Top-of-Cash TERMS OF USE

PREAMBLE

This translation is performed for information, only the French version being authoritative.

Top-of-Cash is an affiliation platform belonging to , limited liability company with 8000.00 € capital, enrolled on the company and trade register of Marseille under number 443 014 238 RCS MARSEILLE and whose head office is at 12, Boulevard d'Athènes – 13001 MARSEILLE (France). The affiliate wishes to be able to promote the products and services offered by Top-of-Cash in order to obtain a remuneration from Top-of-Cash on the transactions that it contributed to generating, in the conditions specified in each of the following articles. The affiliate is fully aware that certain products or services offered by Top-of-Cash are, by their nature, reserved for adults or an informed audience.


ARTICLE 1: OBJECT OF THE AFFILIATION

Top-of-Cash commercialises services and products on Internet and mobile Internet, intended in particular for an informed audience. 

The purpose of these Terms of Use (hereinafter referred to as ‘TOU’) is to examine and specify the conditions in which the affiliate undertakes to promote Top-of-Cash products and services on its own Internet site(s), by its own means or by use of the tools offered by Top-of-Cash. These terms, therefore, constitute a contract between Top-of-Cash and the affiliate. In accordance with the principles of affiliation, Top-of-Cash will pay the affiliate a commission on the transactions generated thanks to its promotional activity.


ARTICLE 2: DUTIES OF Top-of-Cash

2.1 Top-of-Cash undertakes to supply the affiliate with promotional tools intended to facilitate the promotion of its products and services on the affiliate’s site(s).
2.2 Top-of-Cash undertakes to pay the affiliate commission on the basis of the scale available on the Top-of-Cash internet site. It is understood that the amount of this commission may be reviewed upwards or downwards by Top-of-Cash without backdating or the possibility of contesting. The affiliate will be informed of these changes.
2.3 Top-of-Cash undertakes to supply the affiliate with online statistics enabling it to measure the development and profitability of its partnership with Top-of-Cash.
2.4 Top-of-Cash undertakes to implement all necessary means for the smooth running of the service offered to the affiliate. Nevertheless, owing to the very nature of the Internet, Top-of-Cash does not guarantee operation of the said service 24 hours a day and 7 days a week. Moreover, Top-of-Cash reserves the right to periods of maintenance, updating or technical interventions which may lead to outages in service access. In all the cases mentioned in this article, the resulting malfunctioning or unavailability may not be considered as periods during which Top-of-Cash is not fulfilling its duties, and no compensation will be paid to the affiliate, whatever harm is potentially suffered by it or third parties due to such malfunctioning or unavailability.


ARTICLE 3: DUTIES OF THE AFFILIATE

3.1 These TOU may only be accepted by affiliates of legal age. Consequently, by ticking the box marking the sentence ‘I accept the terms and conditions’, when validating the registration form, the affiliate certifies that they are of legal age and validly bound by their electronic signature.
3.2 The affiliate bears full and entire responsibility for the sites of which it is the publisher and/or owner. The affiliate alone undertakes their creation, maintenance, modification and updates.
3.3 The affiliate undertakes to compensate Top-of-Cash for all sums due as damages and other compensation that Top-of-Cash may have to pay owing to any judgment, sentence or agreement resulting from illegal actions carried out by the affiliate in the promotion of Top-of-Cash products and services. In particular, this undertaking concerns all disputes resulting from illegitimate use of a brand or name or breaches of a third party’s intellectual property.
3.4 The affiliate undertakes to promote Top-of-Cash services by any means that it judges necessary and appropriate, in the strictest adherence to the legislation of the country in which it operates and of the instructions issued by Top-of-Cash in situations where their scope is stricter. Any breach of this undertaking may result in the immediate termination of this contract through the fault of the affiliate and without compensation or payment of sums which may be owed to it by Top-of-Cash. Top-of-Cash may notify the affiliate of such termination by electronic mail.
3.5 The affiliate undertakes not to mislead the end user about the price of the products and services offered by Top-of-Cash. Any breach of this undertaking may result in the immediate termination of this contract through the fault of the affiliate and without compensation or payment of sums which may be owed to it by Top-of-Cash. Top-of-Cash may issue notification of such termination to the affiliate by electronic mail.
3.6 The affiliate formally undertakes not to attempt to generate false transactions in the sole aim of increasing the amount of commission owed to it. Any breach of this undertaking may result in the immediate termination of this contract through the fault of the affiliate and without compensation or payment of sums which may be owed to it by Top-of-Cash. Top-of-Cash may notify the affiliate of such termination by electronic mail. Furthermore, Top-of-Cash reserves the right to prosecute the affiliate for the illegal acts of which it may be guilty in violation of this article.
3.7 The affiliate undertakes to inform Top-of-Cash of all proven or potential cases of breach of intellectual property for which it may be liable. If Top-of-Cash initiates proceedings to stop, limit or punish such breaches, the affiliate undertakes to cooperate fully and freely with Top-of-Cash in these proceedings and bear full liability for the breaches committed by it.


ARTICLE 4: REMUNERATION OF THE AFFILIATE

4.1 The affiliate will be paid in accordance with the information supplied by Top-of-Cash on its internet site. Only the statistics supplied by Top-of-Cash are admissible and will serve to calculate the amount of the sums due to the affiliate, in accordance with the commission scale available on the Top-of-Cash site. It is understood that this scale may be unilaterally reviewed at any moment by Top-of-Cash, without notice and either upwards or downwards, depending solely on Top-of-Cash’s requirements. The affiliate will be informed of these changes.
4.2 Commission due to the affiliate will be paid by the method of the affiliate’s choice among those offered by Top-of-Cash. Payment must be requested before the 16th of the month for payment between the 20th and 25th of month M of commission for month M-1
4.3 Top-of-Cash reserves the right to freeze all payments to a partner. Such a freeze may be implemented unilaterally if Top-of-Cash notices an irregularity committed by the partner in the aim of artificially increasing its earnings. This payment freeze will be the object of a warning email sent by Top-of-Cash to the partner.


ARTICLE 5: CONTENT OF THE AFFILIATE’S SITE

5.1 The affiliate declares and guarantees that the services and content accessible on its internet site(s) do not violate the rights and intellectual property of a third party. The affiliate also declares and guarantees that the services and content accessible on its internet site(s) do not contravene any legal or regulatory provisions emanating from a public authority having power over it.
5.2 The affiliate declares that it has obtained and undertakes to keep up to date any necessary authorisation from the competent authorities having power over it for the opening and maintenance of a web site.
5.3 Top-of-Cash may suspend this contract without notice, or terminate it immediately, if the services and content accessible on the affiliate’s site(s) do not fulfil the conditions set out in this contract.
5.4 The affiliate undertakes to take all necessary measures to forbid or block access to its adult site(s) to minors. It must display a legal warning page before the site can be accessed. In the event of non-compliance by the affiliate with the legislation on the protection of minors in the country where it operates, or with the instructions set out on this subject by Top-of-Cash on its internet site, Top-of-Cash reserves the right to terminate this contract immediately, without compensation or the payment of sums which may be owed to the affiliate. Top-of-Cash may issue notification of such termination to the affiliate by electronic mail.


ARTICLE 6: CONFIDENTIALITY AND SECURITY

6.1 The affiliate is aware that the information or promotional tools supplied by Top-of-Cash have genuine strategic importance for Top-of-Cash as part of its activity in a competitive market. Consequently, the affiliate undertakes to protect the confidentiality of non-public information to which it may have access, not to divulge conversations that it may have with employees and management at Top-of-Cash, not to exploit directly for itself the information or tools supplied by Top-of-Cash and not to express itself negatively in public on the information and tools supplied by Top-of-Cash. Any breach of this undertaking may result in the immediate termination of this contract through the fault of the affiliate and without compensation or payment of sums which may be owed to it by Top-of-Cash. Top-of-Cash may give notification of such termination to the affiliate by electronic mail. Furthermore, Top-of-Cash reserves the right to prosecute the affiliate for illegal acts of which it may be guilty in violation of this article.
6.2 The affiliate bears sole responsibility for securing the passwords for accessing the tools offered by Top-of-Cash. It bears all liability in connection with the loss or fraudulent use of these passwords and potential damages which may arise therefrom.


ARTICLE 7: RELATIONS BETWEEN THE PARTIES

The parties are independent entrepreneurs, this contract only binds them for the purposes and provisions mentioned herein. Consequently, the provisions of this contract may not be interpreted as creating any association or company between the parties or as assigning any mandate from one to the other. Moreover, neither of the parties may commit the other, in any way or to whomsoever, other than in accordance with the provisions of this contract.


ARTICLE 8: INTELLECTUAL PROPERTY RIGHTS

8.1 Any intellectual property rights and any technical solutions relating to the use of the graphic elements supplied by Top-of-Cash, or any other right and solution offered by Top-of-Cash in accordance with this contract, belong to Top-of-Cash and may not be subject to any use which is not provided for in the contract. Unless expressly and previously agreed by Top-of-Cash, any change carried out by the affiliate to the codes and/or promotional tools supplied to it by Top-of-Cash is strictly forbidden. Non-compliance with this obligation will entail immediate termination of this contract.
8.2 All intellectual property rights relating to the affiliate’s sites belong to the affiliate and, consequently, may not be subject to any use not provided for in this contract outside of any external agreement.


ARTICLE 9: DURATION

9.1 This contract is entered into for an initial period of one year, counting from the first transaction generated by the affiliate’s action. It will then be renewed by tacit agreement for successive periods of one year for an unlimited duration.
9.2 Any changes to this contract will be set out in amendments to be appended hereto.
9.3 This contract may be cancelled at any moment by either party, without penalties or damages, with three (3) months’ notice issued by registered letter with acknowledgement of receipt to the other party, termination taking place on the date of receipt of the registered letter.


ARTICLE 10: CHANGES TO THE TOU

10.1 Top-of-Cash reserves the right to change these TOU at any time.
10.2 The modified TOU will enter force as of their publishing by Top-of-Cash and will prevail over any printed versions of an earlier date. The affiliate will be informed of these TOU by an update posted on its MY ACCOUNT page.


ARTICLE 11: EARLY TERMINATION

11.1 In the event of non-compliance by one of the parties with any of the duties resulting from this contract, the contract may be terminated ipso jure on request of the other party fifteen days after notification to rectify the breaches recorded and reported by electronic mail.
11.2 Top-of-Cash may terminate this contract by electronic mail to the affiliate if the latter does not fulfil its duties or does not take the measures required to remedy its failings within a reasonable period following the notification by email. Termination will take place on the date on which the electronic mail is sent.
11.3 This contract will be broken off in the event of bankruptcy, insolvency or termination of business by either party, upon receipt of a registered letter from one of the parties informing the other of the circumstances.
11.4 The end of this contract in accordance with its article 10 does not deprive a party of any rights, nor release it from any duties, in particular concerning confidentiality, intellectual property and limitation of liability. Such rights and duties remain in force notwithstanding the end of this contract.
11.5 Any of the affiliate’s accounts remaining inactive for more than 90 (ninety) consecutive days may be cancelled by Top-of-Cash following notification sent by electronic mail and a period of 7 (seven) days during which the affiliate can reactivate its account. After the 7 (seven)-day deadline, accounts remaining inactive will be cancelled and unpaid sums accruing thereon will be permanently forfeited.
11.6 The affiliate may request the closure of an account at any time. Sums accruing on the account will be paid to it.


ARTICLE 12: HOSTING

Under certain conditions set out on the site, Top-of-Cash may offer a hosting service for mobile sites. If need be, Top-of-Cash undertakes to make the greatest effort in ensuring the availability of this hosting service, but in no event may be held liable for any technical failure of the said service. This hosting service, offered free, does not give entitlement to any form of compensation for the affiliate in cases of malfunctioning or unavailability.


ARTICLE 13: PROOF, STORAGE AND ARCHIVING

13.1 The fact of the affiliate ticking the box by the phrase ‘I accept the terms and conditions’, when validating its registration form, signifies acceptance of the TOU and constitutes an electronic signature which has, between the parties, the same value as a handwritten signature.
13.2 The computerised registers stored in the Top-of-Cash IT systems, in reasonable conditions of security, will be considered as proof of the communications between the affiliate and Top-of-Cash.
13.3 Storage of these TOU accepted by the affiliate in the conditions set out in article 3.1. above (or, if changed, brought to its awareness in the conditions set out in article 10.2. above), is carried out on a reliable and durable support, so as to correspond to a true and durable copy. In the event of a clash between the Top-of-Cash computerised registers and any document in writing or in an electronic file belonging to the affiliate, it is expressly agreed that the Top-of-Cash computerised registers will prevail over the affiliate’s documents and will be the only ones admissible as evidence.


ARTICLE 14: MISCELLANEOUS

Except if there is an express provision to the contrary in this contract, the following provisions apply.
14.1 Neither party may be considered in breach of this contract if the discharge of its duties is wholly or partially delayed or hindered by a case of force majeure. Force majeure is an external, unpredictable and unavoidable event which renders the fulfilment of a duty absolutely impossible. 
14.2 The potential illegality or nullity of a provision of this contract does not affect the legality of the other provisions of this contract.
14.3 Any notification sent to one of the parties is deemed to have been validly delivered if it is put in writing and sent by registered or certified mail, by a bailiff or delivery service to the other party at the address given at the beginning of this contract, or another address made known by the party concerned via similar means to the other party. A copy of any notification sent by electronic mail must also be forwarded by one of the delivery methods mentioned above.
14.5 Should one or several of the stipulations in the contract be declared invalid or non-enforceable by a competent jurisdiction, such provision will be removed from the contract without the validity or the enforceability of the other provisions being affected.
14.6 Top-of-Cash reserves the right to sell, transfer or give to a third party, in any form whatsoever, the rights and duties arising from this contract.
14.7 For any dispute which may arise between the Parties regarding the drawing-up, carrying-out or interpretation of this contract, the Commercial Court of MARSEILLE alone will be competent.