To participate in the Penthouse Affiliate Program, you must agree to the following:
This Affiliate Agreement ("Agreement") contains the complete terms and conditions between us, Penthouse, and you, regarding your application to participate as an affiliate of Penthouse ("Affiliate"), and the establishment of links from your website to our websites, Penthouse.com (“Affiliate Program”).
"We", "Our", "Us", - "Penthouse", (collectively, "Penthouse")
"You", "Your" and "Affiliate(s)" - the business, individual or entity applying for participation in the Penthouse Affiliate Program, or that displays Our products, services and/or promotions on its website and/or through offline representation through the affiliate tracking code in exchange for receiving remuneration from Penthouse for sales resulting from such display.
"Affiliate Site" - the Affiliate's Internet site which displays Penthouse Services and/or promotions.
"Penthouse Services" - services that are available for purchase through Penthouse.com.
"Commission Fees" or "Commissions" - Under the Affiliate Program, subject to the terms hereof, you will be paid a Commission Fee for each Qualified Purchase by a Referred Customer that you refer to Penthouse under and in accordance with this Agreement.
"Qualified Purchase" - shall mean a purchase by an individual who meets the criteria below and all of the following criteria: Penthouse can verify the person navigated directly to the applicable Penthouse Site using a Link; is not a customer of Penthouse at the time of his/her registration on the Penthouse Site; registers for a trial subscription or a full paying monthly subscription for access to the applicable Penthouse Site service during such person's visit upon linking to such Penthouse Site directly from Your Referring URL; pays the applicable access or subscription fee following successful completion of the registration form; and for any person who signs up for a trial subscription, converts to a fully-paid monthly subscriber of Penthouse Services immediately following the trial subscription.
“Referred Customer" - each new and unique customer referred from Affiliate through a Link (defined below) provided by or approved by Us, which meets the criteria set forth herein.
"Registration Form" - any and all order forms, Registration Forms, or other signup or acceptance form (whether online, paper, fax, or otherwise) submitted by You or, as applicable, the Referred Customer to make a Qualified Purchase.
To enroll in the affiliate program, you must submit a completed Affiliate Program Signup Form. Acceptance in the Affiliate Program is at the sole discretion of Penthouse. If You qualify and agree to participate as an Affiliate, We will make available to You a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which are subject to the terms and conditions hereof. The Links will serve to identify Your site as a member of the Penthouse Affiliate Program and will establish a Link from Your site or e-mail to Ours. The Links may connect to any area of Our site (although commissions will only be issued on Qualified Purchases). In utilizing the Links,You agree that You will cooperate fully with Us in order to establish and maintain such Links. You also agree that You will display on Your site only those graphic or textual images (indicating a Link) provided by Us or text messages expressly approved in advanced in writing by Penthouse. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer's knowledge. (example: iframe). Any information with respect to Us that is going to be displayed on Your site must be provided by Us and expressly approved by Us in writing in advance of any display.
Except as expressly permitted herein, you shall not and are not authorized to: use the penthouse trademarks, name or any of our other intellectual property (or any variations or misspellings thereof or other term or terms confusingly similar to any of the foregoing) (all of the foregoing, including without limitation, the "links" and the "licensed materials" (defined below), are referred to herein as "our ip"), without our express prior written permission; use our ip in a domain or website name, in any bids for keywords or google adwords (or similar programs at other search engines), in any search engine advertising (paid or otherwise), in any metatags, google adwords (or similar programs at other search engines), key words, advertising, search terms, code, or otherwise; cause or create or act in any way that causes or creates or could cause or create any "initial interest confusion" over the use of our ip on the internet or in any search engine advertising. your use of our ip in any manner, other than as expressly permitted hereunder (in addition to being a breach of this agreement) shall constitute unlawful infringement of our trademarks, copyrights or other intellectual property rights, and may subject you to claims for damages (including without limitation, treble damages for knowing or willful infringement), and the obligation to pay our legal fees and costs in connection with any action or proceeding in which we seek to enforce our rights under this agreement or with regard to any of our intellectual property rights. All Links may be modified and/or expanded from time to time throughout the term of this Agreement as solely determined by Penthouse. You are not allowed to post any refunds, credits or discounts, or other content concerning Penthouse, unless We have given You prior written permission in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of Your site to the pertinent area of Our site will in no way alter the look, feel, or functionality of Our site. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in Your termination from the program or withholding of Commissions.
Penthouse’s policy is to treat our customers fairly and to comply fully with all applicable Federal Trade Commission regulations related to advertising. As such, we require our affiliates to comply with these regulations. This includes, but is not limited to, Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising, which requires, among other criteria, that material connections between advertisers and endorsers be disclosed. This means that directories, review/rating sites, blogs and other websites, email or collateral that purport to provide an endorsement or assessment of an advertiser (in this case Penthouse) must prominently disclose the fact financial or in-kind compensation is provided from the advertiser. Penthouse reserves the right to withhold any amount due to You and cancel/nullify the affiliate relationship with you should we determine, at our discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations/guides we deem relevant.
We will process orders placed by Referred Customer who follow the Links from your website to Penthouse.com. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements that we may establish from time to time. All aspects of order processing and fulfillment, including Penthouse service, cancellation, processing, refunds and payment processing will be our responsibility. We will track the Qualified Purchases generated by your website and will make this information available to you through our website. To permit accurate tracking, reporting, and Commission accrual, you must ensure that the Links between your website and our website are properly formatted.
Under the Affiliate Program, you will be paid a Commission Fee for each Qualified Purchase by a Referred Customer that you refer to Penthouse under and in accordance with the terms of this Agreement. Each Referred Customer and each Qualified Purchase must meet the following criteria (the "Criteria"): Each Referred Customer must be a new and unique visitor to Penthouse and must register by completing and submitting the Registration Form using a valid and unique account and billing information. Each Referred Customer must be at least eighteen (18) years of age or older. Commission may not be paid for a Referred Customer that has transferred from any of our partners or subsidiaries. Each Referred Customer must make a Qualified Purchase, and provide a valid payment for the purchased Penthouse Products or Services. To generate a Commission Fee for you, each Referred Customer must be an active, qualified customer of Penthouse and must be up-to-date in all payments at the time the Commission Fees are processed and not have been subject to a refund, credit, cancellation, suspension or chargeback. Each Referred Customer must sign up in a manner, which in our sole judgment, definitively establishes that the Referred Customer was referred directly from you to Penthouse under this Agreement. Each Referred Customer must remain in compliance with our Terms of Service, Acceptable Use Policy and other policies that are active at the time the Commission Fees are processed. Commission Fees may not be paid for the Qualified Purchase if the Referred Customer has been offered or received coupons, refunds, credits or discounts from the Affiliate or if the Referred Customer has joined a business-opportunity program (as determined by Penthouse in its sole discretion) that is managed or participated in by the Affiliate, unless Penthouse has provided its prior written permission. If a Referred Customer has received a popup with a discounted offer, while leaving our site during their purchase, we will NOT pay commissions on purchase. Penthouse reserves the right to nullify and suspend all Commission Fees for Affiliates who have commissions that are potentially fraudulent as determined by Penthouse in its sole discretion. Penthouse reserves the right to nullify and suspend payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms in this Agreement by the Affiliate or a Referred Customer(s). Penthouse reserves the right to deduct from Affiliate's current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled Penthouse purchases. Where no subsequent Commission Fee is due and owing, Penthouse will send Affiliate a bill for the balance of such refunded purchase upon termination of the program or termination of the Referred Customer. Further, if we deem orders to be fraudulent or see a pattern of potentially fraudulent activity, including, without limitation, where there are multiple accounts from the same customer, or referral of accounts which do not comply with this Agreement. We review account information (including site content) to assess referrals. You are on notice that any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualifying Purchases or Commission Fees to intentionally defraud Penthouse or violate any of the terms of this Agreement constitutes immediate grounds for Penthouse to terminate this Agreement and will result in forfeiture of any Commission Fees due to you. Penthouse, in its sole discretion, reserves the right to withhold indefinitely any Commission Fee, and/or to reverse, deny or reject any Commission Fee, for: Any account/sale which has not been in an approved status in good standing as an account of Penthouse for a period of at least thirty (30) days. All commissions generated for accounts that may be falsified, including but not limited to the use of software that generates real and fictitious information. Altering Our Links in any way. Referred Customers that have been offered or received coupons, refunds, credits or discounts from the Affiliate or for Referred Customers who have joined a business opportunity program that is managed or participated in by the Affiliate, unless Penthouse has provided written permission. Customers engaging in "Domain Speculation," which is determined by the identification of two (2) web hosting accounts with the same Referred Customer's name, email address, or other identifying characteristic as determined by Penthouse and/or the identification of two (2) or more web hosting accounts that have no content on their websites or have similar content, templates or formatting, as determined by Penthouse. Affiliates whom we believe may be artificially submitting Referred Customers, engaging in the advertisement of business-opportunity sites (as determined by Penthouse in its sole discretion), using marketing practices that we deem to be unethical or likely to attract fake signups and/or signups with a very low likelihood of renewal. Penthouse reserves the right to immediately cancel or withhold for later review any Commission Fee based on the foregoing or that otherwise fails to meet the Criteria. It is the responsibility of the Affiliate to monitor the payment, denial and withholding of Commission Fees; Penthouse is not obligated to actively notify Affiliates of the status of Commission Fees. If an Affiliate has a question about a Commission Fee that has been cancelled or withheld, that Affiliate has 30 days from the day the payment was due to contact Penthouse to discuss or reclaim the Commission Fee. Any changes to decisions about cancelled or withheld Commission Fees are strictly at Penthouse's discretion. Commissions for any Referred Customer who is associated with any Penthouse reseller, referral or other program may be removed from your payment. In other words, You may not receive double commissions or compensation. In the event that the Referred Customers that are referred to Penthouse by a specific Affiliate are determined to have an excessive cancellation rate (as determined by Penthouse in its sole discretion), Penthouse reserves the right to withhold or decline pending and future Commission Fees for the Affiliate.
Subject to the terms of this Agreement, we will pay a Commission Fee equal to the specified percentage or dollar amount set forth on the Affiliate Site. Commissions will accrue and only become payable once you provide all relevant tax and address documentation and You are accepted in the Affiliate Program. Commission Fees shall be paid based on the current information in Your Affiliate profile. Please notify us promptly of any change in your address by updating your profile information in the Affiliate console. You are responsible for informing Penthouse of Your desired Payment form/type and You are responsible for informing Penthouse of Your desired Payment form/type: Commission Fees in the form of check made out in U.S. currency (if such payment is permitted under US law and/or any applicable regulations/government restrictions; or Commission Fees in the form of a Paxum or PayPal payment. Please refer to PayPal's policy to ensure you are eligible to receive payment if you reside outside of the United States. https://www.paypal.com/cgi-bin/webscr?cmd=_display-approved-signup-countries-outside
Penthouse is not responsible for any third-party fees charged by PayPal, bank or other financial institute used to receive Affiliate Commission Fees. Check payments will only be reissued within 120 days of original issue date in the case of a lost check or stop-payment request. After 120 days, the payment will be voided. Check cancellation fees may be applied. PayPal payments will only be reissued within 120 days of original issue date in the case of incorrect PayPal address or refusal from PayPal to accept payment. Any changes to Your desired payment form may take up to two payout cycles to take effect.
It is Your responsibility to provide Penthouse with accurate tax and payment information that is necessary to issue a Commission Fee to You. If Penthouse does not receive the necessary tax or payment information within 90 days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Purchase.
Each Affiliate is required to submit the appropriate United States tax forms to Penthouse, including, a correct W8/W9 tax form. You are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, Penthouse will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold.
You are responsible for informing Penthouse about changes to postal and e-mail addresses, as well as any changes to your name, email address, contact information, tax identification number, or other personal information that will impact Penthouse's ability to issue a valid Commission payment. Any address changes must be made in the Affiliate profile in the Affiliate Console at least 15 business days prior to the end of the calendar month in order for Commission Fees for that month to be sent to the revised address.
You will be solely responsible for the development, operation, and maintenance of Your site and for all materials that appear on Your site. Such responsibilities include, but are not limited to, the technical operation of Your site and all related equipment; creating and posting product reviews, descriptions, and references on Your site and linking those descriptions to Our website; the accuracy and propriety of materials posted on Your site (including, but not limited to, all materials related to Penthouse Services); ensuring that materials posted on Your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters. We have the right in Our sole discretion to monitor signups through Your site at any time and from time to time to determine if You are in compliance with the terms of this Agreement. If You are not in compliance, We may terminate this Agreement immediately. As noted below, You are prohibited from sending any email to advertise on behalf of Penthouse in any manner. You may also not advertise on our behalf in any manner that violates, or is otherwise inconsistent with this agreement or any other agreement between us. Any use of sexually explicit content to advertise on behalf of Penthouse must comply with Section 18 USC section 2257.
We will be responsible for providing all information necessary to allow You to make appropriate Links from Your site to Our site. Penthouse will solely be responsible for order processing for orders/Qualified Purchases placed by a Referred Customer following a Link from Your site, for tracking the volume and amount of Qualified Purchases generated by Your site, and for providing information to Affiliates regarding Qualified Purchases statistics. Penthouse will be solely responsible for all order processing, including but not limited to payment processing, cancellations, refunds and related Penthouse service. Any determination made by Penthouse regarding the foregoing shall be binding absent manifest error.
Referred Customers who buy Penthouse Services through the Affiliate network will be deemed to be Our Customers. Accordingly, all of Our rules, policies, and operating procedures concerning Penthouse orders, Penthouse service, and any related sales will apply to those Customers. Prices and availability of Penthouse Services may vary from time to time, from affiliate to affiliate, and from region to region and are at the sole discretion of Penthouse. Because price changes may affect products that You have listed on Your site, You may or may not be able to include price information in Your product descriptions. We will use commercially reasonable efforts to present accurate information, but We cannot guarantee the availability or price of any particular product or service.
You shall not create, publish, transmit or distribute, under any circumstances, any bulk electronic mail messages (also known as "SPAM") without prior written consent from Penthouse for each and every day when any bulk mailing will occur. Penthouse, in its sole discretion, reserves the right to reject each and every e-mail mailing. Additionally, You may only send e-mails containing a Penthouse affiliate link and or a message regarding Penthouse or Penthouse's Affiliate Program to person(s) who have been previously contacted and whom consented to the fact that the You will be sending an e-mail containing Penthouse information or information about the Penthouse affiliate program. Failure by You to abide by this section, CAN-SPAM Act of 2003 or our Anti-Spam Policy, in any manner, will be deemed a material breach of this Agreement by You and foreclose any and all rights you may have to any commissions. If your account has excessive clicks in a very short period of time as determined by Penthouse in its sole discretion, the Affiliate relationship may be terminated. Subject to the limitations set forth herein and otherwise in this Agreement, we grant you a non-exclusive, non-transferable, revocable license to (i) access our site through the links solely in accordance with the terms of this agreement and (ii) solely in connection with such links, to use the Penthouse.com trademark and logo and similar identifying material relating to us (but only in the form(s) that they are provided by us) (collectively, the "Licensed Materials"), for the sole purpose of selling Penthouse Services on your site and as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials to the extent that You are a member in good standing of the Penthouse Affiliate Program. You shall not make any specific use of any Licensed Materials for purposes other than selling Penthouse Services, without first submitting a sample to Us and obtaining the express prior written consent of Your Penthouse account executive, which consent shall not be unreasonably withheld. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays Penthouse, any hosted member of Penthouse or any Penthouse employee or representative in a negative light. We reserve all of Our rights in the Licensed Materials and of Our other proprietary rights. We may revoke Your license at any time, by giving You written notice. If not revoked, this license shall terminate upon expiration or termination of this Agreement. You grant to Us a non-exclusive license to utilize Your names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner Our rights hereunder; provided, however, that We shall not be required to so advertise, market, promote, or publicize the Affiliate Trademarks. This license shall terminate upon the expiration or termination of this Agreement.
The term of this Agreement will begin upon Our acceptance of Your Affiliate Program application and will end when terminated by either party. Either You or We may terminate this Agreement at any time, with or without cause. You are only eligible to earn Commission Fees on Qualified Purchases occurring during the term, and Commission Fees earned through the date of termination will remain payable only if the orders for the related Penthouse Services are not cancelled and comply with all Terms laid out in this Agreement. We may withhold Your final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by Penthouse in its sole discretion. Any Affiliate who violates either this Agreement or Penthouse's Terms and Conditions will immediately forfeit any right to any and all accrued Commissions Fees and will be removed from the Penthouse Affiliate Program. Penthouse reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in Penthouse's sole discretion. Without limitation, your participation in the Program, and this Agreement, shall be deemed automatically terminated immediately and all commissions forfeited upon Affiliate's violation of any of the terms of this Agreement or of any applicable law or regulation having the force of law.
We may modify any of the terms and conditions contained in this Agreement at any time in Our sole discretion. Such changes will take effect when posted.
We make no express or implied warranties or representations with respect to the Affiliate Program or any Penthouse Services sold through the Affiliate Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, We make no representation that the operation of Our site will be uninterrupted or error free, and We will not be liable for the consequences of any interruptions or errors, including the tracking of information about Referred Customers during the period of interruption.
You and Penthouse are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on Our behalf. You will not make any statement, whether on Your site or otherwise, that reasonably would contradict anything in this Section.
You hereby represent and warrant to us as follows: The execution, delivery, and performance by You of this Agreement and the consummation by You of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate : any provision of law, rule, or regulation to which You are subject; any order, judgment, or decree applicable to You or binding upon Your assets or properties; any provision of Your by-laws or certificate of incorporation; or any agreement or other instrument applicable to You or binding upon Your assets or properties. This Agreement has been duly and validly executed and delivered by You and constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to Us the license to use Your trademarks in the manner contemplated herein, and such grant does not and will not: breach, conflict with, or constitute a default under any agreement or other instrument applicable to You or binding upon Your assets or properties; or infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity .No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by You in connection with the execution, delivery, and performance of this Agreement or the taking by You of any other action contemplated hereby. There is no pending or, to the best of Your knowledge, threatened claim, action, or proceeding against You, or any Affiliate of Yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to Your trademarks, and, to the best of Your knowledge, there is no basis for any such claim, action, or proceeding. During the term of the Agreement, You will not include in Your site content that is, in Our opinion, unlawful, harmful, threatening, defamatory harassing, racially, ethically, or otherwise objectionable or are in violation of Our Terms of Service or Acceptable Use Policy. You are at least eighteen (18) years of age.Each Referred Customer and each Qualifying Purchase referred or submitted by You to Us, is valid, genuine, unique and not fraudulent and meets each of the Criteria.
We will not be liable for indirect, special, incidental, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this agreement or the affiliate program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this agreement and the affiliate program will not exceed the total commissions paid or payable to you under this agreement during the 3-month period immediately preceding the event giving rise to such liability.
You hereby will indemnify, defend and hold harmless Us and Our subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on: any claim that Our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party: any misrepresentation of a representation or warranty or breach of a covenant and agreement made by You herein: or any claim related to Your site, including, without limitation, its development, operation, maintenance and content therein not attributable to Us.
Each of the parties here to agrees that all information including, without limitation, the terms of this Agreement, business and financial information, Penthouse and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is: already lawfully known to or independently developed by the receiving party; disclosed in published materials; generally known to the public; or lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information: to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction; to its accountants, attorneys, or other agents on a confidential basis; and otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Your application submission acknowledges that You have read this agreement and agree to be bound by all its terms and conditions. You understand that We may at any time (directly or indirectly) solicit Penthouse relationships on terms that may differ from those contained in this agreement. We may also solicit Penthouse relationships with entities that operate websites that are similar to or compete with Your website. You have independently evaluated the desirability of participating in the Penthouse Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
The laws of the United States and the State of California will govern this Agreement, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without Our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce Your strict performance of any provision of this Agreement will not constitute a waiver of Our right to subsequently enforce such a provision. You further agree to submit to the personal jurisdiction of the Federal and State courts located in Los Angeles County, California for any actions for which Penthouse retains the right to seek injunctive or other equitable relief to prevent the actual or threatened infringement, misappropriation or violation of its copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration section below, including any provisional relief required to prevent irreparable harm. You further agree that Los Angeles County, California is the proper forum for any appeal of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from penthouse.
Any dispute, claim or controversy arising out of or relating to this Affiliate Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, USA, unless otherwise agreed upon by Penthouse. The arbitration shall be administered by JAMS pursuant to either its Comprehensive Arbitration Rules or Streamlined Arbitration Rules and Procedures depending upon the amount of the damages claimed, excluding attorneys' fees. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Nothing in this paragraph shall be deemed as preventing Penthouse from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Affiliate Agreement must be filed within one (1) year after such claim or cause of action arose. If any action at law or in equity is necessary to enforce these terms, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
In any dispute, to the fullest extent where permissible by applicable law, neither affiliate nor any other person shall be entitled to join or consolidate claims by or against penthouse or other persons or entities, or arbitrate any claim as a representative or class action or in a private attorney general capacity. Affiliate acknowledges that it is giving up its right to participate in a class action or representative action with respect to any such claim.
The invalidity or unenforceability of any provision of this Affiliate Agreement shall not affect the validity or enforceability of any other provision. Any invalid or unenforceable provision shall be deemed severed from this Agreement to the extent of its invalidity or unenforceability, and this Affiliate Agreement shall be construed and enforced as if the agreement did not contain that particular provision to the extent of its invalidity or unenforceability.
You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair, all terms have been fully disclosed in writing, and that You have been given a reasonable chance to seek advice of independent counsel with respect to this Affiliate Agreement and all transactions associated herewith.