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AFFILIATE AGREEMENT
This Affiliate Agreement ("Agreement") contains the complete
terms and conditions that apply to an individual's or entity's
participation in the ThoroCap marketing program ("Marketing
Program"). As used in this Agreement, "we", "us"
and "ThoroCap" means the website ThoroCap.com and its operators,
and "you" means the individual or entity which applied as the
"Beneficiary" for payment purposes on our sign up form as
submitted at the Site.
I. GENERAL
1.1 By marketing to and referring new customers to ThoroCap through a
tracker, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET OUT IN
THIS AGREEMENT. We will automatically become counter-party to this
Agreement.
1.2 IF YOU DO NOT WISH TO ACCEPT ALL THE TERMS AND CONDITIONS OF THIS
AGREEMENT, THEN YOU MUST NOT PROMOTE THOROCAP AND YOU WILL NOT BE
COMPENSATED BY US SHOULD YOU FAIL TO ACCEPT ALL THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
II. DEFINITIONS
2.1 "Site" means the ThoroCap.com website located at http://thorocap.com
and its related pages..
2.2 "Customer(s)" means a ThoroCap.com subscription purchased at
the Site by a person, via a Tracker assigned to you, during the term of
this Agreement.
2.3 "Tracker(s)" means the unique Tracking URL that we provide
exclusively to you, through which we track and calculate Marketing Fees.
2.4 "Tracking URL" means a unique hyperlink to the Site through
which you refer potential Customers to the Site. When the Customer opens
his/her account, the system automatically logs the Tracking URL and
records you as the marketer. You agree and acknowledge that if a potential
customer circumvents our tracker system, we shall not be held liable for
any marketing fees otherwise claimed from said Customer's activity on our
site.
2.5 "Banners and Text Links" means the graphical artwork or text
that you use to hyperlink Customers from your site to the Site.
2.6 "Marketing Fee" is the amount due and payable to you, based
solely on our system's data.
2.7 "Chargebacks" means uncollectable or charged back revenue
attributable to a Customer.
III. TERMS & CONDITIONS
3.1 Identity and Disclosure. You must provide true and complete
information to us at all times; including but not limited to, your
identity, contact information, payment instructions, nationality,
residency, location and nature of your marketing activities, and any other
information that we may request from time to time. Each beneficiary must
be at least 21 years of age. You represent and warrant that you are over
the age of 20 and have the capacity to enter into this agreement.
3.2 Marketing Activities and Responsibilities. You will, at your own cost
and expense, market to and refer Customers to the Site. You will be solely
responsible for the content and manner of your marketing activities. All
marketing activities must be professional, proper and lawful under all
applicable rules or laws in every jurisdiction in which you operate. You
represent and warrant that you will not place Banners or Text Links to us
on any website, or use any media or medium, which is libelous,
discriminatory, obscene, pornographic, unlawful or otherwise unsuitable.
Under no circumstances may you market to or refer persons less than 21
years of age to the Site, regardless of the age of majority in the
location you are marketing. ThoroCap has the sole and absolute discretion
to reject any website, marketing activity or other media for any reason we
deem objectionable. If we direct you to do so, you will immediately cease
any rejected activity.
3.3 Approved Marketing Materials. You will only use marketing materials
that have been provided by us and/or pre approved by us. You will not
modify our marketing materials, copyrights, logos, etc., without our
written consent and may link to our site only through our approved
marketing materials. During the term of this Agreement, we grant you a
terminable, non-exclusive, non-transferable right to use our logo,
trademark and other copyrighted promotional materials for the sole purpose
of marketing to and referring Customers to the Site. Under this agreement
and for no other purpose whatsoever, we will provide you, without charge,
the guidelines, graphical artwork and permitted text to use in promotional
materials. However, any CDs and other customized promotional materials
provided to you will be AT COST and deducted from Marketing Fees payable
to you.
3.4 Non Assignment. Trackers are for your sole use and are not to be
assigned to others, without our written express consent.
3.5 Commercial Use Only. This Marketing opportunity is for commercial use
only, and you may not sign up or make deposits to any account, directly or
indirectly, through your Tracker(s) for your own personal use, to
fraudulently increase the Marketing Fees payable to you or to otherwise
defraud us. In no event are you to receive Marketing Fees on Gross Revenue
generated on your own customer accounts at the Site. Violation of this
provision constitutes Fraud Traffic.
3.6 Good Faith Marketing. You will not knowingly or unknowingly benefit
from any known, unknown, suspected or unsuspected Fraud Traffic. For
clarity, we reserve the right to withhold or back-out amounts we believe
were generated by Fraud Traffic from Marketing Fees on the Trackers,
regardless of whether you participated in or knew about the Fraud Traffic.
In the event you participate in, or benefit from Fraud Traffic, then this
Agreement shall terminate effective immediately and you will forfeit any
and all Marketing Fees due to you.
3.7 Customer Information. By opening an account at the Site, Customers
will be subject to all of our rules, policies and operating procedures
that govern their activity at the Site. We reserve the right to refuse
service to any potential Customer and to close the account of any
Customer, at any time, for any reason or no reason, at our sole
discretion. All data relating to the Customers will remain our sole and
exclusive property and you acquire no right to such information, except as
expressly stated herein.
IV. Reports & Payments
4.1 Reports. We will track and report Customer activity for purposes of
calculating your Marketing Fees. The form, content and frequency of the
reports may vary from time to time in our sole discretion. At a minimum
you will receive a monthly report with your payment indicating the number
of Customers who referred by you and your total Marketing Fee, per
Tracker. This information will be available to you online in real time,
under password protection.
4.2 Marketing Fees will be in accordance with the following:
4.2.1 $0.50 USD per Tip Sheet sold. Payment for Multi-Day subscriptions
will be calculated at 10% per day based on the total number of Tip Sheets included in the
subscription term. We will pay at time of subscription.
4.2.2 The aggregated charge backs related to your referred Customers will
be withheld from monthly payments hereunder.
4.3 Time of Payment. Marketing Fees will be paid and sent out to you on
the last business day each month, except that, if the total amount due is
less than $10, the balance will be carried over and added to the next
month's Marketing Fees until the total amount is more than $10. In the
event, the balance amount carried over does not total $10 within a
consecutive three (3) month period, then the amount due will be voided and
cancelled, and we may terminate this Agreement.
4.4 Holdover for Fraud Traffic. In the event Fraud Traffic on your
Trackers is abnormally high, or there is suspicious activity, then we may
delay payment to you for up to one hundred and eighty (180) days to verify
the transactions and to otherwise ensure that such Fraud Traffic is
identified, reversed and properly allocated to your Marketing Fees.
Traffic from accounts for which the funding information cannot be
identified or if the account holders refuse to supply requested
information will be deemed suspicious activity, subject to holdover and
such referred subscriber's accounts may be suspended.
4.5 Method of Payment. All payments will be due and payable in United
States Dollars only. Payment will be made by check, wire, PayPal or Net
Teller as we in our sole discretion decide; however we will try to
accommodate your preference for check, wire, PayPal or Net Teller. Charges
for wires or courier charges for checks less than $1,500.00 USD will be
covered by you and deducted from your payment.
4.6 Customer Tracking. You understand and agree that potential Customers
must link through a Tracking URL to get credit. In no event, are we liable
for your failure or their failure to use or identify the right Trackers.
4.7 Disputes. Deposit of payment check, acceptance of payment transfer or
acceptance of other payment will be deemed full and final settlement of
Marketing Fees due for the month indicated. Hence, if you disagree with
the reports or amount payable, do NOT accept payment for such amount and
immediately send us written notice of your dispute. Dispute notices must
be received within sixty (60) days of the end of each month for which
payment is made, or your right to dispute such report or payment will be
deemed waived.
V. TERM AND TERMINATION
5.1 Term and Termination. This Agreement will take effect when you start
promoting the Site. This Agreement will be continuous until terminated
pursuant to Section 5.
5.2 Termination By You. You may terminate this Agreement, with or without
cause, immediately upon receipt by us of your written notice. In addition,
you may cease marketing the Site any time you want provided you promptly
notify us in writing that you have done so.
5.3 Termination By Us. We may terminate this Agreement, with or without
cause, upon thirty (30) days written notice to you. Further, we also may
terminate this Agreement immediately, without notice, in the following
events:
(a) You materially breach this Agreement and do not cure within five (5)
days of notice to cure; or
(b) The total cumulative balance of Marketing Fees due to you is less than
$10 for three (3) consecutive months; or
(c) We determine, in our discretion, that you benefited from Fraud Traffic
as set forth in Section 2.10 herein; or
(d) We determine you have breached your representations and warranties set
forth in Section 3.2 hereof.
5.4 Effect of Termination: The following will apply upon the effective
date of termination:
(a) You will cease promotional activity and all rights and licenses given
to you under this Agreement will terminate immediately, except as
expressly stated herein;
(b) You will return all confidential information and cease use of any of
our trade names, trademarks, service marks, logos, banners and other
designations of ThoroCap;
(c) We may leave open, redirect or deactivate any Trackers in our sole
discretion without any obligation to pay you on new Customers who come in
or would have come in on those Trackers;
(d) We will continue to pay you Marketing Fees for all existing Customers
who signed up through the effective date of termination; however if we
suspect Fraud Traffic, we may withhold payments for up to one hundred
eighty (180) days, from the original due date, to ensure that the payment
is correct and that any fraud has been reversed out; and
(e) In the event we determine, in our reasonable discretion, that you
knowingly participate in Fraud Traffic, as set forth in Section 2.10
herein, we may in our sole discretion stop, cancel and forfeit your
Marketing Fees; and in such case, we do not give up any other legal rights
we have against you.
VI. LIABILITIES
6.1 No Warranties. WE DO NOT WARRANT THAT OUR SYSTEM, NETWORK, SOFTWARE OR
HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE OR
UNINTERRUPTED. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
THE QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR
SUITABILITY OF OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED
TO US BY THIRD PARTIES). WE (OR OUR PROVIDERS OR UNDERLYING VENDORS) ARE
NOT REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, AND SOFTWARE OR
HARDWARE. YOU EXPRESSLY WAIVE ANY AND ALL CLAIMS YOU MAY OTHERWISE ASSERT
ARISING FROM ANY DEFECT, ERROR OR BUG IN OUR SOFTWARE, SYSTEM NETWORK OR
HARDWARE.
6.2 Billing and Collection Limitations. We may in our sole discretion,
with or without notice, use any available means to block or restrict
certain Customers so as to reduce the number of fraudulent, unprofitable
transactions or for any reason whatsoever, including but not limited to
daily or monthly purchase limits, address verification or negative and
positive credit card databases. We do not guarantee or warrant the success
of such fraud prevention efforts. Nor would you or any Customers have any
rights or claims arising from our action to so block or restrict any
Customer accounts or our failure to prevent fraud. You acknowledge and
expressly agree that the criteria we may use to block or restrict possible
Fraud Traffic may impact or prevent play by your Customers' accounts even
if said Customers have never engaged personally in Fraud Traffic.
6.3 Liability Limitations. Our obligations under this Agreement do not
constitute personal obligations of the directors, officers, employees,
affiliates, contractors, advisors or shareholders of ThoroCap. Any
liability arising under this Agreement will be satisfied solely from the
revenues generated hereunder. Our liability is strictly limited to direct
contractual damages, and in no event will we be liable for any tort
damage, indirect, special, incidental, consequential or punitive loss,
injury or damage of any kind (regardless of whether we have been advised
of the possibility of such loss).
6.4 Indemnification. You will defend, indemnify and hold us and our
officers, directors, employees and representatives harmless from and
against any and all liabilities, losses, damages and costs, resulting from
or arising from, your breach of this Agreement, including any which may
result from your marketing to Customers in jurisdictions which may
restrict or prohibit gaming-related activities.
VII. INDEPENDENT INVESTIGATION
7.1 Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS
AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE
INDEPENDENTLY EVALUATED THE DESIRABILITY OF MARKETING THOROCAP AND ARE NOT
RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET
FORTH IN THIS AGREEMENT.
7.2 Independent Research. You understand that gambling laws may vary from
city to city, state to state and country to country. YOU HAVE
INDEPENDENTLY EVALUATED THE LAWS IN YOUR LOCALE WHICH APPLY TO YOUR
ACTIVITIES AND REPRESENT AND WARRANT THAT YOU MAY PARTICIPATE IN OUR
MARKETING PROGRAM, AS DESCRIBED, WITHOUT VIOLATING ANY APPLICABLE RULES OR
LAWS.
VIII. MISCELLANEOUS
8.1 Notices. All notices pertaining to this Agreement will be given by
email as follows: to us at affiliates@thorocap.com and, to you at the
postal and/or e-mail address provided on the Marketer Sign-Up Form (or as
subsequently updated by you to us in the event of change).
8.2 Relationship of Parties. There is no relationship of exclusivity,
partnership, joint venture, employment, agency or franchise between you or
us under this Agreement. Neither party has the authority to bind the other
nor to incur any obligation on the other's behalf, except as expressly
provided herein. Nothing in this Agreement will be construed to provide
any rights, remedies or benefits to any person or entity not a party to
this Agreement.
8.3 Non Exclusive. You understand that we may at any time (directly or
indirectly), enter into marketing terms with other marketers on the same
or different terms as those provided to you herein and that such marketers
may be similar, and even competitive, to you. You are not entitled to any
compensation, claim or adjustment to your Agreement in the event we do
enter into marketing terms with third parties. You understand that we may
re-direct traffic and users from our site to any other website that we
deem appropriate in our sole discretion, without any additional
compensation to you.
8.4 Confidentiality and Non Disclosure. As a marketer for the Site you
will receive confidential information from us as to our marketing plans,
marketing concepts, structure and payments. This information is
confidential to us and constitutes our proprietary trade secrets.
Therefore, you are not to disclose this information to third parties
without our express prior written consent.
8.5 Press. You may not issue any press release with respect to this
Agreement or your participation in this Marketing Program without our
prior written consent.
8.6 Assignment. This Agreement and the rights and obligations hereunder
may not be assigned by you without our express prior written consent. We
reserve the absolute right to refuse consent to any assignment for any
reason or no reason.
8.7 Governing Law. The validity of this Agreement, its construction,
interpretation, and enforcement, and the rights of the parties hereto will
be determined under, governed by, and construed in accordance with the
laws of the State of Arkansas.
8.8 Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or breach of this Agreement, shall be settled by binding
arbitration, and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction. There will be one arbitrator,
mutually agreeable to the Parties, or if the Parties cannot agree on an
arbitrator, then one will be appointed by a court of competent
jurisdiction in the State of Arkansas. The losing Party will pay all the
expenses of the arbitration and/or enforcement action, including attorneys
fees. Arbitration shall take place in Arkansas and/or at such other
location as the parties mutually agree.
8.9 Force Majeure. The parties' obligations under this Agreement are
subject to and neither party will be liable for, failure to perform,
damage, or malfunction of any equipment, or any consequences thereof
occasioned by or due to fire, flood, water, the elements, labor disputes,
power failures, explosions, governmental actions, unavailability of
transportation, acts or omission of third-parties, or any other causes
beyond the party's reasonable control.
8.10 Severability/Waiver. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and
valid under applicable law but, if any provision of this Agreement is held
to be invalid, illegal or unenforceable in any respect, such provision
will be ineffective only to the extent of such invalidity, or
unenforceability, without invalidating the remainder of this Agreement or
any provision hereof. No waiver will be implied from conduct or failure to
enforce any rights and must be in writing to be effective.
8.11 Modification. We may modify any of the terms of this Agreement at any
time, in our sole discretion, by emailing you a change notice OR by
posting the new Agreement on our Site. It is your responsibility to visit
this page at least once a week to make sure you are up to date with the
latest terms and conditions of our Marketing Program. IF ANY MODIFICATION
IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT.
YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING POSTING OR NOTICE OF
CHANGE WILL BE DEEMED BINDING ACCEPTANCE OF THE MODIFICATION.
8.12 Entire Agreement. This Agreement embodies the complete agreement and
understanding of the parties hereto with respect to the subject matter
hereof and supersedes and preempts any prior understandings or agreements
between the parties, written or oral, which may be related to the subject
matter hereof. The headings in this Agreement are for convenience only and
will have no effect on the construction of this Agreement.
IN WITNESS WHERE OF, you expressly agree to the terms and conditions of
this Agreement by submitting the Affiliate Sign-Up Form to us online.
ThoroCap
December 2006
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