ECOMPLIMENTS AFFILIATE AGREEMENT
This Affiliate Agreement ("Agreement") contains the terms and conditions that apply to your participation as an affiliate (“you” or "Affiliate") in the eCompliments.com Affiliate Program (the “ECAP”) offered by eCompliments, LLC (the “Company”).
Affiliate acknowledges that it may participate in the ECAP only under the terms and conditions set forth below, and that subsequent to Company accepting this Agreement, Company will, in its sole discretion, determine whether or not to accept Affiliate into Company’s Affiliate Program.
By submitting an application to become an Affiliate, you warrant that you have read and understand this Agreement, the Site Use Agreement and you agree to be bound by both.
To begin the enrollment process, you must submit a complete Affiliate Program Application via the Company Web site. We will evaluate your application and notify you of your acceptance or rejection. We reserve the right in our sole and absolute discretion, to accept or reject your application for any or for no reason whatsoever.
Upon notice of acceptance of your application, this Agreement shall be effective between you and the Company (“us” or “we”). If we reject your application you will not be able to participate in the ECAP.
1. Definitions. Throughout this Agreement, capitalized terms shall have the meaning ascribed to them in quotes. In addition, for purposes of this Agreement, the following definitions apply:
1.1. "Advertising" or "Advertisements" means any and all banner or box-style advertisements, pop-up or pop-under placements, text links or other similar solicitations through the Internet that promote Company Products or Services and that contain a Link to the Company Site.
1.2. “Affiliate” means any person or entity that has submitted an Affiliate Program Application and has been accepted for participation in the ECAP in accordance with the terms of this Agreement.
1.3. “Affiliate Code” means that specific code assigned by Company to Affiliate which will be used to track any and all referrals from Affiliate to Company. This Affiliate Code will be unique to Affiliate and should be used by anyone referred to Company by Affiliate in order to give credit to Affiliate and the corresponding discounts to the Customer referred by Affiliate.
1.4. “Agent” is defined in Section 5.8.
1.5. “Company Brand Features” means Company trade names, trademarks, service marks and/or logos authorized by Company.
1.6. "Company Products and Services" means those proprietary products and services currently offered on the Company Site, which currently consists of the Pro Package and all the benefits of that package, and any proprietary products or services as may be offered at a future date on the Company Site during the Term of this Agreement. “Company Products and Services” does not include products and services offered by third parties on or through the Company Site.
1.7. “Company Site” means the Company Internet site currently located at www.ecompliments.com, or any page, section, subsection or subdirectory thereof, and any other additional, substitute or successor site that may be designated by Company under this Agreement.
1.8. "Customer" means any person or entity who (i) successfully purchases a Company Product or Service from the Company Site (ii) using an Affiliate Code and (iii) provides a valid email address and valid credit card information to facilitate such purchase via the Company Site, and (iv) provided that the person or entity has not previously purchased a product or service through the Company Site or with a separate discount code.
1.9. “Intellectual Property Rights” means all rights in and to trade secrets, patents, copyrights, trademarks, know-how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.
1.10. "Link" means an embedded graphic, icon or text containing a unique hypertext pointer to the URL address for the Company Site that is embedded in an Advertisement and that identifies consumers that become Customers via the Advertisement.
1.11. “Referral Fee” is defined in Section 4.1.
1.12. “Site Use Agreement” means the terms and conditions of use found on the Company Site, which can be found here: http://www.eCompliments.com/home/index_73.cfm, which may be amended from time to time. The Site Use Agreement shall be construed in conjunction with this Agreement and shall be read to fill in the gap for any issue not addressed in this Agreement.
1.13. “Term” is defined in Section 2.1.
2. Term and Termination.
2.1. The term of this Agreement ("Term") will begin upon our acceptance of your application and will end when terminated by either party in writing or by email.
2.2. The Term of this Agreement shall be continuous, unless and until either party properly terminates this Agreement, in accordance with the following: (i) either party may terminate this Agreement immediately by giving notice to the other party; or (ii) Affiliate agrees and acknowledges that if Affiliate breaches any provision of this Agreement, Company may immediately terminate Affiliate from the Affiliate Program. Upon termination of this Agreement, Affiliate must immediately remove from Affiliate's Web site(s) and cease using any Advertising or Links. Following termination of this Affiliate Agreement, Affiliate agrees to refund any amounts that were earned from Company in breach of this Agreement.
2.3. Upon termination of this Agreement, Affiliate shall immediately cease serving or using Advertisements and must discontinue the use of any Affiliate Codes. No Referral Fees or bonuses shall be due with respect to Customers who register after the date of termination. We reserve the right to withhold your final payment for up to 120 days as necessary to calculate properly any amount due to you.
2.4. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except for those rights and obligations that either by their express terms survive or that are otherwise necessary for the enforcement of this Agreement. Sections 5.5 and 8-21 of this Agreement, inclusive, and the provisions of this Agreement that impose obligations on Affiliate, shall survive any termination of this Agreement.
2.5. Company may terminate Affiliate from its Affiliate Program at any time in its discretion.
3. Obligations of Company. The Company will honor the Affiliate Code and pay the Affiliate per this Agreement. Company may also provide Affiliate with reports related to the sales creating the Referral Fee. Affiliate acknowledges that there may be delays in the reporting of information and the Referral Fees paid to you, and adjustments for chargebacks may be made after reporting of any sale.
4. Referral Fee.
4.1. During the Term of this Agreement, Company shall pay you a fee ("Referral Fee") for each new Customer you deliver as of the last day of the month, as documented on the Company Site. Company reserves the right to adjust the Referral Fee payable to you to the extent of any reporting errors, fraudulent sales, or intentional manipulations of the registration or sales process, all as determined in our discretion. In addition to all other remedies available to us, we shall have the right to refuse to make any payment to you with respect to any Customer that we determine was obtained as a result of promotional efforts that were in breach of this Agreement.
4.2. The Referral Fees payable to Affiliate shall be as follows:
4.2.1. For any first time purchase of an Upgrade to a Pro Package, the Affiliate shall receive a one-time fee of seventy-five dollars (US$75.00).
4.2.2. Company reserves the right to change the Referral Fees payable hereunder by providing email notice to you and/or reflecting such changes on the Company Site. Any decrease to the Referral Fees shall become effective immediately after notice to you or posting of the new Referral Fee on the Company Site.
4.3. Company shall cause to be paid to you any such Referral Fees approximately on the 15th day of the month after the month during which they were earned. Notwithstanding anything herein to the contrary, there may be up to 14 days of delay in between the reporting of a sale and the reporting of Affiliate’s Referral Fee through Affiliate’s Account page in our service, and adjustments for chargebacks may be made up to 40 days after the reporting of the purchase.
5. Affiliate Duties.
5.1. Certain Obligations for Web Affiliates
5.1.1. As an Affiliate, you are permitted to promote the Company Products and Services only through Advertisements made in the following manner: (i) via your network of friends, family, acquaintances, and contacts, whether in person or by telephone; (ii) Links from your Web site to the Company Site, (iii) Links or pop-ups or pop-under placements on Web sites for which you have received express written permission from such sites to serve such links or placements and as otherwise subject to the limitations set forth in this Agreement, and (iv) emails in compliance with law and this Agreement.
5.1.2. All promotional activities undertaken by you to promote the Company Products or Services shall be made in accordance with prudent business practices and in accordance with all applicable laws and regulations. All information obtained at the Company Site from individuals linking to the Company Site shall be the sole and exclusive property of Company and, except as specifically provided herein, you shall neither have access to such information nor use any device, technique or software to obtain information from the Company Site.
5.1.3. You shall replace any Advertising displayed on your site with any new Advertising provided by Company within five (5) days after receiving notice from Company of the new Advertising. You shall not modify any Advertisement in any way.
5.1.4. Your site shall not in any way copy or resemble the look and feel of the Company Site, nor shall you create the impression that your site is the Company Site or a part of the Company Site. You shall not use the name of the Company or the Company Web site or any variation or misspellings thereof in your URL. You shall not frame or permit the framing of any page of the Company Site.
5.1.5. You will be solely responsible for the development, operation, and maintenance of your site and for all materials related thereto. For example, you will be solely responsible for:
- the technical operation of your site and related equipment
- creating and posting Company descriptions on your site and linking those descriptions to the Company Site
- the accuracy and appropriateness of materials posted on your site (including, among other things, all product-related materials)
- ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
- ensuring that materials posted on your site are not libelous or otherwise illegal
- ensuring that the materials posted on your site are not offensive, portray graphic violence, portray nudity or contain any other ‘adult’ related material
- ensuring that your site accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers
We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, losses, and expenses (including, without limitation, attorneys’ fees, payable as incurred) relating to the development, operation, maintenance, and contents of your site, use of the Advertising, violation of this Agreement, and/or violation of any right of another party.
5.2. Certain Obligations of Individual Affiliates
5.2.1. As an Affiliate, you are permitted to promote the Company Products and Services via your network of friends, family, acquaintances, and contacts, whether in person or by telephone or by email, so long as the communication is in compliance with law and this Agreement. Any other promotion requires written permission from the Company. All promotional activities undertaken by you to promote the Company Products or Services shall be made at your own expense and in accordance with prudent business practices and in accordance with all applicable laws and regulations.
5.3. Obligations of All Affiliates
5.3.1. During and after the Term, you will not disparage Company, the Company Site or the Company Products or Services, or portray any of these in a derogatory or negative manner.
5.3.2. This Agreement may not be assigned or otherwise transferred by you without the express written consent of Company.
5.3.3. You shall not provide any Advertisement to any third party, subaffiliate or agent (“Agent”) without the written permission of Company. Any such permission must clearly identify the third party, subaffiliate or agent and include their business name, physical address, and Web site URL. It is within the sole and exclusive discretion of Company to grant or deny any such permission and, even if granted, such permission may be revoked by Company for any reason or for no reason at any time.
6. Ongoing Compliance. Affiliate's continuing compliance with this Agreement is a condition of continuing participation in the Program. Company reserves the right to review and audit Affiliate’s practices and Affiliate's Web site from time to time to determine if Affiliate is in continued compliance with this Agreement. Affiliate's Web site must be and remain fully functional.
7. Adult Content and Other Unacceptable Content. Affiliate may not use Affiliate’s Web Site to promote Company or participate in the ECAP, if Affiliate’s Site contains adult-oriented content on any page. Company considers content to be "adult" if it contains nudity, is sexually explicit, pornographic, lewd, obscene, primarily intended for sexual gratification or is otherwise inappropriate for minors, as determined in Company’s sole discretion. Affiliate may not post any offensive or incorporate images or content that is in any way harmful, threatening, obscene, harassing or racially, ethnically or otherwise objectionable, or promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, as determined in Company’s sole discretion.
8. Use of Advertiser Content.
8.1. Affiliate agrees that it is sublicensed only the exact Advertising provided by Company and only in the form and manner available from and as specified by Company. Advertiser shall have complete discretion to evaluate Affiliate 's use to decide whether that use violates any applicable terms and conditions.
8.2. Affiliate may not distribute, transfer, sublicense or otherwise use the Advertising in a manner inconsistent with this Agreement.
8.3. Affiliate acknowledges that Company owns and will retain all right, title, and interest in the Advertising, including, without limitation, any proprietary rights that may be developed in the future.
8.4. Affiliate will ensure that the presentation of the Advertising is consistent with Company’s own use of the Advertising in comparable media.
8.5. Affiliate will not remove or modify any trademark, service mark, or privacy policy notices from the Advertising.
8.6. Affiliate will not present or use the Advertising: (i) in a manner that could be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of Company, or Company’s representatives; (ii) in a manner that is misleading, defamatory, libelous, obscene, or otherwise objectionable, in Company’s reasonable opinion; (iii) in a way that infringes, derogates, dilutes, or impairs the rights of the Advertising; or (iv) as part of a name of a product or service of a company other than Company.
8.7. Affiliate will make any changes to its use of the Advertising as are requested by Company.
8.8. Affiliate will not publish any prices, special offers or discounts in connection with the Advertising on its Web site, unless such prices, special offers or discounts were included by Company in the unmodified Advertising.
8.9. ALTERING OR ANY UNAUTHORIZED USE OF THE ADVERTISING IS STRICTLY PROHIBITED AND WILL RESULT IN TERMINATION FROM THE PROGRAM WITHOUT PAY. ALL RIGHTS NOT EXPRESSLY GRANTED BY COMPANY ARE RESERVED.
9. Modification. Company may modify any of the terms and conditions contained in this Agreement at any time in our sole and absolute discretion effective immediately upon notice to you. Modifications may include, but are not limited to, changes in Referral Fees, payment procedures, and permitted promotional activities. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our site will constitute binding acceptance OF the change or new agreement, as applicable.
10. Disclaimer. Warranty. Limitation of Liability. See Site Use Agreement for all relevant disclaimers, warranties and limitations of liability which are incorporated herein by this reference.
11. Relationship of Parties.
11.1. Affiliate and Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent between the parties. Affiliate will have no authority to make or accept any offers or representations on Company’s behalf. Affiliate will not make any statement, whether on the Affiliate’s site or otherwise, that reasonably would contradict anything in this Section. Affiliate, as an independent contractor, will have sole responsibility for its expenses, taxes, employees, sales representatives and agents.
11.2. Company shall not be a party to any agreement that you have with an Agent and you are not authorized to make any commitments on behalf of Company to any such Agent, including commitments regarding payment of fees to the Agent by Company or commitments for licenses to Company’s name, logo(s), any provided images, or other intellectual property. Agents are not third party beneficiaries of this Agreement with Company. Any breach by your Agents of the terms and conditions of this Agreement shall be deemed a breach of this Agreement by you and Company shall have full recourse against you with respect to such breach.
12. Public Announcements. Affiliate may not make any public announcement or press release about the terms or existence of the Agreement without Company’s prior written approval and consent.
13. Confidentiality. Affiliate acknowledges that by reason of its relationship to Company hereunder it will have access to certain information and materials concerning Company's business, plans, customers, technology, products and services that are confidential and of substantial value to Company, which value would be impaired if such information were disclosed to third parties. In particular, the parties hereto acknowledge that the information regarding Customers obtained during the Term and the effectiveness of Advertising hereunder are highly confidential and valuable to Company. Affiliate agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such information revealed to it as a result of or arising out of the relationship hereunder (other than to fulfill its obligations under this Agreement). Affiliate shall take every reasonable precaution to protect the confidentiality of such information. Notwithstanding anything in this Section to the contrary, any information (i) required by legal process to be disclosed, (ii) already in the public domain or (iii) released through no fault of the parties, will not be considered confidential information hereunder.
14. Reservation of Rights. Company reserves all rights other than those expressly granted in this Agreement, and no licenses are granted except as expressly set forth herein. Company retains all right, title, and interest in and to the Company Brand Features and the Company Site, together with all Intellectual Property Rights thereto.
15. Program Information. Company will own all right, title and interest in and to all information that is created or collected in the operation of the Company Site including, without limitation: (i) any contact information collected from any Customers (the "Contact Information"); and (ii) any information collected about product or services sales at the Company Site generated through the Affiliate Link(s) (the "Sales Information"). Company may make certain Sales Information available online to Affiliate from time to time. Affiliate will not disclose any Sales Information to any third party without Company’s prior approval and not use such Sales Information without the approval of Company.
16. Site Use Agreement. Order of Precedence. In the event of an inconsistency between other agreements between Company and Affiliate (if any), and this Agreement, this Agreement will control. All relevant terms of the Site Use Agreement are incorporated by this reference, including, but not be limited to, any and all provisions relating to (i) restrictions on content, (ii) limitations of liability, (iii) warranties, (iv) indemnification, (v) governing law and (vi) binding arbitration.
17. Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE 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 YOU OR YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
18. Acknowledgement. BY APPLYING FOR THE ECAP, YOU ACKNOWLEDGE THAT YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS DOCUMENT.
