AFFILIATE AGREEMENT
To be an authorized Adam & Eve Cash (“AEC”) affiliate, you agree to abide by the terms and conditions set forth in this Agreement and all subsequent modifications of this Agreement during the time you participate in the affiliate program. We may modify the Agreement in our sole discretion and give the affiliate notice within 7 days of modification by email, board posting, and/or in a document accessible to all affiliates. Your continued participation in the affiliate program after the effective updated date shall constitute your acceptance of such changes, and all such changes will then be deemed part of the Agreement for all purposes. You agree and accept that due to the e-commerce aspect of the affiliate program, there may be frequent technical and legal changes made to the Agreement. It is your responsibility to remain informed of all amendments, modifications, and any other changes made to the Agreement at all times.
Please read this Agreement carefully in its entirety before registering as an affiliate. By signing up for the AEC affiliate program, you indicate your acceptance of this Agreement and you agree with AE that you will be bound by all of the terms and conditions of this Agreement.
ABBREVIATIONS/DEFINITIONS:
This Agreement contains the complete terms and conditions that apply to an individual’s or entity’s participation in the Adam & Eve Cash Affiliate Program (the “Program”). As used in this Agreement:
- “AE” refers to Adam & Eve, a division of PHE, Inc., located at 302 Meadowlands Drive, Hillsborough, NC 27278
- “AEC” refers to Adam & Eve Cash, the affiliate program operated by AE.
- “AEC Site” refers to www.adamevecash.com”
- “Affiliate” refers to the applicant
- “AE Site” means the Adam & Eve site located at the URL www.adameve.com.
- “Affiliate Site” is a Site owned by the Affiliate which has been approved by AE and which links to the AE Site.
- “Commissions” –There are three types of commissions:
Standard: the standard commission you will receive on any sales generated through the affiliate link on your Affiliate Site. This sale can be generated through a new customer or a returning customer.
Tiered: the tiered commissions are the commissions you will receive off of any tiered affiliates you have created through our webmaster referral program, as described further later in this Agreement
Re-buys: the re-buy commissions are the commissions you will receive when newly registered customers return to the AE Site to make further purchases. This method of commission differs from standard commissions, as the returning customers are coming to the AE Site rather than an approved Affiliate Site.
- Affiliate Customer – Any customer who comes to AE from the Affiliate Site link and who is not already a registered customer of PHE. This customer then becomes an Affiliate Customer for so long as this Agreement remains in effect.
REQUIREMENTS FOR AFFILIATE SITES:
AEC is committed to offering erotic content on the Internet that meets the highest possible standards for acceptability and that prevents minors from viewing inappropriate material. Therefore, AEC has established the following Requirements for Affiliate Sites which must be followed for any prospective affiliate website to be accepted into the Program:
1. You must have a notice of age requirements (18 or older) at the entrance to your site before any explicit sexual material, pictures or text. Any depiction of actual sexual conduct should be viewed only following a user passing through age verification. Prior to age verification, the viewing of pictures showing nude individuals is acceptable; however, there must be no sexual activity, self-touching of genitals, or detailed depictions of genitals or the pubic area displayed or described. This standard includes your own content as well as visuals in other banners and advertisements on your site.
2. The following types of subject matter (items a. through g. below) and the following actions are considered unacceptable and will not be permitted on an Affiliate Site:
a. Incest
b. Bestiality
c. Depictions of underage participants (including participants who are dressed and depicted as underage, even though the participants are clearly adults)
d. Non-consenting or coercive sex (including depictions of sex with individuals who are sleeping or under the influence of drugs or alcohol)
e. Sex acts associated with pain or violence
f. Bondage (where consent of participants is not clearly depicted)
g. Urination and defecation
h. “Taking over” a user’s web browser, installing software without the user’s permission or not releasing the browser to the user’s control (multiple pop-ups) on exit from any page within the Affiliate Site. (If leaving your site causes a user to reboot their system to close the browser, your site will not be accepted)
i. Violating copyright law, including all WAREZ sites
j. Hosting your Affiliate Site(s) on or through a web hosting entity that does not permit adult content, including but not limited to, Geocities, Angelire, Tripod, Xoom, CJB.net, Hypernet, etc.
k. Promoting, publishing, distributing materials in an illegal manner or promoting your site at any time on other sites which are in violation of these terms and conditions.
l. Hijacking traffic
m. Modifying any materials provided to you through AE or AEC, unless authorized with written consent.
n. Cheating or defrauding any other Program participant, other company or sponsors.
o. Providing incomplete or false account information
p. Using prohibited content in hidden meta tags, text, links, graphics, or any HTML code
q. Misrepresenting any product offered by AE or AEC in any manner, including but not limited to, false pricing, false ad sales, etc.
r. Registering similar domains (in our sole opinion) which include or are similar to any AE or AEC trademarks or any trademarks or trade names appearing in any AE or AEC program materials.
s. Misleading or defrauding AE or AEC or potential customers or attempting to do so in any way.
Note that should your website have some bondage pictures, we may find them acceptable if it is clear that the participants are willing. If you have very heavy bondage material, we will probably not be able to accept you.
3. If your site is members only, registration only or has other restricted areas where the Adam & Eve banner may be placed, you must provide a user name and password on the application form so these areas can be reviewed for initial acceptability and ongoing compliance. Your site must be live and online at the time of review. Because of the review standards above, we do not accept websites that are offline or have not been built.
4. Site/URL re-directs of any kind are NOT accepted at this time.
TERMS OF AGREEMENT
1. Enrollment in the Program
The Affiliate applies for enrollment in the Program by submitting the enrollment form found on the AEC Site. AEC will evaluate the Affiliate’s application and notify the Affiliate of the Affiliate’s acceptance or rejection. AEC may reject the Affiliate’s application for any reason in its sole discretion. If AEC accepts the Affiliate’s application, the Affiliate agrees to not allow any content on the Affiliate Site which constitutes unacceptable subject matter, and agrees to abide by all other Requirements for Affiliate Sites set forth above (which are incorporated herein by this reference).
2. Termination of Affiliate
AE may at any time and for any reason, in its sole discretion, terminate this Agreement and an Affiliate’s participation in the Program. Such termination will be governed by Section 13 below. Without limiting AE”s discretionary right to terminate for any reason, as stated above, AE reserves the right to terminate any account that does not have a valid and functioning e-mail address or if the URL of the Affiliate Site becomes invalid or inoperative. In the event an Affiliate is terminated from participation in the Program for violating of the terms of this Agreement, the Affiliate will forfeit any earned, unpaid Commissions beginning the date the violation occurred. AE may in its sole discretion agree to reinstate an account upon receipt of a request for reinstatement in writing sent to affiliate@adameve.com.
3. Link on the Affiliate Site
Upon acceptance into the Program, the Affiliate may post an approved AE logo on the Affiliate Site and a link to the AE Site. Links, banners or other promotional campaigns are prohibited on domains which are not approved in the Affiliate’s record on file.
4. Referral Commissions Schedule
The Affiliate will earn referral commissions based on Qualifying Revenues according to referral commissions schedules to be established by AEC. “Qualifying Revenues” are revenues derived by AE from AE’s sales of products with respect to which Affiliate is entitled to a commission (as described below), but excluding costs for shipping, handling, gift-wrapping, taxes, service charges, credit card processing fees, and bad debt. Products returned by customers for refunds shall not qualify for referral commissions.
5. Qualifying for Referral Commissions
AEC will track all purchases made from the AE Site by customers who come directly from the Affiliate Site, or who have come to the AE Site from the Affiliate Site and have returned later and made a purchase. The Affiliate will receive referral commissions from all such purchases as described below. AE reserves the right to reject any order from any customer for any reason, including, but not limited to the age or location of the customer. For a product sale to be eligible to earn a referral commission, the customer must enter the AE Site by way of a link from the Affiliate Site, select and purchase the product using AE’s automated ordering system, accept delivery of the product at the shipping destination, and remit full payment to AE. Once a customer coming from the Affiliate Site has registered with the AE Site - whether or not they have made a purchase - the Affiliate shall qualify for referral fees from that customer, even if the customer comes to the AE Site by a route other than the Affiliate Site. If the new customer does not make a purchase within 30 days of registering with AE, the Affiliate loses any claim to any commissions on later purchases from that customer.
To qualify for commissions, the domain of the Affiliate Site must be a domain listed and approved within the affiliate record on file at the time of the order. Any sale originating from a domain not listed and approved on the affiliate record on file at the time of the order will not be included in calculating commissions due.
6. Commissions from Webmaster Referrals
In addition to commissions from customers coming directly from the Affiliate Site, Affiliates will receive fees from purchases by customers coming from the Affiliate’s tiered account sites. A tiered account site is another affiliate’s approved site if such other affiliate signed up for the Program by coming to the AEC sign up page via a webmaster referral link directly from an approved link on the Affiliate Site.
7. Referral Commission Amounts
The base referral commission is 30% for customers coming directly from the Affiliate Site and 5% for all tiered sites. On subsequent purchases from an Affiliate’s customers, AEC will award 5% bonus payment for all future product purchases made through an affiliate’s customer which purchases via methods OTHER THAN the affiliate’s approved site. The 5% bonus will be paid on sales from products purchased on AE. AE reserves the right to change these fees upon notification by an alteration to this Agreement posted on the AE Site. AE reserves the right to compensate different Affiliates with different referral fees. The Affiliate understands that AE may at any time - directly or indirectly - solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with the Affiliate Site. AE does not pay referral fees on sales from the Adam & Eve retail stores, orders placed by mail or phone, or via the Adam & Eve catalog.
8. Referral Commissions Credited on Shipping
Referral commissions will be credited to the Affiliate’s account only at the time the customer’s credit card is charged, not at the time the purchase is made. AE charges the customer’s credit card at the time the product is shipped. While AE does everything possible to maintain adequate stock, out-of-stock items can sometimes delay shipping.
9. Referral Commissions for Registration
AE will pay the Affiliate a referral commission of $1.00 for each unique visitor to the AE Site referred from the Affiliate Site who registers as an AE member, as long as the visitor makes a merchandise purchase from the AE Site within 30 days of registration. However, AE does not pay for new registrations of previously registered customers. AE will also pay the Affiliate $5.00 for each new webmaster approved for the Program, referred through the Affiliate’s approved link. This is in addition to the tiered account site commissions referred to above.
10. Referral Commission Payment
AEC will pay the Affiliate referral commissions on a monthly basis. Approximately 30 days following the end of each calendar month, AEC will send the Affiliate payment via the selected payment type chosen on the affiliate file within AEC for the referral commissions earned on AE’s sales of qualifying products that were shipped during that month, less any taxes that AE are required by law to withhold. However, if the referral fees payable to the Affiliate for any calendar month are less than $25, AE will hold those referral fees until the total amount due is at least $25 or until this Agreement is terminated. If the customer returns a product that generated a referral fee, AE will deduct the corresponding referral fee from the Affiliate’s next monthly payment. If there is no subsequent payment, AE will send the Affiliate a bill for the referral commission.
11. Identifying the Affiliate as an AE Affiliate
AE will make available to the Affiliate one or more approved icons bearing the AE logo that will enable customers to “click” and go the AE Site. These icons may be changed by AE from time to time at AE’s sole discretion. Because the Affiliate posts a URL to the icon - which resides on a server maintained by AE - AE will be able to change icons at any time without any actions on the part of the Affiliate. AE reserves all of its intellectual rights to its logo and any other graphic images or text that appears on its icons or the adameve.com website.
12. Term of the Agreement
The term of this Agreement will begin upon AE’s acceptance and approval of the Affiliate’s Program application and will end when terminated by either party. Either the Affiliate or AE may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination by postal mail or e-mail. Upon the termination of this Agreement, the Affiliate will immediately cease making any claims of being an AE Affiliate and will cease use of - and remove from the Affiliate Site - all links to AE’s Site, and all AE trademarks, logos, and all other materials provided by or on behalf of AEC to the Affiliate pursuant hereto or in connection with the Program. The Affiliate is only eligible to earn referral commissions on AE’s sales of qualifying products occurring during the term, and referral commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. AE may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid. Notwithstanding anything to the contrary in this Agreement, Affiliate will forfeit any earned but unpaid commissions at the time of termination if termination of the Affiliate from the Program is with cause.
13. Modification of the Agreement
AE may modify any of the terms and conditions contained in this Agreement, at any time and in AE’s sole discretion, by posting a change notice or a new agreement on AE’s Site. Modifications may include - but are not limited to - changes in the referral commissions, referral commission payment schedules, payment procedures, and Program rules. If any modification is unacceptable to the Affiliate, the Affiliate’s only recourse is to terminate this Agreement. The Affiliate’s continued participation in the Program following AE’s posting of a change notice or new agreement on AE’s Site will constitute binding acceptance of the change.
14. Relationship of Parties
The Affiliate and AE are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Affiliate will have no authority to make or accept any offers or representations on AE’s behalf. The Affiliate will not make any statement - whether on the Affiliate Site or otherwise - that reasonably would contradict anything in this paragraph or in this Agreement as a whole.
15. Fulfillment and Customer Service
AE is responsible for receiving, processing and shipping of all orders and resolving all customer service problems, including shipping, authorization of credit cards, customer questions and returns. AE is not responsible for delays in shipment including, without limitation, delays caused by product availability, failure to authorize customer credit cards, or incomplete information given by the customer.
16. Sales Performance
AE is not responsible for the performance of sales from the Affiliate Site. Affiliates are responsible for their own equipment and software and for compliance with all laws applicable to their sites. Proper website design and placement of links on the Affiliate Site is solely the responsibility of the Affiliate. AE is not responsible for sales not attributed to the Affiliate due to improper coding or placement of links.
17. Email Promotions and Spamming
Affiliates may not send any e-mail messages to customers or prospective customers - including any "spamming" - that mention the AE or AEC names, utilize or display AE trademarks, or feature any AE products, promotion or content. Affiliate may send promotional e-mail messages that promote the Affiliate Site (without mentioning AE) to its existing customers, but may not send any unsolicited e-mails (i.e., no spamming) and may not utilize any third party mailing lists. Affiliate shall comply with all federal and state laws relating to e-mail.
Affiliate shall ensure that its promotional e-mail messages contain:
a. the words "THIS EMAIL IS AN ADVERTISEMENT", clearly in the body of the e-mail
b. clear notice that the recipient may unsubscribe from future e-mail from the Affiliate
c. a functioning return e-mail address that remains valid throughout the term of the Affiliate agreement
d. clear notice of the Affiliate’s physical postal address. Commercial e-mail messages sent by Affiliates must not contain any sexually explicit images or text.
If the message links to a website that includes sexually explicit images or text, the subject line of the e-mail must begin with the words "SEXUALLY-EXPLICIT." The body of the e-mail must also include the words "SEXUALLY-EXPLICIT," and the link to the Affiliate’s Site must be accompanied by a warning that the viewer should not click on the link if he or she wants to avoid viewing sexually explicit images or text. Any violation of this Section 18 may result in immediate termination from the Program and forfeiture of any earned commissions not yet paid.
18. Search Engine Placement and Search Terms Advertising
Affiliate may not place search engine advertisements (pay per click, paid advertising, etc.) using the adameve (or any variations thereof in our sole opinion) trademark or brand name without express permission of AE. In addition, you may not run paid placement listings (such as via Yahoo Search Marketing or Google AdWords) where ads for the program:
a. link directly to any site other than your approved Affiliate Site, or.
b. are triggered by (in our sole opinion) words directly associated with AE or any of the sites in our network, specifically company names (or variations of) or URLs.
You may use PPC ads ONLY to drive traffic to your own approved Affiliate Site. You may not use AEC affiliate links in PPC ads, nor link from PPC ads to any Adam & Eve store. You may not place banners or links containing your Affiliate ID on websites, forums or blogs not approved. You may not append your Affiliate ID to a product URL or datafeed and upload it to a free classified ad site such as Google Base.
19. White Label Stores
Certain special terms and conditions will apply to Affiliate if Affiliate
a. offers a membership site (i.e., offers content to members who have paid a fee for membership), and
b. has received written approval from AE for a "white label" store.
A white label store is a store which is co-branded with Affiliate’s logo and trademarks and the AE logo and trademarks. White label stores may be either custom designed or created with a template provided by AE. Note that approval for participation in the White Label Affiliate Program must be obtained separately from AE, and only after Affiliate is accepted into the Program as described in Section 2 above. Such approval may be requested by contacting affiliate@adameve.com after Affiliate’s acceptance into the Program. If approval is granted, it will be subject to Affiliate’s acceptance of the special terms and conditions applicable to customized or template white label stores, as applicable.
20. Limitation of Liability
AE will not be liable for indirect, special, or consequential damages, or any loss of revenue, profits, or data-arising in connection with this Agreement or the Program, even if AE has been advised of the possibility of such damages. Further, AE’s aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to the Affiliate under this Agreement.
21. Disclaimers
AE makes no express or implied warranties or representations with respect to the Program or any products sold through the Program, including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage. AE does not promise, guarantee, represent or warrant that access to the AE Site will be error-free, accessible and uninterrupted at any particular time or that AE will always be able to process orders or information properly or in a timely manner. AE makes no promises, guarantees, representations or warranties in connection with its operation of the AE Site or its fulfillment or customer service functions or its products.
22. Indemnity
Affiliate agrees to indemnify and hold harmless AE and its subsidiaries and corporate affiliates, and each of their directors, officers, agents, contractors, partners and employees, from and against any loss, liability, claim, demand, damages, costs and expenses, including attorney's fees, arising out of or in connection with (i) any content posted on the Affiliate Site or to which a user may link from the Affiliate Site, (ii) your conduct or alleged conduct in connection with the Affiliate Site or in connection with any other business activities you undertake, or (iii) any violation or alleged violation of any state or Federal law or of the intellectual property rights of any third party in connection with the ownership or operation of the Affiliate Site.
23. Independent Investigation
The Affiliate acknowledges that the Affiliate has read this Agreement, that the Affiliate has had the opportunity to seek independent legal or other professional advice prior to entering into this Agreement, and that Affiliate agrees to all of the terms and conditions of this Agreement. The Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
24. Non Assignment
The Affiliate may not assign this Agreement-by operation of law or otherwise-without AE's prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
25. Non Waiver of AE's Rights
AE's failure to enforce the Affiliate's strict performance of any provision of this Agreement will not constitute a waiver of AE's right to subsequently enforce such provision or any other provision of this Agreement.
26. Paragraph Headings
Paragraph headings contained herein are for the convenience of the parties only. They shall not be used in any way to govern, limit, modify, or construe this Agreement and shall not be given any legal effect.
27. Governing Law
This Agreement will be governed by the laws of the United States and the state of North Carolina, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in North Carolina and the Affiliate irrevocably consents to, and waives all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction of such courts, and agrees not to commence or prosecute any action in connection therewith other than in the state and federal courts of North Carolina.
28. Special Provisions for New York State Affiliates
Thank you for being an active PHE, Inc. New York State based affiliate. This is an amendment to the standard PHE, Inc. Affiliate Agreement. This automatically binding amendment results from the New York State Tax Department's April 2008 ruling establishing an Internet sales tax on orders from New York residents for companies with "advertising partners" in New York.
This ruling is so potentially damaging some companies are closing their New York State affiliates. We are not taking this action, but the state of New York's new Internet Sales Tax requires these amendments:
o Affiliate agrees to market AE websites using approved banners or text links provided by AE.
o Commissions will only be earned when approved banners or text links are used.
o Use of unapproved links or banners may provide cause for immediate termination of Agreement.
o Affiliate agrees not to incorporate product datafeeds on their site or sites.
Acceptance of these amendments and conditions is automatic and effective May 30, 2008. If you would like to opt-out of the Program, please email respond affiliate@adameve.com.
29. Electronic Acceptance
You hereby acknowledge and agree that physical signatures are not required under this Agreement, and any form of electronic acceptance of the terms of this Agreement shall be an acceptable form of acceptance by you of the terms of this Agreement.