www.mesmerotic.com

MESMEROTIC AFFILIATE AGREEMENT

Before you can participate in the Mesmerotic Affiliate Program (“Program”), you must carefully read and agree to the following terms and conditions. This agreement is a legally binding contract (“Agreement”) between South Beach Media Group, Inc., a Nevada corporation, doing business as Mesmerotic (“Company”, “we”, “us”) and affiliate (“Affiliate” or “you”). This agreement is effective on the date you submit your electronic application to join the Program.

The offer for you to participate in the Program is subject to all of the terms and conditions detailed below. You agree that by submitting your application, or by your participation in the Program, you will be bound by all of the terms and conditions in this Agreement.

Site Maintenance . Each party shall be responsible for the development, operation, and maintenance of its own web site and for all materials that appear on its site. You agree that you will not post or link to any of the following content or materials, either directly or indirectly, from any website that links to Company’s Programs or Sites:

material in which persons under the age of eighteen are depicted in actual, simulated, or suggestive sexual situations, including depictions of nudity of those under, or implied to be under, the age of eighteen.
material not in full compliance with 18 U.S.C. Sec. 2257 et seq.;
material which is obscene, including but not limited to, any material involving bestiality, rape, or torture;
materials that violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights) or which is libelous, defamatory, hateful, abusive, fraudulent or otherwise illegal;
any program, file, data stream or other material which contains ad-ware, spy-ware, mal-ware, viruses, Trojans, worms, or any other malicious software, regardless of whether damage was intended or unintended, and which causes damage to any computer equipment, or causes loss or corruption of data, or causes changes to a user’s Internet preference settings (forced homepage change, forced bookmarks, etc.), or otherwise interferes with the normal operation of user’s browser, including the addition of advertisements to sites other than those directly owned or controlled by Affiliate.

Linking License

Affiliate Linking . Company herebygrants a non-exclusive, non-transferable license to Affiliate to use the code and/or logo and graphics provided as part of this Program for linking to any of the participating sites in the Mesmerotic Program (“Sites”).
Linking . Company and Affiliate hereby grant to each other a non-exclusive, non-transferable trademark license to place the other’s link, in text or graphic form as provided, on each other’s website page for the purpose of this Agreement. All use of a party’s trademarks as permitted in this Agreement shall accrue to the benefit of the owner of such trademarks, and the other party shall acquire no right, title or interest in such trademarks other than the license granted herein. Each trademark owner shall retain sole exclusive rights and control over its trade marks, service marks and trade names.
Purchase Tracking . Company shall track Affiliate users who access Sites via the code or link on Affiliate’s site and make a purchase which earns Fees as set forth in Section 4. Failure by Affiliate to correctly use code or links which track sales from its users may result in problems with accurate payments hereunder. Please notify Company immediately if you believe that you have had a problem in this regard.

Program Participation. As part of being granted participation in this Program, you agree that you will not:

either directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using links or for purchasing products from Company, its Programs or Sites, (e.g., by implementing any "rewards" program for persons or entities who use links to access Sites, etc.);
post or use any banners or other graphics, photos, or videos promoting the Program or any of the Sites in the Program which have not been provided by Mesmerotic for your use, or which have not been pre-approved by Mesmerotic.;
read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Company by any person or entity;
in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the Sites or of Company’s advertising materials;
make any orders or purchases (or engage in other transactions of any kind) on any of Company’s Sites on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so;
make use of stolen or compromised credit cards, checks, or other forms of payment, or otherwise engage in fraud on Company’s Sites, or authorize, assist, or encourage any other person or entity to do so;
make use of blind links, or otherwise trick or deceive user into clicking through to Company’s Sites without user’s knowledge and permission.
open any of Company’s sites in a pop-up, pop-behind, or exit console, without express written permission from Company.
except for linking in section 2.a. above, post or serve any advertisements or promotional content around, on top of, or in conjunction with Sites (e.g., through any "framing" technique, or through ad-ware, spyware or other technology that in any way alters the display of Sites), or assist, authorize, or encourage any third party to take any such action. If we determine, in Company’s sole and exclusive discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any Fees due you under this Agreement and/or terminate this Agreement without prior notice.
advertise, promote, or otherwise reference Company’s Programs or Sites using bulk email in any form (including double opt-in newsletters), without explicit prior written permission from Company. If we, in our sole and exclusive judgment, determine that you have engaged in any form of non-approved bulk email to advertise or promote our Program or Sites, we have the right to immediately and without notice, terminate your account and retain all Fees due as liquidated damages. Company will cooperate with governmental authorities in any investigation of violation of the CAN-SPAM act and/or other applicable statutes and regulations. WE HAVE A ZERO TOLERANCE POLICY FOR THE USE OF UNSOLICITED BULK EMAIL (SPAM). IF YOU ENGAGE IN SPAM, YOUR ACCOUNT WILL BE TERMINATED AND YOU WILL FORFEIT ALL FUNDS DUE.

Fee Payments . Company shall pay Affiliate a percentage of the Net Revenue (“Fee”) collected from eligible sales referred by Affiliate’s properly coded referral links. The payout percentage shall be determined by the rates published on mesmerotic.com as of the Effective Date, and may vary depending on the Site and referral program selected by Affiliate. For the purpose of this section, “Net Revenue” is defined as gross revenue received by Company via the Affiliate’s link to the Sites minus any sales tax or goods and services tax due to any government entity as a result of the sale. For the purpose of this section, “eligible” is defined as when the user clicks-through the code or link supplied by Company from your site to one of the Sites in the Program, and purchases a product with a valid credit card, checking account, or with another approved payment method. No Fee will be paid if the session ends prior to the user purchasing or upon any of the following events: (a) 24 hours elapses from the user’s initial click-through, (b) the user follows another parties’ link or code to the same Sites; (c) the user leaves the site and reenters again other than through your site; or (d) purchases made through an ineligible Internet Access Device such as a Cellular telephone or PDA. Fees will not be paid on cancelled or disputed credit card charges, voided or refunded transactions, or on purchases of other parties’ items by users from your site.

Payment Procedures . Company shall pay Fees bi-weekly for amounts that exceed $100, or such other level above $100 that Affiliate requests. If in any bi-weekly period, the Fee does not exceed $100, such amount shall be recorded and held, and then paid at the conclusion of the period during which total payment due to Affiliate does exceed $100. Payments shall be made via check to the party and address indicated on the Affiliate application, or to such other address as Affiliate may later specify in writing. In the event that Company detects possible fraudulent transactions among those transactions referred by Affiliate, Company shall have the right to withhold payment of Fees until such time as it reasonably believes the potential for chargebacks or offsets has passed.

Warranties

Affiliate Warranties . Affiliate represents and warrants to the Company that (i) if Affiliate is a corporation, the person submitting Affiliate application has the requisite corporate authority to enter into and perform this Agreement, (ii) this Agreement constitutes a legally binding obligation, enforceable in accordance with its terms, (iii) its execution and performance under this Agreement shall not breach any agreements or violate any third party’s rights and shall not violate any judgment, writ, injunction, or order of any court, arbitrator or governmental agency; (iv) no content on its website, nor any element thereof, shall infringe the copyright, trademark, patent or trade secret rights of any third party or be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments and (v) that Affiliate (or authorized representative if a corporation) is over the age of eighteen (18).
Company Warranties . Company represents and warrants to the Affiliate that (i) it has the requisite corporate authority to enter into and perform this Agreement, (ii) this Agreement constitutes a legally binding obligation, enforceable in accordance with its terms, and (iii) its execution and performance under this Agreement shall not breach any agreements or violate any judgment, writ, injunction, or order of any court, arbitrator or governmental agency.
No Other Warranties . Except as stated in the above Sections 6. a and b respectively, NEITHER PARTY MAKES ANY OTHER WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER IMPLIED OR EXPRESS WARRANTIES WHATSOEVER. NEITHER PARTY IS RELYING ON ANY STATEMENT, PROMISE, REPRESENTATION OR GUARANTEE, EXCEPT AS SET FORTH IN THIS AGREEMENT.

Indemnification . Affiliate shall indemnify and hold harmless Company, its officers, directors, employees, sublicensees, contractors, and agents from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) which result from a breach or alleged breach of any provision (a “Claim”) set forth in this Agreement, provided that Company gives the Affiliate written notice of any such Claim and the indemnified party has the right to participate in the defense of any such Claim at its expense. From the date of written notice of any such Claim, Company shall have the right to withhold from any payments due under this Agreement the amount of any defense costs, plus additional reasonable amounts as security for obligations under this Section.

Termination and Term . Either party may terminate this Agreement upon thirty (30) days written notice to the other. Upon termination for material breach, Company may withhold Fees due as liquidated damages. Upon termination for other than material breach, Company shall issue payment within thirty days of conclusion of the bi-weekly period in which such termination occurs. Upon termination for any reason, all licenses granted herein shall immediately cease and Affiliate shall immediately remove all code and links, references, trademarks, and advertising materials on its site regarding Company, its Programs, or Sites.

Program Modifications. The Company, in its sole and exclusive discretion, shall have the right to modify or change the program at any time, including the type and quality of benefits and payments provided to you hereunder, either with or without notice. You agree to periodically visit Mesmerotic.com/legal/terms.html to view any such amendments or modifications. In the event of a material change in the Program, you shall have the right to withdraw and stop participating in Program. You agree that no modification by You, Your employees, representatives, agents, assigns or successors shall be enforceable or have any effect unless first reduced to writing and signed by a duly authorized representative of Mesmerotic.

Relationship . The parties’ relationship does not create a partnership, joint or collaborative venture, agency, or employer-employee relationship. Affiliate is an independent business and is not controlled by or otherwise related to Company. Further, Affiliate is not the agent of Company and will at no time make any representation, contract, or commitment on behalf of Company. Affiliate shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local governmental authority with respect to its receipt of fees under this Agreement. AFFILIATE ACKNOWLEDGES THAT COMPANY HAS NO CONTROL OR OWNERSHIP INTERESTS OF ANY KIND IN AFFILIATE’S BUSINESS OR WEBSITES. YOU AGREE THAT NEITHER COMPANY, ITS EMPLOYEES, AGENTS, OR SUCCESSORS WILL EXERT OR PROVIDE ANY DIRECT OR INDIRECT CONTROL, MONITORING, OR SUPERVISION OVER YOUR WEBSITE(S), AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL LEGAL LIABILITIES OR CONSEQUENCES ARISING OUT OF THE OPERATION OF YOUR SITE.

Trademarks . You agree that any trademarks, service marks, trade names, copyrights, and other intellectual property used in connection with the Program shall remain the sole property of Mesmerotic. In the event that new trademarks, service marks, trade names, copyrights, or other intellectual property are adopted or created during the term of this Agreement, you agree that they shall be and at all times remain the property of Mesmerotic.

Press Release . Affiliate shall not issue a press release regarding its participation in this Program without the written permission of Company.

Miscellaneous . Either party may assign this Agreement to any successor in interest who purchases or through change in control owns greater than fifty percent of the assets or equity of such entity, provided that such successor agrees to be bound by the terms and conditions herein; any other assignment shall be void. This Agreement shall be governed by, enforced under, and construed and interpreted in accordance with, the laws of the state of Nevada without reference to conflict of laws principles. Each party agrees and consents to venue and personal jurisdiction in the state of Nevada. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid such, unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law. This Agreement constitutes the entire agreement between the parties related to the subject matter thereof, supersedes any prior or contemporaneous (oral, written or electronic) agreement between the parties and shall not be changed except by written agreement signed by an authorized representative of each party. You acknowledge and agree that failure of Mesmerotic to enforce any of the specific provisions of this Agreement shall not preclude later enforcement of such provisions, nor shall it preclude enforcement of other provisions of this Agreement or the exercise of any right enumerated herein.

Review By Your Attorney. We strongly suggest that you review this agreement with your attorney prior to agreeing to it. This is a legally binding contract which grants You and Company certain rights and responsibilities. You acknowledge that all terms have been fully disclosed in writing, that they are reasonable and fair, and that you have been given a reasonable chance to seek counsel prior to entering into this Agreement.

Acceptance & Execution.You acknowledge that by clicking on the SUBMIT button, and providing Mesmerotic with the information required on the application form, that you agree to all of the terms, conditions, promises, warranties, duties, and obligations set forth in this Agreement.