Winning In The Cash Flow Business

By submitting your online application to become an Affiliate (the “Application”), you are confirming that you: a) have fully read this Agreement; b) understand all of the terms and conditions of this Agreement; and c) agree to be fully bound by this Agreement. 

This Agreement is subject to change at any time, in ANN’s sole discretion, and such changes shall be effective upon their posting at the ANN Affiliate Account Area located at http://affiliate.witcfb.com, as applicable.  Bookmark this page and check it frequently as it is up to Affiliate to refer to this page to remain abreast of any and all amendments and/or changes to this Agreement.  By Affiliate’s continued participation in the ANN Affiliate Program, Affiliate is fully subject to any and all changes to this Agreement as they are posted.

1.         Enrollment in the ANN Affiliate Program

1.1       To begin the enrollment process, you must submit a complete and accurate ANN Affiliate Application.  To join the ANN Affiliate Program, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the ANN Affiliate Program.  ANN will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supply as a part of your Application.  If any of the information supplied as part of your Application changes, at any time, you must immediately inform ANN of same to reflect such changes in your Affiliate profile.

1.2       ANN may reject your Application and/or terminate your participation in the ANN at any time and for any reason, in ANN’s sole discretion.  Such reasons may include, without limitation:

1.3       Where ANN believes that you are in any way in breach of this Agreement;

1.4       Where ANN believes that your website and/or any other website affiliated with, owned, operated and/or controlled by you (“Affiliate Website”) is unsuitable for the ANN for any reason including, without limitation, that the Affiliate Website contains or links to material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; and/or

1. Where ANN believes that you, at any time, are conducting email marketing of any kind whatsoever including, but not limited to, sending marketing material to email recipients and/or newsletter groups without ANN’s prior written consent.


2. Fraudulent Activity

2.         Affiliates

2.1       ANN grants to Affiliates a non-exclusive, non-transferable, revocable and limited license to use the ANN affiliate program in accordance with the terms, and during the term, of this Agreement.  The ANN enables Affiliates to apply for, and, upon approval earn Commissions (as that term is defined herein below) through participation in product and/or service marketing campaigns in accordance with the terms and conditions of this Agreement.

1. Upon approval, Affiliate may download certain website links (the “Links”) made available on the ANN for publication on the Affiliate Website.  Valid sales, leads, applications, accounts, clicks or other compensable activities, as specified by ANN (the “Compensable Transactions”), achieved by the display and/or placement of such Links will be calculated by ANN and through the use of industry standard tracking technology.  If such Links are not dynamically updated through the ANN affiliate program, Affiliate is obligated to update website Links when notified to do so in order to earn payment.  In addition to, and without limiting, your obligations under this Agreement as an Affiliate, the terms and conditions of each applicable Campaign govern the Affiliate’s performance in connection with such Campaign including use of associated Campaign Links, the types of Compensable Transactions and any limitations or restrictions that may apply to Affiliate’s promotion of ANN sites or its Links. 

2.3       ANN may use the personal information of an Affiliate in any manner consistent with the ANN Website Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. 

2.4       Affiliate will ensure that the Affiliate Website will feature a privacy policy, linked, at a minimum, conspicuously from such Affiliate Website's home page, with a link that contains explicit language indicating its presence.  Such privacy policy shall, in addition to the disclosures about Affiliate’s privacy practices, identify the collection and use of any information Affiliate provides or may provide to ANN and to other websites or persons with which Affiliate has any ANN-tracked Campaign or other arrangement in relation thereto. 

2.5       Affiliate may not use any ANN-provided Links or any other ANN Network Campaign information, terms and/or content in connection with aggregating, soliciting or recruiting Merchants, Affiliates, other websites or other persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by ANN.

3.         Use of Links

3.1       Affiliates may not alter, modify or otherwise change the look, appearance, copy, graphics subject matter, form, size, wording, illustration, typography, processes for generating actions or any other Links-related feature in any manner, whatsoever. 
 
3.2       Each Link used by Affiliate in relation to any Campaign must include, in unaltered form, the special transaction tracking codes embedded in the Links that, among other things, identify such Link with the applicable Campaign.  Affiliate will not knowingly modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by ANN to be used in connection with monitoring such Link.

3.3       No images, graphics, links, co-registration paths, copy or process for generating actions other than the Links may be used by Affiliate without first obtaining the prior express written consent of both ANN.

3.4       Affiliate may not place the Links, or otherwise distribute the Links, in any electronic message or other electronic communication including, but not limited to, email, newsletters and/or bulletin boards. 

3.5       Affiliate must place or use the Links only with the intention of delivering valid Compensable Transactions as determined by, and for the benefit of, the applicable Merchant.  Affiliate may not, nor knowingly permit any person to, activate a Link or inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a Compensable Transaction.  Affiliate may not establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Internet users to click on any of the Links through use of any other incentives, without obtaining the prior written approval of Merchant.

3.6       Affiliate hereby agrees that it (i) will not make any representations, warranties or other statements concerning ANN, or any products and/or services on any Affiliate Website except as expressly authorized herein; (ii) will ensure that no Affiliate Website will copy or resemble the look and feel of the ANN Website or any of the ANN’s website(s) or create the impression that such Affiliate Website is endorsed by ANN, without obtaining the prior express written consent of both ANN. (iii) Affiliate will not intentionally place any of the Links on blank web pages or on web pages with no content, stack Links (e.g. place on top of one another so that more than two (2) such ads are next to one another) or place any Links on non-approved websites, web pages or in such a fashion that may be deceptive to the visitor.

3.7       Affiliate may not, nor knowingly permit any person to, use third-party trademarks in any way to direct traffic to any Affiliate Website or Merchant website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of ANN and/or any of their respective affiliates or clients.

1. All determinations made by ANN in connection with the Links, Compensable Transactions and any associated Commissions due to Affiliate shall be final and binding on Affiliate. 

3.9       Affiliate may not allow the Links to be placed on any non-Affiliate Website without the prior express written consent of both ANN.

3.10     ANN may terminate, at any time, any Links associated with any Campaign.  Affiliate must remove such Links after any such termination in any given Campaign.  If the Links are not so removed, ANN may, in its sole discretion, redirect such Links with or without compensation to Affiliate.

3.11     Affiliate may at any time discontinue use of any Links by removing such Links from the Affiliate Website subject to the terms of Affiliate’s Campaign; provided, however, that Affiliate remains subject to such Campaign terms and this Agreement until Affiliate separately terminates such Campaign or Agreement.

4.         Term and Termination

1. ANN may, in its sole discretion, terminate this Agreement at any time, with or without cause.  Merchant may terminate the Affiliate, or any portion of the Affiliate Website, with or without cause, from the applicable Campaign upon seven (7) days’ prior written notice. 

4.2       Upon any expiration, termination or suspension of this Agreement and/or Affiliate’s participation in the ANN Network:

4.3       Affiliate shall immediately cease to use and remove from the Affiliate Website any and all Links, other content and/or other materials made available to Affiliate in connection with Affiliate’s participation in the ANN Affiliate Program;

4.4       Any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate;

4.5       ANN may terminate or, in its sole discretion, direct or redirect to any website any and all Links continued to be used by Affiliate without ANN or any Merchant incurring any further liability or obligation to Affiliate; and

4.6       Any and all confidential or proprietary information of ANN that is in Affiliate’s possession or control must be immediately returned or destroyed.  If requested, Affiliate will certify in a writing signed by Affiliate or an authorized officer of Affiliate that all such confidential and/or proprietary information has been returned or destroyed.

4.7       If Affiliate is terminated by ANN for breach of this Agreement, Affiliate shall not be eligible to apply for any subsequent Campaigns or enter into a new ANN Affiliate Service Agreement with ANN, and any attempt to do so shall be null and void.

4.8       Obligations that, by their nature, would survive any termination of this Agreement including, without limitation, Sections 10, 11, 12, 15 and 16, shall survive any termination of this Agreement.

5.         ANN Network Service

1. ANN shall provide Affiliate with access to tracking and reporting tools, to be used in connection with monitoring Affiliate Campaign activities (“Affiliate Reports”)


2. Affiliate acknowledges and agrees that each Campaign Affiliate participates in will receive reports from ANN that identify Affiliate and may include data about Affiliate including, but not limited to, Affiliate’s use of the Campaign Links. If ANN receives notice associated with Affiliate’s participation in any Campaign contain errors, omissions or otherwise require adjustment, ANN may, in its discretion, elect to revise such Reports and make corresponding changes to the applicable Affiliate Reports.  Because the Affiliate Reports are used to calculate Commissions, if any, due to Affiliate, any such adjustment may affect the amount of any associated Commissions due to Affiliate


3. Where Affiliate believes that any of the monthly Affiliate Reports, or the calculation of the associated Compensable Transactions for such month, contain errors, Affiliate must notify ANN in writing, within fifteen (15) days after the end of that particular month or any shorter period of time required by the terms and conditions of the applicable Campaign.  If any Affiliate Reports for any month are corrected or adjusted after the end of the month, then the period within which Affiliate must notify ANN in writing, regarding errors in the corrected or adjusted data shall be fifteen (15) days after such correction or adjustment is posted or any shorter period of time required by the terms of the applicable Campaign. 

6.         Commissions

6.1       ANN shall establish the payment rate for Compensable Transactions for each Campaign.  ANN shall credit Affiliate’s Account with all commissions (“Commissions”) in accordance with those Compensable Transactions reported by the ANN Website for the applicable Campaign.  Notwithstanding the foregoing, ANN shall have the right to refuse any sale, lead or other Compensable Transaction that would otherwise accrue to the benefit of Affiliate.  Payment for any Compensable Transaction may be subject to additional and/or other conditions established by ANN, including policies regarding minimum thresholds for earned compensation, order cancellation, returned merchandise, receipt of pending credit card authorizations and/or chargebacks before payment is made.  The most recent Campaign information and Commission schedule will be published on the ANN Affiliate Website, unless otherwise communicated.  In addition, payment for any Commissions credited to Affiliate’s account may be subject to the availability of funds in the applicable Merchant’s account as discussed herein below.

6.2       ANN shall compile, calculate and provide in the Affiliate Reports data that ANN has used to determine Affiliate’s Commissions (the “Data”).  Any questions or disputes regarding the Data must be submitted by Affiliate, in writing, to ANN within fifteen (15) business days after the end of the subject month, or any shorter period of time required by the terms of the applicable Campaign, for which such Data appeared in the Affiliate Report; otherwise the information contained therein will be deemed accurate and accepted by the Affiliate.  ANN will investigate and resolve any Data-related questions or disputes in its sole discretion. 

6.3       Affiliate agrees that the Commissions due and payable to Affiliate shall be based solely on the Data provided in the Affiliate Reports.  ANN will not pay any Commissions to an Affiliate unless ANN has documentation to support such Commissions within its database and Data.  ANN may require an Affiliate to provide a W-9, or similar information, as a condition to receiving any Commission payments.  

6.4       ANN reserves the right to withhold and/or cancel Commission payments otherwise due and owing to an Affiliate at any time when ANN believes, in ANN’s sole discretion, that the Affiliate is in breach of this Agreement. 

7.         Payments

7.1       Notwithstanding anything contained herein to the contrary, no Commission payments will be issued to Affiliate for any amounts otherwise due Affiliate that total less than $25.00 US Dollars (the “Payment Threshold”).  All such amounts below the Payment Threshold shall be held, aggregated and paid to Affiliate only when the Payment Threshold has been reached.  ANN will not pay Commissions on any billings that occur: (i) before Affiliate is accepted into the ANN Network; or (ii) after termination of this Agreement.

1. Commissions shall be paid to Affiliate approximately thirty (30) days after the last day of a given calendar month, for Commissions realized in that month.

7.3       ANN may on its own initiative, debit Affiliate’s account with an amount equal to a Commission previously credited to Affiliate’s account where: (i) a return or cancellation has been made with respect to the applicable product and/or service; (ii) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (iii) there are Compensable Transactions that do not comply fully with the terms of this Agreement, including where the applicable non-complying Compensable Transaction is not the result of Affiliate’s action, omission and/or failure to comply with the terms and conditions of this Agreement; (iv) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Compensable Transaction; or (v) there is any failure on the part of an Affiliate to comply with the terms and conditions of this Agreement and/or the applicable Campaign (collectively referred to as a “Chargeback”).  The number or amount of Compensable Transactions, credits for payments and debits for Chargebacks, as calculated by ANN, shall be final and binding on Affiliate.

7.4       ANN may, at any time upon prior written notice to Affiliate as described below, commence charging or assessing fees in relation to any or all ANN services made available to Affiliate through the ANN Affiliate Program.  Except as otherwise expressly provided for in this Agreement, in the event that ANN elects to charge or assess fees, Affiliate will be notified, in writing (with email sufficing) or posting on the ANN Website, at least one (1) month in advance.  Affiliate may elect not to pay any such fees by discontinuing Affiliate’s participation in the ANN Affiliate Program prior to such fees being charged or assessed to the Affiliate’s account.  Any and all fees or other charges may be offset against or debited from any amounts that might be held in account for Affiliate by ANN including any amounts that may be due, payable or paid to Affiliate by any other third parties.
 

7.5       Affiliate is solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with Affiliate’s participation in the ANN Affiliate Program.

7.6       All Commission payments due to Affiliate will be paid by ANN directly in US dollars. 

8.         Representations and Warranties: Affiliate hereby represents and warrants to ANN as follows:

8.1       This Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid and binding obligation which is fully enforceable against Affiliate in accordance with its terms;

8.2       Affiliate is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Affiliate’s rights and duties pursuant to this Agreement;

8.3       Affiliate understands and agrees that ANN will enter into similar agreements with other ANN affiliates in direct competition with Affiliate; 

8.4       Affiliate understands and agrees that Affiliate has independently evaluated the desirability of participating in the ANN Affiliate Program and that Affiliate has not relied on any representation and/or warranty other than those set forth in this Agreement;

8.5       The execution, delivery and performance by Affiliate of this Agreement will not conflict with or violate:  (i) any provision of law, rule or regulation to which Affiliate is subject; (ii) any order, judgment or decree applicable to Affiliate; (iii) any provision of Affiliate’s corporate by-laws or certificate of incorporation; or (iv) any agreement or other instrument applicable to Affiliate;

8.6       Affiliate’s performance under this Agreement will not: (i) invade the right of privacy or publicity of any third person; (ii) involve any libelous, obscene, indecent or otherwise unlawful material; (iii) violate any applicable law, rule, Federal Trade Commission implementing regulation and/or court order; and/or (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity; 

8.7       There is no pending or, to the best of Affiliate’s knowledge, threatened claim, action or proceeding against Affiliate; and

8.8       Affiliate will be solely responsible for the development, operation and maintenance of the Affiliate Website, Affiliate Database and for any and all materials that appear on the Affiliate Website.  Such responsibilities include, without limitation: (i) the technical operation of the Affiliate Website and all related equipment; (ii) creating and posting content, descriptions and references on the Affiliate Website; (iii) the accuracy and propriety of materials posted on the Affiliate Website; (iv) ensuring that materials posted on the Affiliate Website do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; and (v) ensuring that the Affiliate Website otherwise complies with all applicable laws.

9.         Publicity

9.1       Affiliate agrees that ANN may use Affiliate’s name (if Affiliate is an individual), Affiliate’s company name (if Affiliate is a corporation), Affiliate’s likeness (if Affiliate is an individual), the Affiliate Website address(es) and any associated information in ANN marketing materials and press releases, without compensation to Affiliate. 

9.2       Affiliate shall not create, publish, distribute or permit any written material that makes reference to ANN without first submitting such material to ANN and receiving prior written consent from ANN, which ANN may withhold in its sole discretion.

10.       Proprietary Rights

10.1     The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the ANN Network, Links, and the ANN Website are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights.  The use, copying, redistribution and/or publication by Affiliate of any part of the ANN Network, Links and the ANN Website, other than as contemplated hereunder, is strictly prohibited.
 
10.2     Affiliate does not acquire any ownership rights to the ANN Network, Links and/or the ANN Website.  The availability of the ANN Affiliate Program, Links and the ANN Website does not constitute a waiver of any rights related thereto. 

11.       Collection and Use of Transaction Data

11.1     ANN does not collect information about a customer’s Compensable Transactions, other than what it receives through the installed transaction tracking codes.  ANN reserves the right to utilize this data, which may include information about Affiliate’s Profile Statistics (as defined herein below), to analyze the performance of the ANN Affiliate Program, monitor the use of the transaction tracking codes, promote ANN Affiliate Program performance and functionality and promote Affiliate and/or the Affiliate Website.  ANN may also disclose data regarding a customer’s Compensable Transactions to Affiliate as needed in connection with the transactions contemplated hereunder.  Notwithstanding the foregoing, Affiliate represents and warrants that Affiliate shall not alter the transaction tracking codes to collect personally identifiable information of customers and/or Internet users

11.2     ANN collects certain personally identifiable information about Affiliate (the “Profile Statistics”).  The Profile Statistics shall include, but not be limited to, the geographical location of Affiliate, the types of websites operated by Affiliate, the volume of traffic for such websites, the Campaign statistics associated with such websites and any and all other statistics and data related to such websites.  All personally identifiable information that ANN collects from Affiliate is also intended for administrative needs (e.g., accounting and pay-out and performance reporting), for which purpose such data are required.

12.       Amendments

12.1     Upon prior written notice to Affiliate, ANN may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement and/or the ANN Affiliate Program.

12.2     Affiliate’s continued use of the ANN Affiliate Program after notice is given (and after expiration of any applicable prior notice period) shall constitute Affiliate’s binding and legally enforceable agreement to such change.  If Affiliate does not wish to accept any such change, then Affiliate must terminate Affiliate’s account with the ANN Network and cease using the ANN Affiliate Program.

13.       Indemnification

13.1     Affiliate agrees to indemnify, defend and hold ANN, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs).

14.       Disclaimers/Limitation of Liability

14.1     THE ANN AFFILIATE PROGRAM, ANN WEBSITE AND LINKS ARE PROVIDED ON AN "AS IS” AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE).  THE ANN NETWORK, ANN WEBSITE AND/OR LINKS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.  ANN HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE’S USE OF, OR INABILITY TO USE, THE ANN AFFILIATE PROGRAM, ANN WEBSITE AND/OR LINKS AND ANN DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT AFFILIATE’S USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE MERCHANT CAMPAIGNS WILL BE AVAILABLE TO AFFILIATE.  IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, ANN IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ANN AND AFFILIATE.  THE ANN AFFILIATE PROGRAM, ANN WEBSITE AND LINKS WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS.  ANN MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE ANN AFFILIATE PROGRAM.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM ANN THROUGH THE ANN AFFILIATE PROGRAM, ANN WEBSITE AND LINKS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

14.2     ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE ANN AFFILIATE PROGRAM, ANN WEBSITE AND LINKS IS EXPRESSLY DISCLAIMED.  AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE ANN AFFILIATE PROGRAM AND ACCESS AND/OR USE OF THE ANN WEBSITE AND LINKS IS UNDERTAKEN SOLELY AT AFFILIATE’S OWN DISCRETION AND AT AFFILIATE’S OWN RISK.  AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE ANN NETWORK, ANN WEBSITE AND LINKS THAT MAY INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

14.3     UNDER NO CIRCUMSTANCES SHALL ANN BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE’S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE’S PARTICIPATION IN THE ANN AFFILIATE PROGRAM.  ANN’S MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE $300.  AFFILIATE RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.

15.       Force Majeure

15.1     Affiliate agrees that ANN will not be liable, or be considered to be in breach of this Agreement, on account of ANN’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond ANN’s reasonable control and that ANN is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). 

15.2     If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, ANN will give Affiliate notice and will use commercially reasonable efforts to minimize the impact of any such event.

16.       Miscellaneous. 

16.1     This Agreement shall be treated as though it were executed and performed in Westminster, Colorado and shall be governed by and construed in accordance with the laws of the State of Colorado (without regard to conflict of law principles).  Affiliate agrees that the exclusive jurisdiction and venue of any action with respect to this Agreement shall be in the Supreme Court of Colorado for the County of Westminster and each of the parties hereby submits to the exclusive jurisdiction and venue of such courts for the purpose of such action.

16.2     Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.

16.3     Affiliate agrees that any unauthorized and/or unlawful use of the ANN Affiliate Program would result in irreparable injury to ANN for which monetary damages would be inadequate.  In such event, ANN shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Affiliate without the need to post a bond.  Nothing contained in this Agreement shall be construed to limit any legal remedies available to ANN.

16.4     ANN and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties.  Affiliate has no authority to make or accept any offers or representations on behalf of ANN.  Affiliate is prohibited from making any statement, whether on the Affiliate Website or otherwise, that could possibly contradict anything in this Section 18.4.

16.5     To the extent that anything in or associated with the ANN Website and ANN Affiliate Program is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

16.6     ANN’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.

16.7     Any attempt by any individual, whether or not a Affiliate, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the ANN Affiliate Program, is a violation of both criminal and civil law and ANN will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.

16.8     This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and ANN’s successors and assigns.  Affiliate is not permitted to transfer any rights and obligations pursuant to this Agreement.  Any attempt to do so will result in the immediate termination of this Agreement.

16.9     This Agreement is the entire agreement between the parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the parties with respect to such subject matter.  There are no third party beneficiaries of this Agreement.  The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.

16.10   ANN may provide notices to Affiliate by posting notices or links to notices in Affiliate’s ANN Affiliate Program Account Area. Notices to Affiliate also may be made via e-mail, regular mail, overnight courier or facsimile at Affiliate’s contact addresses of record for the ANN Affiliate Program.  If Affiliate provides notice to ANN, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: America’s Note Network, Inc., 7233 Church Ranch, Westminster, CO 80023, Attn: CEO.  Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by an authorized personnel member of ANN.