This Affiliate Terms and Conditions Agreement (the "Agreement") is entered into by and
between you (the "Affiliate") and TB Advertising Services, AVV (“TBAS”), a foreign corporation,
doing business as TopBucks.com , upon acceptance of this Agreement evidenced by your electronic
signature below and by clicking on the Create Account button on the TopBucks.com sign-up page.
Upon acceptance by Affiliate of the terms and conditions contained herein and
continued compliance herewith, Affiliate shall be allowed to participate in the
TopBucks.com Affiliate Program (the "Program") wherein TBAS shall enable Affiliate
to use certain intellectual property of TBAS on Affiliate's Web sites for marketing
and promotional purposes and as consideration for any traffic directed by Affiliate
to TopBucks.com through Affiliate's marketing and promotional efforts and that
converts into revenue to TBAS, TBAS shall pay Affiliate compensation, as set
forth in section 3 below.
1.2
AFFILIATE IS PROHIBITED FROM USING ANY FORM OF MASS EMAILING, SOLICITED OR UNSOLICITED,
TO PROMOTE TOPBUCKS.COM, ANY OF ITS WEB SITES, OR OTHER WEB SITES OWNED, CONTROLLED,
AND/OR OPERATED BY TBAS. Violations of this provision of the Agreement will result
in immediate termination of this Agreement. If Affiliate violates this provision an
utilizes unsolicited emailing to promote, market, or advertise TopBucks.com, any of
its web sites, or other web sites owned, controlled, and/or operated by TBAS, all
Program accounts operated by Affiliate will be immediately terminated and Affiliate
will be reported to the proper authorities.
1.3
Prohibited Countries: Due to excessive fraud attempts, TBAS does not allow webmasters
who reside in the following countries to participate in our program: Albania, Armenia,
Azerbaijan, Belarus, Brazil, Bulgaria, China, Costa Rica, Croatia, Czech Republic,
Estonia, Georgia, Hungary, India, Indonesia, Israel, Japan, Jordan, Kaliningrad,
Kazakhstan, North Korea, South Korea, Kyrgyzstan, Latvia, Lithuania, Malaysia,
Moldova, Pakistan, Philippines, Romania, Russia, Singapore, Slovakia, Slovenia,
Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates,
Uzbekistan, and Yugoslavia.
2.1 The nonexclusive right to refer, direct or send visitors or users
of Affiliate's Web site(s) to web sites owned, controlled and/or operated by TBAS
("TBAS Web sites"); and
2.2 A limited nonexclusive, nontransferable, and revocable license
to access and download promotional banners, and other promotional materials created
and owned by TBAS for use on Affiliate Web sites for the exclusive purpose of advertising,
marketing or promoting TopBucks.com, its web sites, or any other TBAS Web sites. Affiliate
may post as many of these banners and other materials on its site(s) as desired.
2.3TBAS owns and retains all right, title and interest in and to its
intellectual property, copyright, trademarks, patents, and in the files, promotional banners
and other material provided by TBAS, including all images therein. Upon termination of
Affiliate's participation in the Program and/or termination of this Agreement, the
grant of right and license set forth in subsection 2.2 above, shall
cease and terminate, and Affiliate shall immediately remove all TBAS files, banners, ads,
and any and all other TBAS intellectual property, copyrighted material, trademarks, and patents,
if any, from Affiliate's Web sites.
2.4 Affiliate is not authorized and shall not change TBAS’ names,
file names, trademarks, design logos, banners, ads or other material for any
purpose other than as expressly set forth herein or in any modification to
this Agreement by TBAS.
2.5 Affiliate further acknowledges and agrees that any such change
or changes will be a material breach of this Agreement and shall constitute an
infringement of TBAS’ copyrighted and/or trademarked intellectual property.
2.6 Affiliate agrees and covenants to notify TBAS of all Uniform
Resource Locator (URL) a.k.a. "Web site" locations where it has published TBAS’ names,
file names, trademarks, design logos, banners, ads or other material pursuant to this
Agreement, specifically identifying the names, file names, trademarks, design logos,
banners, ads or other material posted at each URL. Affiliate further acknowledges
and agrees that failure to notify TBAS of these locations constitutes a material
breach of this Agreement and each such posting of which Affiliate fails to notify
TBAS shall constitute an infringement of TBAS’ copyrighted and/or trademarked
intellectual property.
TBAS will pay Affiliate for Web traffic to TBAS Target Page(s) from a banner or link
posted on web page(s) of Affiliate's site(s) as follows.
3.1
Per Sign-Up Payments: Webmaster will be paid a flat rate of thirty
five United States Dollars ($35 USD) per new membership sign-up referred via straight or
gay sites to TBAS. In
addition to the standard per sign-up rate of $35 USD, TBAS maintains a variety
of other payout rates for sites and products on the Program. Click here to review all Payout
Rates for the Program.
3.2 Revenue Share Payments: As an alternative to the per sign-up
compensation option, TBAS offers a Revenue Sharing option to Affiliates. Under
the Revenue Sharing option of the Program, Affiliates of straight and gay
programs receive 80% of the gross receipts from referred accounts, less applicable
processing fees and other related fees charged by the third party processors who
process charges for TBAS. For a breakdown of other TopBucks payout rates,
visit the rates page.
3.3Bonus Terms and Conditions: The following terms and conditions
apply to bonus programs being conducted by TopBucks Inc. via TBAS’ TopBucks.com
Advertising Program (hereafter the "TopBucks Program").
(i) $100 New Webmaster Bonus terms and conditions of participation:
Structure of the Promotion:
TBAS will pay a USD $100.00 Bonus to all eligible webmasters/accounts that refer
a minimum of 10 sales within 90 days of establishing an affiliate account on the
TopBucks Program. Only newly established accounts shall be eligible for the $100 Bonus,
and no individuals or companies with pre-existing accounts on the TopBucks Program shall
be considered eligible. Any accounts that have been suspended or terminated from the Program
for fraudulent activity, spamming or any other reason for termination are not eligible for
the $100 Bonus. Only one account per individual or company will be eligible for the $100 Bonus,
regardless of how many accounts the individual or company has established on the Topbucks Program.
Dispersal of the Bonus Payment:
All eligible accounts that meet the requirements for the $100 Bonus shall have the $100
Bonus amount added to the sum of their earnings for the pay period in which the 10th sale is referred.
(ii) $250 Switchback Bonus terms and conditions of participation:
Structure of the Promotion:
TBAS will pay a USD $250.00 Bonus to all eligible webmasters/accounts
that refer a minimum of 25 sign-ups during the term of the $250.00 Bonus
promotion. The $250.00 Bonus Promotion begins at 12am Pacific Standard
Time on April 1, 2007 and concludes at 11:59pm on June 30, 2007.
Definition of "Eligible Accounts":
An account is considered eligible for the Promotion only if no sign-ups
have been referred through the account since 12am Pacific Standard Time,
October 1, 2006. If an individual or company has multiple accounts on
the TopBucks Program, they are not eligible for the $250.00 Bonus if any
of said accounts have referred sign-ups more recently than 12am Pacific
Standard Time, October 1, 2006. If an affiliate, either as an individual
or a company, has any active accounts on the Program, then none of their
accounts are eligible for the $250.00 Bonus. Any accounts that have been
suspended or terminated from the Program for fraudulent activity,
spamming or any other reason for termination are not eligible for the
$250.00 Bonus. The $250.00 Bonus applies to accounts on the Pay Per
Signup payout method of the TopBucks Program only; affiliate accounts
that are set to the Revenue Share method are not eligible for the
$250.00 Bonus. Only one account per individual or company will be
eligible for the $250.00 Bonus, regardless of how many accounts the
individual or company has established on the TopBucks Program.
Dispersal of the bonus payment:
All accounts/affiliates that meet the requirements of the $250.00 Bonus
must contact us as it is not automatically included in your stats.
(iii) $42 Per Signup VIP Bonus terms and conditions of participation:
The following terms and conditions apply to the "$42 VIP Bonus" Promotion
(hereafter the "VIP Bonus") being conducted by TopBucks.com via TBAS’
TopBucks.com Advertising Program (“TopBucks Program”).
In addition to the terms specified below, all the standard terms and conditions
for the TopBucks Program also apply to the VIP Bonus.
Structure of the Promotion:
TBAS shall pay an increased commission rate of $42 per signup to eligible accounts that meet the
criteria of referring 350 or more sales during a given two-week pay period.
Definition of "Eligible Accounts":
The VIP Bonus applies to accounts on the Pay Per Signup payout method of the
TopBucks Program only; affiliate accounts that are set to the Revenue Share method
are not eligible for the VIP Bonus. The VIP Bonus only applies to accounts that use
the pop-up console links. Webmasters using console free links are not eligible for
the VIP Bonus. Affiliate accounts owned by companies that operate advertising programs
similar to the TopBucks Program shall not be eligible for the VIP Bonus.
Dispersal of the bonus payment:
Receipt of the VIP Bonus is not automatic; operators of accounts that achieve
the required sales threshold must contact TopBucks Webmaster Support - available
at
- to request application of the
VIP Bonus payout rate to their account. Once an operator has notified TopBucks
Webmaster Support to notify TBAS of achieving the required sales threshold for
The VIP Bonus the bonus payout rate shall be paid automatically for all subsequent
pay periods in which the required sales threshold is met. If an eligible account
falls below the required threshold in a given pay period, then the payout rate
for that account shall revert to the default payout rate originally assigned
to the account.
(iv) $250 VOD.TopBucks Sales Bonus terms and conditions:
Structure of the Promotion:
TBAS will pay a USD $250.00 Bonus to all eligible webmasters/accounts that
refer a minimum of 10 sales within 90 days of sending their first sale to VOD.TopBucks.com.
Definition of "Eligible Accounts":
Any accounts that have been suspended or terminated from the Program for
fraudulent activity, spamming or any other reason for termination are
not eligible for the $250 Bonus. Only one account per individual or
company will be eligible for the $250 Bonus, regardless of how many
accounts the individual or company has established on the Topbucks Program.
Dispersal of the Bonus Payment:
All eligible accounts that meet the requirements for the $250 Bonus
shall have the Bonus amount added to the sum of their earnings for
the pay period in which the 10th sale is referred.
3.4 All payments are made by check in U.S. dollars.
Payments are mailed on the 7th and 22nd of each month. Payment will
only be sent if the amount due to Affiliate is at least US $50.
Payment will be carried over from week to week until the amount
due to Affiliate is at least US $50. A "Pay Period" is defined
as a two-week period commencing on the 1st and 16th day of each
given month at 12:00 AM Pacific Standard Time and ending two weeks
later on the 15th or last day of the month, respectively,
at 11:59 PM Pacific Standard Time. If Affiliate is a foreign,
non-United States resident participant, Affiliate may request
that TBAS withhold payment until the amount due is US$300 or
greater, so as to incur lower banking fees.
3.5 Affiliate agrees, by accepting and negotiating
payment received from TBAS, that the payment received is payment in
full for any and all advertising space and traffic for the Pay
Period to which the payment applies.
3.6 A "referral" from an Affiliate Web site
entitling Affiliate to a "commission" is defined as follows:
(i) A person who has been directed to an authorized website
owned, controlled or operated by TBAS ("TBAS Web site") through
the use of a hypertext transfer link residing on Affiliate's
Web site in the form of a banner ad or other promotional link
which automatically connects any person who clicks on the
banner ad or other promotional link to a TBAS Web site, and
which banner ad or other promotional link has been supplied
to Affiliate as part of the Program; and
(ii) That person who, after having been directed to a
TBAS Website through the use of the hyperlink banner ad or other promotional
link supplied to Affiliate residing on Affiliate's Website, has been converted
into a subscriber or member of a TBAS Website.
3.7 "Webmaster Referral" Program: TBAS will also compensate
Affiliate for sales generated by other affiliates referred to TBAS by the Affiliate.
When a new webmaster affiliate signs up for the Program through the approved Webmaster
Referral link provided to the Affiliate by TBAS, the Affiliate will receive a
commission on each sale generated by that referred webmaster affiliate.
For details on the current commission rates for the TBAS Webmaster Referral program,
click here.
(i) Affiliates are prohibited from "referring" their own accounts/sales,
as such "self-referrals" will result in termination of all Program accounts
operated by the Affiliate.
4.1 Affiliate is not entitled to a commission for any TBAS
subscriber sent or referred to a TBAS Website in violation of the terms of
this Agreement, or for any TBAS subscriber who does not fall within the
terms of paragraphs 3.6 (i) &
(ii).
4.2 Affiliate will not be entitled to a commission from
TBAS for any subscription that TBAS determines is the result of potential
fraudulent activity. TBAS shall have the right, in its sole and absolute
discretion, to expand or modify what it determines to constitute potential
fraudulent activity. Without limiting the foregoing, potential fraudulent
activity includes without limitation, the following circumstances or activities:
(i) The subscriber used or attempts to use a credit card
number that is in a "negative database;"
(ii) There are multiple subscriptions from a single
Internet Protocol (IP) address within a one (1) month period of time;
(iii) There are sequential or multiple subscriptions under
different names, or variations of the same name using the same credit card number,
or sequential names or patterns of names using different credit card numbers;
(iv) There is a pattern of "bursting subscriptions"
characterized by numerous subscriptions from a Website in a relatively short
time span (the "bursting period"), where there has been history of few
subscriptions from that Website before or after the bursting period.
(v) There are sequential or multiple attempts to register
or subscribe from a credit card using the same "bin number" and sequential
or multiple number strings are used to complete the credit card number.
(vi) There are subscriptions from an IP address that matches
the IP address Affiliate used in establishing an account in the Program, or
an IP address that is otherwise known to be used by Affiliate.
4.3 TBAS has the right to deny or withhold payment from
Affiliate, and to terminate Affiliate from the Program, if there is an
abnormal number of charge backs or cancellations of memberships or
subscriptions which have been referred to TBAS through Affiliate's Websites.
TBAS shall determine, in its sole and absolute judgment, what constitutes
an abnormal number of charge backs or cancellations of memberships or subscriptions.
5.1 This Agreement is not for any specific term or duration of time.
Affiliate may terminate this Agreement at any time, for any reason or no reason, and;
this Agreement and/or the Program may be terminated by TBAS, in its sole and
absolute discretion, at any time, for any reason or no reason.
5.2 Affiliate shall terminate participation in the program by notifying
TBAS by E-mail at
of Affiliate's intent
to terminate participation in the Program.
5.3
In the event this Agreement is terminated, Affiliate shall be entitled to any unpaid
commissions or referral fees earned prior to the date and hour of termination.
Affiliate shall not be entitled to receive any commissions or referral fees
for any "referrals" delivered or received after the date and time of termination.
5.4
If this Agreement is terminated due to Affiliate's breach of any portion of this Agreement,
TBAS reserves the right to withhold any amounts then due and owing.
6.1
Affiliate shall only use and promote on Affiliate Websites TBAS approved advertising banners,
links, and other promotional materials.
6.2
Affiliate shall not use or employ any form of mass solicited or unsolicited electronic mailings,
newsgroup postings, IRC postings, adware, spyware, malware marketing or any other form of
"spamming" as a means of promoting Affiliate Websites or for the purpose of directing
or referring users to any Websites owned, operated or controlled by TBAS.
Affiliate further acknowledges and agrees that TBAS has the right to immediately,
and without notice, terminate your participation in the Program if TBAS, in its
sole and absolute discretion, concludes that Affiliate has engaged in the use
of any form of mass solicited or unsolicited electronic mail solicitations,
newsgroup postings, password selling or trading, warez, IRC posting, adware,
spyware, malware marketing or any other form of "spamming".
NOTE: TBAS HAS ZERO TOLERANCE FOR SPAMMING. IF AFFILIATE SPAMS,
PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, AFFILIATE WILL
BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS
OTHERWISE DUE TO AFFILIATE WILL BE FORFEITED TO TBAS.
6.3
TBAS, its subsidiaries, and affiliated entities operate within the laws governing
the adult entertainment business. However, it is the affiliate’s responsibility
to become familiar with and make every effort to continually educate him or herself
of the laws that regulate and govern the adult entertainment industry. TBAS has
provided the links below to some of the laws, as they exist today.
( CLICK HERE TO REVIEW THE TEXT OF THE CAN-SPAM ACT)
( CLICK HERE TO REVIEW THE TEXT OF THE FTC's FINAL RULE)
State Online Registers have been created and are enforced to protect children
from receiving communications which advertise a product or service that a
minor is prohibited by law from purchasing, viewing, possession, participating in,
or otherwise receiving, or which contains or advertises material that is harmful to minors.
TBAS is aware of two states, Utah and Michigan, which currently have online registers
to protect children. Click on the following links to review:
This list may be amended as enactment of similar laws occurs federally or in other states.
Notice to affiliate of said amendments is considered provided by the posting of such amendments
hereto. It is the responsibility of affiliate to frequently refer to these terms and conditions
for any amendments or modifications thereof. Further, TBAS does not represent or guarantee the
above list/links to be all-inclusive and recommends that affiliate independently research and
investigate the possibility of other state or federal legislation mandating compliance with
online registers or regulating the adult entertainment industry.
If you have questions regarding the law, please consult with an attorney.
If you have any questions concerning TopBucks Zero Tolerance Policy, please contact
6.4
Except as expressly authorized by TBAS in writing, Affiliate shall not copy,
reproduce, alter, modify, change, broadcast, distribute, transmit or disseminate
any banners or other promotional or advertising materials provided by TBAS pursuant
to this Agreement in whole or in part, in any form or manner, at any time or anywhere
in the World.
6.5 Affiliate shall ONLY use Promotional Pictures and Images
provided by TBAS to promote sites that are included in the Program. For purposes
of this Agreement, Promotional Pictures and Images means any of the images and/or
videos provided in zip file format on topbucks.com.
6.6 Affiliate shall disseminate, transmit, broadcast or distribute
the material provided through the Program only to consenting adults over the age
of eighteen (18) years, twenty-one (21) years in those locations where that is
the age of majority.
6.7 All content displayed on any Website containing TBAS banners or links,
and all content displayed on any Website to which Affiliate provides third party links to,
must comply with all local laws and community standards. Accordingly, Affiliate shall not
include, or link to, any of the following within a Website that contains TBAS banners or
links, or directly or indirectly link any of the following content or material to any
TBAS Website through any hyperlinks maintained or created on Affiliate's Websites:
(i) Material deemed obscene by TBAS, including without limitation,
materials depicting bestiality, violence, rape, torture, feces, or urine;
(ii) Any material not in full compliance with the provisions of
18 U.S.C. 2257, and as may be amended by Congress;
(iii) Any material that constitutes child pornography,
any material in which persons under the age of eighteen are depicted in actual,
simulated, or suggestive sexual situations, or material that involves depictions
of nudity or sexuality by an age inappropriate-looking performer (i.e. someone
who looks younger than 18 years of age), or by a performer who is portrayed or
made to appear to be a person under the age of 18 years of age by virtue of
the script, make-up, demeanor, costuming, setting, etc. Prohibited material
mentioned herein includes the use of the term 'lolita' for any purpose in
any fashion including, but not limited to, within meta-based tags;
(iv) Any material deemed by TBAS to be threatening,
abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious
to the reputation of any person or entity;
(v) Any material which constitutes an infringement,
misappropriation, or violation of any person's intellectual property
rights including without limitation, copyrights, trademarks, rights of
publicity, patent rights, personal property rights, privacy rights,
or any other intellectual property right; or
(vi) Any program, file, data stream, or other
material which contains viruses, worms, "Trojan horses," or any
other destructive feature, regardless whether damage is intended or
unintended, which may cause damage to any computer equipment, loss
or corruption of data or programs, or inconvenience to any person.
(vii) Any material or word usage of the following
terms located here is prohibited. Affiliates found using these terms
will be removed from the program and any funds will be forfeited.
Affiliate hereby represents and warrants each of the following:
7.1 That if Affiliate is an individual person,
he/she is over the age of eighteen (18) years;
7.2 That if Affiliate is an entity (i.e., corporation,
limited liability company, etc.) that all individuals employed or
associated with Affiliate in any way are over the age of eighteen (18) years;
7.3 Affiliate warrants and represents that it owns or
operates a lawful, and otherwise valid Internet Web site;
7.4 That the individual who provides information pursuant
to the Program and accepts this Agreement has full, lawful, power and authority
to enter into and to carry out the terms of this Agreement.
8. UNITED STATES TAXATION
8.1All United States residents and corporations, and foreign
participants who are residents of the United States, are required to provide a
completed and signed United States Department of Treasury Internal Revenue
Service Form W-9 setting forth information including a United States Federal
Employer Identification Number, or Social Security Number.
9.1 TBAS shall have the right, in its sole and absolute
discretion, to terminate the Program and any and all Program Benefits relating
to Affiliate's participation in the Program at any time and may do so with or without cause.
9.2 TBAS shall have the right, in its sole and absolute discretion,
to change or modify the Program, including without limitation, the right to pay
an Affiliate participating in the Program based on "click throughs" rather than
a flat commission or fee for a referral, as defined in section 3. If at any
time TBAS changes or modifies the Program, Affiliate shall have the right
to withdraw and terminate participation in the Program.
10.1 Nothing contained in this Agreement shall create or be
deemed to create a partnership, joint venture, or other business combination
or venture of any kind between Affiliate and TBAS, its subsidiaries,
affiliated entities, successors or assigns; nor shall any term contained
in this Agreement constitute or create any agency or employment relationship
between Affiliate and TBAS, its subsidiaries, affiliated entities, successors or assigns.
10.2 TBAS has no control over nor ownership interest in Affiliate
or Affiliate's Websites, and Affiliate has no financial or other interest in TBAS,
its subsidiaries, affiliated entities or any property owned by such entities,
except as expressly set forth herein.
11.1 TBAS does not monitor, supervise, or review content
contained on Affiliate's Websites. TBAS is not responsible for any content
appearing or otherwise distributed on, at, or in association with Affiliate's
Websites that is provided by Affiliate or independent third parties.
11.2 TBAS has no direct or indirect control over the
content of performances or services, the manner of performances or services,
or the time or duration of provision of performances or services by Affiliate on,
at or in association with Affiliate's Website except as specifically set forth in this Agreement.
TBAS makes no guaranty of any kind with respect to the Program or materials
provided by, through, or in association with the Program, and all materials are
provided to Affiliate "as is," and use of the Program and associated materials
is solely at Affiliate's risk.
TBAS disclaims all warranties, either express or implied, including, but not limited to,
warranties of merchantability and fitness for a particular purpose with regard to the
Program and any and all materials of every kind supplied to Affiliate as part of this Program.
TBAS cannot guaranty or promise Affiliate any level of success or profitability
due to Affiliate's participation in the Program. Affiliate has unilaterally
entered into an Internet service business and all risk of loss, cost, and
expense of Affiliate doing business shall be borne solely by Affiliate.
Neither party shall be liable for any loss or delay, nor be considered in breach
of this Agreement, due to an act of God, fire, natural disaster, terrorist act,
strike or other labor stoppage, declaration of war or military intervention,
computer system/server failure, network failure, governmental action, or
any other cause outside the control of the parties and which cannot be
avoided by the exercise of due care.
TBAS, its subsidiaries, affiliated entities, employees, independent contractors,
agents, representatives, assigns, and successors shall not be liable to Affiliate,
or any other person or entity, for any direct or indirect losses, injuries, or
incidental, consequential, or other damages (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, BUSINESS INFORMATION,
OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with
regard to any link to any TBAS Website, or arising from or in connection with
this Agreement or the use of the TopBucks Program materials, or due to any mistakes,
omissions, delays, errors, interruptions in the transmission, or receipt of
TBAS's services, content, or Program materials, including without limitation any
losses due to server problems or due to incorrect placement of HTML.
Affiliate shall indemnify and hold TBAS, its subsidiaries, affiliates, licensors,
content providers, service providers, employees, agents, officers, directors,
and contractors and any successor-in-interest or assign (the "Indemnified Parties")
harmless from any breach of this Agreement by Affiliate, including any use of
Program materials other than as expressly authorized in this Agreement.
Affiliate agrees that the Indemnified Parties shall have no liability in connection
with any such breach or unauthorized use, and Affiliate agrees to indemnify for
any resulting loss, damage, judgment, award, cost, expense, and attorneys' fees
of the Indemnified Parties. Affiliate shall also indemnify and hold the Indemnified
Parties harmless from and against any and all claims brought by third parties
arising out of Affiliate's use of the information accessed from a TBAS Website.
17.1 This Agreement shall not, under any circumstances, be
transferred or assigned by Affiliate to any other person or entity, and any
attempted transfer or assignment of a membership shall be void.
17.2 TBAS may, at any time, in its sole discretion and
without prior notice to Affiliate, transfer or assign this Agreement to an
affiliated or non-affiliated person or entity.
This Agreement is subject to change or modification by TBAS at any time and
changes shall become effective upon notice to Affiliate by e-mail, posting
at or via hyperlink to a TBAS Website, or by mail. An Affiliate may not
alter, delete, add or change or edit any of these terms and conditions,
and any such attempted alteration shall be void and of no effect.
Notices from a TBAS Website to Affiliates may be given by means of electronic
messages (email), by general posting on the Website, or by conventional mail.
Communications from Affiliate to TBAS may be made by electronic messages (email)
or conventional mail, unless otherwise specified in this Agreement.
All notices to TBAS sent by electronic mail shall be to
.
Notices from TBAS shall be deemed delivered when sent by TBAS to Affiliate;
notices of changes or modifications to this Agreement shall be accepted by
Affiliate upon the first use by Affiliate of the Materials provided in the
Program after such notice was sent; and, such acceptance of a change or modification
shall be deemed to relate back to the date such change or modification was originally sent by TBAS.
This Agreement shall be governed by the laws of the state of Arizona.
In the event of any dispute arising under this Agreement, the parties agree
to submit such dispute to binding arbitration in accordance with the rules of
the American Arbitration Association without regard to the amount in controversy
or the nature of relief sought; except that the parties waive their right to a
trial de novo following arbitration. The arbitrator shall be chosen by the parties
and shall be a person who is experienced in electronic commercial law and transactions.
If the parties cannot agree on a single arbitrator, each party shall forthwith
select an arbitrator of its choice, and the arbitrators thus appointed shall
then forthwith select a third arbitrator who shall be deemed chief Arbitrator.
Any final determination of an arbitrator shall be final and binding upon the parties.
Judgment on the award rendered by the Arbitrator may be entered in any state, territory
or possession of the United States. With further respect to any arbitration arising
hereunder, the substantially prevailing party in any such action shall be entitled to
its costs and reasonable attorneys' fees.
The failure of any party hereto to insist upon strict performance of any
covenant or agreement contained herein, or to exercise any option or right,
shall not be construed to be a waiver or relinquishment of any such option or
right or, of any other covenants or agreements, but the same shall be and remain
in full force and effect.
If any provision of this Agreement is held to be invalid or unenforceable,
in any respect, such invalidity or unenforceability shall not affect or impair
the validity or enforceability of the remaining provisions of this Agreement,
but, to the contrary, this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
This Agreement and any changes or modifications thereto by TBAS and accepted
by Affiliate expresses the entire agreement between the parties regarding
Affiliate's participation in the Program, and all materials directly and
indirectly related thereto, superseding and negating any prior or
contemporaneous agreements, whether written or oral. There are no representations,
agreements, arrangements, or undertakings relating to the matters addressed
which are not fully expressed herein. The headings are for convenience only
and shall not be construed to give any substantive meaning to the agreement
between the parties. This Agreement shall be construed neutrally and as the
commemoration of the mutual assent of both parties rather than for or
against either party.
TBAS strongly advises that Affiliate review this Agreement with an attorney
before acceptance of its terms so Affiliate is fully apprised of all its
rights, duties, and obligations under this Agreement. Affiliate acknowledges
that nothing herein and no statement by TBAS or any employee, representative,
agent or other person associated with TBAS has in any way prevented or
inhibited Affiliate from seeking such independent legal advice prior to
entering into this Agreement. You hereby acknowledge and agree that the
terms of this Agreement are reasonable and fair; all terms have been
fully disclosed in writing, and Affiliate has been given reasonable
opportunity to seek the advice of independent counsel with respect
to this Agreement and all transactions associated herewith.
You hereby agree that this agreement shall be governed by the
Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7000,
et seq. (the "E-Sign Act"). The E-Sign Act shall only apply to subject
matter set forth herein and elsewhere on the TBAS Web Sites where your
online agreement of affirmation is required.
By CLICKING ON THE "CREATE ACCOUNT" BUTTON on the TopBucks.com Sign-Up Page,
and by supplying TBAS with all the information required to create an account
on the Program, Affiliate has accepted all of the terms and conditions set forth herein above.
