1.1 DarkBlue.com Pty Ltd ACN 094 225 082 ("DarkBlue") is the owner and operator of an internet marketing affiliate network program called DarkBlue ("Affiliate Program") operated via an internet website located at http://www.darkblue.com ("Site").
1.2 DarkBlue wishes to acquire advertising space on high quality, high traffic internet websites to advertise the goods and services of DarkBlue and its subsidiaries as well as the goods and services of independent third parties ("Affiliate Program Advertisers" or "Advertisers").
1.3 This Agreement sets out the terms and conditions on which DarkBlue is willing to acquire such advertising space from you ("Affiliate") as well as the terms and conditions of your membership to and participation in the Affiliate Program.
1.4 By completing and sending the DarkBlue Affiliate Membership Application Form to us, you shall be deemed to have read, understood and agreed to be bound by the terms and conditions of this Agreement.
1.5 Affiliate Program Advertiser may submit additional terms and conditions upon which an Affiliate is able to participate in that Advertiser's campaign ("Insertion Order"). The terms and conditions of the Insertion Order shall be included in and become part of the terms and conditions of this Agreement by reference. In the event of any inconsistency between the terms of the Insertion Order and the terms of this Agreement, then the terms of the Insertion Order shall prevail, but only so far as such terms are applicable to the Affiliate. Nothing contained in the Insertion Order shall be binding on DarkBlue unless expressly agreed to in writing.
"Affiliate's Relatives" means the spouse, parent or remoter lineal ancestor, son, daughter or remoter issue, or brother or sister of the Affiliate.
"Click-through" means the act of a Visitor clicking on a banner advertisement or other text or graphic hyper-link displayed on the Affiliate's website(s), whereby the Visitor's web-browser is redirected to the website(s) of DarkBlue and/or the Affiliate Program Advertisers.
"Lead" means any act of a Visitor that occurs after a Click-through, such as a completing a form or other mechanism to identify potential customers that is not dependent on a payment being made but for which an Affiliate Program Advertiser attaches an implied value and has nominated a corresponding Pay-out Rate for such acts;
"Sale" means any act of a Visitor that occurs after a Click-through that directly results in a payment being made to DarkBlue and/or Affiliate Program Advertisers.
"Transaction" means a Click-through, Lead or Sale.
"Visitor" means a person or entity (other than the Affiliate, the Affiliate's agents and/or the Affiliate's Relatives) connected to the internet and whose internet browser is configured in such a way that the website(s) of the Affiliate are displayed to the person at the time the Transaction is conducted.
3. AFFILIATE MEMBERSHIP REQUIREMENTS
3.1 Personal Details: The Affiliate must provide DarkBlue with complete, accurate and up to date information when applying to become an Affiliate and setting up an account with DarkBlue ("Affiliate Account"). This information must include the Affiliate's full name, address, email address, social security number and tax file number (if applicable). The Affiliate must not use a false name or false postal/street address to establish an Affiliate Account. DarkBlue does not permit the use of any free web-based email accounts, eg. hotmail.com, yahoo.com, mail.com as the nominated contact email address for an Affiliate Account. Any use or attempted use of a free web-based email account in connection with an Affiliate Account may lead to the Affiliate Account being immediately suspended or terminated and/or the termination of this Agreement.
3.2 Multiple Accounts: The Affiliate is only entitled to set up one (1) Affiliate Account. The Affiliate may use the Affiliate Account in connection with as many domains and/or websites the Affiliate own or otherwise has the right to use. In the event that DarkBlue has reasonable grounds to believe that the Affiliate has set up multiple Affiliate Accounts, DarkBlue shall terminate all such Affiliate Accounts and withhold payment of any commission or other monies credited to these Affiliate Accounts or otherwise payable to the Affiliate.
3.3 Age Restrictions: The Affiliate must be at least eighteen (18) years of age to open an Affiliate Account or otherwise participate in the Affiliate Program.
3.4 Prohibited Countries: If the Affiliate is a resident or located in any of the countries or states listed below ("Prohibited Countries"), or if the Affiliate's website host provider or name servers are located in any of the Prohibited Countries, the Affiliate shall be ineligible to open an Affiliate Account or otherwise participate in the Affiliate Program. In the event that DarkBlue or an Affiliate Program Advertiser have reasonable grounds to believe that at any time after setting up an Affiliate Account, the Affiliate is or becomes a resident of or located in any of the Prohibited Countries, DarkBlue shall terminate the Affiliate Account and withhold payment of all commission or other monies credited to the Affiliate Account or otherwise payable to the Affiliate as a result of a breach of this clause. For the purposes of this Agreement, the following countries or states shall be deemed to be Prohibited Countries: ACEH, AFGHANISTAN, ALBANIA, ALGERIA, ANDORRA, ANGOLA, ARMENIA, AZERBAIJAN, BAHRAIN, BALTICS, BANGLADESH, BELARUS, BELGIUM, BELIZE, BEMEN, BENIN, BHUTAN, BOLIVIA, BOSNIA, BOSNIA, BOTSWANA, BRUNEI, BULGARIA, BURKINA FASO, BURMA, BURUNDI, CAMBODIA, CAMEROON, CENTRAL AFRICAN REPUBLIC, CHAD, CHINA, COMOROS, CONGO, COSTA RICA, COTE DIVOIRE, CROATIA, CUBA, CYPRUS, CZECH REPUBLIC, CZECHREPUBLIC, DENMARK, DJIBOUTI, HERZEGOVINA, HONG KONG, HUNGARY, INDIA, INDONESIA, IRAN, IRAQ, ISRAEL, IVORY COAST COTE, EASTTIMOR, ECUADOR, EGYPT, EL SALVADOR, EQUATORIAL GUINEA, ERITREA, ESTONIA, ETHIOPIA FRENCH GUYANA, FRENCH POLYNESIA, GABON, GAMBIAV GEORGIA, GHANA, GIBRALTAR, GREECE, GUATEMALA, GUERNSEY, GUINEA, GUINEA-BISSAU, GUYANA, DIVOIRE, JORDAN, KAZAKHSTAN, KENYA, KIRIBATI, KOREA, KOREA NORTH SOUTH, KUWAIT, KYRGYZSTAN, LAOS, LATVIA, LEBANON, LESOTHO, LIBERIA LIBYA, LITHUANIA, MACAO CHINA, MACEDONIA, MADAGASCAR, MALAWI, MALAYSIA, MALDIVES, MALI, MERCOSUR, MEXICO, MICRONESIA, MOLDOVA, MONGOLIA, MONTENEGRO, MOROCCO, MOZAMBIQUE, MYANMAR, NAGORNO-KARABAKH ARTSAKH AZERBAIZAN, NAMIBIA, NAURU, NEPAL, NICARAGUA, NIGER, NIGERIA, NIUE, NORTH KOREA, NORTH VIETNAM, OMAN, PAKISTAN, PALAU, PALESTINIAN, PALESTINIAN AUTHORITY, PARAGUAY, PHILIPPINES, QATAR, ROMANIA, RUSSIA, RWANDA, SAHARA, SAO, SAUDI ARABIA, SAUDI ARABIA SENEGAL, SERBIA, SEYCHELLES, SIERRA LEONE, SINGAPORE, SLOVAKIA, SLOVENIA, SOMALIA, SOUTH KOREA, SOUTH KURDISH, SOUTHWESTERN SAHARA, SRI LANKA, SUDAN, SURINAME, SWAZILAND, SYRIA, TAIWAN, TAJIKISTAN, THAILAND, THE NETHERLANDS, TIBET, TOGO, TOME AND PRINCIPE, TONGA, TUNISIA, TURKEY, TURKMENISTAN, TURKS AND CAICOS ISLANDS, TUVALU, UGANDA, UKRAINE, UNITED ARAB EMIRATES, URUGUAY, USSR, UZBEKISTAN, VANUATU, VIETNAM, YEMEN, YUGOSLAVIA, ZAIRE DEM REP OF CONGO, ZAMBIA, ZIMBABWE.
3.5 Australian Residents - Taxation Obligations
(a) If the Affiliate is an Australian resident for taxation purposes and, if the Affiliate is an individual they are at least 18 years of age, then the Affiliate is required to provide DarkBlue with either an Australian Business Number (ABN) or a "No ABN Required Statement". If the Affiliate fails to provide DarkBlue with an ABN or a "No ABN Required Statement", DarkBlue shall withhold 48.5% of the amounts otherwise payable to the Affiliate under clause 6, pursuant to section 12-190 of Schedule 1 to the Taxation Administration Act 1953 (Cth).
(b) If the Affiliate is an Australian resident for taxation purposes and is registered for GST under the A New Tax System (Goods and Services Tax) Act 1999 ("GST Act"), then the Affiliate shall be deemed to be making a Taxable Supply (as that term is defined in the GST Act) to DarkBlue. In these circumstances, in addition to the amount payable to the Affiliate pursuant to clause 6 below ("Payouts"), DarkBlue shall credit the Affiliate's account with an additional amount equal to 10% of the Payouts for the GST that the Affiliate is liable to pay under the GST Act. The Affiliate hereby authorises Dark Blue to issue Recipient Created Tax Invoices (as that term is defined in the GST Act) for the total amount payable to the Affiliate (ie. GST inclusive amount) for these Taxable Supplies.
4. AFFILIATES ELIGIBILITY CRITERIA AND OBLIGATIONS
In order to become a member of and participate in the Affiliate Program, the Affiliate is required to satisfy and maintain all of the following eligibility criteria and requirements. DarkBlue reserves the right to terminate this Agreement and cancel the Affiliate's membership to and participation in the Affiliate Program if the Affiliate fails to meet any of these criteria or breaches any of these requirements at any time:
4.1 The Affiliate's website(s) must be in English.
4.2 The Affiliate's website(s) must, in DarkBlue's sole opinion, be professionally designed, with substantial content that is of interest, value and appeal to DarkBlue's target audience, and must not have broken links or pages under construction.
4.3 Each of the Affiliate's website(s) must receive a minimum of 100 unique Visitors per day.
4.4 The Affiliate's website(s) must not be hosted on a "free hosting" server unless otherwise approved by DarkBlue.
4.5 The URL for each of the Affiliate's websites must be a top-Level Domain (ie. not on a sub-domain or country code domain), unless otherwise approved by DarkBlue.
4.6 The Affiliate's website(s) must not be involved or assist in the conduct of illegal activity of any kind or promote business opportunities or investments which are not permitted by law in the relevant jurisdictions.
4.7 The Affiliate shall not under any circumstances, incentivize any of the goods and services advertised by DarkBlue or Affiliate Program Advertisers by encouraging Visitors to click on advertiser banners or other links in order to earn money, points or any other reward or incentive unless expressly approved by DarkBlue in writing.
4.8 The Affiliate's website(s) must not contain material or content (or links to such content) that:
a. Contains nudity, vulgar or obscene language or is otherwise of an adult or pornographic nature;
b. Is obscene or may be hateful or offensive on racial, ethnic, sexual or any other grounds; is harmful, vulgar or distasteful; or is defamatory, libelous, or invades another person's privacy or proprietary rights or is otherwise illegal.
c. Depicts minors engaged in any activity of a sexual nature.
d. Infringes the trademark rights, copyright or other intellectual property rights of third parties.
e. Advertises or offers for sale any goods or services that promote file-sharing or peer-to-peer file transfer networks
4.9 The Affiliate must not place any statements on or near the advertising banners of either DarkBlue or Affiliate Program Advertisers, requesting or insisting that Visitors to the Affiliate's website(s) "click" on the banner, including but not limited to the following statements: "Click here to visit our sponsor"; "Please support our sponsor"; "To visit our sponsor, click here"; or "Please visit our Advertiser".
4.10 The Affiliate shall only use the banners and text provided by DarkBlue to link Visitors to Affiliate Program Advertisers websites. The Affiliate must not display such advertising banners or text links in such a way as to mislead or confuse people into believing that either DarkBlue or the Affiliate Program Advertisers are associated with or endorsed by the Affiliate or the Affiliate's site.
4.11 Advertising banners or text links must not be be displayed on the Affiliate's website(s) in such a way that may mislead or deceive the Visitor into clicking on the link for any purpose other than for the purpose of being referred to the Affiliate Program Advertiser's website, so that it is reasonably likely that it will result in a bona fide Transaction for the Affiliate Program Advertiser.
4.12 The Affiliate must not display:
(a)the advertising banners and text links provided by DarkBlue ("DarkBlue Advertisments") or
(b)the Affiliate's website(s) that contain the DarkBlue Advertisments or links to such website(s),
on or in newsgroups, message boards, electronic mail messages (including both unsolicited and "opt-in" or permission based e-mail, and whether or not those messages are sent in contravention of the United States CAN-SPAM Act of 2003), banner networks, counters, toolbars, chat rooms, guest books, IRC channels, via "adware" or "spyware" programs installed on the Visitor's computer, or on or through any similar devices.
4.13 The Affiliate shall not permit the opening of exit consoles on the Affiliate's website(s) when a Visitor clicks on one of the advertising banners and/or text links of DarkBlue or an Affiliate Program Advertiser.
4.14 The Affiliate shall not establish or cause to be established any promotion that provides any rewards, points or compensation for a Transaction that allows third parties ("Sub-Affiliates") to place links to the Advertiser's web site or web site content on the Sub-Affiliate's website or in its e-mails, without the Affiliate Program Advertiser's prior written permission.
4.15 The Affiliate must provide DarkBlue with a functional username and password for all password protected URLs that will send traffic to DarkBlue or an Affiliate Program Advertiser prior to placing an advertising banner or text link on that page. The username and password combination must remain functional throughout the term of the Affiliate's membership to and participation in the Affiliate Program.
5. FRAUDULENT TRANSACTIONS, NON-UNIQUE TRANSACTIONS or PROHIBITED VISITORS
5.1 If a Visitor engages in an act that constitutes a Transaction and DarkBlue and/or the Affiliate Program Advertiser have reasonable grounds to believe that the Visitor is either non-human, the Affiliate themselves, the Affiliate's agents and/or the Affiliate's Relative then the Transaction shall be deemed to be fraudulent ("Fraudulent Transaction").
5.3 The affiliate shall not utlize or participate in any spyware, adware or parasiteware techniques for driving traffic on DarkBlue. DarkBlue reserves the right to research and investigate Affiliates and their activities and, at DarkBlue's discretion, determine whether or not these practices are in place. Affiliates found to be in violation of this clause will be immediately terminated from the program and will forfeit all commissions.
5.4 If a Visitor engages in an act that constitutes a Transaction and DarkBlue and/or the Affiliate Program Advertiser have reasonable grounds to believe that the Visitor is a person who has previously been referred from the Affiliate's URL, then that Transaction shall be deemed to be non-unique ("Non-Unique Transaction").
5.5 The Affiliate is not entitled to commissions or any other payments resulting from Fraudulent Transactions or Non-Unique Transactions.
5.6 DarkBlue and the Affiliate Program Advertisers reserve the right to refuse to pay Affiliates for commissions derived from Transactions that DarkBlue and/or the Affiliate Program Advertisers have reasonable grounds to believe were initiated by Visitors located in any of the Prohibited Countries ("Prohibited Visitors"). DarkBlue also reserves the right to refuse to serve up advertising banners of the Affiliate Program Advertisers to such Prohibited Visitors.
6. PAYOUTS TO AFFILATES
6.1 The Affiliate shall be entitled to be paid the nominated "Payout Rate" for each "Approved Payout Event" ("Payouts"), as those terms are defined in clause 9 of the DarkBlue Advertiser Agreement located at http://www.darkblue.com/index.htm?mainPage_new=1§ion=adv_tc ("Advertiser Agreement"). The Affiliate's Account will be credited with an amount equal to the Payouts earned during a particular month on the tenth (10th) day after the end of that month. The Affiliate shall not be entitled to be paid for a "Declined Payout Event" (as that term is defined in clause 9 of the Advertiser Agreement).
6.2 DarkBlue uses a cookie based tracking system to monitor and record Visitors to the Affiliates' Websites (including the times and frequency of such visits). If a Visitor has clicked on the Advertiser's link placed on more than one of the Affiliates' websites, the Payout will be credited to the Affiliate whose link was most recently clicked on, prior to the relevant Sale or Lead. DarkBlue's tracking system shall be the sole and binding record in this regard.
6.3 DarkBlue will pay the amount of credit in the Affiliate's Account by either wire transfer/direct deposit into the Affiliate's nominated bank account or by depositing funds into the Affiliate's PayPal Account within ten (10) days after the end of each calendar month for all commissions earned during the prior month, less any taxes Dark Blue may be required to withhold. DarkBlue reserves the right (in its sole and absolute discretion) to refuse to make payments into the Affiliate's nominated PayPal Account (if any) and in such event, the Affiliate must provide DarkBlue with valid bank account details in order for payment to be made by wire transfer/direct deposit.
6.4 If commissions earned by the Affiliate during any calendar month are less than US$30.00, then DarkBlue may withhold those commissions until the month in which the total amount due is at least $30.00 or until this Agreement is terminated.
6.5 DarkBlue reserves the right to withhold payment of any commissions or other amounts payable that DarkBlue determines, in its sole and absolute discretion, were derived as a direct or indirect result of a breach of the terms and conditions of this Agreement.
7. TRACKING AND REPORTING OF CLICK-THROUGHS, LEADS AND SALES
7.1 In order for DarkBlue to track and record transactions resulting from Click-throughs, Leads or Sales from an Affiliate's website, proprietary computer code will be included in the advertising banners or other text links provided to the Affiliate ("Tracking Code"). The Tracking Code is used enable DarkBlue to provide the Affiliate with accurate and timely accounting information. The Affiliate must not alter or otherwise tamper with the Tracking Code.
7.2 DarkBlue will provide the Affiliate with a password that will enable the Affiliate to log into a password-protected part of the Site for the purpose of accessing information about the Affiliate's Account, including the number of times the advertising banners or other links of DarkBlue or Affiliate Program Advertisers on the Affiliate's website(s) have been clicked-on or generated a Lead or Sale for DarkBlue or an Affiliate Program Advertiser.
7.3 The information contained in these reports shall be the sole and determinative record in regard to the number of Payout Events for which an Affiliate is be entitled to a Payout.
8. PAYMENT FROM AFFILIATE PROGRAM ADVERTISERS.
8.1 DarkBlue does not warrant, represent or guarantee that payment of the Payouts will be made by Affiliate Program Advertisers. DarkBlue shall not in any way whatsoever be responsible for making such payments. DarkBlue shall use its best efforts to collect payment from the Affiliate Program Advertisers, however, DarkBlue is not obligated or required to bring any lawsuit or engage any collection services to collect same.
8.2 In the event that an Affiliate Program Advertiser has not made payment within (60) sixty days after the billing date, DarkBlue shall so notify the Affiliate in writing. The Affiliate reserves the right to take whatever collection activity it deems appropriate against the Affiliate Program Advertiser including the institution of legal proceedings.
9. REVERSED TRANSACTIONS and CHARGEBACKS
9.1 An Affiliate Program Advertiser may request that DarkBlue, or DarkBlue may on its own initiative, debit the Affiliate's Account with an amount equal to the amount of a Payout previously credited to the Affiliate's Account or withhold payment of an amount otherwise owing to the Affiliate in any of the following circumstances (collectively defined as "Charge-backs"):
(a) return of a product purchased from a Sale;
(b) a duplicate entry in the Affiliate's Account or other clear error;
(c) a non-bona fide Transaction, Fraudulent Transaction or Non-unique Transaction;
(d) non-receipt of payment from the Visitor, whether caused by the credit card holder repudiating the charge incurred or otherwise;
(e) refund of payment to the Visitor by the Affiliate Program Advertiser; or
(f) The Affiliate's failure to comply with the terms of this Agreement or an Advertiser's Insertion Order.
9.2 Charge-backs requested by an Advertiser in accordance with the preceding clause may be applied up to and including the 60th day after the end of the month in which the Payout was earned ("Charge-back Period"). An Advertiser may request that a Payout to the Affiliate be postponed for one (1) payment cycle where the Advertiser is verifying a Lead or the Advertiser has a product return policy or guarantee to the Visitor that allows the Visitor to return the product during the Charge-back Period.
10. CHANGES TO THE AFFILIATE PROGRAM AND THE SITE
10.1 DarkBlue may in its sole and absolute discretion, change, suspend or discontinue any aspect of the Affiliate Program at any time, including the availability of any service feature, links, Affiliate Program Advertisers and/or the Site content.
10.2 DarkBlue may place limits on certain features and services or restrict the Affiliate's access to parts or all of the Affiliate Program and the Site (including the Affiliate's Account) without notice or liability.
10.3 The Affiliate Program and the Site may be interrupted from time to time, and may not always be virus or error-free.
11. AMENDMENTS TO THIS AGREEMENT
11.1 DarkBlue reserves the right to modify, alter or amend this Agreement at any time in its absolute discretion. The Affiliate shall be bound by all such amendments immediately upon being giving notice of such amendments in accordance with this clause.
11.2 DarkBlue shall provide a notice setting out the amended terms and conditions, by posting a notice on the Site and sending the Affiliate a notice by email at the address nominated by the Affiliate when establishing the Affiliate's Account. All such notices shall be deemed to have been validly given upon the logging by DarkBlue's server of confirmation of delivery of the email to the recipient's mail server.
11.3 The Affiliate shall be deemed to have knowledge of, understood and agreed to be bound by the amended terms and conditions by virtue of the Affiliate's continued participation in the Affiliate Program and/or use of the Site immediately following the date such notice is validly given.
12. OWNERSHIP OF COPYRIGHTED MATERIAL, TRADEMARKS AND OTHER INTELLECTUAL PROPERTY
12.1 The Affiliate acknowledges and agrees that DarkBlue owns the copyright and all other intellectual property rights to the Site and the DarkBlue Affiliate Program and all materials provided on the Site and the DarkBlue Affiliate Program, unless otherwise expressly indicated. All rights are reserved by DarkBlue.
12.2 "DARKBLUE" is a trademark and service mark of DarkBlue. DarkBlue it hereby grants the Affiliate a non-exclusive, non-transferable, non-sublicenseable license to use DarkBlue's logo, trademarks, trade names, or service marks (collectively referred to as "Marks") solely in connection with the promotion and sale of DarkBlue services and programs on and through the Affiliate's websites. The Affiliate acknowledges that the Marks are the sole property of DarkBlue.
12.3 Other than the license granted herein, nothing herein shall be construed as granting you any right, title or interest in or to the Marks. DarkBlue reserves the right to approve the form and placement of the Marks on your websites. DarkBlue may, in its sole discretion, require you to cease use of the Marks.
12.4 The Affiliate hereby grants to DarkBlue, a non-exclusive, non-transferable, non-sublicenseable license to use the Affiliate's logo, trademarks, trade names, or service marks ("Affiliate Marks") solely in connection with the promotion of the Affiliate Program. DarkBlue it acknowledges that the Affiliate Marks are solely your property.
13. DISCLAIMER OF WARRANTIES
13.1 THE AFFILIATE EXPRESSLY AGREES THAT USE OF ANY DARKBLUE WEB SITE AND THE AFFILIATE PROGRAM IS AT THE AFFILIATE'S SOLE RISK AND ARE PROVIDED ON AN "AS IS" BASIS. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, DARKBLUE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY LAW, CUSTOM OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, INFORMATIONAL CONTENT, ACCURACY, AND SYSTEM INTEGRATION. TO THE MAXIMUM EXTENT PERMITTED BY LAW DARKBLUE SPECIFICALLY DISCLAIMS ANY WARRANTY (A) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT DEFECTS WILL BE CORRECTED; (C) THAT THE SECURITY METHODS EMPLOYED WILL BE REASONABLE UNDER EXISTING INDUSTRY STANDARDS; OR (D) REGARDING CORRECTNESS, ACCURACY OR RELIABILITY.
14. LIMITATION OF LIABILITY
14.1 TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NEITHER DARKBLUE NOR ANY OF ITS RELATED COMPANIES, AFFILIATES, ADVERTISERS, SERVICE PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, RESULTING FROM THE USE OR THE INABILITY TO USE THE SITE OR THE AFFILIATE PROGRAM, FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, RESULTING FROM ANY COSTS INCURRED BY AN AFFILIATE IN ATTEMPTING TO PROMOTE DARKBLUE OR AFFILIATE PROGRAM ADVERTISERS, RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH ANY DARKBLUE WEB SITE OR THE AFFILIATE PROGRAM OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS PROHIBITED BY LAW IN THE APPLICABLE JURISDICTION. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DARKBLUE'S LIABILITY TO THE AFFILIATE OR ANY OTHER PARTY IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT PAYABLE TO THE AFFILIATE BY DARKBLUE OR THE AFFILIATE PROGRAM ADVERTISERS DURING THE TERM OF THIS AGREEMENT.
15.1 THE AFFILIATE SHALL INDEMNIFY AND FOREVER HOLD HARMLESS, DARKBLUE, ITS RELATED COMPANIES AND ASSOCIATES, ADVERTISERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, PARTNERS AND ASSOCIATES FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DEMANDS, LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, JUDGMENTS, SETTLEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND INVESTIGATION COSTS), OR ANY OTHER LIABILITY WHATSOEVER (ANY OR ALL OF THE FOREGOING HEREINAFTER REFERRED TO AS "LOSSES") INSOFAR AS SUCH LOSSES (OR ACTIONS IN RESPECT THEREOF) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION (I) ANY CLAIM THAT THE USE OF THE AFFILIATE'S DOMAIN NAME AND/OR WEBSITE IN ANY WAY INFRINGES UPON OR OTHERWISE VIOLATES ANY TRADEMARK, TRADE NAME, SERVICE MARK, LICENSE, OR ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY, (II) ANY MISREPRESENTATION OR BREACH OF A REPRESENTATION OR WARRANTY OR BREACH OF A COVENANT OR AGREEMENT MADE BY THE AFFILIATE, OR (III) ANY OTHER CLAIM RELATED TO THE AFFILIATE'S PARTICIPATION IN THE DARKBLUE AFFILIATE PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY CONTENT ON THE AFFILIATE'S WEBSITE THAT IS NOT ATTRIBUTABLE TO DARKBLUE OR THE ADVERTISERS.
16. TERMINATION OF AGREEMENT AND CANCELLATION OF MEMBERSHIP
16.1 Either party may terminate this Agreement for any reason whatsoever upon giving two (2) days notice to the other party.
16.2 DarkBlue may cancel the Affiliate's Account and Membership in the Affiliate Program and terminate this Agreement immediately and without notice to the Affiliate, upon breach by the Affiliate of any of the provisions contained in clauses 3, 4 or 5 of this Agreement.
16.3 In the event that this Agreement is terminated for breach by the Affiliate, the Affiliate shall not be eligible to re-apply to become an Affiliate or otherwise participate in the Affiliate Program without prior written consent of DarkBlue. Any attempt to create a new Affiliate Account without such consent or any amounts earned in this new Affiliate Account shall be null and void.
16.4 Upon termination of this Agreement, any outstanding credit balance in the Affiliate's Account validly earned by the Affiliate prior to the date of termination less an Account Termination Fee of twenty five US dollars (US $25.00) shall be paid to the Affiliate within 30 days. Any amounts credited to the Affiliate's Account that are earned in violation of this Agreement or are otherwise unlawfully obtained by the Affiliate shall be null and void and shall be deemed unearned and will not be paid to the Affiliate.
16.5 Upon termination of this Agreement, any license or sublicense granted to the Affiliate or by the Affiliate under this Agreement will automatically terminate, and the licensee/sub-licensee must immediately destroy or delete all physical and electronic copies of the respective party's intellectual property and confidential information, and cause all advertising banners and other links to DarkBlue and Affiliate Program Advertisers to be removed from the Affiliate's websites.
16.6 In the event that this Agreement is terminated, DarkBlue shall notify all Affiliate Program Advertisers that the Affilaite's membership in the Affiliate Programs has ended and request that they cease displaying links to the Affiliate's website.
16.7 None of the abovementioned remedies shall be exhaustive, but shall, wherever possible, be cumulative and in addition to all other remedies available at law or in equity.
17. FORCE MAJEURE
17.1 Neither party will be in default or otherwise liable for any delay or failure in its performance under this Agreement where such delay or failure arises by reason of an Act of God, or any government or governmental body, acts of war, the elements, strikes or labor disputes, power or system failures, failure of the Internet, computer hacking, or other causes beyond the reasonable control of such party.
18. GOVERNING LAW
18.1 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF QUEENSLAND, AUSTRALIA. THE AFFILIATE HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF QUEENSLAND, AUSTRALIA AND ALL APPELATE COURTS.
19.1 If any provision of this Agreement is found to be unenforceable it shall be severed from this agreement and the remainder will remain in full force and effect.
20.1 This Agreement and the rights and obligations under it are personal to the Affiliate. The Affiliate may not transfer, delegate, or assign any rights or obligations under this Agreement.
21. ENTIRE AGREEMENT
21.1 This Agreement constitutes the entire agreement between the Affiliate and DarkBlue in relation to or in connection with the Affiliate Program and supersedes all prior agreements between the parties regarding the subject matter contained herein.
22.1 The waiver or failure of any party to exercise any rights under this Agreement shall not be deemed a waiver or other limitation of any other right or any future right.
23. COMPLIANCE CHECKS
23.1 DarkBlue reserves the right to periodically monitor an Affiliate's use of the Affiliate Program and the Site at any time without notice for the purpose of determining compliance with this Agreement and may randomly request that an Affiliate provide all reasonable and necessary information required by DarkBlue to determine such compliance.
23.2 DarkBlue uses advanced anti-fraud systems. Affiliates applying to join the Affiliate Program with the intent of generating Fraudulent Transactions and/or Non-Unique Transactions should be advised that the system will detect and document all fraudulent activity. Fraud may result in non-payment, removal from the Affiliate Program, and/or legal action.
24. AMBER ALERT LEGISLATION
24.1 In the event that an Affiliate displays on their website(s), advertisements of Affiliate Program Advertisers which consists of material (or links to material) containing content of an adult nature that is not suitable for viewing by minors or which may otherwise be deemed obscene or offensive ("Adult Material"), neither DarkBlue nor any Affiliate Program Advertiser shall have any responsibility and shall not be liable for any criminal or civil sanctions imposed on the Affiliate or the Affiliate's agent as a direct or indirect result of traffic being sent from the Affiliate's website(s) to the Affiliate Program Advertiser's website or the website of any other advertiser in the DarkBlue Network.