NAUGHTY REVENUE AFFILIATE AGREEMENT


Date Last Modified:  November 08, 2018

Effective Date:  September 21, 2010


To participate in the NAUGHTY REVENUE AFFILIATE PROGRAM ("Program") as an affiliate of La Touraine, Inc. (“LTI”), you must first agree to be bound by all of the following terms and conditions of this Naughty Revenue Affiliate Agreement (the “Agreement”): 


  1. Mandatory Age Restriction.



NO PERSON UNDER EIGHTEEN (18) YEARS OF AGE MAY DIRECTLY OR INDIRECTLY PARTICIPATE IN THE PROGRAM. YOU HEREBY AFFIRM AND WARRANT THAT YOU ARE CURRENTLY AT LEAST EIGHTEEN (18) YEARS OR OLDER, OVER THE AGE OF MAJORITY IN YOUR COMMUNITY, AND ARE CAPABLE OF LAWFULLY ENTERING INTO THIS AFFILIATE AGREEMENT.


II. General Provisions.


A. Definitions.


(1) "Affiliate" means an authorized person or entity who markets LTI’s subscriptions/memberships, products, and/or services through an independent web site in exchange for the payment of a specified fee, based on sales of LTI's subscriptions/memberships, products, and/or services (a “Referral Fee”).


(2) "Affiliate Code" (or "link code") means a string of alphanumeric text that uniquely identifies an Affiliate, advertising campaign, or other tracking metric.


(3) "Chat Traffic Advertisement" means a pop-up message displayed on a web site for the purpose of attracting users to other commercial sites.


(4) “Membership” or “Subscription” generally means paid access to an LTI site. LTI offers Subscriptions/Memberships to its websites in a variety of price points, durations, and structures, which may change from time-to-time in LTI’s sole discretion. Memberships are further described in the terms of service for each of LTI’s sites and the exact price, duration and other additional terms of Membership will be made available at the time of a user’s purchase. Typically, Memberships are available as either Short-Term Memberships or Access Memberships.


(5) "Licensed Content" means any images, text, data, motion pictures, video clips, audio clips, advertising banners, hyperlinks or other information obtained from LTI in connection with the Program and only in accordance with the terms of this Agreement. Generally, Licensed Content is exclusively available for download from www.naughtyrevenue.com and related sub-domains. Licensed Content does not include content published on the tour and/or membership areas of LTI's web sites, unless it is expressly offered to an Affiliate by LTI in writing in connection with the Program. Requests for Licensed Content that has not been made available by LTI may or may not be processed and will be granted or denied in LTI’s sole discretion.


(6) "Promotional Link" means any Uniform Resource Locator ("URL") placed on an Affiliate web site that links to an LTI site that relates to the Program. Promotional Links should include an Affiliate Code and must comply with the terms and conditions of this Agreement. Promotional Links are designed to permit accurate tracking, reporting, and accrual of Referral Fees for the Affiliate.


(7) "Qualified Referral" means a user or customer directed from an Affiliate web site by a Promotional Link who signs up for a paid Access Membership to an LTI web site within a single computer session. Note: a user’s purchase of a Short-Term Membership does not qualify as a Qualified Referral unless and until the Short-Term Membership converts to an Access Membership.


(8) “Short-Term Membership” generally means a Membership, which provides a user short-term access (the initial term is always less than thirty days, but typically three or seven days) to the relevant LTI site. If a Short-Term Membership is not cancelled before the expiration of the initial term, then it converts to a Monthly Access Membership. At any point during the Short-Term Membership, a user can convert to a Monthly Access Membership or an Annual Access Membership.


(9) “Access Membership” generally means a longer-term Membership, which usually provides a user access to an LTI site for an initial term of: (i) one month (“Monthly Access Membership”) or (ii) one year (“Annual Access Membership”). Access Memberships recur on a monthly basis until cancelled in accordance with relevant the terms of service.


(10) "Net Payment" means the gross payment received from a Qualified Referral minus any and all applicable fees. By way of example, if a Qualified Referral signs up for a Monthly Access Membership at $24.95, and LTI's credit card processing company charges 13.5%, the Net Payment to LTI would equal $21.58 for that subscription sale.


(11) "Spam" or "spamming" generally means the use of electronic messaging systems to send unsolicited bulk messages without consent of the recipients. While e-mail spam is the most widely recognized form of spam, the term is expansive and applies to numerous forms of media including, without limitation, instant messaging spam, Usenet newsgroup spam, Web search engine spam, spam in blogs, wiki spam, online classified ads spam, mobile phone messaging spam, spam in mobile applications, Internet forum spam, junk fax transmissions, spam on Twitter, spam on Facebook, social networking spam, and file sharing network spam.


B.  Binding Agreement . The terms and conditions of this Agreement constitute a binding legal agreement between you, the Affiliate, and La Touraine, Inc. d/b/a Naughty America and other related trade names (“LTI”). Your relationship to LTI is that of an independent contractor, and no partnership, joint venture, employment, agency, or other relationship is intended or created by this Agreement. The manner and means by which you choose to complete the services described herein are in your sole discretion and control. You shall be exclusively responsible for payment of all taxes incidental to the Referral Fee(s) paid to you by LTI, including but not limited to federal and state income taxes. LTI will not withhold any amounts for payment of taxes from the compensation paid to you.


C.  Consent to Receive E-mail Communications . By entering into the Agreement, you agree and consent to receive notifications, updates, and other information about the Program from LTI to your e-mail address currently on file, unless you affirmatively opt-out of the Program's default notification setting.


III. Enrollment in the Program.


A. Application . To become an Affiliate, you must submit a complete and accurate Program application, in which, among other things, you must correctly identify yourself and/or your company, your web site(s) and provide other identifying information. LTI reserves the right in its sole discretion to revise the Program application and expand the amount and type of information required to create or maintain an account. Failure to complete an updated application may result in termination of your account.


B. Evaluation of Application . LTI will evaluate your application and notify you of its acceptance or rejection. Your application may be rejected for any reason in LTI's sole and absolute discretion, including but not limited to the following: (1) you are under eighteen (18) years of age (or under the age of majority in your community); (2) your application contains inaccurate, incomplete, or false information; (3) your web site incorporates material that is unlawful, defamatory, infringing, obscene, non-adult, harassing, or is otherwise objectionable; or (4) your domain name or site is identical or confusingly similar to a trademark or service mark in which LTI or another person or entity has intellectual property or other legal rights. If your application is accepted and LTI later determines that you violated any of (1), (2), (3), or (4), your Program account will be terminated.


C. Re-application . You may re-apply to the Program if your application is rejected, unless LTI provides otherwise.


IV. Program.


Subject to the terms and conditions of this Agreement, and after you have been notified that your application has been accepted, you may download and use Licensed Content and Promotional Links on your approved web site(s).


V. Program Restrictions.


As a condition of your participation in the Program, you acknowledge and agree to the following limitations and restrictions. Failure to adhere to these limitations and restrictions and/or other breach of this Agreement may result in immediate suspension or termination of your account, disabling of your Affiliate Code, and/or termination of this Agreement. You hereby acknowledge and agree that you shall not be entitled to a Referral Fee for any referrals sent while in violation of the these restrictions or the terms of this Agreement, related to any Fraudulent Activity (as defined below), or for any prohibited users. The foregoing shall not interfere with LTI’s ability to pursue all other rights and remedies available to it under the law. LTI shall not be responsible for monitoring, supervising or reviewing your sites and shall further not be responsible for any content appearing on or available through your site(s) other than unaltered Licensed Content.


A. Compliance with Laws . In connection with your participation in the Program, you will comply with all applicable laws, including local, state, federal, or international laws, rules, and regulations. You agree that all content on your site, including Licensed Content, may only be accessed by consenting adults in locations where such content does not violate community standards. All unlawful content is strictly prohibited. You are responsible for all content posted on your site and are prohibited from posting any unlawful content. You further agree to the following:


(1) Depictions of Minors . You  WILL NOT  disseminate, post on your web site, or provide any links to any matter that involves depictions of nudity or sexuality by a minor, an age inappropriate-appearing performer (i.e., a performer 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 by virtue of the script, make-up, costuming, demeanor, setting, etc. 

(2)
Obscenity . You  WILL NOT  disseminate, post on your web site, or provide any links to any inappropriate material, including without limitation any material depicting bestiality, rape, torture and/or content which is obscene.


(3) Fraudulent Activity . You WILL NOT be entitled to a commission or referral fee for any subscription that LTI determines is the result of possible fraudulent activity (“Fraudulent Activity”). You acknowledge and agree that LTI shall have the right, in its sole and absolute discretion, at any time to expand or modify what it determines to constitute possible Fraudulent Activity. Possible Fraudulent Activity shall include without limitation, the following circumstances or activities:


(i) Where a user has used or attempts to use a credit card number that is in a negative database;


(ii) Where there are multiple subscriptions from a single IP address within a short period of time;


(iii) Where 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) Where there is a pattern of numerous subscriptions from a website in a relatively short period of time (a "Sales Surge Period"), where there has been history of few subscriptions from that website before or after the Sales Surge Period.


(v) Where there has been an attempt to process a credit card with a bin number that is listed in a negative bin number database; or


(vi) Where there have been sequential or multiple attempts to register or subscribe from a credit card using the same bin number and sequential or multiple number strings to complete the credit card number.


LTI has the right to deny or withhold payment from you and to terminate you from the Program if there has been an abnormal number of chargebacks or cancellations of memberships referred to LTI through your site. You further acknowledge and agree that LTI shall have the right, in its sole and absolute discretion, to determine what constitutes an abnormal number of chargebacks or cancellations of memberships.


(3) Spam . You  WILL NOT  disseminate Spam in connection with the Program. Although U.S. federal and state law may not prohibit all forms of spamming, LTI imposes a stricter, no-spam policy for Affiliates of the Program. What constitutes spamming will evolve over time as new technologies and methodologies emerge for spammers to find new ways to abuse the Program. Some of the factors that LTI takes into account when determining what constitutes spamming are:


a. If you have violated a U.S. federal or state anti-spamming law, including any portion of the CAN-SPAM Act of 2003 (15 U.S.C. § 7701 et seq.) or any of the federal regulations promulgated thereunder; 

b. If you have violated the anti-spamming policy of any third party; 

c. If you have sent unsolicited bulk messages to non-consenting recipients; 

d. If you have misleading or false information contained in your messages, subject line, or message-headers; 


e. If you use automated means to collect, transmit and/or sell the electronic addresses of others; 


f. If you use a third party site or program to automatically generate and send messages or content; 


g. If the primary purpose of your message is commercial in nature; and, 

h. The number of spam or abuse complaints that have been lodged against you. 


No one factor is controlling, and LTI will look to the particular circumstances of each case to determine what constitutes spamming. When in doubt, don't do it. Bottom line: If you Spam, you are out.


(4) Defamation and Related Conduct . You will not publish content on your web site that is defamatory, libelous, threatening, abusive, hateful, derogatory, disparaging, or otherwise injurious to any person or entity or to the reputation of any person or entity. 


(5)
Section 2257 . Your web site must be in full compliance with Section 2257 of Title 18 of the United States Code, "the Records Keeping and Labeling Act," and the regulations promulgated thereunder, including 28 C.F.R. Part 75 (collectively, "Section 2257 Requirements").


a. You represent and agree to act as the "Custodian of Records" of the records required to be maintained by you under the Section 2257 Requirements.

 
b. You shall properly and continuously post the statements in the manner and locations required by the Section 2257 Requirements on the web site you use in connection with the Program. 


c. LTI shall make available to you the relevant records required by Section 2257; however, it is your responsibility to obtain those records from LTI and to meet your own obligations under Section 2257 Requirements. Any information in the nature of legal names, dates of birth, home addresses, and other personal information relating to the actors and models that you may receive from LTI for the purpose of meeting Section 2257 Requirements shall be treated by you as "Confidential Information." The Confidential Information is the sole property of LTI and you shall use the Confidential Information solely and exclusively to comply with the Section 2257 Requirements and for no other purpose whatsoever. 


d. You agree to take reasonable measures to protect the confidentiality and security of and to avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, you agree to take at least those measures that you take to protect your own confidential information of a similar nature, but in no case less than reasonable care. Without limiting the foregoing, you shall not: (i) copy, reproduce, distribute or disclose to any person, firm or corporation any of the Confidential Information disclosed to you by LTI in any matter whatsoever; (ii) permit any third party to have access to such Confidential Information; or (iii) use such Confidential Information for any purpose other than complying with the Section 2257 Requirements. 

e. You shall keep the Confidential Information only as long as is directed by the Section 2257 Requirements and shall thereafter promptly destroy any and all copies of the Confidential Information, shall delete all Confidential Information that may reside on any computer system owned by you or under your control or your representative's control (including backup tapes) and shall destroy any and all other documents that may contain abstracts, excerpts or other portions of the Confidential Information. 

f. You represent and agree that each web site operated by you will be in full compliance with Section 2257, including the record-keeping and labeling requirements that must be maintained by you at all times. You acknowledge and agree that any and all content published on your web site is, and shall be, compliant with Section 2257.


B. Intellectual Property Rights . You represent and agree that you will not publish content on your web site that violates the intellectual property rights or other legal rights of any person or entity, such as copyright, patent, trademark, service mark, trade secret, trade dress, right of privacy, right of publicity, moral right and any other proprietary right. 

C.
Cybersquatting or Typosquatting . You represent and agree that you will not register or attempt to register any domain name (including third level domain names or sub-domains) or URL that is identical or confusingly similar to a trademark or service mark in which LTI or another person or entity has intellectual property or other legal rights. 

D.
Paid Search Advertising Schemes . You represent and agree that you will not bid on or purchase any online paid advertising schemes that incorporate or are confusingly similar to any of LTI's trademarks, service marks, or URLs. By way of example, such prohibited advertising schemes include pay-per-click models, sponsored links, search engine keywords, AdWords, or similar advertising schemes. 


E.
Other Prohibited Uses .


(1) Distribution to Prohibited Areas . You acknowledge and agree that you will not permit Licensed Content or Promotional Links to be accessed, viewed, downloaded, used by, transmitted, broadcast, or otherwise disseminated to any person or entity located in any and all areas prohibited by law. 


(2)
Misrepresentation of Relationship . You represent and agree that you will not misrepresent your contractual relationship with LTI or imply that any affiliation or relationship exists with LTI except as expressly provided in this Agreement. By way of example, you cannot publish any statement indicating that LTI supports, sponsors, endorses, or contributes to your web site other than as expressly provided in this Agreement. 


(3)
Unauthorized Access . Your unauthorized access, viewing, downloading, receipt, duplication, or other unauthorized use of Licensed Content that you directly or indirectly obtain through your participation in the Program shall constitute a material breach of this Agreement. 

(4)
Malicious Code, Viruses, Etc . You represent and agree that you will not use or offer for download any material that contains a virus or malicious code, such as a Trojan Horse, that has the potential of causing disruption or damage to any computer system. You will be responsible for any and all damage caused by any such program. 

(5)
Links to and Content of Others . You represent and agree that you will not use LTI's images, content, or promotional material to promote and/or link to any other site. 


(6)
Chat Traffic Advertisements . You represent and agree that you will not use Chat Traffic Advertisements in connection with the Program.


VI. Limited Non-Exclusive License.


A. Grant of Limited License . Subject to LTI's acceptance of your Program application and your agreement to the terms and conditions of this Agreement, you will be granted a limited, non-exclusive, royalty-free, non-transferable, non-assignable, non-sublicensable and revocable license during the term of this Agreement to download and use on your site Licensed Content for the exclusive purpose of advertising, marketing, or promoting LTI's online services and products. This license is revocable by LTI at any time, in LTI's sole discretion, with or without prior notice.


B. Limitations on License . You may only use Licensed Content in accordance with the Agreement, on one computer at a time. If the Program makes copies of Licensed Content available, you may only download a single copy of such content on your hard disk and upload a single copy on your site. No further copies are permitted. You further agree to the following limitations and restrictions on your use of Licensed Content:


(1) Use Restrictions . You acknowledge and agree that any and all unauthorized access, viewing, downloading, receipt, duplication, or other use of Licensed Content in which you are directly or indirectly involved, shall constitute a material breach of the Agreement, intentional infringement(s) of LTI's and potentially others' trademarks, copyrights, intellectual property, and/or other rights including without limitation, the rights of privacy and publicity. 


(2)
Other Prohibited Actions . You acknowledge and agree that you are prohibited from:


a. Modifying, translating, reverse engineering, decompiling, and/or disassembling Licensed Content;


b. Creating derivative works based on Licensed Content;


c. Renting, leasing, or transferring any rights in Licensed Content;


d. Removing any proprietary notices or labels on Licensed Content; and


e. Making any other unauthorized use of Licensed Content.


(3) Ownership of Licensed Content and Intellectual Property . Except for public domain material or material otherwise licensed to LTI, Licensed Content displayed on or made available through the Program is proprietary content owned by LTI, its parent(s) subsidiary(ies), and/or assign(s). All editions of Licensed Content and any other matter used directly or indirectly in connection with the Program are protected by the copyright laws of the United States, international copyright treaties, and other laws and regulations. All title and proprietary rights in and to Licensed Content, or any other matter made available through the Program, shall at all times remain in LTI, its parent(s), subsidiary(ies), and assign(s).

C. No License for Other Content on LTI . No license is granted for any content published on LTI's web sites unless such content is made available to you through the Program and is designated as Licensed Content in writing by LTI.

 
D.
Reservation of Rights . Other than as expressly granted above, no other rights are granted, including without limitation, any copyright, patent, trademark, service mark, trade secret, trade dress, right of privacy, right of publicity, moral right and any other proprietary right. LTI reserves all rights to select, alter, add, or remove any and all Licensed Content and Promotional Links used in connection with the Program. 

E.
Termination or Withdrawal of License . Your license to download and use Licensed Content shall automatically terminate, and all rights shall automatically revert to LTI, upon termination of this Agreement and/or your withdrawal from the Program. In such event, you shall delete all copies of Licensed Content that may reside on any computer system and/or web site owned by you or under your control.


VII. Affiliate's Notification Duty.


You agree to immediately notify LTI if you receive any inquiries or requests for information regarding the following subjects:



VIII. Referral Fees and Payout Structure.


A. Referral Fees . LTI will pay you Referral Fees according to the then-current rates and structures posted on www.naughtyrevenue.com (“Posted Rates”). The Posted Rates are hereby expressly incorporated into this Agreement by this reference.


The structure of Referral Fee payments may vary from time-to-time and from one Affiliate to another. Potential structures of Referral Fees may include the following:





LTI offers Memberships to its websites at a variety of price points, durations, and structures, including without limitation Short-Term Memberships, Monthly Access Memberships and Annual Access Memberships. As noted above, Short-Term Memberships are not Qualified Referrals unless and until they convert to an Access Membership.


LTI may offer these and other Membership models for various price points on its websites and may or may not offer Affiliates discounted price points for various Membership models. Discounts on Membership prices may come with corresponding reductions in related Referral Fees.


B. Payouts .


(1)  Minimum Payout Threshold . The minimum payment amount is one-hundred dollars ($100.00 USD) ("Minimum Payout Threshold"). Any accrued payments totaling less than the Minimum Payout Threshold will be rolled over into subsequent payments until the Minimum Payout Threshold is reached. 


(2) 
Payout Schedule . Referral Fees are paid by check or Paxum. So long as the Minimum Payment Threshold is reached, Referral Fees are mailed to the address currently on file with your Program account every two (2) weeks on average, excluding U.S. holidays and weekends. 

(3) 
Checks Void After 90 Days . Checks issued by LTI expire and are void after ninety (90) days from the date of issue. Please present your checks to your financial institution promptly. If you fail to present your check within those ninety (90) days, your check is considered stale.


(4) 
Reissued Checks . If receipt of your check is significantly delayed, or the check is lost in the mail, you may request that we resend you a new check. To issue a new check a stop payment fee of $20.00 will apply in order to void the first check. To request that a check be reissued, please contact your affiliate manager, or submit a ticket to https://ltiaffiliates.zendesk.com/hc/en-us/requests/new.


C.
Limitations of Payouts . LTI will only pay you for Qualified Referrals. That means that Referral Fees may only be paid if a visitor to LTI's web site can be tracked by our system from the time a user clicks on a Promotional Link to the time of sale. You will receive no Referral Fees if our system cannot process your Affiliate Code, if a user does not make full payment for services, or if a user is directed to our site by a Promotional Link, but leaves and later returns to sign up for a subscription. 

D.
Taxes . You will be responsible for payment of any and all taxes attributable to Referral Fees or other payments made to you. As a part of your application, you will be required to provide a Federal Tax Identification Number or Social Security number for IRS reporting requirements. 

E. Subject to Change . Referral Fee rates, payout schedules, and minimum payout limits are subject to change at any time at LTI's sole and absolute discretion, with or without prior notice. If any change is unacceptable to you, your only recourse is to terminate this Agreement and withdraw from the Program. Your continued participation in the program following our posting revisions related to Referral Fees, or notifying you through your affiliate account, shall constitute your binding acceptance of such modification. In addition to the types of changes outlined above, the Parties may amend this Agreement only by a signed written agreement of the Parties that identifies itself as an amendment to this Agreement, except that LTI may unilaterally amend this agreement on one or more occasions as it deems it is necessary in LTI’s sole discretion. LTI will notify you of any amendments in writing. Amendments will not apply to ongoing disputes or to disputes arising out of events occurring before the applicable amendment. If you continue to participate in the Program after any amendment, LTI will consider your continued use as acceptance of the amendment unless you notifies LTI in writing of your disagreement no later than ten (10) business days after the amendment. LTI will contact you no later than five business days to address the your disagreement and try to reach a mutually amicable resolution. If the Parties cannot reach a resolution, you may terminate this agreement effective immediately as its sole remedy.


IX. Representations and Warranties.


A. Affiliate's Representations and Warranties . You represent and warrant that you own or operate a lawful and otherwise valid Internet web site that adheres to the terms and conditions of this Agreement. You otherwise hereby represent and warrant to LTI that you have the experience and ability to perform the services required by this Agreement, that you will perform such services in a professional and competent manner, and that you have the power to enter into and perform this Agreement.


B. LTI's Disclaimer of Warranties . LA TOURAINE, INC. HEREBY DISCLAIMS ALL WARRANTIES AND IS MAKING THE PROGRAM AND LICENSED CONTENT AVAILABLE "AS IS" WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS ARISING FROM THE USE OF, OR INABILITY TO USE, THE PROGRAM AND/OR LICENSED CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LA TOURAINE, INC. EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PROGRAM, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. LTI DOES NOT WARRANT THAT THE PROGRAM AND/OR LICENSED CONTENT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM AND/OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.


X. Term and Termination.


A. Term . The term of this Agreement will begin upon acceptance of your Program application and your agreement to the terms and conditions of this Agreement and will end when terminated by either Party.


B. Notice of Termination . Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. A breach of this Agreement may result in suspension or termination and immediate dismissal from the Naughty Revenue Affiliate Program, with no obligation to La Touraine, Inc. other than to pay in due course for valid Referral Fees earned in accord with this Agreement up to the point of termination. LTI shall have no obligation to pay Referral Fees accrued while you were operating in breach of this Agreement. LTI shall be permitted to delay payment of Referral Fees during such time as it investigates your potential breach of this Agreement or potential Fraudulent Activity. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.


C. Survival . The following provisions of this Agreement shall survive the termination or expiration of this Agreement: (1) payment of amounts owing to the Affiliate at the time of termination; (2) representations and warranties; (3) disclaimer and limitation of liability; and (4) indemnification.


XI. Limitation of Liability.

EXCEPT FOR CLAIMS ARISING FROM A LTI’s GROSS NEGLIGENCE, FRAUD, WILLFUL INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR VIOLATION OF LAW: (a) IN NO EVENT SHALL LTI BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, DOWNTIME OR INTERRUPTION OF YOUR BUSINESS, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, SUFFERED BY YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT LTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, INJURY AND/OR DAMAGES, AND WHETHER SERVICES ARE PROVIDED BY LTI, AND (b) LTI’S MAXIMUM AGGREGATE LIABILITY TO YOU RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE BY LTI TO YOU HEREUNDER DURING THE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.


XII. Indemnification.


You hereby agree to indemnify, defend, and hold harmless LTI and all of its related entities, subsidiaries and parent companies, advertising and promotions agencies, and each of their heirs, successors, officers, directors, shareholders, employees, assigns, agents, attorneys, representatives, and any other person or entity now or hereafter affiliated with them, and each of them (collectively, "Indemnified Parties"), of and from any and all claims, demands, causes of action, obligations, damages, losses to any person (including death) or property, penalties, attorney's fees, costs, and liabilities of any nature whatsoever, whether or not now known, suspected or claimed, arising out of any breach by you or any other user of your Program account, whether or not such user has your permission, of this Agreement or solely your actions hereunder. LTI reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In such event, you shall cooperate as fully as is reasonably required in the defense of any claim. You may not agree to any settlement that imposes any obligations or liability on LTI without LTI’s express written consent.


XIII. Miscellaneous.


A. Entire Agreement . This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings with respect to the subject matter hereof.


B. Confidentiality . You understand that LTI, its related entities, and/or clients (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s or its Representatives (as defined below) business and operations that is proprietary and/or not publicly available (hereinafter referred to as “Confidential Information”). You agree: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except in performance hereunder or as otherwise permitted herein) or disclose any Confidential Information to any third party, other than to your employees, independent contractors, agents, representatives, or consultants (“Representatives”) whose duties justify their need to know the Confidential Information for the purpose of you performing under this Agreement, so long as such disclosure is in accordance with this provision and any non-disclosure agreement between you and LTI. LTI agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that you can document: (a) is or becomes generally available to the public; (b) was in your possession or known by you prior to receipt from LTI; (c) was rightfully disclosed to you without restriction by a third Party; (d) was independently developed without use of any Confidential Information; or (e) is required to be disclosed by law.


C. Waiver . LTI’s failure to enforce any provision of this Agreement shall not in any way be construed as a waiver of any such provision as to future violations thereof, nor prevent LTI thereafter from enforcing each and every other provision of this Agreement.


D. Modification . LTI reserves the right to unilaterally modify the terms and conditions of this Agreement at any time. You agree that any and all modifications to this Agreement are effective immediately upon posting on our web site or by notifying you through your Program account currently on file. Any modified version supersedes any prior versions immediately upon such notice, and any prior versions are of no continuing legal effect unless the modified version specifically provides otherwise. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AFFILIATE AGREEMENT AND WITHDRAW FROM THE PROGRAM. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A REVISED AFFILIATE AGREEMENT, OR NOTIFYING YOU THROUGH YOUR AFFILIATE ACCOUNT, SHALL CONSTITUTE YOUR BINDING ACCEPTANCE OF SUCH MODIFICATION.


E. Headings . The headings of sections in this Agreement are provided for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of this Agreement or any section thereof.


F. Severability . 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 under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision.


G. Representation by Counsel; Interpretation; Authorization . LTI and you each acknowledge that each Party to this Agreement has been represented by counsel in connection with the same and with respect to the transactions contemplated hereby or have expressly waived such representation. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived.


XIV. Disputes.


A. Governing Law; Dispute Resolution . The validity, construction, performance, and breach of this Agreement shall be governed by the internal laws of the State of California, without regard to conflicts or choice of law principles. Provided, except as otherwise set forth herein, that the Federal Arbitration Act will govern all provisions relating to arbitration.


The Parties agree that any and all disputes or controversies of any nature between them arising at any time that cannot be resolved between the Parties themselves shall be determined by confidential (to the extent permitted by law), final and binding arbitration in Los Angeles County, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") before three (3) neutral arbitrators ("Arbitrators") mutually agreed upon by the Parties. If the Parties are unable to agree on Arbitrators, then AAA shall appoint the Arbitrators. The Parties shall be entitled to conduct discovery in accordance with the California Code of Civil Procedure then in effect, provided that (i) the Arbitrators must authorize all such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances, and (ii) discovery shall be limited to depositions and production of documents unless the Arbitrators finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought. The Arbitrators shall have the power to enter monetary damages and equitable relief as determined by the Arbitrators. Judgment upon the award rendered in any such arbitration may be entered in any court of competent jurisdiction, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow. Nothing in this section shall prevent either Party from seeking interlocutory and/or injunctive relief from a court of competent jurisdiction. Class action lawsuits and/or class-wide arbitrations aren’t allowed. Nor is combining individual proceedings without the consent of all Parties. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts won’t be arbitrated, but will proceed in court, with the rest proceeding in arbitration.


The fees payable to AAA and the Arbitrators hereunder shall be borne equally by the Parties, provided that the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys' fees, expert witness fees, and any and all other reasonable costs and expenses incurred in the arbitration.


THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING OUT OF OR RELATING TO THIS AGREEMENT WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.


XV. Execution of Agreement.


A. Electronic Signatures . You are electronically signing this Agreement by either selecting the "I Agree" button below and/or participating as an Affiliate in the Program. You understand and agree that this Agreement may not be denied legal effect, validity, or enforceability solely because your electronic signature was used in its formation. You further understand and agree that electronic signatures and records are just as good as their paper equivalent, and therefore subject to the same legal scrutiny of authenticity that applies to paper documents.