This Metro Agreement (“Agreement” or “Affiliate Program”) is being entered into by Metropolitan Chess, Inc. (“Metro”) and You as an affiliate (“Affiliate”, “You”, or “you”).
Metro and You are agreeing to engage in an affiliate relationship whereby You may receive commissions for selling Metro products to others.
THIS AGREEMENT INCLUDES (1) AN ARBITRATION PROVISION (SECTION 12); (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST METRO (SECTION 12); AND (3) A LIMITATION OF LIABILITY FOR ALL CLAIMS FOR DAMAGE AGAINST METRO THAT MAY ARISE OUT OF YOUR PARTICIPATION IN THE AFFILIATE PROGRAM. (SECTION 8) BY ENGAGING IN THIS AGREEMENT, YOU HEREBY AGREE TO THESE PROVISIONS.
Thus, Metro and You agree to the following:
1.1. Affiliate Process.
For all Customer Accounts generated due to the Cookie placed on the Affiliate Target’s browser due to the Affiliate URL You shared, You will be paid a commission (“Commission” or “Commissions”) for each Customer Account. Such Customer Accounts must be created by individual, natural persons (“humans”) who fulfill the criteria set forth in this Agreement where such actions are the result of sales or marketing or advertising activity of the Affiliate in accordance with this Agreement. The Commission amount is 5% of the net revenue received by Metro for a Customer Account (note payment processor transaction fees and Promoter fees discussed in Section 1.3.4 below). For example and not by way of limitation, should an Affiliate Target create a Customer Account due to the Affiliate URL You provided which places a Cookie on the Affiliate Target’s browser, and should the Affiliate Target create a Customer Account worth $100.00, You would receive $5.00. Should You be entitled to a payment, You will be paid 90 days after a payment is received in Metro’s bank account(s) (note exceptions in section 1.6). Company shall decide the means by which Commissions are disbursed to Affiliates, whether by check, cash, depositing into an Affiliate’s bank account, or by any other means. Affiliate agrees that Affiliate may be required to set up a third party payment acceptance account (e.g. a PayPal account) in order to receive the Commissions.
1.3. Taxes, Currency, and Fees.
You shall be solely responsible for all tax returns and payments required to be filed with any authorities relating to any payments received under this Agreement. You agree to fill out and sign all documents corroborating your tax status with Metro such as a W-9 form which Metro may issue to You and/or request from You. You additionally agree and acknowledge that You have exclusive liability for complying with all applicable laws governing self-employed individuals or businesses. You hereby agree to indemnify and defend Metro against any and all such taxes, payments, fines, penalties or interests that may arise from the preceding.
1.3.2. Currency Conversion.
Metro may, in its sole discretion, round up or round down amounts that are payable to You to the nearest whole functional base unit in which the currency is denominated (i.e. to the nearest dollar, euro or other supported currency); for example, Metro may round up an amount of $103.99 to $104.00, and round down on an amount of $103.49 to $103.00. For currencies that are denominated in large numbers, Metro may determine the functional base unit in which those currencies are denominated to be 10, 100, or 1000 of the currency; for example, Metro may round up an amount of 1145 up to 1150 and 1144 down to 1140 if the currency is denominated base 10.
1.3.3. Transaction Fees.
Some banks and credit card companies impose fees for international transactions. If You reside outside of the United States, Your bank may convert the payment amount to Your local currency and charge You a conversion fee for any transaction involving Metro. Should such an event occur, You hereby understand that a foreign transaction fee may be assessed if the bank or other financial institution You are associated with is located outside of the United States. The currency exchange rate and foreign transaction fee is determined solely by Your bank or other financial institution on the day that they process the transaction. If You have any questions about these fees or the exchange rate applied to You, please contact your bank or financial institution. You agree and acknowledge that Metro is not responsible for any fees from your banking institution as a result of this currency exchange. You additionally agree that You shall reimburse Metro for any transaction fee Metro may be assessed in payments or reimbursements You remit to Metro.
1.3.4. Payment Processor Transaction And Course Promoter Fees.
Metro may use payment processors to process payment transactions and may pay commissions to Promoters pursuant to the Course Promotion Agreement. Depending on the fees associated with the use of such payment processors and Promoters, Commissions coming to You may be deducted based on the terms and conditions of the payment processor and the Promoter. You agree that Metro shall not reimburse You for such an amount deducted due to a payment processor and/or Promoter fee. For example and not by way of limitation, should You sell a Customer Account for $100.00, Your Commission before a payment processing fee would be $5.00 as elucidated in Section 1.2. However, if the payment processor fee is 2.8% and the Promoter fee is 40%, Your take-home Commission would be approximately $2.14.
1.4. Minimum Commission.
Your combined Commission must equal or exceed one hundred dollars ($100.00) before You receive a payment form Metro. If Your combined Commissions for a given payout are less than $100.00, Your Commissions will be held back until Your combined Commissions exceeds $100.00. You also understand and agree that Metro may hold a percentage of Commissions for a period of 90 days after receipt of the initial funds from the Affiliate Target to ensure ability to offset pursuant to section 1.6.
1.5. Additional Terms For Commissions.
You shall only be paid for transactions which do not result in a refund or chargeback. For example and not by way of limitation, You will not be paid a Commission on a transaction should an Affiliate Target receive a refund or chargeback on an account created due to the Affiliate URL You provided. Additionally, You shall not receive a Commission for any sale that was procured fraudulently or in bad faith, at the sole discretion of Metro. Should You have already received a Commission payment for any procurement referenced in this section 1.6 (e.g. due to refund, fraud, bad faith), You will either remit said Commission payment to Metro or Metro shall deduct such payment amounts from Your future Commission payments, at Metro’s election. You will only receive credit for Customer Accounts made on courses (as defined in www.understandchess.com/terms.html) that the Customer Account directly creates or buys.
2. Term and Termination
To begin the term of this agreement, You must accurately complete any application Metro requires You fill out beforehand. You agree and understand that You must provide Metro, should the application request, Your true identity, physical address, phone number, and other contact information for which Metro may ask, as well as business and banking information as requested. You may not use any alias, pseudonym, persona, pen name, DBA or other means to mask Your identity or business details. To verify Your identity, Metro may run a background check on You at any point throughout the term of this Agreement. You acknowledge, authorize, agree, and allow Metro to perform such a background check on You. This Agreement shall be in force the date You accept this Agreement and Metro accepts You as an Affiliate pursuant to this Agreement. Metro is under no obligation to accept You as an Affiliate and may deny any application to become an Affiliate for any reason.
2.1. Termination by Metro.
Metro may terminate this Agreement at its convenience with or without cause with fifteen (15) days’ prior written notice to You. Metro may also terminate this Agreement immediately in its sole discretion upon Your breach of any provision of this Agreement, such breach to be reasonably determined by Metro at its sole discretion.
2.2. Termination by You.
You may terminate this Agreement with Metro at any time provided that there are no outstanding funds owed by You to Metro. Should You terminate this Agreement, any other accounts You may have with Metro may be terminated as well, in Metro’s sole discretion. For the avoidance of doubt, should You terminate this Agreement, You shall not be entitled to any more Commissions from any Customer Accounts.
2.3. Termination Of Affiliate Program.
Metro reserves the right to terminate the entirety of the Affiliate Program at any time for any reason.
3. Marketing Conditions
You agree that while in the course of this Agreement, You are subject to the following marketing strictures in addition to applicable federal, state, and regulatory (e.g. FTC) law. Breach of any of these terms in this Section 3 shall be construed as a material breach by You and subject You to the indemnification provisions of Section 7.
3.1. Truthful Communications.
Everything You communicate regarding Metro must be truthful and accurate. You may not make any claims that are untrue or fraudulent. You may not claim that any government, entity, or individual person endorses Metro. You may not use third party intellectual property (e.g. trademarks) of any person or entity in advertising for Metro.
3.2. Mandatory Disclaimer.
On any media You advertise for Metro, You must prominently display the following disclaimer language:
Disclosure: I am an independent Metropolitan Chess, Inc. Affiliate, not an employee. I receive referral payments from Metropolitan Chess, Inc. The opinions expressed here are my own and are not official statements of Metropolitan Chess, Inc.
You are not permitted to disparage, criticize, refer to, or otherwise mention in any advertisement the products or services of a competitor to Metro.
3.4. Income Claims.
If You make claims related to the benefits You have personally garnered due to Metro, You must adhere to the following guidelines:
- Your statements must be completely true and if applicable, supportable by evidence; and
- If You create a hypothetical scenario, You must clearly label and state that You have created a hypothetical scenario.
3.5. Own Purchases.
You shall not use Your own Affiliate URL in order to receive Commissions on Your own purchases.
4. Independent Contractor Relationship
Metro's relationship with Affiliate will be that of an independent contractor and nothing in this Agreement is intended to, or should be construed to create a partnership, agency, joint venture, or employment relationship. Metro will not provide fringe benefits, including health insurance benefits, paid vacation, or any other employee benefit, for the benefit of Affiliate.
5. Intellectual Property Rights
5.1. Metro Intellectual Property.
Metro hereby grants to You during the term of this Agreement a non-exclusive, non-transferable, royalty-free license to use Metro’s trade names, logos, trademarks, and service marks (“Marks”) in Your advertising such as on Your website solely as is reasonably necessary to establish and promote Metro pursuant to this Agreement and to otherwise perform Your obligations under this Agreement. Any other use of Metro’s Marks is prohibited unless You have received Metro’s prior written approval. Upon termination of this Agreement, You agree to cease using Metro’s Marks. In the course of this Agreement, Metro may provide You media in the form of image, video, audio and/or any other types of audio visual files (“Files”). You may only use the Files for the express purpose of advertising pursuant to this Agreement. You may not reproduce, alter, modify, or create derivative works from the File.
5.2. Your Intellectual Property.
You agree that Metro may identify You as an Affiliate and may use Your name, logo, trademarks, trade names, and other similar identifying material in Metro’s customer list, blog posts, press releases, advertisements, and websites. You additionally grant to Metro a non-exclusive, royalty-free license to use any and all photographs taken by Metro or its agents or employees or submitted by You to Metro in any media (e.g. print, internet, film, television, and so forth) for any purpose, which may include but shall not be limited to advertising, promotion, marketing, and packaging of Metro or any product or service sold and marketed by Metro. You agree additionally that such photographs or any media discussed in this section 5.2. may be modified by Metro. This section 5.2 shall survive any termination of this Agreement.
6. Forbidden Actions
This Agreement will be terminated without notice if, in its sole discretion, Metro determines that the Affiliate has breached any or all of the following explicitly prohibited actions. THE AFFILIATE WILL FORFEIT ANY ACCUMULATED EARNINGS IF THE AGREEMENT IS TERMINATED UNDER THIS PROVISION.
6.1. Click Fraud.
Affiliate shall not, either directly or indirectly, act, encourage, or require Affiliate Targets to engage in any activity through any means that could be reasonably interpreted as coercive, incentivized, misleading, malicious, or otherwise fraudulent. Such activities include framing, cookie stuffing, and any other bad faith activity which is to be determined in Metro’s sole discretion.
6.2. Inappropriate Content.
You shall not advertise on any media that contains content that: incites, encourages, advocates or promotes discrimination based on race, sex, religion, nationality, disability sexual orientation, or age; incites, encourages, advocates or promotes illegal activities including, but not limited to, violence against persons or property, terrorism, armed insurrection, piracy or treason; incites, encourages, advocates or promotes the sexual abuse or exploitation of children and minors; violates the intellectual property rights of third parties; contains sexually explicit, obscene, offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, discriminatory or graphically violent content; or contains or promotes deceptive information.
6.3. Spam And Other Forbidden Actions.
You are responsible for complying with all federal regulations, including the CAN-SPAM federal regulation, and any applicable state and international regulations. Failure to adhere to Federal CAN-SPAM guidelines may result in investigation and damages. You agree to indemnify, defend (at Metro’s option), and hold harmless Metro and its affiliates and subsidiaries, and their officers, directors, employees and agents from any and all costs, damages (whether compensatory, special, direct, incidental, consequential or otherwise), losses, claims and lawsuits, including attorneys’ fees, liability (to third parties or otherwise), and expense arising from or related to Your data, Your use of the Platform, or Your violation of this Agreement and violations of applicable international, federal, and state statutes and regulations such as the CAN-SPAM federal regulation and privacy related regulations.
You agree to release, defend (at Metro’s option), indemnify and hold Metro and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) Your breach of this Agreement, (ii) Your improper use of Metro software, services, or the Affiliate URL (iii) Your interaction with any Affiliate Target, including without limitation any injuries, losses or damages (whether compensatory, special, direct, incidental, consequential or otherwise), of any kind arising in connection with or as a result of such interaction, stay, participation or use, (iv) Your infringing of Metro’s or any third party’s intellectual property rights or (v) Your breach of any other laws, regulations, or third party rights.
8. Limitation of Liability
YOU AGREE THAT METRO’S ENTIRE LIABILITY FOR ALL CLAIMS OF WHATEVER NATURE UNDER THIS AGREEMENT SHALL NOT EXCEED, THE COMMISSIONS PAID TO YOU FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST METRO OCCURRED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. YOU ADDITIONALLY AGREE THAT IN NO EVENT WILL METRO BE LIABLE UNDER ANY THEORY OF LAW FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT METRO HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ANY REMEDY PROVIDED FOR HEREUNDER IN ITS ESSENTIAL PURPOSE.
9. NO WARRANTY
Metro does not promise, guarantee or warrant Your business success, income, or sales. You understand and acknowledge that Metro will not at any time provide sales leads or referrals to You. Additionally,
YOUR ACCESS TO AND USE OF THE SERVICES AND SOFTWARE PROVIDED BY METRO ARE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES AND SOFTWARE (INCLUDING THE CONTINUOUS RUNNING OF METRO’S PLATFORM) METRO PROVIDES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. WITHOUT LIMITING THE FOREGOING, WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES AND SOFTWARE METRO PROVIDES OR ANY CONTENT THEREON. WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO YOUR COMPUTER, TABLET, OR CELLULAR PHONE SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE. MOREOVER, YOU AGREE THAT WE DO NOT HAVE RESPONSIBILITY OR LIABILITY FOR THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY MATERIAL OR CONTENT AND OTHER COMMUNICATIONS MAINTAINED IN THE SERVICES OR SOFTWARE METRO PROVIDES. WE MAKE NO WARRANTY THAT THE SERVICES OR SOFTWARE METRO PROVIDES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE SERVICES OR SOFTWARE METRO PROVIDES OR OUR REPRESENTATIVES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Metro may revise this Agreement from time to time, and will always post the most current version on the website. If a revision meaningfully reduces Your rights, Metro will notify You (by, for example, sending a message to the email address associated with Your account, posting on Metro’s blog, on our homepage, or on this page). By continuing to accept Commission payments, attempt to make sales via Your Affiliate URL, or otherwise participate in the Affiliate Program after the revisions come into effect, You agree to be bound by the revised Agreement.
Any notice required to be given to Metro under or related to this Agreement shall be in writing, either by registered mail or email, and addressed as follows:
By registered mail:Metropolitan Chess, Inc.
P.O. Box 25112
Los Angeles, CA 90025
By email:Email: firstname.lastname@example.org
12. Resolving Disputes
12.1. Resolving a Dispute.
We want to address Your concerns without needing a formal legal case. Before filing a claim against Metro, You agree to try to resolve the dispute informally by contacting email@example.com. We'll try to resolve the dispute informally by contacting all relevant parties. If a dispute is not resolved within 60 days of submission, You or Metro may bring a formal proceeding.
12.2 Judicial forum for disputes.
You and Metro agree that any judicial proceeding to resolve claims relating to this Agreement will be brought in the federal or state courts of Los Angeles County, California, subject to the mandatory arbitration provisions below. Both You and Metro consent to venue and personal jurisdiction in such courts. You additionally agree that both Metro and You are each waiving the right to a trial by jury as to all disputes.
IF YOU’RE A U.S. RESIDENT OR YOU CHOOSE TO BRING A CLAIM AGAINST METRO IN THE UNITED STATES, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
You and Metro agree to resolve any claims relating to this Agreement through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
12.4. Opt-out of Agreement to Arbitrate.
You can decline this agreement to arbitrate by emailing back to us at firstname.lastname@example.org with the Subject Line, “Opt Out”, within 30 days of first accepting this Agreement.
12.5. Arbitration Procedures.
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where You live or work, Los Angeles County (CA), or any other location we agree to.
12.6. Exceptions to Agreement to Arbitrate.
Either You or Metro may assert claims, if they qualify, in small claims court in Los Angeles (CA) or any United States county where You live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the services or software Metro provides, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to You or Your claim, You agree to the exclusive jurisdiction of the state and federal courts in Los Angeles County, California to resolve your claim.
12.7 NO CLASS ACTIONS.
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed.
Notwithstanding the provisions of Section 10 (“Modifications”), if Metro changes this Section 12 (“Resolving Disputes”) after the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement), You may reject any such change by sending Metro written notice (including by email at email@example.com) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Metro’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and Metro in accordance with the provisions of the “Resolving Disputes” section as of the date you last accepted this Agreement (or accepted any subsequent changes to these Terms).
13. Controlling Law
This Agreement is governed by the laws of California, USA. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of California and waives any objection to proceedings in any such court on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum. Clause 13 is for the benefit of Metro only. As a result, the submission in this Section 13 herein shall not affect the right of Metro to take proceedings in any other jurisdiction nor, to the extent allowed by law, shall the taking of proceedings in any jurisdiction preclude the Metro from taking proceedings in any other jurisdiction.
14. Entire Agreement
This Agreement constitutes the entire agreement between You and Metro with respect to the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. This Agreement creates no third party beneficiary rights.
15. Force Majeure
No party shall be responsible or liable to another party for nonperformance or delay in performance of any term or condition of this Agreement due to acts or occurrences beyond the reasonable control of the nonperforming party, including but not limited to acts of God, acts of government, wars, riots, fires and floods, providing the nonperforming party provides to the other party written notice of the existence and the reason for such nonperformance.
16. Waiver, Severability & Assignment
Metro’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You, the Affiliate, may not assign any of Your rights under this Agreement, and any such attempt will be void. Metro may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services and Software.
17. Electronic Signature
You acknowledge, agree, and consent to the use of a keyboard, mouse, touchscreen or other electronic device to select an item, button, icon or similar act/action while using any electronic service we offer; or in accessing or making any transactions regarding any agreement, acknowledgement, consent, terms, disclosures or conditions, constitutes Your signature, acceptance, and agreement as if actually signed by You in writing. Further, you agree no certification authority or other third party verification is necessary to the validity of Your electronic signature; and the lack of such certification or third party verification will not in any way affect the enforceability of Your signature or the resulting Agreement between You and Metro.
18. Independent Investigation
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating as an Affiliate with Metro. You affirmatively state that you have not and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.
All terms of this Agreement which by their nature extend beyond their termination shall remain in effect until fulfilled and apply to respective successors and assigns.