AFFILIATES OPERATING AGREEMENT


THIS IS A LEGAL AGREEMENT BETWEEN THE AFFILIATE AND CLEANFLICKS MEDIA, INC. (“CleanFlicks”). BY JOINING THE CLEANFLICKS AFFILIATE PROGRAM THE AFFILIATE IS AGREEING THAT THE AFFILIATE HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT THE AFFILIATE AGREES TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.

The purpose of this Agreement is to allow links between Affiliate's Web Site and CleanFlicks Web Site. CleanFlicks reserves the right to accept or reject Affiliate's application solely at CleanFlicks discretion.

1. Definitions  

    1. "Placements" means (i) graphical links, text links, logos and other promotions that are offered by CleanFlicks now or in the future that link directly from the Affiliate Site to the CleanFlicks Site and (ii) other promotions that are offered by the Affiliate now or in the future that link directly to the CleanFlicks Site.
    1. "Advertising" means any and all banner advertisements, text links or other solicitations through the Internet that promote the CleanFlicks Service and contain a Link to the CleanFlicks Site.

2. Term and Termination

The term of this Agreement will begin on the date upon which CleanFlicks notifies Affiliate, by e-mail, of its acceptance of Affiliate’s completed application (as found in the Affiliate section of the CleanFlicks website) and will end when terminated by either party. Either CleanFlicks or Affiliate may terminate this Agreement at any time, with or without cause, by giving the other party 10 days written notice of termination. CleanFlicks may terminate this Agreement at anytime for cause which shall include, but not be limited to, a breach of this Agreement or any actions by Affiliate which may reflect negatively upon CleanFlicks. Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and Affiliate will immediately cease use of, and remove from Affiliate's site, all links to the CleanFlicks site, and all CleanFlicks trademarks and logos, and all other materials provided in connection with this Agreement.

3. Modification

CleanFlicks may modify any of the terms and conditions in this Agreement, at any time in its sole discretion by publishing a change notice on its website in the Affiliate section.  The change will become effective 20 days after posting on the website. Modifications may include, but are not limited to, changes in the scope of Referral Fees, payment procedures, and CleanFlicks Affiliate Program rules. If any modification is unacceptable to Affiliate, Affiliate shall have the right to terminate this Agreement. Affiliate's continued participation in CleanFlicks Affiliate program after 20 days following the posting of the change notice or new agreement on CleanFlicks site will constitute Affiliate's agreement to the changes.

4. Obligations

4.1. Links from Affiliate Web Site. Affiliate agrees that within 30 days of the Effective Date of this Agreement, it will include Placements that link from Affiliate's Web Site to the CleanFlicks Web Site.  

4.2. Maintenance and Monitoring of Placements.

a. Affiliate agrees to link only to those specific Web pages that CleanFlicks designates in the Placements, and to use only the Placements provided for such purpose. Affiliate may not modify or alter the Placements provided by CleanFlicks in any way. Affiliate may not "frame" or "mirror" any part of CleanFlicks without the prior written authorization of CleanFlicks. Affiliates site shall not in any way copy or resemble the look and feel of the CleanFlicks site, nor shall Affiliate create the impression that Affiliate’s site is the CleanFlicks site or a part of the CleanFlicks site. Affiliate shall not use CleanFlicks or any variation or misspellings thereof in Affiliate’s URL. Affiliate shall not frame or permit the framing of any page of the CleanFlicks site.


b. CleanFlicks has the right to monitor the content on Affiliate's Web Site in a commercially reasonable manner as CleanFlicks believes necessary to make sure that the Placements are appropriate and to ensure that Affiliate's Web Site otherwise complies with the terms of this Agreement. CleanFlicks has the right to notify Affiliate of any reasonable changes that Affiliate needs to make to comply with the CleanFlicks guidelines for the use of the Placements, and to otherwise comply with the terms of this Agreement.


c. Affiliate agrees to cooperate with CleanFlicks in order to establish and maintain any Placements between the CleanFlicks Web Site and Affiliate's Web Site. Affiliate agrees not to display any link pertaining to CleanFlicks, for use as a link or otherwise, other than the Placements that CleanFlicks provides to Affiliate. If CleanFlicks updates the Placements, Affiliate will replace the old Placements with the new ones within 24 hours.


d. Affiliate agrees that CleanFlicks will be allowed to place an identifying tag in each Placement that will identify the origin of a user that arrives to the CleanFlicks Site by clicking on the Placement.

4.3. All promotional activities undertaken by Affiliate to promote the CleanFlicks Service shall be made in accordance with all applicable laws and regulations. Affiliate shall not complete the registration to or otherwise interact with the CleanFlicks Service on behalf of any third party. Affiliate is only permitted hereunder to link third parties to the CleanFlicks Site. All information obtained at the CleanFlicks Site from individuals linking to the CleanFlicks Site shall be the sole and exclusive property of CleanFlicks and, except as specifically provided herein,  Affiliate shall neither have access to such information nor use any device, technique or software to obtain information from the CleanFlicks Site.

4.4. If  Affiliate desires to promote the CleanFlicks Service (i) by purchasing, either directly or indirectly, search terms from websites, search engines or other directory or referral services (e.g., Overture, Google, and Yahoo!), (ii) by incorporating keyword text into meta tags or websites or by using other search engine optimization techniques, or (iii) by offering, either directly or indirectly, any consideration or incentives to potential Subscribers to register for the CleanFlicks Service, including without limitation, payment of money, rebates, discounts or other benefits,  Affiliate  must first get written permission from  CleanFlicks, which may be given or withheld in  CleanFlicks’s sole and absolute discretion.  CleanFlicks reserves the right to revoke such permission at any time and for any reason at its sole and absolute discretion.  Affilliate shall not, in any way, utilize pop-over Advertisements or Spyware to promote the CleanFlicks Service. In addition to the foregoing requirement and as consideration for  CleanFlicks entering into this Agreement with Affliate, Affliate agrees not to bid or otherwise purchase, either directly or indirectly, the search name "CleanFlicks" or any misspelling or variant thereof from websites, search engines or other directory referral services. Notwithstanding anything in this Agreement to the contrary, neither Affiliate nor any Affiliate’s Agent shall distribute e-mails promoting the CleanFlicks Service.

5. Subaffiliates and Agents

If Affiliate operates subaffiliate networks, works with Agents or conduct reward programs with users, Affiliate agrees to the following:

5.1. Any relationships Affiliate enters into with third parties, subaffiliates, or agents ("Agents") in connection with Affiliate’s promotion of the CleanFlicks Service are at Affiliate’s sole discretion. CleanFlicks shall not be a party to any agreement that  Affiliate has with an Agent and  Affiliate  is not authorized to make any commitments on behalf of CleanFlicks to such Agents, including commitments regarding payment of fees to the Agents by CleanFlicks or commitments for licenses to CleanFlicks's name, logo(s), any provided images, or other intellectual property. Agents are not third party beneficiaries of this Agreement with CleanFlicks. Any breach by Affiliates Agents of the terms and conditions of this Agreement shall be deemed a breach of this Agreement by Affiliate and CleanFlicks shall have full recourse against you with respect to such breach.

5.2. Affiliate agrees to terminate Affiliate’s relationship with an if an Agent engages in any activity that is prohibited as provided by this Agreement or if requested by CleanFlicks, and if Affiliate does not terminate such Agent within five (5) business days from CleanFlicks's request, CleanFlicks reserves the right to withdraw Affiliate and all Affiliate Agents from the Affiliate Network and to refuse payment of any monies owing to Affiliate hereunder. 

6. Payment of Commissions

6.1. CleanFlicks will pay a one-time $15 Referral Fee for each referral Affiliate sends to CleanFlicks. To get credit, referrals must enter the CleanFlicks Site through Placements on Affiliate's Web Site or in E-mail Newsletters or by other CleanFlicks approved methods.

6.2. CleanFlicks reserves the right to adjust the Referral Fee, as defined in section 6.1, payable to Affiliate to the extent of any reporting errors, fraudulent subscriptions or intentional manipulations of the registration process, all as determined in the reasonable, good faith discretion of CleanFlicks. In addition to all other remedies available to it, CleanFlicks shall have the right to refuse to make any payment to affiliate with respect to any Subscriber that CleanFlicks, in its reasonable, good faith discretion, determines was obtained as a result of promotional efforts that were in breach of this Agreement.

6.3. No Referral Fees shall be due with respect to Subscribers who register after the date of termination. CleanFlicks reserves the right to withhold Affiliate’s final payment for a reasonable period of time as necessary to calculate any amount due to Affiliate. 

6.4. CleanFlicks will also pay a 20% commission for all movie purchases Affiliate refers through the click-thru to CleanFlicks from Affiliate’s website, newsletter, or other CleanFlicks approved method. Commission is based upon cash received by CleanFlicks from the sales of DVD movies on the CleanFlicks website, excluding costs for taxes, shipping & handling fees, credit card processing fees, returns, service charges, bad debt, and other credits back to customers.  

6.5. Payment of Commissions will be made on a monthly basis. If Affiliate's unpaid, cumulative monthly Commissions are less than $25.00; they will be rolled to the following month. If this Agreement terminates, any Commissions due at the time of termination will be paid at the end of the month following termination.  

6.6. With each payment, CleanFlicks will provide the Affiliate with reports that will contain all necessary information as required to calculate the Commissions and Referral Fees due to Affiliate.  In addition, this information can be viewed on CleanFlicks site in the CleanFlicks Affiliate section.  

7. Compliance with Applicable Laws

Affiliate is solely responsible for the accuracy and appropriateness of all materials posted on Affiliate's Web Site, and for ensuring that materials posted on Affiliate's Web Site are not defamatory, in violation of copyright laws or otherwise illegal. CleanFlicks disclaims all liability for these matters.

8. Press Releases and Other Publicity

8.1. Affiliate may not create, publish, distribute, or permit any written or electronically transmitted publicity material (including without limitation, advertisements and press releases) that makes reference to CleanFlicks, or CleanFlicks' Web Site without first submitting the material to CleanFlicks and receiving  CleanFlicks’ consent in writing (such consent will not to be unreasonably withheld). Affiliate may not issue any public statement(s) regarding the relationship without the prior approval of CleanFlicks. Notwithstanding the foregoing, CleanFlicks may issue an initial press release regarding the relationship between the Parties.


8.2. CleanFlicks prohibits Affiliate from advertising through certain channels and mechanisms. Advertising commonly referred to as "spamming" is unacceptable to CleanFlicks and could damage the goodwill of CleanFlicks. Other generally prohibited forms of e-mail include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, Affiliate may not advertise in any way that effectively conceals or misrepresents Affiliate's identity, domain name, or return email address.


8.3. Although CleanFlicks always requires that its written consent be given for the advertising uses listed in section 8.2, CleanFlicks generally approves mailings so long as the recipient is already a customer or subscriber of Affiliate's services, and recipients have the option to remove themselves from future mailings. CleanFlicks generally approves newsgroup postings so long as the news group specifically welcomes commercial messages. In all cases, Affiliate must always clearly represent itself and its Web Site as independent from CleanFlicks.

9. Grant of Licenses

9.1. Subject to the terms of this agreement, Affiliate has the nonexclusive, nontransferable and nonsublicensable right to use and display CleanFlicks trademarks and service marks, only to refer specifically to CleanFlicks services and products in connection with the Links, and only in the form which CleanFlicks provides Affiliate for such limited purposes. Such referential usage must be truthful, fair and not misleading or disparaging. CleanFlicks trademarks, service marks and logos must not be incorporated into Affiliates own product names, trademarks, service names, logos, company names or dba's, and Affiliate must not adopt marks or logos that are confusingly similar to CleanFlicks marks or logos.


9.2. Affiliate grants to CleanFlicks a non-exclusive, non-transferable, revocable right to utilize Affiliate's name, title, and logo in the advertising, marketing, promoting, and publicizing in any manner as CleanFlicks deems appropriate under this Agreement. CleanFlicks is not under any obligation to so advertise, market, promote, or publicize.


9.3. Each party agrees not to use the other's proprietary materials or intellectual property in any manner that is disparaging or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials and intellectual property 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.

10. DISCLAIMER

CLEANFLICKS PROVIDES THE CLEANFLICKS WEB SITE AND ALL INFORMATION AND SERVICES AVAILABLE THEREIN, "AS IS" AND MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING CLEANFLICKS OR ANY SERVICES OR INFORMATION PROVIDED BY ANY MEMBER OF CLEANFLICKS. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, CLEANFLICKS MAKES NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND CLEANFLICKS WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

11. Representations, Warranties and Covenants

Affiliate represents and warrants that: 1) It has full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform its obligations under this Agreement, without the approval or consent of any other party; 2) It has sufficient right, title, and interest in and to the rights granted to CleanFlicks in this Agreement; 3) That material posted on its Site does not violate or infringe upon the rights of any third party and all applicable copyright and other laws that pertain to it; and 4) It shall not to make any representations or warranties regarding the services provided by CleanFlicks that are disparaging or that otherwise portray CleanFlicks in a negative light.

12. LIMITATIONS OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, CLEANFLICKS WILL NOT BE LIABLE TO AFFILIATE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR ACTUAL OR ANTICIPATED REVENUE, PROFITS OR LOST BUSINESS), EVEN IF CLEANFLICKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL CLEANFLICKS’ CUMULATIVE LIABILITY TO THE COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL REFERRAL FEES PAYABLE TO THE COMPANY UNDER THIS AGREEMENT.

13. Indemnification

Affiliate agrees to indemnify and hold harmless CleanFlicks and its employees, directors, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against CleanFlicks based on or arising from any claim resulting from Affiliate's breach of this agreement. Affiliate agrees to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by the other party in connection with or arising from any such claim, suit, action, or proceeding.

14. Confidentiality

In connection with the activities contemplated by this Agreement, each party may be permitted at the discretion of the other access to confidential and proprietary technical or business information of the other party, including without limitation (i) proposals, ideas or research related to possible new products or services; (ii) financial statements and other financial information; (iii) any reporting information required by the Agreement; and (iv) the terms of this Agreement and the relationship between the Parties (collectively, "Confidential Information"). Confidential Information may include, without limitation business or technical information, such as business, financial, marketing, and product development plans, forecasts, strategies, techniques, and information; business operation and systems; names, expertise, and other information concerning employees; customers, consultants; and/or vendors; trade secrets; discoveries; ideas; inventions (whether patentable or not); improvements; research; development, know-how, designs, products, compositions, prototypes, computer programs, code, algorithms, formulas, processes, and schematics. Each party will take reasonable precautions to protect the confidentiality of each of the other party's Confidential Information, which precautions will be at least equivalent to those taken by such party to protect its own Confidential Information. Except as required by law or as necessary to perform under this Agreement, no party will knowingly disclose the Confidential Information of any other party or use such Confidential Information for its own benefit or for the benefit of any third party. Each party's obligations in this Section with respect to any portion of another party's Confidential Information shall terminate when the party seeking to avoid its obligation under such Section can document that: (i) it was in the public domain at or subsequent to the time it was communicated to the receiving party ("Recipient") by the disclosing party ("Discloser") through no fault of Recipient; (ii) it was rightfully in Recipient's possession free of any obligation of confidence owed to the Discloser at or subsequent to the time it was communicated to Recipient by Discloser; (iii) it was developed by employees or agents of Recipient independently of and without reference to any Confidential Information communicated to Recipient by Discloser; (iv) it was communicated by the Discloser to an unaffiliated third party free of any obligation of confidence; or (v) the communication was in response to a valid order by a court or other governmental body or was otherwise required by law. Upon the termination or expiration of this Agreement, each party shall return upon the other's request or otherwise destroy all Confidential Information of the other party in its possession.

15. Miscellaneous

15.1. Entire Agreement. This Agreement constitutes and contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. This Agreement may not be amended except in writing signed by the Parties. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. All exhibits attached to this Agreement are incorporated hereby and shall be treated as if set forth herein. 

15.2. Relationship of Parties. Each party shall be deemed to be independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement shall be deemed or construed in any manner as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship. The Affiliate shall be responsible for all taxes due on Referral Fees or other payments paid to the Affiliate under this Agreement. 

15.3. Assignment. Affiliate may not assign its rights or obligations under this Agreement to any party. 

15,4. Applicable Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah without regard to the conflicts of laws, rules and principles thereof. 

15.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the Parties is effectuated, and the remainder of this agreement shall have full force and effect. 

15.6. Survival. Sections 8-13 shall survive termination of this Agreement. 

15.7. Notices. Any notice required under this Agreement may be given by email, fax or written letter to CleanFlicks at the addresses found on its website and by e-mail, fax or written letter to the Affiliate at the addresses found in Affiliate’s application

16. General Conditions

CleanFlicks reserves the right, at its full discretion, to disqualify any individual it finds to be tampering with the process of establishing an Affiliate agreement or the operation of the affiliate program or to be acting in violation of this agreement. If  CleanFlicks determines, in  its sole discretion that the this affiliate program is compromised by virus, bug, robot entries, or other corruption of the administration, security or proper management of the program, then at  CleanFlicks sole discretion,  CleanFlicks can cancel this program. In the event of Affiliate’s non-compliance with any requirement stated herein, Affiliate’s commission may be forfeited.

AFFILIATE HAS READ THIS AGREEMENT CAREFULLY AND UNDERSTANDS AND ACCEPTS THE OBLIGATIONS THAT IT IMPOSES UPON AFFILIATE WITHOUT RESERVATION. AFFILIATE HAS ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO AFFILIATE TO INFLUENCE AFFILIATE TO SIGN THIS AGREEMENT. AFFILIATE AGREES TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.