This Affiliate Program Agreement (the "Agreement") is made and entered into by and between XCash.com Affiliate Program (“XCAP” or "we" or "Company" or "Us") and you, ("you" or "Affiliate") the person or party submitting an application to become a XCAP affiliate. The terms and conditions contained in this Agreement apply to your participation with XCAP ("Affiliate Program"). The Affiliate Program offers (an "Offer") may be for any offering by XCAP or a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). By submitting an application or participating in the affiliate program, you agree to all the terms and conditions within this Agreement.
1.1 You must submit an Affiliate Program application from our website. You must accurately complete the application to become an affiliate and not use any aliases or other means to mask your true identity or contact information. You agree to update such information as and when required or requested, and you agree that your account is for your sole use and you shall not allow any other person or party to use your account, nor shall you make use of any other person or party`s account, nor shall you sell or transfer your account. You agree to have full capacity and authority to enter into this binding Agreement on behalf of yourself or any legal entity on which you claim to act on behalf of. If you are an affiliate network, you have bound your affiliates to the same conditions and restrictions as you are bound to under this Agreement. You agree that you will remain fully liable for all activity conducted through your Account.
1.2 If you are an individual and not a company entity, you must be over eighteen (18) years of age and/or over the age of majority if residing and/or conducting business in any states, provinces or countries where the age of majority is greater than eighteen (18) years of age.
1.3 Your participation in the Affiliate Program is subject to approval. We reserve the right to reject your application for any reason, including but not limited to the reason that we believe your traffic sources or promotional methods are unsuitable for our Affiliate Program, or if we suspect you may breach this Agreement.
1.4 If you are, or we believe you to be based in, or otherwise connected to any of the following countries, your application will be automatically rejected: Afghanistan, Albania, Armenia, Azerbaijan, Belarus, Bhutan, Bosnia And Herzegovina, Bulgaria, China, Costa Rica, Croatia, Cuba, Estonia, Georgia, Hungary, India, Indonesia, Jordan, Kazakhstan, Korea, Kyrgyzstan, Latvia, Lithuania, Malaysia, Republic Of Moldova, Mongolia, Pakistan, Philippines, Poland, Romania, Russian Federation, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Yugoslavia.
1.5 As described fully in this Agreement below, we reserve the right to suspend or terminate your access to the Affiliate Program at any time for any reason.
1.6 If your application is accepted, we will provide you with login details for your Affiliate Account.
1.7 Once approved, we will make available to you via the Affiliate Program and/or Email links to the Program Web Site and/or other marketing materials (collectively, the "Links" and/or “Marketing Tools”) which you may display on websites owned or controlled by you from media purchased and in online advertisements (collectively, "Media"). The Links will serve to identify you as an affiliate from our Affiliate Program and will establish a link from your Media to the Program Web Site.
2.1 XCAP will pay Affiliate for each Qualified Action (the "Commission"). A "Qualified Action" means an individual person who (a) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (b) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (c) is not using pre-populated fields (d) completes all of the information required for such action within the time period allowed by XCAP and (e) is not later determined by XCAP to be fraudulent, incomplete, unqualified or a duplicate (f) does not later request a refund or initiate a chargeback or reverse a payment. In addition, we may reject an action which is not a lead or sale from the country of origin. We reserve the right to reject any action, which is not a Qualified Action under this Agreement as amended from time to time. We reserve the right to switch your account from a Pay Per Lead program to a Pay Per Sale program. For all Affiliate Programs where the payable action is a sale (Pay Per Sale “PPS” and/or Pay Per Trial “PPT”) we reserve the right to do the following: if an Affiliate is paid for a given Action but the respective sale is refunded afterwards we can deduct the commission amount paid for this Action from any future commission due to the Affiliate.
2.2 Commission payments are made in US currency and paid weekly or monthly upon request. Weekly is defined from Sunday to Saturday and monthly is defined as a calendar month. Check payments have a $100 minimum (no fees), bank wire payments have a $1035 minimum ($35 bank wire fee) and 3rd party e-payments (Paxum, Payoneer, etc.) have a $1025 minimum ($25 fee). Should a payment need to be reissued for any reason, there will be a stop payment and reissuing processing fee of $35 deducted from the payment, plus the fee cost of the next payment. Payments will be held until the minimum is reached or a written email request is made to be paid out, which then will be paid out on the following payment cycle. Accounts with a balance of less than the minimum balance will roll over to the next payment cycle, and will continue to roll over until the minimum balance is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. Affiliates are independent contractors and the relationship between the Company and the Affiliate is not one of employment relationship. The Affiliate is solely responsible for any taxes or social security costs due as a result of any payments received from the Company. You understand and agree that, if at any time we believe your account has been compromised, or this Agreement has been, or may have been breached, we reserve the right to withhold making any payment to you until such time as we have concluded our investigation and you agree to fully co-operate with any investigation at your own cost including providing all required identification documents and other documents if so requested. Your failure to promptly comply with any notification will result in your payments being delayed. We may withhold your final payment for a reasonable period of time to make sure that the total commission is calculated accurately and the correct amount is paid
2.3 All Commissions will be paid in USD, should you require to receive funds in EU and we agree to it, such currency will be converted based upon our banks conversion on the date of payment.
2.4 We shall automatically generate an invoice on your behalf for all Commissions payable under this Agreement and shall remit payment to you based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by us in our sole discretion. In the event that you wish to dispute in good faith any portion of an invoice, you must submit that dispute to us in writing and in sufficient detail within seven (7) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. All payments are made only on the basis of statistics in our tracking system. Any disputes on statistics will be considered by our team of affiliate managers and/or management.
2.5 Referral Commissions are accrued on each payment transaction for each referred billable account at the percentage offered at the time of application, typically five (5) percent. New accounts are considered referred by you if they sign up through your referral link or mentioned during an application submitted. Payments from Referral Commission will be added to the regular Commissions and processed in one invoice and payment.
3.1 In addition to any other warranties or undertakings within this Agreement, you expressly accept, understand and agree to the following affiliate obligations when accessing or otherwise using your account or XCAP:
3.2. You warrant that you will:
3.3. Email Campaigns:
3.4 Advertising Campaigns
3.5 Affiliate Network Campaigns. For all Affiliate's that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the "Network") for access and use by those affiliates in Affiliate's Network (each a "Third Party Affiliate"). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to XCAP the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of XCAP upon written notice from XCAP. Unless XCAP has been provided with all truthful and complete contact information for a Third Party AÏfiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by XCAP, Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.
3.6 Social Network usage. Affiliate is strictly prohibited from using social networking sites including but not limited to Twitter, Tinder, Instagram, to promote casual products of XCAP. If XCAP suspects that any leads have been earned via such social channels, without any prior approval, a breach of this clause has been committed and the Affiliate will not be paid for such leads or sales.
3.7 Mobile devices and traffic
Except as otherwise provided in this Agreement or with the consent of XCAP, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in XCAP, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
5.1 Affiliates are not allowed to modify the company or websites' logos in any shape or form. Should you wish to obtain a copy of a specific size/format, you can send your request by email.
5.2 Affiliates are not allowed to register any domain names, which are identical to or similar to our brands and trademarks, both registered marks and unregistered marks.
5.3 Affiliates are specifically prohibited from creating negative sites in order to drive traffic towards our sites.
5.4 Any use of our trademarks, registered and unregistered is prohibited without our express permission.
5.5 Affiliates are not allowed to copy or "lift" text or photos or any other content from any of XCAP websites. If you would like to use some copy to promote one of our sites and have found some useful information on our sites, we ask you to re-phrase the texts. Failure to do so can result in rejection from the affiliate program.
5.6 It is prohibited to use any text ads created by affiliate themselves unless the creatives have been approved by your Affiliate Manager.
5.7 It is prohibited to post any information that does not correspond to the authentic data about the services offered by XCAP dating site and may affect the Company's reputation or be a reason for customer complaints (Example: 'Limited time Offer'/'Offer Expires: today's date' / 'Free Chatroom/ or any other paid features available for Premium members only)
5.8 Affiliates are prohibited from using any offensive content to promote XCAP. Any trademarks of Google, Apple companies and their subsidiaries including but not limited to Google Play and iTunes are prohibited to be used on any adult, pornographic, sexually explicit or offensive creatives and promotion pages.
5.9 It is prohibited to abuse any third party copyright or trademarks. If we become aware of any affiliate breaching this provision and are contacted by the third party whose rights have been infringed, we shall provide that third party with any and all assistance they require to pursue a claim against you.
5.10 We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in XCAP and assisting in increasing sales through the Program Web Site. You may not alter, modify, manipulate or create derivative works of the Links or XCAP graphics, creative, copy or other materials owned by, or licensed to, XCAP in any way. You are only entitled to use the Links to the extent that you are a member in good standing of XCAP. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of XCAP’s trademarks, service marks, copyrights, patents or trade secrets.
5.11 You agree that XCAP may use any suggestion, comment or recommendation you choose to provide to XCAP without compensation.
5.12 All rights not expressly granted in this Agreement are reserved by XCAP.
6.1 This Agreement shall commence on the date of our approval of XCAP application and shall continue thereafter until terminated as provided herein.
6.2 You may terminate your participation in XCAP at any time by removing all Links from your Media, deleting all copies of the Links.
6.3 We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice.
6.4 We reserve the right to terminate your account if it is idle for sixty (60) days or more.
6.5 Consequences of termination:
We fully reserve all of our rights to suspend your account or terminate your account as provided herein for any reason, including but not limited to:
8.1 In addition to any other rights and remedies available to us under this Agreement XCAP reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) XCAP determines that you have violated this Agreement, (ii) XCAP receives any complaints about your participation in the Affiliate Program which XCAP reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program.
8.2 Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, XCAP reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
9.1 You must strictly comply with the federal CAN-SPAM Act of 2003 and Data Protection Act 1998 (the "Act"). All emails sent in connection with XCAP must include the appropriate party's opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing XCAP that you submit the final version of your email to XCAP for approval by sending it to XCAP Affiliate Manager or email@example.com representative and upon receiving written approval from XCAP of your email the email may be transmitted to third parties.
9.2 It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon XCAP approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon XCAP’s approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to XCAP. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using steal-ware, cookie-stuffing and other deceptive acts or click-fraud. XCAP shall make all determinations about fraudulent activity in its sole discretion. Affiliate will not fraudulently add leads or clicks or inflate leads or clicks by fraudulent or scams traffic generation. Company has a right to decline and not to pay for leads generated via hosting proxy / VPN and other unacceptable tools and techniques. Any fraud, attempted or actual, shall be immediate grounds for us to terminate your account and withhold any and all sums outstanding to you.
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, XCAP represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to XCAP’s own business operations or XCAP proprietary products or services.
12.1 In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective two (2) business days after such notice. Modifications may include, for example, changes in payment procedures, and your restrictions on account usage. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such two (2) business day period.
12.2 Your continued participation in this Affiliate Program two (2) business days after a change notice has been posted will constitute your acceptance of such change. In addition, XCAP may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from XCAP to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the XCAP.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in XCAP and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on XCAP.
14.1 Affiliate hereby agrees to indemnify, defend and hold harmless XCAP and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or XCAP Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
14.2 In the event of a claim by you that we are not authorized to provide you with the Links, we hereby agree to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, actual losses (excluding loss of profits), damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) arising from such a claim.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, XCAP EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. XCAP DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. XCAP EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. XCAP DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
IN NO EVENT SHALL XCAP BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF XCAP. IN NO EVENT WILL XCAP BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT XCAP HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. XCAP CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY XCAP IN COMMISSIONS DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
17.1 Affiliate shall be responsible for the payment of all attorneys’ fees and expenses incurred by XCAP to enforce the terms of this Agreement.
17.2 This Agreement contains the entire agreement between XCAP and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that XCAP shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether XCAP "clicks through" or otherwise indicates its acceptance thereof.
17.3 Affiliate may not assign all or any part of this Agreement without XCAP's prior written consent. XCAP may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.
17.4 The provisions of 4, 5, 6, 9, 10, 11 and 13 to 17 inclusive shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement.
17.5 Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. By submitting and application to XCAP, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions.
17.6 If you do not wish to be bound by this Agreement, you should not submit an application to XCAP. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
17.7 Any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Anguilla. The British West Indies Court, shall have exclusive jurisdiction to hear and determine any claims, disputes, actions, or suits, which may arise under or out of this agreement. The Parties agree and voluntarily consent to the personal jurisdiction and venue of such courts for such purposes. If you have any questions or wish us to clarify any of these points, please send us an email firstname.lastname@example.org