Liberator

LIBERATOR AFFILIATE PROGRAM TERMS OF AGREEMENT

1. Abbreviations

This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Liberator Affiliate Program (the 'Program'). As used in this Agreement, 'Liberator' refers to Liberator, Inc., located at 2745 Bankers Industrial Drive, Atlanta, GA 30360, and 'Affiliate' means the applicant. 'Site' means a World Wide Web site. The ‘Liberator Site’ means web site located at the URL www.liberator.com.  The 'Affiliate's Site' is a Site owned and operated by the Affiliate that will link to the Liberator Site.

2. Enrollment in the Program

The Affiliate applies for enrollment in the Program by submitting the enrollment form found on the Liberator. Liberator will evaluate the Affiliate's application and notify the Affiliate of the Affiliate's acceptance or rejection. Liberator may reject the Affiliate's application if it is determined (in our sole discretion) that the Affiliate’s site is unsuitable for the program. Unsuitable sites include, but are not limited to, those that:

· Include “liberator” or any other trademark of Liberator, Inc. or variations or misspellings of any of them, in their URLs to the left of the top-level domain (e.g. “.com”, “.net”, “.us”, etc.). For example, a URL such as “liberator.mydomain.com”, “liberatr.com”, “liberatorwedge.com”, “wedgeramp.mydomain.com”, or “wedgeramp.com” would be unsuitable.
· You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Liberator, Inc. or any other affiliated business.
· Otherwise violate intellectual property rights.

By participating in the Program you agree that you will not engage in any such activities. If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement. Participation in the Program is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to participate in the Program.

3. Promotion Restrictions

3.1. You are free to promote your own web sites, but naturally any promotion that mentions Liberator or Liberator.com could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by Liberator. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name or your return email address. You may use mailings to customers to promote Liberator so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Liberator so long as the news group specifically welcomes commercial messages. No matter what, you must always clearly represent yourself and your web sites as independent from Liberator.com. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Liberator Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to unacceptable advertising or solicitation.

3.2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as liberator.com, liberator, www.liberator, www.liberator.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from the Liberator Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.

3.3. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited the Liberator Site (i.e., no page from our site or any Liberator content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of the Liberator site in IFrames, hidden links and automatic pop ups that open the Liberator Site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.

3.4. Affiliates shall not create micro sites that offer no unique content value or that could be construed as a site that is published by Liberator. A micro site, also known as a minisite or weblet, is an Internet web design term referring to an individual web page or cluster of pages which are meant to function as an auxiliary supplement to a primary website. Liberator is looking for affiliates that bring value through original, unique content to the Liberator brand. Any affiliate that does not offer original unique content will not be accepted to the program. Any affiliate exclusively promoting Liberator products, without prior consent, will have their affiliate account terminated.

4. Grant of Licenses

4.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the Liberator Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Liberator and the good will associated therewith will inure to the sole benefit of Liberator.

4.2. Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.

5. Trademarks

Liberator, Liberator.com, Liberator Logo, Liberator Stage, Stage, Liberator Ramp, Ramp, Liberator Wedge, Wedge, Liberator Cube, Cube, Liberator Esse, Esse, Liberator Whirl, Whirl, Liberator Equus, Equus, Liberator Zeppelin, Zeppelin, Liberator Buckaroo, Buckaroo, Fascinator, Fascinator Throe, OneUp Innovations, "Position Yourself”, "Great Sex is all About Angles”, "Bedroom Boosters”, “Be a Love Artist”, "Bedroom Adventure Gear" and "Sex Without it is Just Plain Flat" are all trademarks or service marks of Liberator, Inc. and its affiliates and may not be used without prior written consent of Liberator, Inc.

6. Copyright

User acknowledges that Liberator has information, software, flash presentation, photographs, illustrations, typefaces, graphics, music, sounds (collectively "Content") that are protected by copyrights, trademarks, trade secrets and that these rights are valid and protected in all forms of media. All Content is copyrighted as a collective work under U.S. and international law. Affiliates must include the following statement on the Affiliate Site:

· Liberator and the Liberator logo are trademarks of Liberator, Inc. All rights reserved. Used with permission.

User may not modify, publish, transmit or in any way exploit, in whole or in part, any of the Content. User may make copies of Content for personal use only.

7. Links on The Affiliate's Site

Upon acceptance into the Program, the Affiliate may post a Liberator banner or icon on the Affiliate's site and a link to the Liberator site.

8. Referral Fee Schedule

The Affiliate will earn referral fees based on Qualifying Revenues according to referral fee schedules to be established by Liberator. 'Qualifying Revenues' are revenues derived by Liberator from Liberator 's sales of Qualifying Products, excluding costs for shipping, handling, gift-wrapping, taxes, service charges, credit card processing fees, and bad debt. Products returned by customers for refunds shall not qualify for referral fees.

9. Qualifying for Referral Fees

Liberator will track all purchases made from its site by customers who come directly from the Affiliate's site, or have come to the Liberator site, and have returned by and made a purchase. The Affiliate will receive referral fees from all such purchases as described below. Liberator reserves the right to reject any order from any customer for any reason, including, but not limited to the age or location of the customer. For a Product sale to be eligible to earn a referral fee, the customer must enter the Liberator site by way of a link from the Affiliate's site, select and purchase the Product using Liberator 's automated ordering system, accept delivery of the Product at the shipping destination, and remit full payment to Liberator.

10. Referral Fee Amounts

The base referral fee is 10% for customers coming from the Affiliate's Site. Liberator reserves the right to change these fees upon notification by an alteration to this Agreement posted on the Liberator Site. Liberator reserves the right to compensate different Affiliates with different referral fees. The Affiliate understands that Liberator may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate web sites that are similar to or compete with the Affiliate's Site. Liberator does not pay referral fees on sales from the Liberator catalog or magazine advertisements.

11. Referral Fees Credited on Shipping

Referral fees will be credited to the Affiliate's account only at the time the customer's credit card is charged, not at the time the purchase is made. Liberator charges the customers credit card at the time the product is shipped. While Liberator does everything possible to maintain adequate stock, out-of-stock items can sometimes delay shipping.

12. Referral Fee Payment

Liberator will pay the Affiliate referral fees on a monthly basis. Approximately 30 days following the end of each calendar month, Liberator will send the Affiliate a check for the referral fees earned on Liberator 's sales of qualifying products that were shipped during that month, less any taxes that Liberator are required by law to withhold. However, if the referral fees payable to the Affiliate for any calendar month are less than $100, Liberator will hold those referral fees until the total amount due is at least $100 or (if earlier) until this Agreement is terminated. If the customer returns a product that generated a referral fee, Liberator will deduct the corresponding referral fee from the Affiliate's next monthly payment. If there is no subsequent payment, Liberator will send the Affiliate a bill for the referral fee.

13. Identifying The Affiliate as an Liberator Affiliate

Liberator will make available to the Affiliate one or more icons/banners bearing the Liberator logo that will enable customers to 'click' and go the Liberator Site. These icons/banners may be changed by Liberator from time to time at Liberator 's sole discretion. Because the Affiliate posts a URL to the icon, which resides on a server maintained by Liberator, Liberator will be able to change icons at any time without any actions on the part of the Affiliate. Liberator reserves all of its intellectual rights to its logo and any other graphic images or text that appears on its icons or the Liberator.com website.

14. Term of the Agreement

The term of this Agreement will begin upon the acceptance by Liberator of the Affiliate's Program application and will end when terminated by either party. Either the Affiliate or Liberator may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination by postal mail or email. Upon the termination of this Agreement for any reason, the Affiliate will immediately cease use of, and remove from the Affiliate's Site, all links to the Liberator Site, and all Liberator trademarks, logos, and all other materials provided by or on behalf of Liberator to the Affiliate pursuant hereto or in connection with the Program. The Affiliate is only eligible to earn referral fees on Liberator 's sales of qualifying products occurring during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. Liberator may withhold the Affiliate's final payment for a reasonable time to ensure that the correct amount is paid. Notwithstanding anything to the contrary in this Agreement, Affiliate will forfeit any earned but unpaid commissions at the time of termination if termination of the Affiliate from the Program is with cause.

15. Modification of the Agreement

Liberator may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion by posting a change notice or a new agreement on the Liberator Site. Modifications may include, but not be limited to, changes in the referral fees, referral fee payment schedules, payment procedures, and Program rules. If any modification is unacceptable to the Affiliate, the Affiliate's only recourse is to terminate this agreement. The Affiliate's continued participation in the program following the posting of a change notice or new agreement on the Liberator Site will constitute binding acceptance of the change.

16. Termination of Affiliate

Liberator may at any time and for any reason, at its sole discretion, terminate an Affiliate's participation in the program. Such termination may be made by postal mail or email. Upon being notified of such termination, the former Affiliate must immediately remove any and all Liberator icons, banners, and links from the Affiliate's site to the Liberator site, and must cease making any claims of being a Liberator Affiliate.

17. Relationship of Parties

The Affiliate and Liberator are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Affiliate will have no authority to make or accept any offers or representations on Liberator 's behalf. The Affiliate will not make any statement, whether on the Affiliate's site or otherwise, that reasonably would contradict anything in this paragraph or in this agreement as a whole.

18. Fulfillment and Customer Service

Liberator is responsible for receiving, processing and shipping of all orders, resolving all customer service problems including shipping, authorization of credit cards, customer questions and returns. Liberator is not responsible for delays in shipment: including without limitation delays caused by product availability, failure to authorize customer credit cards, or incomplete information given by the customer. While Liberator is infrequently out of stock due to carrying large inventories, Liberator cannot guarantee product availability for shipment or sale.

19. Sales Performance

Liberator is not responsible for the performance of sales from the Affiliate site. Affiliates are responsible for their own equipment and software and for compliance with all laws applicable to their sites. Proper web site design and placement of links on the Affiliate site is the sole responsibility of the Affiliate. Liberator is not responsible for sales not attributed to the Affiliate due to improper coding or placement of links.

20. Limitation of Liability 

Liberator will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if Liberator has been advised of the possibility of such damages. Further, Liberator 's aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to the Affiliate under this Agreement.

21. Disclaimers

Liberator makes no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). Liberator does not promise, guarantee, represent or warrant that access to the Liberator site will be error-free, accessible and uninterrupted at any particular time or that Liberator will always be able to process orders or information properly or timely. Liberator makes no other promises, guarantees, representations or warranties in connection with its operation of the Liberator site or its fulfillment or customer service functions or its products.

22. Independent Investigation

The Affiliate acknowledges that the Affiliate has read this agreement and agrees to all its terms and conditions. The Affiliate has independently evaluated the desirability of participating in the program and is not relying on any representation, guarantee, or statement other than as set forth in this agreement.

23. Non Assignment

The Affiliate may not assign this Agreement, by operation of law or otherwise, without Affiliate Manager's prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.

24. Non Waiver of Rights

Failure by Liberator to enforce the Affiliate's strict performance of any provision of this Agreement will not constitute a waiver of Liberator 's right to subsequently enforce such provision or any other provision of this Agreement.

25. Paragraph Headings

Paragraph headings contained herein are for the convenience of the parties only. They shall not be used in any way to govern, limit, modify, or construe this Agreement and shall not be given any legal effect.

26. Governing Law

This site is created and controlled by Liberator, Inc. in the State of Georgia and Georgia laws will govern these disclaimers, terms and conditions. Liberator, Inc. reserves the right to make changes to its site or these disclaimers, terms and conditions at any time. User hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction in the courts of the State of Georgia and of the United States of America for any litigation arising out of or relating to the use of products purchased through Liberator.