These Affiliate Terms and Conditions ("Terms and Conditions") together with any campaign terms ("Campaign Terms") provided by AffiliateNetwork.com Marketing, LLC ("AN") and hereby incorporated by reference (collectively, this "Agreement") are entered into by and between AN and you ("Affiliate") and set forth the terms and conditions of Affiliate's participation in the AN Affiliate Program ("Affiliate Program").
1.General: To enroll in the Affiliate Program, affiliate must submit the AN affiliate application (“Application”) via the AN website located at AffiliateNetwork.com (“AN Website”). Affiliate Accepts the terms and conditions contained in the Agreement by: (i) completing the Application and clicking “submit”; and (ii) by participating in the Affiliate Program. The Agreement is effective as of the date that Affiliate submits the Application (“Effective Date”), provided that AN does not reject the Application. AN may, at its sole discretion, reject Affiliate’s Application and/or terminate Affiliate’s participation in the Affiliate Program at anytime and for any reason. AN reserves the right, in its sole discretion, to change, modify, add and/or remove portions of the Agreement at any time. All changes to the Agreement will take effect immediately upon their posting on the AN Website. Affiliate must check the AN Website periodically for any changes to the Agreement. Where Affiliate does not agree to any such changes to the Agreement, Affiliate must terminate the Agreement and cease using the Affiliate Program immediately. In connection with the advertising campaigns described in the Agreement (each, a “Campaign”), Affiliate shall have access to certain marketing creative (“Creative”) provided by AN and its third party advertisers (“Advertisers”). Subject to the terms and conditions of the Agreement, the Creative shall be used to generate valid sales, leads, applications, accounts, clicks or other compensable activities (the “Compensable Transactions”). Each piece of Creative shall include, in unaltered form, the AN special transaction tracking codes as embedded in all such Creative (the “Transaction Tracking Codes”). Affiliate will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes and/or other technology and/or methodology required or made available by AN. AN may change or revise the Creative that is made available hereunder at any time, in its sole discretion, and Affiliate agrees to use only the most recent version of the Creative that is made available to Affiliate. Affiliate may not alter, modify or otherwise change the Creative in any manner, whatsoever. AN may terminate Affiliate’s right to use the Creative for any reason at any time, in its sole discretion. Affiliate must immediately remove Creative upon receiving written notice from AN or upon the termination or expiration of any applicable Campaign. Affiliate may only use Creative that is supplied by AN. Affiliate agrees that AN may, in its sole discretion, direct the placement of the Creative. Unless such direction is given, and subject to the terms and conditions of the Agreement and all applicable laws, rules and regulations, Affiliate may display the Creative: (i) as often and in as many areas of any website owned, operated or controlled by Affiliate (“Affiliate Websites”); and/or (ii) in creative for distribution to those e-mail addresses listed in any e-mail database owned, operated or controlled by Affiliate (“Affiliate Database”), as it desires, in its discretion. Notwithstanding the foregoing, Affiliate must comply, immediately, with any and all requests by AN to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to Creative. Affiliate may NOT use brand names and/or trademarks of another party in the "subject" or "from" lines or body of any commercial e-mail transmission. Affiliate may not, nor knowingly permit any Sub-Affiliate (as that term is defined hereinbelow) to, use third-party trademarks in any other way to direct traffic to any Affiliate Websites or Advertiser website including, but not limited to, purchasing keywords from a search engine service provider. Affiliate may not allow the Creative to be placed on any non-Affiliate Websites without the prior express written consent of AN. Affiliate must place or use the Creative only with the intention of delivering valid Compensable Transactions. Affiliate may not, nor knowingly permit any person to, activate the Creative or inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology designed to appear like an individual, real live person performing a Compensable Transaction. Affiliate agrees and acknowledges that it shall not, nor shall it permit any Sub-Affiliates: (a) to use incentivize offers, create the appearance of incentivizing offers, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions without obtaining the prior written approval of AN; (b) place any statement in close proximity to the Creative requesting that e-mail recipients or Internet users “click” on the Creative; (c) place misleading statements in close proximity to the Creative; (d) take control of a user's computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (e) install or execute on another's computer one or more additional software program(s) without consent of the user (In addition, Affiliate must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the user of the computer); (f) distribute spyware or other similar harmful software; and/or (g) redirect traffic to a website other than the website listed by the particular Advertiser.
2.Reporting:AN will deliver to Affiliate reports regarding Compensable Transactions and the associated fees due to Affiliate by and through an online reporting system to which Affiliate will be given access. AN will report results to Affiliate as often as possible, and Affiliate will invoice AN based on the monthly total of such reporting. All such reports will be deemed final and binding.
3.Payment:AN will make payment to Affiliate no later than thirty (30) days after the last day of the month for which associated revenue is generated.
4.License:AN grants Affiliate a non-exclusive, non-transferable, revocable and limited license to use the Creative made available in connection with each Campaign solely and exclusively in connection with Affiliate’s efforts to market the products and/or services featured in each such Campaign in accordance with the terms and conditions contained in the Agreement. AN and/or its Advertisers, as applicable, retain full and sole ownership of all Creative and other information supplied to Affiliate from time to time in connection with the Agreement.
5.Sub-Affiliates:For purposes of the Agreement, any business partners or associates of Affiliate that participate in or perform any activities for Affiliate as a part of any Campaign shall be deemed to be “Sub-Affiliates.” AN reserves the right to require Affiliate to cease using any Sub-Affiliate in connection with any Campaign at any time for any reason whatsoever. All Sub-Affiliates must comply with the same terms and conditions as Affiliate is required to abide by under the Agreement. Affiliate is responsible for the acts and/or omissions of its Sub-Affiliates.
6.E-Mail Marketing:Affiliate represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations (including, but not limited to, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), and any international laws, rules and regulations) with respect to its e-mail marketing. When performing e-mail marketing of any kind and on behalf of any Advertiser, Affiliate represents and warrants that Affiliate shall transmit commercial e-mail only to those recipients that have given Affiliate Affirmative Consent (as defined in CAN-SPAM) to receive e-mail advertising from Affiliate and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient. Affiliate must: (i) refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information); (ii) not use any “subject” or “from” line that is materially false or misleading; (iii) refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail; (iv) include within all commercial e-mail sent: (a) a valid street address for both Affiliate and the Advertiser (if any); (b) a clear and conspicuous opt-out notice and functional opt-out mechanism that must remain active for at least thirty (30) days from the date that the subject e-mail was transmitted; (c) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation; and (d) process unsubscribe requests within five (5) days of receipt of same; (iv) at least once a week, scrub the Affiliate Database against the Advertiser suppression list, AN suppression list and Affiliate generated suppression list (collectively, the “Suppression List(s)”) as same will be made available by AN or generated by Affiliate, as applicable; and (vi) immediately notify AN in the event that any complaint, investigation and/or litigation ensues concerning Affiliate’s or any Sub-Affiliate’s e-mail practices. In the event any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the effective date of the Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such enacted or amended law, rule or regulation shall apply to Affiliate with or without notice from AN. Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Affiliate and any and all Sub-Affiliates. Affiliate represents and warrants that it will respond to all consumer complaints within two (2) business days of notification.
7.Suppression Lists:With respect to any Suppression List(s) generated in connection with, or made available by and through the Campaign(s), Affiliate agrees to: (i) use such Suppression List(s), and the individual customer records contained therein, solely for the suppression purposes set forth herein; (ii) not use the Suppression List(s) for purposes of e-mail marketing or e-mail appending (or provide the Suppression List(s) 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 or domain appearing on any Suppression List(s); (iii) hold any Suppression List(s) made available by AN or any Advertiser in trust and confidence; (iv) not retain a copy of any Suppression List(s) made available by AN or any Advertiser following termination of the Agreement; and (v) not disclose any Suppression List(s) made available by AN or any Advertiser to any employee, consultant, subcontractor or third party without first ensuring said party’s written agreement to be bound by the terms of the Agreement. Affiliate shall make its own list of suppressed e-mail addresses available to AN on a daily basis in the format reasonably designated by AN. If no such e-mail addresses are supplied by Affiliate, AN may conclude that no such addresses exist. Affiliate further agrees and acknowledges that it has downloaded and removed the domains located on the Federal Communications Commissions (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all data used in AN mailings.
8.Representations and Warranties: Affiliate hereby represents and warrants that: (i) the 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 it; (ii) Affiliate will comply with all applicable state and federal laws, rules, Federal Trade Commission implementing regulations, international laws, rules and regulations; and (iii) AN understands and agrees that AN will enter into similar agreements with other AN affiliates in direct competition with Affiliate. Affiliate will be solely responsible for the development, operation and maintenance of the Affiliate Websites, Affiliate Database and for any and all materials that appear on the Affiliate Websites and in emails to the Affiliate Database (other than the Creative) (collectively, “Affiliate Content”). Such responsibilities include, without limitation: (a) the accuracy and propriety of materials posted on the Affiliate Website; (b) ensuring that the Affiliate Content does not violate or infringe upon the rights of any third party and is not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; (c) ensuring that the Affiliate Websites and Affiliate Content comply with all applicable laws, rules and regulations; (d) ensuring that Affiliate’s use of the Affiliate Database will comply with all applicable privacy, data protection, credit and any other laws, statutes and governmental regulations; (e) ensuring compliance of any and all Sub-Affiliates with the terms of the Agreement; (f) ensuring that each such Affiliate Website shall, at all times during the term of the Agreement, maintain a privacy policy (“Affiliate Privacy Policy”) that complies with applicable law; (g) that the Affiliate Privacy Policy shall explain that each such Affiliate Website allows third parties, including Advertiser, to serve the Creative and Affiliate Content within its media; and (h) that the Affiliate Privacy Policy explains that each such Affiliate Website is allowed to share any information collected therein with third parties, such as Advertiser as contemplated hereunder.
9.Choice of Law/Venue:This Agreement shall be interpreted and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws provisions. Any and all disputes or controversies of any nature whatsoever arising from or respecting the Agreement shall be decided by arbitration by the American Arbitration Association ("Arbitrator") in accordance with the rules and regulations of the Arbitrator. Arbitration shall take place at New York City, New York. The Arbitrator shall be able to decree any and all relief of an equitable nature including, but not limited to, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs.
10.Publicity:AN shall be permitted to identify Affiliate as an AN affiliate, and may use Affiliate’s name as part of its marketing materials. Either party may issue a press release generally announcing this marketing relationship, but only with the other party’s prior written consent.
11.Non-Circumvention:Affiliate recognizes that AN has proprietary relationships with the affiliates, Advertisers and other third parties that participate in its Campaign(s). Affiliate agrees not to circumvent AN’s relationship with such affiliates, Advertisers and/or third-parties, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by affiliates in connection with the Campaign(s) for any affiliate, Advertiser or third-party publisher that is known, or should reasonably be known, by Affiliate to participate in the Campaign(s), during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Affiliate can show that any such affiliate, Advertiser or third-party already obtained such services from Affiliate prior to the date of the Agreement, then Affiliate shall not be prohibited from continuing such relationship.
12.Disclaimers/Limitation of Liability:THE CAMPAIGNS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE 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 CAMPAIGNS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. AN HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE’S USE OF, OR INABILITY TO USE, THE CAMPAIGNS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, AN IS 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 ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN AN AND AFFILIATE. THE CAMPAIGNS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. AN MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE CAMPAIGNS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM AN THROUGH THE CAMPAIGNS, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CREATIVE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT. AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE CAMPAIGNS AND ACCESS AND/OR USE OF THE SUPPESSION LISTS AND CREATIVE IS DONE SOLELY AT AFFILIATE’S OWN DISCRETION AND AT AFFILIATE’S OWN RISK. UNDER NO CIRCUMSTANCES SHALL AN BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE’S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE’S PARTICIPATION IN THE CAMPAIGNS. AN’S MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY AN TO AFFILIATE DURING THE PRECEDING SIX (6) MONTHS.
13.Termination:AN may terminate the Agreement at any time upon written notice to Affiliate. Affiliate may terminate the Agreement at any time upon forty-eight (48) hours’ prior written notice to AN.
14.Indemnification:Affiliate agrees to indemnify, defend and hold harmless AN, its parents, affiliates and subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys 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 or related to: (i) Affiliate’s, or a Sub-Affiliate’s, breach of the Agreement and/or any representation or warranty contained herein; (ii) the Affiliate Websites, Sub-Affiliate websites, Affiliate Database, Sub-Affiliate databases and/or Affiliate’s or any Sub-Affiliate’s marketing practices; (iii) any allegation that Affiliate or a Sub-Affiliate has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (iv) any claim that AN is obligated to pay any taxes in connection with Affiliate’s participation in the Campaigns; and/or (v) Affiliate’s participation in the Campaigns, in any manner whatsoever. AN reserves the right to participate in the defense at its sole expense. Affiliate agrees not to settle any claim without our prior written approval of AN.
15.Construction.The Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. It supersedes all prior and contemporaneous agreements and communications between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom, except for a written fully executed and current agreement between AN and Affiliate which shall supersede this Agreement as posted online.
16.Confidentiality:During the term of the Agreement, and until such time as the “Confidential Information” (as defined below) is no longer protected as a trade secret under New York State law, neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein. “Confidential Information” means information that: (i) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data or list of actual or potential Advertisers, customers or suppliers, the Creative before publication, and the Campaign Terms. Confidential Information does not include information that: (a) has been independently developed by the receiving party without access to the other party’s Confidential Information; (b) has become publicly known through no breach of this Section 16 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information.
17.Force Majeure:Neither party will be liable, or be considered to be in breach of the Agreement, on account of such party’s delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, such party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
18.Miscellaneous:The Agreement cannot be sold, assigned or transferred by Affiliate to any party. The Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their successors and assigns. If any portion of the Agreement is found unenforceable for any reason, the remainder will remain in full force and effect. No waiver by AN shall operate as a waiver of any other provision or any subsequent default. The relationship of AN and Affiliate established by the Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Any notices under the Agreement shall be sent to the addresses set forth on the Application (or in a separate writing) by facsimile or nationally-recognized express delivery service and deemed given upon receipt.
19.Electronic Signatures:Affiliate acknowledges and agrees that by clicking on the submit button, or such similar links as may be designated by AN as a means of accepting the Agreement, Affiliate is submitting a legally binding electronic signature and is entering into a legally binding contract. Affiliate acknowledges that Affiliate’s electronic submissions constitute Affiliate’s agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, AFFILIATE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY AN. Further, Affiliate hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
