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1. GENERAL
1.1 This Agreement was last updated on February 12, 2007.
1.2 By marketing for and referring new Players to ChessBoss.com through a Tracking link, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. On your acceptance of this Agreement Online, we will automatically become counter-parties to this Agreement.
1.3 IF YOU DO NOT WISH TO ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT PROMOTE CHESS BOSS. ANY UNAUTHORIZED OR VOLUNTARY PROMOTION WITHOUT ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT IS AT YOUR SOLE RISK AND YOU WILL BE EXPOSED TO ANY FURTHER LEGAL ACTION AS WE DEEM APPROPRIATE. 2. DEFINITIONS & INTERPRETATION
2.1 "Account " is the uniquely assigned account that is created for a Player when he/she opens an account at the Chess Boss Website.
2.2 "Affiliate ID" the numeric code you are assigned when you sign up as a participant in the ChessBoss Affiliate Program.
2.3 "Affiliate Compensation" is the amount due and payable to you, based solely on ChessBoss.com system's data, in accordance with the payment plan presented at the time when signing up and/or activating additional Trackers.
2.4 "Banners and Text Links" means the graphical artwork or text that you use to hyperlink Players from your site to the Website.
2.5 "Revenue" is calculated as the sum total of all Players' contribution to all "rakes" the Players were involved in while playing ChessBoss.com, plus the sum total of all tournament "fees" paid by Players for entering tournaments, less any credits, bonus or promotional amounts given to Players, processing charges, charge backs, or any un-collectable revenue attributable to the Player. A Player's contribution to the "rakes" shall be determined as the quotient obtained when dividing the actual amount of each rake, in games which such Player was dealt in, divided by the total number of persons playing per game.
2.6 "Fraud Traffic" means deposits, Revenue or traffic generated at the Website through illegal means or in bad faith to defraud us, regardless of whether or not it actually causes us harm. Fraud Traffic includes but is not limited to spam, false advertising, deposits generated on stolen credit cards, collusion, manipulation of the service, system, bonuses or promotions, offers to share the Affiliate Fee directly or indirectly with Players, and any other unauthorized use of any third party accounts, copyrights or trademarks.
2.7 "Monthly Revenue" means Revenue as calculated at the end of each calendar month for calculation of your Affiliate Fee, which is typically paid shortly after the end of each calendar month.
2.8 "Payment " means we pay you based on the number of Real Money Players that make a minimum deposit of $50 and accumulate at least 100 ChessBoss points for playing real money chess games after opening an account at ChessBoss.com via a Tracker assigned to you.
2.9 "Player(s)" or "Player's Account" means the Account(s) opened at ChessBoss.com by Real Money Players via a Tracker assigned to you. Real Money.
2.10 "Bonus Codes" are unique alphanumeric codes that Players may enter when opening an Account. When entered, the system automatically logs the Bonus Codes and records you as the Affiliate. To encourage potential Players to use Bonus Codes, extra cash or other Bonus Incentives may be given to Players that enter Bonus Codes. Further, Bonus Codes may automatically be entered/logged by the system with some CDs used for installation.
2.11 "Bonus Incentives" are special offers to Players that give them extra cash or giveaways when they enter a Bonus Code when opening an account or making a real money deposit.
2.12 "Website" means the ChessBoss website located at, http://www.ChessBoss.com and its related pages as well as the downloadable application for playing chess.
2.13 "Spam" or "Unsolicited Promotions" means emails or any other messages that are circulated by you, directly or indirectly, including messages that are posted on newsgroups, chat boards and other types of Online forums and which: 1), are directed at people who have not consented to receiving promotional messages from you; 2) contain false or misleading statements; 3), do not truthfully identify the source or the originating IP Address; or 4), do not provide the recipient with an option to easily "Remove" them from receiving future mailings or promotions.
2.14 "Tracker(s)" means the unique Tracking Codes or Bonus Code(s) that we provide exclusively to you, through which we track and calculate Affiliate Fees.
2.15 "Tracking Code" means a unique hyperlink (URL) to ChessBoss.com through which you refer potential Players from your Website. When the Player opens his/her Account, the system automatically logs the Tracking Code and records you as the Affiliate.
3. TERMS & CONDITIONS
3.1 Identity and Disclosure. You must provide and update true and complete information to us at all times; including but not limited to, your identity, contact information, payment instructions, nationality, residency, location and nature of your marketing activities, and any other information that ChessBoss may request from time to time.
3.2 Marketing Activities and Responsibilities. You will, at your own cost and expense, market to and refer Players to ChessBoss Website. You will be solely responsible for the content and manner of your marketing activities. All marketing activities must be professional, proper and lawful under applicable rules or laws. You represent and warrant that you will not place Banners or Text Links to us on any website, or use any media or medium, which is libelous, discriminatory, obscene, unlawful or otherwise unsuitable. Under no circumstances may you market to or refer persons less than 21 years of age to the Website, regardless of the age of majority in the location you are marketing. You will not use Spam, Adware or Spyware in your marketing attempts. Violation of this provision will cause you to forfeit all Affiliate Compensation that you have earned.
3.3 Approved Marketing Materials. You will only use marketing materials that have been provided by us and/or pre approved by us. You will not modify our marketing materials, copyrights, logos, etc., without our written consent. During the term of this Agreement, we grant you a terminable, non-exclusive, non-transferable right to use our logo, trademark and other copyrighted promotional materials for the sole purpose of marketing to and referring Players to the Website. Generally we will provide you, without charge, the guidelines, graphical artwork and permitted text to use in promotional materials. However, CDs and other customized promotional materials provided to you will be AT COST and deducted from Affiliate Compensation payable to you. Violation of this provision will cause you to forfeit all Affiliate Compensation that you have earned.
3.4 Non Assignment. Tracking Links are for your sole use and are not to be assigned to others without our written consent.
3.5 Competitive Marketing. For the avoidance of doubt, it is hereby clarified that you shall not be entitled to market to potential Players on any Internet site on which we promote the Website; or in any other manner which results in you competing with us in relation to the promotion of the ChessBoss Website. In the event that you are in breach of the foregoing provisions, we reserve the right to render the Tracking Code(s) assigned to you inoperative and you will forfeit all Affiliate Compensation that you have earned.
3.6 Commercial Use Only. This Marketing opportunity is for commercial use only, in no event are you to receive Affiliate Compensation on revenue generated on your own player account at the Website. Affiliates are prohibited from playing on ChessBoss through their own tracking link or from the tracking link of an associate who shares all or part of the Affiliate Compensation with the affiliate. This includes any individuals or groups from which an affiliate receives compensation of any kind. Violation of this provision constitutes Fraud Traffic. In the event of violation of this section, ChessBoss shall have the right to void any earned compensations applicable from such play.
3.7 Good Faith Marketing. You will not knowingly or unknowingly benefit from any known, unknown, suspected or unsuspected Fraud Traffic. For clarity, we reserve the right to withhold or backout amounts generated by Fraud Traffic from Affiliate Compensation on the Tracking, regardless of whether you participated in or knew about the Fraud Traffic. In the event you knowingly participate in, or knowingly benefit from, Fraud Traffic with the intent to defraud the system, then we may terminate this Agreement effective immediately and forfeit any and all Affiliate Compensation due to you and we reserve the right to initiate any legal actions as deemed appropriate.
3.8 Player Information. By opening an Account at the Website, Players will be subject to all of our rules, policies and operating procedures that govern their activity at the Website. We reserve the right to refuse service to any potential Player and to close the Account of any Player, at any time, in our sole discretion. All data relating to the Players will remain our sole and exclusive property and you acquire no right to such information, except as expressly stated herein.
3.9 Anti-Spam Policy. In accordance with the "CAN-SPAM Act of 2003" legislation, ChessBoss strictly prohibits members from sending unsolicited mass emails or spam, whether via email, Usenet or any other form. Any member using spamming techniques for soliciting referrals will be in automatic breach of this agreement and will be immediately terminated and legally pursued for any resulting damages.
3.10 You may not send out an electronic message on behalf of ChessBoss or any of its partners or without prior written consent. You may not make any claims of endorsements by ChessBoss or any of its partners or merchants without their prior consent. Affiliates are forbidden to promote ChessBoss in newsgroups, forums and blogs in a manner that violates the newsgroup, forum or blogs anti-spam regulations.
3.11 Duplication of ChessBoss site and content. You are forbidden from creating a site that copies, resembles the look and feel of, duplicates the content, or otherwise creates the impression that the affiliate site is the ChessBoss web site.
3.12 Re-direction of links. You are forbidden from causing any Link in an advertisement that ChessBoss provides to link to any page other than the URL provided with the Tracking Link(s). You are forbidden from using incentives to direct traffic to ChessBoss without the prior consent and review by ChessBoss.
4. REPORTS & COMPENSATIONS
4.1 Reports. We will track and report Player activity for purposes of calculating your Affiliate Compensation. The form, content and frequency of the reports may vary from time to time at our sole discretion. At a minimum, you will receive a monthly report with your payment indicating the total amount of Monthly Revenue collected from Players that month per Tracker. As we deem appropriate, and at our sole discretion, we may distribute reports more frequently than monthly.
4.2 Affiliate Compensation Plan.
4.3 Time and Affiliate Fees. You will be paid, on a monthly calendar basis, according to the Commission Plan you have agreed upon. We may impose reasonable restrictions on the frequency and amounts that can be cashed out of your Affiliate Cashier Account for administrative convenience and/or to protect the security of your account. Further, if the amount due is negative in any particular month, then that negative amount will carry over and be deducted against the following month. Payment will be sent out to you within ten (10) days of the close of each calendar month. In the event, the balance carried over does not exceed US $50 within a consecutive three (3) month period, then the amount due will be voided and cancelled, and we have the right to terminate the affiliate agreement in this case.
4.4 Account Adjustments. Any affiliate who has to have an adjustment made in their account has to notify their account manager immediately. If said change is not requested by the beginning of the month, the adjustments will not be made until the following month.
4.5 Holdover for Fraud Traffic. In the event Fraud Traffic on your Tracking link(s) is abnormally high, or there is suspicious activity, then we may delay payment to you for up to one hundred and eighty (180) days to verify the transactions and to otherwise ensure that such Fraud Traffic is identified, reversed and properly allocated to your Affiliate Compensation.
4.6 Method of Payment. All payments will be due and payable in United States Dollars only. Payment will be made any method as we in our sole discretion decide; however we will try to accommodate your preference.
4.7 Player Tracking. You understand and agree that potential Players must link through a Tracking URL when they sign up in order for you to get credit, and/or use your specific referral bonus code. In no event, are we liable for your failure to use the right Tracking Links or referral bonus codes, or for potential Players' failure to properly follow the Tracking Link(s).
4.8 Disputes. Deposit of payment check, acceptance of payment transfer or acceptance of other payment will be deemed full and final settlement of Affiliate Compensation due for the month indicated. Hence, if you disagree with the reports or amount payable, do NOT accept payment for such amount and immediately send us written notice of your dispute. Dispute notices must be received within thirty (30) days of the end of each month for which payment is made, or your right to dispute such report or payment will be deemed waived.
5. TERM & TERMINATION
5.1 Term and Termination. This Agreement will take effect when you receive your Trackers from us and when you start promoting the Website. This Agreement will be continuous until terminated. Notwithstanding the foregoing, and during a period of seven (7) days following your receipt from us of your Trackers, we reserve the right to refuse your application to join the Affiliate Program. In the event that we elect to refuse your application subsequent to your receipt of the Trackers, we shall notify you of the same and we shall be entitled to render the Trackers inoperative.
5.2 Termination By You. You may terminate this Agreement, with or without cause, immediately upon written notice to us. In addition, you may cease marketing the Website any time you wish.
5.3 Termination By Us. We may terminate this Agreement, with or without cause, upon thirty (30) days written notice to you. Further, we may terminate this Agreement immediately, without notice, in the following events: You materially breach this Agreement and do not cure within fifteen (15) days of notice to cure. The total cumulative balance of Affiliate Compensation due to you is less than $50 for three (3) consecutive months; and we determine, in our reasonable discretion, that you knowingly benefited from Fraud Traffic as set forth in sections above.
5.4 Effect of Termination: The following will apply upon the effective date of termination: You will cease promotional activity and all rights and licenses given to you under this Agreement will terminate immediately, except as expressly stated herein; You will return all confidential information and cease use of any of our trade names, trademarks, service marks, logos, banners and other designations of ChessBoss; We may leave open, redirect or deactivate any Tracking Link(s) in our sole discretion without any obligation to pay you on new Players who come in or would have come in on those Tracking Link(s); We will continue to pay you Affiliate Compensation for all existing Players who signed up through the effective date of termination and on any Net Revenue generated by these Players for as long as they continue to play in accordance with this Agreement; however if we suspect Fraud Traffic, we may withhold payments for up to one hundred eighty (180) days, from the original due date, to ensure that the payment is correct and that any fraud has been reversed out; and In the event we determine, in our reasonable discretion, that you knowingly participate in Fraud Traffic, as set forth above in this agreement, we may in our sole discretion stop, cancel and forfeit all your Affiliate Compensation; and in such case, we do not give up any other legal rights we have against you.
6. LIABILITIES
6.1 No Warranties. WE DO NOT WARRANT THAT OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE OR UNINTERRUPTED. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR SUITABILITY OF OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES). WE (OR OUR PROVIDERS OR UNDERLYING VENDORS) ARE NOT REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, AND SOFTWARE OR HARDWARE.
6.2 Billing and Collection Limitations. We may in our sole discretion, with or without notice, use any available means to block or restrict certain Players, sign ups, deposits or play patterns so as to reduce the number of fraudulent, unprofitable transactions or for any reason whatsoever, including but not limited to daily or monthly purchase limits, address verification or negative and positive credit card databases. We do not guarantee or warrant the success of such fraud prevention efforts.
6.3 Liability Limitations. Our obligations under this Agreement do not constitute personal obligations of the directors, officers, employees or shareholders of ChessBoss.com. Any liability arising under this Agreement will be satisfied solely from the revenues generated hereunder. Our liability is limited to direct damages, and in no event will we be liable for any indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether we have been advised of the possibility of such loss).
6.4 Indemnification. You will defend, indemnify and hold us and our officers, directors, employees and representative harmless from and against any and all liabilities, losses, damages and costs, resulting from or arising from, your breach of this Agreement.
7. INDEPENDENT INVESTIGATION
7.1 Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF MARKETING CHESSBOSS.COM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
7.2 Independent Research. You understand that gambling laws may vary from city to city, state to state and country to country. YOU HAVE INDEPENDENTLY EVALUATED THE LAWS IN YOUR LOCALE WHICH APPLY TO YOUR ACTIVITIES AND BELIEVE THAT YOU MAY PARTICIPATE IN OUR Affiliate Program WITHOUT VIOLATING ANY APPLICABLE RULES OR LAWS. 8. MISCELLANEOUS
8.1 Notices. All notices pertaining to this Agreement will be given by email as follows: to us at affiliates@ChessBoss.com and, to you at address provided on the Affiliate Sign up Form (or as subsequently updated by you to us in the event of change).
8.2 Relationship of Parties. There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between you or us under this Agreement. Neither party has the authority to bind the other nor to incur any obligation on the other's behalf, except as expressly provided herein. Nothing in this Agreement will be construed to provide any rights, remedies or benefits to any person or entity not a party to this Agreement.
8.3 Non Exclusive. You understands that we may at any time (directly or indirectly), enter into marketing terms with other Affiliates on the same or different terms as those provided to you herein and that such Affiliates may be similar, and even competitive, to you. You understand that we may re direct traffic and users from our site to any other website that we deem appropriate in our sole discretion, without any additional compensation to you.
8.4 Confidentiality and Non Disclosure. As a marketer of the Website you will receive confidential information from us as to our marketing plans, marketing concepts, structure and payments. This information is confidential to us and constitutes our proprietary trade secrets. Therefore, you will not disclose this information to third parties without our express written consent.
8.5 Press. You may not issue any press release with respect to this Agreement or your participation in this Affiliate Program without our prior written consent.
8.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned by you without our express written consent.
8.7 Governing Law. The validity of this Agreement, its construction, interpretation, and enforcement, and the rights of the parties hereto will be determined under, governed by, and construed in accordance with the laws of the country of Costa Rica.
8.8 Force Majeure. The parties' obligations under this Agreement are subject to and neither party will be liable for, failure to perform, damage, or malfunction of any equipment, or any consequences thereof occasioned by or due to fire, flood, water, the elements, labor disputes, power failures, explosions, governmental actions, unavailability of transportation, acts or omission of third-parties, or any other causes beyond the party's reasonable control.
8.9 Severability/Waiver. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any provision hereof. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
8.10 Modification. We may modify any of the terms of this Agreement at any time, in our sole discretion, by E-mailing you a change notice or by posting the new Agreement on our Website. It is your responsibility to visit this page at least once a month to make sure you are up to date with the latest terms and conditions of our Affiliate Program. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING POSTING OR NOTICE OF CHANGE WILL BE DEEMED BINDING ACCEPTANCE OF THE MODIFICATION.
8.11 Entire Agreement. This Agreement embodies the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings or agreements between the parties, written or oral, which may be related to the subject matter hereof. The headings in this Agreement are for convenience only and will have no effect on the construction of this Agreement.
IN WITNESS WHERE OF, you expressly agree to the terms and conditions of this Agreement by submitting the Affiliate Registration Form. |
