Effective January 20, 2014
If Affiliate does not agree to the terms and conditions of this Agreement: (i) do not click the "I agree" button; (ii) Affiliate must leave the "Company's Site" (defined below) immediately; and (iii) Affiliate cannot access the Company's Site or participate in the Program. For Affiliate's convenience and records, Company suggests that Affiliate print and keep a copy of this Agreement.
Company reserves the right to change this Agreement at any time, so we encourage Affiliate to review this web page periodically. The changes will be effective immediately when posted. Affiliate's continued use of the Company's Site or participation in the Program following the posting of any changes to this Agreement shall constitute Affiliate's acceptance of the changed Agreement.
1. Defined Terms. In addition to other terms defined elsewhere in this Agreement, the following terms shall have the meanings set opposite such terms as follows:
"Affiliate's Marketing Campaign" means any electronic marketing, advertising, promotion that Affiliate conducts pursuant to the Program with respect to Company's or a Participating Company's services in connection with Affiliate's Site (defined below), including any such advertising or marketing conducted via banner or other advertisements on Affiliate's Site, via email, on a blog, on a social media site (including, but not limited to, Facebook® or Twitter®) or through "pay-per-click" advertisements or programs (including, but not limited to, Google AdWords®).**
"Affiliate's Site" means a World Wide Web site of Affiliate from which Affiliate will link to Company's Site pursuant to this Agreement.
"Company's Site" means a World Wide Web site or landing page or offer notice published by Company or a "Participating Company" (as defined below) to which Affiliate's Site and/or Affiliate's Marketing Campaign will link pursuant to this Agreement.
"Customer" means an individual or entity other than: (i) Affiliate; (ii) any entity which controls, is under common control with or is controlled by Affiliate; (iii) Company; or (iv) a Participating Company.
"Lifetime" means a period of time that is not greater than 36 months from the date of first receipt by Company or Participating Company of a payment for services by a Customer initially referred by Affiliate.
"Participating Company" means an entity designated by Company as a Participating Company from time to time.
"Program" shall mean Company's affiliate program which, in general terms, allows certain third party entities to link to a Company's Site from the Affiliate's Site or Affiliate's Marketing Campaign and pays referral fees to such affiliates for certain customers who purchase Company's or a Participating Company's services through such links.
2. Enrollment in the Program
(a) The terms of Sections 3-8 of the Agreement shall only become effective upon Company's notice to Affiliate of Company's acceptance of Affiliate in the Program pursuant to Section 2(b).
(b) To begin the enrollment process, Affiliate must submit a completed Program application available on Company's Site, which application must list Affiliate's Site and any other proposed aspects of Affiliate's Marketing Campaign, including (if applicable) Affiliate's plans for email marketing campaigns, social media pages or accounts through which Affiliate intends to market Company's or a Participating Company's services, or similar information. Company will evaluate Affiliate's application and will notify Affiliate of Affiliate's acceptance or rejection of such application. Company may reject Affiliate's application for any reason or no reason at all, if Company determines, in Company's sole discretion, that Affiliate's Site or any other aspect of Affiliate's Marketing Campaign, as proposed, is unsuitable for the Program. Unsuitable sites or marketing campaigns include, without limitation, those sites, emails, social media pages, blogs or other advertisements that:
(i) promote violence;
(ii) promote discrimination based on age, race, sex, religion, nationality, disability, or sexual orientation;
(iii) violate applicable law or promote illegal activities, including but not limited to SPAM;
(iv) violate, or promote or induce the violation of, intellectual property rights.
(v) infringe the intellectual property of others including the Company and Participating Companies; or
(vi) include any unapproved usage of Company trademarks, brands, and any confusingly similar phrase.
If Affiliate's Site or Affiliate's Marketing Campaign, as proposed, appears, or will appear, in any language other than English, Affiliate must submit an English translation of Affiliate's Site or Affiliate's Marketing Campaign, as proposed.
(c) If Company rejects Affiliate's application, this Agreement shall automatically terminate upon the date the Company sends notification of its rejection of the application to Affiliate. Upon such termination, Company shall owe no duties or obligations to Affiliate whatsoever.
3. Links and Use of Ads.
(a) If Company sends a notification to Affiliate of Company's acceptance of Affiliate's application to the Program as set forth in Section 2(b), Affiliate may display, in Affiliate's Marketing Campaign, such names, trademarks or advertisements as Company may make available to Affiliate for such purpose (the "Ads"), only pursuant to the guidelines and using the graphical artwork supplied to Affiliate by Company. Affiliate shall link all Ads, in whatever form, so that a person clicking on the Ad will only link to the url to the Company's Site given by Company to Affiliate for such purpose. Affiliate may not (i) create and/or publish links using automated programs, (ii) link to Company Site from bad neighborhoods including but not limited to sites promoting or including pornography, narcotics, racism, hate, violence, (iii) Affiliate agrees not to post any link that it cannot remove if required to do so by Company, and (iv) Affiliate expressly agrees that it shall not use or bid on keywords and phrases that include any usage of Company trademarks, brands and confusingly similar phrases in any search engine marketing and advertising campaigns. Affiliate may not display, use or link the Ads in any manner not consistent with the terms of this Section 3. Affiliate may not display any link, trademark or other advertisement of, or relating to Company or any Participating Company, not specifically authorized by the terms of this Section 3.
(b) With respect to any use of banner advertisements as Company may provide (each a "Banner Ad"), Affiliate shall prominently display such Banner Ad on Affiliate's Site. With respect to any use of other Ads, including, without limitation, Ads appearing in email campaigns, social media advertisements or "pay-per-click" campaigns, Affiliate shall display and use such Ads in a manner (i) that affords the Ads at least as prominent a placement in such campaign as that Affiliate provides to other service providers in connection with the display of similar ads; (ii) that does not imply or suggest that Affiliate's Marketing Campaign, including any email, blog, social media page, or pay-per-click advertising campaign, was established or is maintained by Company or any Participating Company; (iii) that does not result in any Ad achieving any higher or more prominent placement than any official listing or advertisement by Company or any Participating Company; and (iv) that clearly states that, except for making referrals to Company or Participating Company, Affiliate is not affiliated with or an authorized representative of Company or any Participating Company.
(c) Without limiting the general terms of Sections 3(a) or (b) with respect to Affiliate's Marketing Campaign, Affiliate may not (i) use any trademark, name or logo of Company or any Participating Company as the name, title, url or other significant identifier of Affiliate's Site, blog or social media page or account; (ii) with respect to any "pay-per-click" advertising campaign, bid on any "key words" that are composed of, or are similar to, any name or trademark of Company or any Participating Company; (iii) use any Company or Participating Company url or domain name as the primary display url, domain name or link in any "pay-per-click" advertising campaign or search placement; or (iv) use or include the term "official" or any similar term or phrase in reference to any Ad displayed or used by Affiliate.
(d) Company reserves the right to monitor and inspect Affiliate's Site and Affiliate's Marketing Campaign, without notice and from time to time, and to require Affiliate to submit documentation and copies of Affiliate's use of the Ads on Affiliate's Site or Affiliate's Marketing Campaign (with English translations, if applicable). Further, Company reserves the right to require that Affiliate stop displaying or using any Ad on Affiliate's Site or any aspect of Affiliate's Marketing Campaign, that, in Company's sole and absolute discretion, is inconsistent with the terms of this Section 3. If Affiliate fails to comply with the terms of this Section 3, then, in addition to other remedies it may have, Company may terminate this Agreement and shall have no further obligation to Affiliate hereunder.
4. Order Processing. Company will process, authenticate and complete product orders placed by Customers who follow the link from the Ads on Affiliate's Site or in Affiliate's Marketing Campaign to the Company's Site. Company reserves the right to reject orders in its sole and absolute discretion without any fee, payment, penalty or other amounts paid to Affiliate. Company will track "Qualified Sales" (as defined hereafter) and will send to Affiliate reports summarizing the aggregate and anonymous sales activity generated by the Qualified Sales. Affiliate understands that Company employs cookies and other industry standard technologies to track Customer behavior and Qualified Sales and that Customers may, independently of the Company, delete cookies from time to time. Company shall have no liability to Affiliate as a result of any such deletion activity by Customer. The form, content, and frequency of the reports may vary from time to time at Company's sole discretion. Affiliate agrees that Company shall own all such reports and information contained in the reports, and that Affiliate will not rent, sell, loan, barter, share or otherwise transfer or disclose such information to any third party without Company's prior written consent. To permit accurate tracking, reporting, and fee accrual, Affiliate must ensure that the link on any Ad between Affiliate's Site or Affiliate's Marketing Campaign and Company's Site is properly formatted and functioning. Company shall not be responsible for any failures to accurately report Qualified Sales due to any failure of the Ad or link or deletion of cookies by Customers.
5. Qualified Sale. A "Qualified Sale" shall mean a Company sale which occurs when a Customer: (a) follows the link in an Ad on Affiliate's Site or in Affiliate's Marketing Campaign to the Company's Site; (b) after coming to the Company's Site using a link described in subsection 5(a), and purchases services using Company's automated ordering system; and (c) remits full payment to Company (or allows a third party to remit such payment without asserting a chargeback or similar credit), whether such purchase occurs on the first visit as described above or upon a subsequent visit occurring within 90 days of the Customer's first arrival at Company's site through Affiliate's approved marketing activities. The Program is intended for commercial use only, and Affiliate may not purchase services through the Program for Affiliate's own use or for Affiliate to give or sell to others. In addition to any other remedies Company may have against Affiliate, the foregoing purchases or activity may result, in Company's sole discretion, in the withholding of referral fees or the termination of this Agreement.
6. Referral Fees and Payment to Affiliate. Company will pay Affiliate a fee according to Company's then-current fee schedule for the applicable Participating Company (which will be posted on the applicable Company Site or at another location Company may identify to Affiliate from time to time), or as otherwise agreed to by Company and Affiliate in writing (which may be by email) (all such fees, collectively, the "Referral Fees") for each Qualified Sale whose account stays active for thirty (30) days and whose account has not be subject to any chargeback or refund during such period; provided, however that for each Qualified Sale made in connection with any Company or Participating Company special promotion or at a discounted price (as determined by Company, in its sole discretion), such Qualified Sale's account must remain active for sixty (60) days in order for Affiliate to earn any fees with respect to such Qualified Sale under this Agreement. The Referral Fees earned each month will be calculated by Company at the end of each month, taking into account the first thirty (30) or sixty (60) days of the Qualified Sale, as applicable, as described in the preceding sentence. Company will pay Affiliate the Referral Fees on a monthly basis, less any taxes that Company is required by law to withhold, with such payments beginning upon Company's completion of Affiliate's payment account set-up and review (generally sixty (60) days from Affiliate's initial Qualified Sale). If the Referral Fees payable to Affiliate for any calendar month are less than $100.00 (USD), Company will hold those Referral Fees until the total amount due is at least $100.00 (USD), in which case such Referral Fees shall be paid to Affiliate on the next scheduled monthly payment date, or (if earlier) until this Agreement is terminated.
7. Chargebacks; Adjustment to Referral Fees. If there is any type of chargeback for a Qualified Sale, Company will deduct the corresponding fee from Affiliate's next monthly payment of Referral Fees. Affiliate agrees and acknowledges that a chargeback will be made based on fraud reported with respect to a Qualified Sale, regardless of when such reported fraud occurs. If the balance of Referral Fees due to Affiliate falls below zero at any time during the term of this Agreement, then Affiliate's account will be suspended (and Affiliate will not be eligible to receive Referral Fees on Qualified Sales during such suspension) until Affiliate delivers to Company sufficient funds to bring Affiliate's account balance to zero. If Affiliate fails to bring its account balance to zero within sixty (60) days of receiving notice that the balance has fallen below zero, Company may terminate this Agreement.
9. Limited License. Company grants Affiliate a non-exclusive, revocable right to use the Company's and Participating Company's names, trademarks, and images comprising or contained in any Ads or graphics supplied by Company solely for the purpose of displaying the Ads on Affiliate's Site and in Affiliate's Marketing Campaign in accordance with the terms of this Agreement. Affiliate may not modify any name, images, trademark, message, embedded programming or any of Company's or a Participating Company's graphics provided to Affiliate by Company in any way. Company reserves all of Company's rights in and to any graphics, icons, messages, images, programming, Company's and Participating Company's trade names and trademarks, and all other intellectual property rights of Company and Participating Company(-ies). Affiliate agrees to follow Company's Trademark Guidelines, as those may change from time to time, and Company has the right to require Affiliate to cease any actions inconsistent with or contradictory to such guidelines. If in the sole opinion and discretion of Company, Affiliate's Site or Affiliate's Marketing Campaign does not meet the quality commensurate with Company's or any Participating Company's trademarks, tradenames and Company's or Participating Company's (as the case may be) goodwill associated therewith, Company may immediately terminate the license granted hereunder. In addition to the foregoing, Company may revoke Affiliate's license at any time, for any reason or no reason at all, by giving Affiliate written notice.
10. Responsibility for Affiliate's Site. Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate's Site and Affiliate's Marketing Campaign and for all materials and content that appear on Affiliate's Site or in Affiliate's Marketing Campaign. For example, Affiliate will be solely responsible for:
(a) the technical operation of Affiliate's Site, Affiliate's Marketing Campaign and all related equipment;
(b) the accuracy and appropriateness of materials posted on Affiliate's Site or used in Affiliate's Marketing Campaign;
(c) ensuring that materials posted on Affiliate's Site or used in Affiliate's Marketing Campaign do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights);
(d) ensuring that materials posted on Affiliate's Site or in Affiliate's Marketing Campaign are not libelous or otherwise illegal;
(e) ensuring that Affiliate's Marketing Campaign otherwise complies with all applicable laws, including the CAN-SPAM Act of 2003 and other anti-spam laws and data privacy laws; and
(f) ensuring that the links to the Company Site from Affiliate's Site and/or Affiliate's Marketing Campaign are in the format specified by Company.
Company disclaims any and all liability for these matters. Further, Affiliate will defend, indemnify and hold Company, any Participating Company, and its and their affiliates, officers, directors, shareholders, agents and employees harmless from any and all claims, damages, loss, costs, and expenses (including, without limitation, attorneys' fees) relating to Affiliate's Site or Affiliate's Marketing Campaign, including without limitation the development, operation, maintenance, use and contents of Affiliate's Site or Affiliate's Marketing Campaign,, and any representations or warranties made on Affiliate's Site or in Affiliate's Marketing Campaign.
11. Terms of the Agreement. The terms of Sections 1-2 and 9-17 of the Agreement shall become effective upon Affiliate's acceptance of this Agreement. THE TERMS OF SECTIONS 3-8 OF THE AGREEMENT SHALL ONLY BECOME EFFECTIVE UPON COMPANY'S NOTICE TO AFFILIATE OF COMPANY'S ACCEPTANCE OF AFFILIATE IN THE PROGRAM PURSUANT TO SECTION 2(B). The term of this Agreement shall end when terminated by either party or as otherwise set forth in this Agreement. Either Affiliate or Company may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Affiliate is only eligible to earn Referral Fees on Qualified Sales occurring during the term. Referral Fees earned, but not paid, through the date of termination will remain payable only if (a) the related Qualified Sales are not canceled or returned or if payment for such Qualified Sales are not charged back; and (b) this Agreement was not terminated by Company for Affiliate's violation of the terms of this Agreement, including Sections 3 or 8, as determined by Company in its absolute discretion. To the extent such amounts are payable, Company may withhold Affiliate's final payment for a reasonable time to ensure that the correct amount is paid. Notwithstanding anything contained to the contrary herein, no Referral Fees shall be due or owing to Affiliate for any reason more than twelve (12) months after the termination of this Agreement.
12. Modification. Company reserves the right to change this Agreement at any time, so Company encourages Affiliate to review this web page periodically. The changes will be effective immediately when posted. Affiliate's continued use of the Company's Site or participation in the Program following the posting of any changes to this Agreement shall constitute Affiliate's acceptance of the changed Agreement. Except as otherwise set forth in this Section 11, any other modifications must be made with the written approval of each party.
13. Relationship of Parties. Affiliate and Company 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 will have no authority to make or accept any offers or representations on Company's or any Participating Company's behalf. Affiliate will not make any statement, whether on Affiliate's Site, in Affiliate's Marketing Campaign or otherwise, that reasonably would contradict anything in this Section.
14. LIMITATION OF LIABILITY. NEITHER COMPANY NOR ANY PARTICIPATING COMPANIES WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF COMPANY OR SUCH PARTICIPATING COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, COMPANY'S AND ANY PARTICIPATING COMPANY'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID TO AFFILIATE UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
15. DISCLAIMERS. NEITHER COMPANY NOR ANY PARTICIPATING COMPANY(-IES) MAKES ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY SERVICES SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, NEITHER COMPANY NOR ANY PARTICIPATING COMPANY(-IES) MAKE ANY REPRESENTATION OR WARRANTY THAT: (I) THE OPERATION OF COMPANY'S SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND NEITHER COMPANY NOR ANY PARTICIPATING COMPANY(-IES) WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS; OR (II) AFFILIATE WILL RECEIVE ANY VOLUME OF REFERRAL FEES OR THAT ANY QUALIFIED SALES WILL OCCUR.
16. INDEPENDENT INVESTIGATION. AFFILIATE ACKNOWLEDGES THAT AFFILIATE HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT COMPANY MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE'S SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17. Miscellaneous. This Agreement will be governed by the laws of Hong Kong without reference to rules governing choice of laws and Affiliate irrevocably consents to the jurisdiction of Hong Kong courts. Any cause of action Affiliate may have with respect to the Program or this Agreement must be commenced within one (1) year after the claim or cause of action arises. The parties hereby agree that the United Nations Convention on the International Sale of Goods will not apply to this transaction. English shall be the controlling language of this Agreement. All monetary amounts specified hereunder or in any invoice shall be read to be in United States' dollars. Except as provided in the "Disclaimers" and "Limitations of Liability" sections, the parties' rights and remedies under this Agreement are cumulative. If Company is forced to bring legal action to enforce this Agreement, Company will be entitled to receive its attorneys' fees, court costs and other collection expenses, in addition to any other relief it may receive if it is the prevailing party. All waivers must be in writing. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared same, it being agreed that the agents of all parties have participated in the preparation hereof. Affiliate may not assign this Agreement, by operation of law or otherwise, without Company's prior written consent and any attempt to do so will be void and of no effect. Company may assign or delegate its rights and/or obligations, in whole or in part, without the consent of Affiliate. A party's failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of such party's right to subsequently enforce such provision or any other provision of this Agreement. Sections 1, 6, 7, 9, 10 and 13-16 shall survive any termination of this Agreement. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to," and the phrase "such as" means "such as but not limited to." This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any and all prior agreements, oral or written, between the parties prior to this Agreement.
Consent to Electronic Commerce Transactions. By accepting this Agreement, Affiliate hereby authorizes and consents to transacting business electronically both for the purposes of this Agreement and for future business transactions with Company.
** Facebook®, Twitter® and Google AdWords® are trademarks of their respective owners and are not affiliated with Company, any Participating Company or any of its or their products or services.