Cricket Affiliate Agreement

Cricket Communications, Inc. (“Cricket,” “we,” or “us”) and affiliate (“Affiliate or “you”) agree to the terms of this Agreement, concerning the generation of sales on Cricket’s website through Affiliate’s advertising. By becoming an Affiliate in the Cricket Affiliate program (the “Program”), you hereby acknowledge and agree to these terms and conditions. If Affiliate is a corporation, limited liability company or any other type of business entity, the term “Affiliate” includes any officer, executive, member, employee, consultant and/or agent of Affiliate’s business entity. Any Affiliate who is in violation of this Agreement will be subject to account termination.

1. Introduction

1.1 As described below, Cricket grants Affiliate a license to use certain Cricket advertising pieces on Affiliate’s website, and Cricket will pay Affiliate commissions on sales generated by users that come to the Cricket website by clicking on Cricket advertising on Affiliate’s website.

2. Affiliate Representations

2.1 By submitting the online application to become an Affiliate (the "Application"), you are confirming that you: a) have fully read this Agreement; b) understand all of the terms of this Agreement; c) are 18 years of age or above and there is no legal reason why you cannot enter into a binding contract, and if Affiliate is acting on behalf of a corporation or other entity, Affiliate warrants there is no legal reason that such entity cannot enter into a contract and that Affiliate is authorized to act on behalf of such entity; d) own and operate an Internet website where you can place advertisements and generate traffic; and e) agree to be fully bound by the Agreement.

3. Modifications

3.1 This Agreement is subject to change at any time, in Cricket’s sole discretion, and such changes are effective immediately upon their posting at the Program Website. Changes may include, without limitation, changes in the commissions structures, payment procedures and other Program-related policies. Bookmark this page and check it frequently as it is up to Affiliate to refer to this page for any amendments and/or changes to this Agreement. Cricket will notify Affiliate via the Program Website seven (7) days prior to any change. Affiliate’s continued participation in the Program signifies Affiliate’s consent to the Agreement and any amendments or changes in effect at the time.

4. Enrollment in the Program

4.1 To begin the enrollment process, Affiliate must submit a complete and accurate Application. Cricket will evaluate Affiliate’s Application and notify Affiliate of the Application acceptance or rejection via the e-mail address that Affiliate supplies as a part of the Application. To qualify as an Affiliate, Affiliate must own and operate an Internet website directed to consumers in the United States where Marketing Pieces, as defined in Section 8, may be posted. A complete and accurate Application requires every field be populated with accurate data. Should Affiliate’s application be accepted, Affiliate will open and manage its account through the website located at affiliates.mycricket.com (the “Program Website”).

4.2 Affiliate understands and agrees that Cricket may reject Affiliate’s Application and/or terminate participation in the Program at any time and for any reason, in Cricket’s sole and absolute discretion. Such reasons may include, without limitation:

A. Cricket believes that Affiliate is in breach of this Agreement or any other agreement Affiliate has with Cricket;
B. Cricket believes that the Affiliate website (“Affiliate Website”) is unsuitable for the Program for any reason including, without limitation, that the Affiliate Website contains material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable;
C. Cricket believes that Affiliate is not, in any manner whatsoever, conducting Internet marketing that fully complies with all applicable laws, rules and regulations;
D. use of any names, trademarks, trade names, drawings, logos and symbols associated with Cricket, or variations and/or misspellings of any of them, in URLs to the left of the top level domain name (e.g., ".com," ".net," ".uk," etc.) without written permission from Cricket; and/or other misuse by Affiliate of the Program or Program Website.
E. use of any creative to promote Cricket other than that which is provided via the Affiliate Program Interface. Affiliates may not use creative (banners or copy) they retrieve directly from the MyCricket.com website.
F. changes to the url in their account that they provided during the application process.

4.3 As part of the Application process, Affiliate will be assigned a user ID number and password, which may be cancelled by Cricket, in its sole and absolute discretion, at any time. Affiliate will use the user ID and password to access its online Affiliate Account ("Affiliate Account"). Affiliate agrees not to transfer or resell the user ID and/or password, or otherwise provide access to its Affiliate Account and/or Program to any third party. If Affiliate has reason to believe that the Affiliate Account is no longer secure, Affiliate must promptly notify Cricket, so that Cricket may change Affiliate’s password by updating Affiliate’s account information in the Cricket affiliate interface. AFFILIATE IS SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF ITS USER ID AND PASSWORD AND FOR ANY AND ALL USE OR ACTIVITIES THAT ARE CONDUCTED THROUGH THE AFFILIATE ACCOUNT.

5. Affiliates

5.1 Cricket grants to Affiliate a non-exclusive, non-transferable, limited license to promote and market Cricket on the Internet in accordance with this Agreement. There is no tiered Affiliate status under the Program and, accordingly, an Affiliate shall not have sub-affiliates under this Agreement. This license is further detailed in Section 8.

5.2 Cricket may use the personal information of an Affiliate in any manner consistent with its Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. For additional information regarding Cricket’s use of information collected from Affiliate, please refer to the Cricket Privacy Policy located at http://www.mycricket.com/privacy/.

5.3 Affiliate may not engage in any non-Internet based form of marketing or any marketing where the encoded Affiliate-specific hyperlinks cannot be tracked by Cricket, without written permission from Cricket.

6. Term and Termination

6.1 The term of this Agreement will begin upon Cricket’s written acceptance of Affiliate’s Application and will end when terminated by either party. Affiliate may terminate this Agreement at any time, with or without cause, by giving Cricket written notice of termination via e-mail. Cricket may terminate this Agreement and Affiliate’s license hereunder with or without cause and without notice at any time. Affiliate is only eligible to earn commissions on sales generated during the term of this Agreement. Upon any termination of this Agreement, any and all licenses granted hereunder shall immediately terminate.

6.2 Notwithstanding anything contained herein to the contrary, upon Cricket’s termination of this Agreement for a breach of contract by Affiliate, Cricket shall not be obligated to pay any commissions due to Affiliate including, without limitation, amounts that are being held pending the meeting of a Payment Threshold (as described in Section 7), disputed commissions and/or any other unpaid commissions at the time of termination.

6.3 Upon termination, Affiliate agrees to immediately destroy any and all Cricket-related records, materials, copies, notes, suppression lists (if used herein) and documentation in their possession and to certify to Cricket in writing within ten (10) days that such destruction has occurred.

6.4 Obligations that, by their nature, would survive any termination of this Agreement including, without limitation, Sections 6, 10, 13, 14, 15, 16 and 18, shall survive any termination of this Agreement.

7. Commissions

7.1 Cricket shall pay commissions to Affiliate on sales made on the Cricket website from users coming to the Cricket website by clicking on Cricket advertising placed on the Affiliate Website. Commissions shall be paid to Affiliate at a rate of Twenty Three dollars ($23.00) per phone with service plan sale. Cricket may, in its sole and absolute discretion, change the commissions rate at any time for some or all Affiliates. The most recent commissions rates and/or other payment terms will be published at the Program Website, so Affiliate should continue to check for any such changes. Unless Cricket and Affiliate agree otherwise in writing, commissions shall be paid in the form of a check in United States dollars and mailed to the physical mailing address Affiliate supplies in its Application.

7.2 Commissions shall be paid to the respective Affiliate within forty-five (45) days of the last day of a given calendar month, for qualifying commissions generated in that calendar month.

7.3 Commissions are based solely upon statistics that Cricket compiles on a regular basis, which are verified and checked against its month end reports (the "Data"). Affiliate understands and agrees that the Data is dispositive and fully binding upon Affiliate in determining payable commissions. Please be advised that the statistics appearing on Affiliate’s online Affiliate Account page are intended for informational purposes only. The online Affiliate Account statistics may be inaccurate and/or incomplete, and Affiliate may not rely upon such statistics until they are reconciled with Cricket’s month end reports.

7.4 Cricket requires an Affiliate to provide a W-9, or similar information, as a condition to receiving any commission payments.

7.5 Notwithstanding anything contained herein to the contrary, no commission payments will be issued to Affiliate for any amount less than $25.00 US Dollars (the "Payment Threshold"). All such amounts below the Payment Threshold shall be held, aggregated and paid to an Affiliate only when the Payment Threshold has been reached. Cricket will not pay commissions on any sales that occur: i) before the Affiliate is accepted into the Program; or ii) after termination of this Agreement.

7.6 Cricket reserves the right to withhold and/or cancel Commissions due and owing to an Affiliate at any time, in Cricket’s sole and absolute discretion, when it believe that the Affiliate is in breach of this Agreement. If Cricket determines that Commissions were earned through any fraudulent means in Cricket’s sole and absolute discretion, all such Commissions will be reversed.

7.7 Cricket reserves the right, without limitation, to deduct an amount equal to any chargebacks, refunds, deductions and/or any other type of adjustments, plus any and all associated fees and charges (collectively, "Adjustments"), incurred by Cricket in connection with sales generated by Affiliate hereunder. If Cricket incurs any Adjustments, the respective Affiliate connected to such Adjustment agrees that Cricket may deduct such amounts from any future Commissions earned by Affiliate.

8. Marketing Pieces

8.1 Cricket will make available to Affiliate marketing pieces created for use with the Program. In particular, Cricket will supply Cricket creative and/or Cricket banner advertisements (collectively, the "Marketing Pieces"). Each Marketing Piece contains a validation tracking mechanism permitting Cricket to identify the respective Affiliate using such Marketing Piece. In addition, each Marketing Piece contains a hyperlink that will direct individuals to the proper pages of the Cricket website.

8.2 Affiliate will use the Marketing Pieces in Internet marketing on Affiliate's website. The Marketing Pieces will allow users of the Affiliate website to go to Cricket’s website and purchase products from Cricket and may contain logos, copy, graphics and/or animation. Cricket may withdraw, change or revise the content of the Marketing Pieces at any time, in its sole and absolute discretion, and Affiliate agrees to use only the most recent version of any Marketing Piece provided by Cricket. If any particular Marketing Pieces need to be taken off the Affiliate website, or there are new Marketing Pieces for Affiliate to use, Affiliate will be notified by Cricket via email, at the email address supplied in Affiliate’s Application, and by notice posted on the Program Website.

8.3 Cricket grants Affiliate a non-exclusive, non-transferable, revocable and limited license to:

A. use the Marketing Pieces on the Affiliate website, including the designated Cricket logos, trade names, product names, trademarks and similar identifying material relating to Cricket therein, for the sole purpose of performing Affiliate's obligations and duties hereunder; and
B. direct individuals to the Cricket website through such Marketing Pieces.

8.4 Affiliate may not alter, modify and/or otherwise change the Marketing Pieces in any manner, whatsoever. Affiliate may only use Marketing Pieces supplied by Cricket. Use, or the attempted use, of any other marketing materials in connection with the Program may result in the termination of this Agreement. Cricket must approve all creative and landing pages of Affiliate and will not pay Commissions for traffic or hits developed from unapproved creative or landing pages.

8.5 Affiliate agrees not to use the Marketing Pieces in any manner that is disparaging or that otherwise portrays Cricket in a negative light, including but not limited to placement of Marketing Pieces on a website or in an email with inappropriate content, including but not limited to, use of alcohol, tobacco, or illegal substances; nudity, sex, pornography, or adult-oriented content; expletives or inappropriate language; content promoting illegal activity, racism, hate, “spam,” mail fraud, gambling, sweepstakes, pyramid schemes, or investment opportunities or advice not permitted under law; content that is libelous defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful; advertising of products competitive with those offered by Cricket; or any other content that may bring Cricket negative publicity. Cricket reserves the right to periodically monitor Affiliate’s use of the Program and the Affiliate website at any time, with or without notice, for the purpose of determining compliance with this Agreement and may randomly request that Affiliate provide all reasonable and necessary information required by this Agreement to determine such compliance.

8.6 Cricket retains the right to approve and direct any and all uses of Marketing Pieces at all times. Each Affiliate agrees that Cricket may, in its sole and absolute discretion, direct the placement of Marketing Pieces on the Affiliate website. Affiliate further agrees that it will fully comply with Cricket’s direction regarding same. Affiliate may not engage in any marketing practices that may be viewed as deceptive and/or misleading.

9. E-mail Marketing Policy/CAN-SPAM Compliance

9.1 Unless otherwise indicated in writing by Cricket, Affiliates MAY NOT USE E-MAIL MARKETING TO PROMOTE Cricket. If Affiliate is interested in promoting Cricket via email marketing, please contact Cricket at cricketaffiliates@converseon.com If e-mail marketing is permitted by the express written permission of Cricket, Affiliate must comply with the following provisions of this Section concerning e-mail transmissions.

9.2 Affiliate represents and warrants that, to the extent e-mail marketing is permitted, it will comply with all applicable state and federal laws, rules and regulations (including the Can-Spam Act of 2003, as amended from time to time) with respect to e-mail marketing. Affiliate acknowledges that any failure to comply with this E-mail Marketing Policy may, in Cricket’s sole and absolute discretion, result in the immediate termination of its Affiliate status and the forfeiture of any and all rights to any Commissions owed to the Affiliate by Cricket.

9.3 Without limiting the generality of the foregoing, when performing e-mail marketing of any kind on behalf of any Cricket, Affiliate represents and warrants that Affiliate will:

A. deliver commercial e-mail only to those recipients: i) who have given Affiliate direct and/or explicit consent to receive e-mail advertising from Affiliate, as defined under applicable law, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; or (ii) with whom Affiliate has a preexisting business relationship, as defined under applicable law, and have not unsubscribed to receive e-mail advertising as of the date that the commercial e-mail was transmitted to such recipient;
B. refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information);
C. not use any subject or from line that is materially false or misleading;
D. refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail;
E. refrain from using any third-party trademarks and/or brands;
F. include within all commercial e-mail sent: a valid street address for both Affiliate and Cricket; a clear and conspicuous identification that the e-mail message is an advertisement or solicitation; a clear and conspicuous opt-out notice and functional opt-out mechanism; and process unsubscribe requests within five (5) days;
G. comply with all legal obligations with respect to unsubscribing consumers from Affiliate's e-mail mailing lists;
H. at least once a week, scrub the Affiliate database of e-mail recipients against the Cricket suppression list, which Cricket will supply to Affiliate, and supply to Cricket an updated Affiliate suppression list on a weekly basis;
I. immediately notify Cricket in the event that any complaint, investigation and/or litigation ensues concerning Affiliate's e-mail practices (whether or not such complaint, investigation and/or litigation relates to Affiliate's relationship with Cricket); and J. provide a copy of each e-mail, either in hard copy or electronically to Cricket for approval before sending out such e-mail to consumers.

9.4 Suppression Lists: With respect to any suppression list , whether provided by Cricket or Affiliate, Affiliate agrees to:

A. use such suppression list, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after termination of this Agreement;
B. regularly use such suppression list to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages;
C. not use the suppression list for purposes of e-mail marketing (or provide the suppression list to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address appearing on any suppression list;
D. not use any suppression list for purposes of e-mail appending in any manner whatsoever;
E. hold any suppression list in trust and confidence and use same solely for the suppression purposes set forth herein;
F. not retain a copy of any suppression list; and
G. not disclose any suppression list to any employee, consultant, subcontractor, or third party individual, corporation or entity without first ensuring said party's written agreement to be bound by the terms of this Agreement. Such agreement shall be immediately forwarded to Cricket, upon request. Cricket reserves the right to withhold its consent to such disclosure and may, within its sole and absolute discretion, accordingly bar the disclosure of any and all suppression lists.

10. Adware and Spyware

10.1 Affiliate is solely responsible for complying with all state and federal laws, rules and regulations, including, without limitation, the "Spy Act" (currently HR 29) if and when passed, and best practices guidelines regarding the use of software and programs commonly known as "spyware" and/or "adware" as those terms are generally understood. Spyware and adware include, but are not limited to, trojans, web bugs, advertiser software, monitoring software and any surveillance type software or program that monitors, reports, tracks, mines or provides Affiliate or any third party with user information such as browsing habits, click information or other user data.

10.2 Cricket has a zero-tolerance policy on the use of spyware or adware. However, if Affiliate would like to offer certain programs to users, where there is express notice to users, users' consent and the ability for users to successfully and permanently remove such programs, Cricket may allow such offerings after it has reviewed any such proposition by Affiliate and given Affiliate express written permission to make such offers.

10.3 Affiliate, or any third party working on behalf of or at the instruction of Affiliate, shall hold harmless and indemnify Cricket for any breach of this Section or for any liability incurred by Cricket as a result of any spyware or adware originating from or on behalf of Affiliate.

11. Search Engine/Coupon Policies:

11.1 As a condition of Affiliate’s acceptance of the Agreement, Affiliate will refrain from any paid search marketing in relation to the Program, unless Affiliate has express written consent from Cricket to do so. Such authorization will be determined by Cricket on a case by case basis. Use of third party trademarks, including those of Cricket, and Program information in pay per click search engines also is prohibited without the express written consent of Cricket. Please email cricket cricket@converseon.com for more information.

11.2 Even if Affiliate receives permission from Cricket to engage in paid search marketing, such permission will not allow Affiliate to drive traffic or attempt to drive traffic to the Program by bidding on any Cricket competitors’ trademarks.

11.3 Cricket may, from time to time and at its sole and absolute discretion, provide some or all of its Affiliates with special promotions, coupons, sweepstakes or contests (the "Promotions") to offer to their users. Cricket will provide eligible Affiliates with adequate notice and authorization so that they may make any and all appropriate changes to the Affiliate website. Cricket may also run periodic Promotions of its own. It will be a breach of this Agreement to utilize any promotion, promotion code, coupon or other promotional opportunity that is not specifically authorized by Cricket for the Program and explicitly authorized for Affiliate’s use, and Cricket reserves the right to withhold or disallow payment of commissions for violations under this Section.

12. Display of Marketing Pieces

12.1 Affiliate shall not display or endorse Marketing Pieces on the Affiliate website in such a way that may mislead or deceive users into clicking on the link for any purpose other than the purpose of being referred to Cricket’s website, so that it is reasonably likely that it will result in a sales transaction for Cricket.

13. Representations and Warranties: Affiliate hereby represents and warrants as follows:

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

13.2 Affiliate is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Affiliate's rights and duties pursuant to this Agreement.

13.3 Affiliate will comply with all applicable state and federal laws, rules and regulations (including the Can-Spam Act of 2003, as amended from time to time, if applicable), with respect to the Program.

13.4 Affiliate understands and agrees that Cricket will enter into similar agreements with other Affiliates that may be in direct competition with Affiliate.

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

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

13.7 Affiliate's performance under this Agreement will not: (i) be fraudulent, deceptive and/or misleading; (ii) invade the right of privacy or publicity of any third person; (iii) involve any libelous, obscene, indecent or otherwise unlawful material; and (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.

13.8 To the best of Affiliate's knowledge, there is no pending or threatened claim, action or proceeding against Affiliate.

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

14. Publicity

14.1 Affiliate agrees that Cricket may use Affiliate's name (if Affiliate is an individual), Affiliate's company name (if Affiliate is a corporation or the like), Affiliate's likeness and/or logo, the Affiliate website address and any associated information in our marketing materials and press releases, without compensation to Affiliate.

14.2 Affiliate shall not create, publish, distribute or permit any written material that makes reference to Cricket without first submitting such material to Cricket and receiving Cricket’s prior written consent, which may be withheld in Cricket’s sole and absolute discretion.

15. Proprietary Rights

15.1 The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Program, Marketing Pieces, Program Website are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights owned by Cricket. The use, copying, redistribution and/or publication by Affiliate of any part of the Program, Marketing Pieces or Program Website, other than as contemplated hereunder, is strictly prohibited. Cricket retains any rights not granted herein.

15.2 Affiliate does not acquire any ownership rights to the Program, Marketing Pieces or Program Website. The availability of the Program, Marketing Pieces and Program Website does not constitute a waiver of any rights related thereto by Cricket.

15.3 Cricket shall be deemed the sole owner of any and all consumer information, including but not limited to personally identifiable information, obtained through your marketing efforts associated with the Program. Affiliate has no rights in or to such consumer information and may not use such consumer information for Affiliate’s own benefit other than as set forth in this Agreement.

16. Indemnification

16.1 Affiliate agrees to indemnify, defend and hold Cricket, its parents and subsidiaries, and each of their respective officers, partners, Affiliates, managers, employees, agents and attorneys (collectively, the "Covered Parties"), harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from:

A. Affiliate's breach of this Agreement and/or any representation or warranty contained herein;
B. Affiliate's participation in the Program, in any manner whatsoever;
C. any third party claim related to the Affiliate Website and/or Affiliate's marketing and/or e-mail marketing practices, including but not limited to any allegation that Affiliate has infringed the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; or
D. failure to abide by any other applicable laws, rules, regulations and orders.
17. Disclaimers/Limitation of Liability

17.1 THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. CRICKET AND THE COVERED PARTIES HAVE NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE'S USE OF, OR INABILITY TO USE, THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, CRICKET AND THE COVERED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, CRICEKT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY LAW, CUSTOM OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN CRICKET AND AFFILIATE. THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. CRICEKT MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM US THROUGH THE PROGRAM, PROGRAM WEBSITE OR MARKETING PIECES SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

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

17.3 UNDER NO CIRCUMSTANCES SHALL CRICKET AND THE COVERED PARTIES BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CONSUMERS OBTAINING SERVICES THROUGH AFFILIATE'S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE'S PARTICIPATION IN THE PROGRAM. THE MAXIMUM AGGREGATE LIABILITY OF Cricket AND THE COVERED PARTIES TO AFFILIATE AND/OR ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE AMOUNTS AFFILIATE HAS RECEIVED THROUGH THE PROGRAM.

18. Confidentiality

18.1 For purposes of this Agreement, the term "Confidential Information" shall mean any non-public information of Cricket that Cricket designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential. Confidential Information shall not include information that is or becomes generally known through no fault of the receiving party. Affiliate shall maintain the confidentiality of Confidential Information and refrain from disclosing any Confidential Information to any other party at any time, even after termination of this Agreement. Affiliate will not use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of, this Agreement. Affiliate agrees to use its best efforts to protect Confidential Information.

19. Force Majeure

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

20. Miscellaneous.

20.1 This Agreement shall be treated as though it were executed and performed in Colorado and shall be governed by and construed in accordance with the laws of the State of Colorado (without regard to conflict of law principles). Should a dispute arise concerning the terms and conditions of this Agreement, or the breach of same by either party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in Denver, Colorado, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending an outcome in arbitration.

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

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

20.4 Cricket and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Affiliate has no authority to make or accept any offers or representations on behalf of Cricket. Affiliate is prohibited from holding itself out as anything other than an independent contractor, including but not limited to making any statement, whether on the Affiliate Website or otherwise, that could possibly contradict anything in this Section.

20.5 This Agreement constitutes the entire Agreement between Cricket and Affiliate. To the extent that anything in or associated with the Program Website is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. This Agreement is incorporated into all other agreements Affiliate has with Cricket. Notwithstanding the foregoing, any additional express authorizations or modifications made by Cricket subsequent to this Agreement, including but not limited to modifications pertaining to commissions or authorizations pertaining to e-mail marketing or adware and/or spyware, shall be controlling to the extent they conflict with the Program Website and/or this Agreement.

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

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

20.8 This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and the successors and assigns of Cricket. Affiliate is not permitted to assign or otherwise transfer any rights and obligations pursuant to this Agreement. Any attempt to do so may result in the immediate termination of this Agreement.