to ColdHardCash. Before you can become a participant in our
ColdHardCash Program ("Program") you must first read and
agree to all of the following terms and conditions. Please read the
following CAREFULLY. This is a binding legal agreement ("Agreement")
between Webquest, Inc., a California corporation, (hereinafter,
"ColdHardCash", "we", or "us") and you
The following offer to You to participate in the Program is subject to all the terms, conditions, limitations and waivers below. You acknowledge and agree that by participating in the ColdHardCash Program You will be bound by all the terms and conditions in this Agreement.
1. Rights Granted To You By Us. Subject to the terms and conditions set forth in this Agreement by us, we grant to You, the following:
1.1 The non-exclusive right to direct, refer or send visitors or users of your Web site to web sites owned, operated or controlled by us.
1.2 A limited, non-exclusive, nontransferable and revocable license to access and download promotional banners, and other promotional materials created by ColdHardCash for use on your Web site for the exclusive purpose of advertising, marketing or promoting websites owned, controlled and/or operated by us; provided, however, the license herein granted shall automatically and immediately cease upon the termination of this Agreement.
2. Your Warranties To Us. In consideration of ColdHardCash providing You with Program benefits, You agree and warrant as follows:
2.1 That You will at no time while You are participating in the Program, or using any materials provided to You by us, directly or indirectly display or include on your Web site any advertising or advertising links of any kind which promote ColdHardCash sites, other than those advertisements or ad links which have been pre-approved by us, in compliance with this Agreement, and which advertise Webquest's sites or other sites, companies, products or other wide area network addresses which we designate.
2.2 That You will not use any form of mass unsolicited electronic mail solicitations, newsgroup postings, IRC posting or any other form of "spamming" as a means of promoting your Web site or for the purpose of directing or referring users to any websites owned, operated or controlled by us. You further acknowledge and agree that we have the right to immediately, and without notice, terminate your participation in the Program if we, in our sole and exclusive judgment, conclude that You have engaged in the use of any form of mass unsolicited electronic mail solicitations, newsgroup postings, password selling or trading, warez, IRC posting or any other form of "spamming". NOTE: WE HAVE ZERO TOLERANCE FOR SPAMMING. IF YOU SPAM, YOUR PARTICIPATION IN THE PROGRAM WILL BE TERMINATED, YOU WILL BE BARRED FROM FUTURE PARTICIPATION IN THE PROGRAM AND ALL FUNDS OTHERWISE DUE TO YOU WILL BE FORFEITED TO US.
2.3 That You will not copy or reproduce, alter, modify or change, broadcast, distribute, transmit or disseminate any banners or other promotional or advertising materials provided to You by us pursuant to this Agreement and the Program in whole or in part, in any manner, at any time anywhere in the world except as authorized by us in writing;
2.4 That you will ONLY use promotional pictures and images provided by us to promote websites that are included in the Program
2.5 That You will not include, or link to, any of the following within a website that contains our banners or links (or, directly or indirectly, link any of the following content or material to any ColdHardCash website through any hyperlinks maintained or created on your Web site):
material depicting bestiality, rape or torture.
(ii) Any material which is displayed or transmitted in a way as to constitute harmful matter or indecent communications to minors;
(iii) Any material in which persons under the age of eighteen are depicted in actual, simulated or suggestive sexual situations;
(iv) Any material not fully in compliance with 18 U.S.C. Sec. 2257 et seq. and the regulations promulgated thereunder;
(v) Any material which constitutes child pornography or matter which involves depictions of nudity or sexuality by an age inappropriate-looking performer (i.e. someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc. Prohibited material mentioned herein includes the use of the term 'lolita' for any purpose in any fashion including, but not limited to, within meta-based tags;
(vi) Any material which is threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity;
(vii) Any material which constitutes an infringement, misappropriation or violation of any person's intellectual property rights such as copyrights, trademark rights, rights of publicity, patent rights, personal property rights, privacy rights or other rights; or
(viii) Any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature, regardless whether damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person.
2.6 That all materials of every kind, including photographic,
videographic, audio and textual materials used in direct or indirect
association with materials provided through the Program shall only be
transmitted, distributed, broadcast and otherwise disseminated by You
to willing adults and shall at all times comply with contemporary
community standards in the communities into which they are so
2.7 That You shall remain a Program participant until You terminate participation in the Program by notifying us by e-mail at "webmaster@ColdHardCash.com" of Your intent to terminate Your participation. Alternatively, your participation in the Program may be terminated by us for any reason and the Program may be terminated for any reason.
2.8 That You will remain a Program Participant in good standing at all times You are receiving benefits or are otherwise participating in the Program.
2.9 That You shall cease to be a Participant in good standing and shall be subject to immediate termination of all Benefits without prior notice if You fail to perform under or breach any part of this Agreement.
2.10 That if Your participation in the Program is terminated for any reason, You cease to be a Program Participant in good standing, You change your Web site's URL or You cease to offer services on the Internet, You shall immediately and permanently cease all use of all materials provided to You by us through the Program and that you will remove all files containing materials provided to You pursuant to the Program from your Web site.
2.11 That You are a person over the age of eighteen (18) years.
2.12 That You are the person who owns or is otherwise is entitled to contract on behalf of the entity which owns the rights to your Web site.
2.13 That of those residing in the United States, only citizens or resident aliens of the United States may participate and must supply us with your Federal Tax ID Number or Social Security Number that is representative of, and exactly matches the payee name you provide to us. Your failure to supply that information will constitute a basis for terminating this Agreement and for forfeiting any commissions or fees to which You would otherwise be entitled under this Agreement. To comply with IRS reporting requirements, ColdHardCash (via WebQuest, Inc.) uses a credit agency to verify and/or modify Payee Name information as warranted.
2.14 That upon termination of this Agreement you will immediately cease using ColdHardCash marks and remove any materials supplied to you or referring to ColdHardCash, including without limitation any banner ads, from your Web site.
2.15 That You agree to act as a ?Custodian of the Records? required to be maintained by 18 U.S.C. 2257 and 28 C.F.R. Part 75 for any and all images depicting actual sexually explicit conduct of an actual human being that may be used to promote or market the Program regardless of who has produced such images.
2.16 That You shall properly (and continuously) post the statements in the manner (and the locations) required by Title 18 USC Section 2257(and the regulations promulgated thereunder) (the "Section 2257 Requirements") on your Web sites or other Internet areas You employ for the promotion or marketing of our Program.
2.17 That any information in the nature of the legal names, dates of birth, addresses, and other personal information of actors and models, together with any and all information that is derived therefrom, which You may receive from us for purposes of the Section 2257 Requirements, if any, shall be treated by You as "Confidential Information;" that all of this Confidential Information is the sole and exclusive property of us and that You shall use the Confidential Information solely for the purpose of compliance with 18 USC Section 2257 and the regulations promulgated thereunder and for no other purpose whatsoever.
2.18 That You shall protect any such Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use or dissemination of publication of the Confidential Information as You would use to protect your own information of a like nature, including compliance with any law governing the safekeeping or protection of such Confidential Information. Without limiting the generality of 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 us 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 in accordance with the 2257 Requirements.
2.19 That You shall hold harmless and indemnify ColdHardCash against any claim for damages, attorney?s fees, costs, fines, financial penalties, and assessments resulting from Your failure to use a reasonable degree of care to prevent the unauthorized use or dissemination of the Confidential Information or resulting from Your failure to comply with any law governing the safekeeping or protection of such Confidential Information.
2.20 That You will keep such Confidential Information only so long as you are required to do so by 18 U.S.C. 2257 and the regulations promulgated thereunder, and that such Confidential Information will thereafter by promptly destroyed in a manner that will not permit its dissemination to any other person, firm, or corporation.
2.21 That all Your warranties, indemnities and obligations, which by their nature are designed to survive termination, shall extend beyond the termination of this Agreement.
3. Limitations Of Your Participation In The Program. You acknowledge and agree that the Program, Your participation in the Program and Program benefits are subject to the following limitations:
3.1 Only persons over the age of eighteen (18) years may participate in the Program.
3.2 The Program shall at all times have the right, in its sole and exclusive discretion, to terminate the Program and any and all Program benefits relating to your Participation in the Program at any time and may do so with or without prior notice or cause.
3.3 The Program, in its sole and exclusive discretion, shall have the right at any time to change or modify the Program, including without limitation, the right to pay Participants in the Program based on "click throughs" rather than a flat commission or fee for a referral, as defined in paragraph 4.1. If at any time ColdHardCash changes the Program, you shall have the right to withdraw and terminate your participation in the Program.
3.4 The Program has the right to terminate your and any other person's participation in the Program at any time and may do so with or without prior notice or cause.
3.5 Program Benefits are not transferable by You and may only be used by You in association with your Web site while You are participating in the Program and are a Participant in good standing.
3.6 All Program Benefits materials, including, without limitation, all advertising banners, photographic materials, recordings, video, sound, and any other form of intellectual property provided to You as part of this Program shall remain the property of ColdHardCash and may not be copied or reproduced, altered, modified or changed, broadcast, distributed, transmitted or disseminated, sold or offered for sale in any manner, at any time anywhere in the world except as expressly authorized in writing.
3.7 ColdHardCash is our service mark or trademark. All rights therein are reserved to us. Nothing herein shall be construed as a grant or assignment to you of any rights in any of our intellectual property, including, without limitation, any of our trademarks or service marks.
3.8 TRADEMARKS, COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
By entering this Agreement, you acknowledge that any and all
trademarks, trade names, copyrights and other intellectual property
rights owned from time to time by us or any associated entity, used
or embodied in or in connection with the Program shall be and remain
at all times our sole property. You shall not during or at any time
after the expiration or termination of this Agreement in any way
question or dispute the ownership by us of any such rights.
b) In the event that new trademarks, trade names or copyrighted materials are adopted or created during the currency of this Agreement, you hereby expressly acknowledge that the same shall be and at all times remain our property.
Program Benefits. For each person who becomes a subscriber to a website owned,
controlled or operated by ColdHardCash, and who has been tracked and
verified as a "referral" to a ColdHardCash website from
your Web site, you will receive a "referral fee" as
follows: Click here to review Payouts.
4.1 A "referral" from your Website which entitles You to a "referral fee" shall be defined as follows:
A person who has been directed to an authorized website owned,
controlled or operated through the use of a hypertext transfer link
residing on your Web site which is in the form of a banner ad or
other promotional link which automatically connects any person who
clicks on said banner ad or other promotional link to a ColdHardCash
website, and which banner ad or other promotional link has been
supplied to You as part of the Program; or
(ii) A person who after having been directed to an authorized ColdHardCash website through the use of the hyperlink banner ad or other promotional link supplied to You residing on your Web site has been converted into a subscriber.
A person shall not be deemed a "referral" entitling you to a commission or "referral fee" if that person leaves the ColdHardCash web site after having been directed there through the hyperlink banner ad or other promotional link (which has been supplied to you ) on your Website, without becoming a ColdHardCash subscriber, even if at some later time that same person returns to the ColdHardCash web site, not through the banner ad or other promotional link (which has been supplied to you ) on your Web site, and at that later time becomes a subscriber to the ColdHardCash web site.
4.2 You acknowledge and agree that You shall not be entitled to a
commission or referral fee for any ColdHardCash subscriber who you
sent or referred to a ColdHardCash web site in violation of the terms
of this Agreement, or for any ColdHardCash subscriber who does not
fall within the terms of paragraphs 4.1 (i) or (ii) or who is
excluded under the terms of paragraph 4.1.
4.3 You also acknowledge and agree that You shall not be entitled to a commission or referral fee from ColdHardCash for any subscription which ColdHardCash determines is the result of possible fraudulent activity. You further acknowledge and agree that ColdHardCash shall have the right, in its sole and exclusive discretion, at any time to expand or modify what it determines to constitute possible fraudulent activity. Without limiting the foregoing, possible fraudulent activity shall include without limitation, the following circumstances or activities:
Where the subscriber has used or attempts to use a credit card number
which is in a negative data base;
(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 "bursting subscriptions" characterized by numerous subscriptions from a website in a relatively short time span (the "bursting period"), where there has been history of few subscriptions from that website before or after the bursting period.
(v) Where there has been an attempt to put through 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.
4.4 You acknowledge and agree that ColdHardCash shall have 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 or subscriptions which have been
referred to ColdHardCash through Your Web site. You further
acknowledge and agree that ColdHardCash shall have the right, in its
sole and exclusive judgment, to determine what constitutes an
abnormal number of chargebacks or cancellations of memberships or
4.5 All commissions and referral fees due and payable hereunder shall be payable in United States Dollars and shall survive termination of this Agreement.
4.6 ColdHardCash reserves the right, in its sole and exclusive discretion, at any time to alter or modify the Program including the method and terms of all payment benefits to participants. Upon notice of any change in benefits under the Program, You shall have the right to withdraw or terminate your participation in the Program.
5. No Joint Or Collaborative Venture; No Monitoring Or Control Of Your Content By Us. Nothing in this Agreement is intended by us or You to create or constitute a joint or collaborative venture or partnership of any kind between You and us, nor shall anything in this Agreement be construed as constituting or creating any agency, employment relationship, joint or collaborative venture or partnership between You and ColdHardCash, its employees, agents or assigns.
5.1 You acknowledge and agree that we shall have no control nor ownership interests of any kind in your business or your Web site.
5.2 You acknowledge and agree that You shall have no financial or other interest in ColdHardCash or any property owned by ColdHardCash, its affiliates, agents, successors or assigns.
5.3 You acknowledge and agree that your relationship with Us shall be restricted to matters pertaining to the Program exclusively and shall be governed entirely by the terms and conditions of this Agreement.
5.4 You acknowledge and agree that We have no direct or indirect control over the content of performances or services, the manner of performances or services, or the time or duration of provision of performances or services by You on, at or in association with your Website, except as specifically set forth in this Agreement.
5.5 You further acknowledge that neither ColdHardCash nor any employee, associate, agent, assign or successor of ColdHardCash shall exert or provide any direct or indirect control over, monitoring of, supervision of, prior approval of, or review of the content appearing or otherwise distributed on, at or in association with your Website, and that You shall be solely responsible for any legal liabilities or consequences resulting from the dissemination of that content on or through your Web site.
6. No Guarantees Or Warranties Of Any Kind. You acknowledge and agree that ColdHardCash makes no guaranties or warranties of any kind with respect to the Program or materials provided by, through or in association with the Program, and all materials are provided to you "as is", and that use of the Program and associated materials, including, without limitation is solely at your risk. ColdHardCash disclaims all warranties, either express or implied including, but not limited to, express or implied warranties of merchantability and fitness for a particular purpose, with regard to the Program and any and all materials of every kind supplied to You as part of this Program.
7. ColdHardCash Limited Liability and Liquidated Damages. You acknowledge and agree that under no circumstances shall ColdHardCash, its employees, independent contractors, authors, agents, representatives, assigns and successors be liable to You, or any other person or entity, for any direct or indirect losses, injuries or incidental or consequential damages of any kind (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any ColdHardCash website, or arising from or in connection with the use of the ColdHardCash Program materials, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of ColdHardCash's services, content or Program materials, including without limitation any losses due to server problems or due to incorrect placement of HTML.
7.1 Notwithstanding the foregoing express limitations of liability, you acknowledge and agree that should ColdHardCash, its officers, employees, successors, or assigns be held liable to You for damages, injuries or losses of any kind, directly or indirectly resulting from Your participation in the Program, that the total dollar amount of liquidated damages for any and all of your claims, injuries, damages or losses shall not exceed a total of ten dollars ($10.00).
8. No Representations Of Success Or Profitability. You hereby confirm and acknowledge that You have unilaterally decided to enter into an Internet service business and acknowledge that it is a high risk business. You further confirm, acknowledge and expressly agree that neither ColdHardCash, any agent or representative of ColdHardCash, nor any other person has at any time in the past, represented to You or has otherwise directly or indirectly communicated in any manner to You any guarantee, reassurance or any other communication of any kind regarding:
the potential profitability or likelihood of success of your
participation in the Program as set forth in this Agreement or
(b) the possibility or likelihood that use of any products and/or services provided pursuant to this Agreement can or will result in the recoupment of any funds expended by You for the promotion of your Web site or any other purpose; or
(c) the existence, nonexistence, size or any other characteristics of any market for any products or services which involve your participation in the Program pursuant to this Agreement.
8.1 You expressly acknowledge and agree that the success of any business
endeavors which involve your participation in the Program pursuant to
this Agreement, like any other business endeavor, is subject to
numerous factors, such as the effectiveness of advertising and
promotion, your administrative capabilities, etc., and that the
ultimate success or failure of your business rests with You and not
ColdHardCash. You further expressly agree not to raise any claim of
any kind against ColdHardCash and You agree to hold ColdHardCash
harmless from any claim of loss to You directly or indirectly
resulting from your decision to participate in the Program pursuant
to this Agreement.
9. No Monitoring Or Supervision Provided By Us. We shall not monitor, supervise or review, and shall not be responsible for any content appearing or otherwise distributed on, at or in association with your Web site except for that content which is supplied to You by us, provided that said content supplied to You by us has not been altered or modified by You or any other party.
10. Term And Termination Of Agreement. You acknowledge and agree that the term of this Agreement is at will, and this Agreement and/or the ColdHardCash Program may be terminated by ColdHardCash, in its sole and exclusive discretion, at any time, without any advance notice and for whatever reason.
10.1 In the event that this Agreement or the ColdHardCash Program is terminated by ColdHardCash, You shall be entitled to all unpaid commissions or referral fees earned by You prior to the date and hour of termination. However, You shall not be entitled to receive any commissions or referral fees for any "referrals" delivered or received after the date and time of termination.
11. Entire Agreement; Modification; Assignment. This Agreement constitutes the entire agreement between You and ColdHardCash with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral.
11.1 You agree that ColdHardCash may from time to time, in its sole and exclusive discretion, modify the type and quality of benefits provided to You hereunder either with or without notice. Other terms and conditions may be modified by us at any time upon e-mail notice to You or by posting at a ColdHardCash information web address location.
11.2 You agree that no modification of this Agreement by You, your employees, representatives, agents, assigns or successors shall be enforceable or have any effect unless first reduced to writing and signed by a duly authorized representative of ColdHardCash.
11.3 You agree that no officer, employee or representative of You or ColdHardCash has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement; and You acknowledge and agree that You have not executed this Agreement in reliance upon any such representation or promise.
11.4 You acknowledge and agree that the failure of ColdHardCash to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder.
11.5 You agree that all promises, obligations, duties and warranties made by You in this Agreement are personal to You and that neither they nor any benefits hereunder may be assigned by You to any other person or entity.
11.6 You agree that ColdHardCash may at any time, and without prior notice to you, freely assign all or part of its duties, obligations and benefits hereunder.
12. Arbitration. Any dispute or claim arising under or with respect to this Agreement which is incapable of resolution will be resolved by arbitration before one (1) arbitrator in Los Angeles, California in accordance with the Rules for Commercial Arbitration of the American Arbitration Association ["AAA"]. The appointing agency shall be the AAA and the arbitrator shall apply California law to both interpret this Agreement and fashion an award.
The decision or award of the arbitrator shall be final and binding upon the parties. Any arbitral award may be entered as a judgment or order in any court of competent jurisdiction.
NOTICE: YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INVOLVING THIS AGREEMENT TO BE DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MAY POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. IN SO AGREEING YOU ARE ALSO GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. NEVERTHELESS YOUR AGREEMENT TO THIS ARBITRATION IS VOLUNTARY.
13. All Provisions Of This Agreement Not Deemed Unenforceable Shall Survive. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.
14. Review By Your Attorney. We strongly advise that You review this Agreement with your attorney before You enter into it. You acknowledge and agree that nothing herein and no statement by us or any employee, representative, agent or other person associated with us has in any way prevented or inhibited You in any way from seeking such advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair; all terms have been fully disclosed in writing, and that You have been given a reasonable chance to seek advice of independent counsel with respect to this Agreement and all transactions associated herewith.
16. Acceptance And Execution Of This Agreement. By clicking on the "SUBMIT FORM" button on the ColdHardCash Sign-Up Page, and by supplying ColdHardCash with all the required information to sign You up to the ColdHardCash Program, You are acknowledging that You agree to all of the terms, conditions, promises, warranties, duties and obligations set forth in the above Agreement.