ELECTRICITY RATINGS
Program Terms
ELECTRICITY RATINGS
SAS AFFILIATE PROGRAM AGREEMENT
This SAS Affiliate Program Agreement (“Agreement”) is hereby made between you (“Affiliate”) and Electricity Ratings, LCC (“Company”) and sets forth the terms and conditions of your joining and participating as an affiliate under our SAS Affiliate Program (“Affiliate Program”). This Agreement shall conclusively become effective and binding upon you and Company upon your 1) submitting an application to join, or otherwise agreeing to become an affiliate or participant under, our Affiliate Program, 2) electronically signing or otherwise agreeing to the terms and conditions of this Agreement or our Affiliate Program, or 3) commencing any marketing or sales related activities in connection with our Affiliate Program. BY TAKING ONE OR MORE OF THE FOREGOING ACTIONS, YOU ARE 1) AGREEING TO BECOME AN AFFILIATE UNDER OUR AFFILIATE PROGRAM, 2) REPRESENTING TO US THAT YOU HAVE READ AND FULLY UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND 3) ACKNOWLEDGING AND AGREEING THAT THIS AGREEMENT IS LEGALLY BINDING UPON YOU AND THAT YOU ARE RESPONSIBLE FOR COMPLYING WITH ALL OF TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU ARE RESPONSIBLE UNDER THIS AGREEMENT FOR ALL ACTIONS OF YOUR AFFILIATES, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS, DIRECTORS, MEMBERS AND MANAGERS, AND ENSURING THEIR COMPLIANCE OF ALL OF THE TERMS OF THIS AGREEMENT WHICH ARE APPLICABLE TO YOU.
ACCORDINGLY, PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT VERY CAREFULLY BEFORE YOU JOIN OUR AFFILATE PROGRAM OR COMMENCE ANY MARKETING OR SALES RELATED ACTIVITIES IN CONNECTION WITH OUR AFFILIATE PROGRAM.
CERTAIN DEFINITIONS. As used in this Agreement: (i) “we”, “us”, or “our” refers to Company and our websites; (ii) “you” or “your” refers to Affiliate and your websites, and expressly and specifically includes all or your employees, contractors, affiliates, agents, officers, directors, members and managers; (iii) “our website” refer to one or more websites owned and operated by us for which we provide you a link under our Affiliate Program; (iv) “your website” refers to one or more websites that you link to any of our websites; (v) “Confidential Information” means non-public, proprietary information of a party, whether in oral, tangible or electronic form, including but not limited to, business and marketing plans and strategy, methods of doing business, distribution channels, customers, customer information and data, financial information and condition, costs or pricing structure, and technology or code used in their business, and (vi) “your affiliates” include and refer to any entity that directly or indirectly controls, is controlled by, or is under common control with you. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities or otherwise, and such control will be presumed if an entity owns 50% or more of the ownership interests, directly or indirectly, of any other entity.
AFFILATE PROGRAM ACCEPTANCE. After you have submitted an application to become an affiliate under our Affiliate Program, we will notify you as to whether or not your application has been accepted. We reserve the right to decline your application or any or all of your websites, or to withdraw our acceptance of you or any of your websites under the Affiliate Program, at any time and for any or no reason, subject to applicable law, and further reserve the right to review and reevaluate your application, website(s), operations and marketing activities at any time. We further reserve the right at any time without notice to pause, suspend, or disable any or all links to our websites, with or without cause or reason. If you feel we have made an incorrect decision, please contact and provide us with further information in writing as to why your application should not be declined or withdrawn.
SHAREASALE.COM AFFILIATE NETWORK. Our SAS Affiliate Program is offered through the ShareASale.com Affiliate Marketing Network (the “SAS Network”). YOU HEREBY REPRESENT AND WARRANT TO US THAT YOU HAVE CAREFULLY READ AND FULLY UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THE SAS NETWORK. Tracking and payment under this Agreement will be handled and managed through the SAS Network. It is your responsibility and obligation to create an user account and password with the SAS Network in order for you to access and use the SAS Network’s affiliate account interface and gain access to your activity and payment reports. All payments to you under this Affiliate Program will be processed through the SAS Network.
REPRESENTATIONS AND WARRANTIES. You represent and warrant that (i) this Agreement has been duly and validly entered into by you and constitutes your legal and binding obligation, enforceable against you in accordance with its terms, and (ii) you have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
LIMITED AUTHORIZATION. As an affiliate in the Affiliate Program, you will have non-exclusive, non-transferable, revocable authority from us, subject at all times to the terms and conditions of this Agreement, to (i) enable visitors on your websites to link off to certain of our websites, as determined solely by us, through HTML links, and (ii) solely in connection with such links, use materials and content provided by us, which may include (as determined by us) content and our logos, trade names, trademarks, and similar identifying material (collectively, “Company Materials”) that we provide to you or authorize for such purpose. You are only entitled to use Company Materials solely as an affiliate under the Affiliate Program, and the goodwill associated therewith will inure to the sole benefit of us. You shall not modify any Company Materials, and may not use or display any Company Materials in association with any content, or in any manner or context, that is disparaging, misleading, obscene, or that otherwise portrays us, our customers or you in a negative light. Except for the limited authorization granted under this section, you do not obtain any rights whatsoever under this Agreement in or to any of our or any other party’s intellectual property, including, without limitation, in connection with any links, link formats, technical specifications, guidelines, or graphical artwork, or with respect to our or any other party’s domain name.
RESTRICTIONS. Your business operations, marketing practices, website(s) and/or any content thereon may not: (i) infringe upon our websites or any of our intellectual property, publicity, privacy, or other rights, or those of any other person or entity, (ii) violate any applicable Federal, state or local law, rule or regulation, including, without limitation, those promulgated by any public utility commission or other governmental agency, (iii) include any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials, (iv) enable or contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that can or are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
LINKING TO OUR WEBSITE. Upon your acceptance into the Affiliate Program, Company Materials and links to our websites will be made available to you. Your acceptance in the Affiliate Program constitutes your agreement to abide by this Agreement, including, without limitation, the following: (i) you will only use the linking code we provide to you for each banner, text link, or other affiliate link obtained from the affiliate interface without change or manipulation, (ii) we reserve the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with our guidelines or standards, as determined solely by us, (iii) all domains that use your affiliate link must be listed in your affiliate profile, (iv) your website(s) will not in any way copy, resemble, or mirror the look and feel of any of our websites, (v) you will not use any means to create the impression that any of your websites are any of our websites, or any part of any of our websites, including, without limitation, framing of any of our websites in any manner, (vi) you may not engage in any cookie stuffing or false or misleading links on your website, and will not attempt to mask the referring URL information (i.e. page where the click is originated), (vii) you will not utilize redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain (aka cloaking), (viii) you will follow all applicable intellectual property and other laws, rules and regulations that pertain to your websites, and must have the express permission to use the copyrighted material of any other person or entity, such as written content, images, or any other copyrightable work (you will be solely responsible for, and indemnify us against any claims relating to, your use of copyrighted material or other intellectual property of another person or entity), (ix) you shall at all times recognize our right, title, and interest in and to all of our registered and unregistered trademarks, service marks, logos, corporate and trade names, (x) you will not, in connection with this Agreement or the Affiliate Program, display or reference on your website(s) any of our trademarks, logos or other marks, or those of any third-party (including sellers appearing on our websites) unless you have obtained prior written consent.
PAY-PER-CLICK (PPC) GUIDELINES. You may not conduct or engage in any pay-per-click (“PPC”) bidding on any terms containing our legal name or trade names, names of any of our websites, or the name or trade name (or any product or service trade name) of any service or product provider available on our websites (collectively, “Restricted Terms”), including any variations or misspellings thereof, for search or content-based campaigns on Google, Bing, MSN, Yahoo, Facebook or any other network, unless we give you prior written permission. You may not use any Restricted Terms in sequence or conjunction with any other keyword. You may not use Restricted Terms in your ad title, ad copy, display name or as the display URL without our express prior written permission. You may not direct link to our websites from any PPC ad or use redirects that yield the same result. You may not bid in any manner appearing higher than us for any search term in any auction-style PPC advertising program. If you automate your PPC campaigns, it is your responsibility to exclude Restricted Terms from your program, and you may wish to add Restricted Terms as negative keywords.
ADVERTISING & PUBLICITY. You shall not create, publish, distribute, or print any written material that makes reference to our Affiliate Program without our prior written consent. If you intend to promote our Affiliate Program via email campaigns, you must: (i) abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to our Affiliate Program, (ii) send such emails on your behalf and not imply that such emails are being sent on behalf of us, and (iii) provide us with copies of such email templates.
SOCIAL MEDIA. Promotion on Facebook, Twitter, Instagram, YouTube and other social media platforms is permitted under these general guidelines: (i) you are permitted to promote offers to your own lists, (ii) you are not permitted to post affiliate links on our social media accounts or company pages, (iii) you are not permitted to run social media ads using any Restricted Terms, and (iv) you are not permitted to create any social media accounts that include Restricted Terms or any other intellectual property of us or any service or product providers on any of our websites.
FTC DISCLOSURE REQUIREMENTS. You shall include a disclosure statement within all pages, blog/posts, or social media posts where affiliate links for the Affiliate Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement must be clear and concise, stating that you are being compensated for your review or endorsement. If you received the service or product for free from us or from the affiliate management team for review, this must be clearly stated in your disclosure. DISCLOSURES MUST BE MADE AS CLOSE AS POSSIBLE TO THE CLAIMS; DISCLOSURES SHOULD BE PLACED ABOVE THE FOLD; SCROLLING SHOULD NOT BE NECESSARY TO FIND THE DISCLOSURE; POP-UP DISCLOSURES ARE PROHIBITED. For more information about Federal Trade Commission (“FTC”) disclosure and endorsement requirements and guidelines, please review the FTC materials available at http://www.ftc.gov.
COMMUNICATION POLICY. It is our policy to maintain open and honest communications with our affiliates as a key component to the mutual success with our Affiliate Program. Accordingly, we may from time to time request clarification, data or information from you regarding orders, clicks or other activities that we suspect may be inaccurate, fraudulent or associated with a possible violation of our terms and conditions. You agree to fully cooperate in good faith with all such requests and to reply in a timely and responsive manner to our inquiries. The following includes, without limitation, examples of violations of this communication policy: (i) you are uncooperative, intentionally vague, misleading or untruthful, (ii) you are not responsive within a reasonable time period and after multiple attempts to contact you (using the contact information listed in your SAS Network profile), or (iii) you are unwilling or unable to substantiate or validate the source of your traffic to the Affiliate Program with clear and demonstrable proof. We reserve the absolute and unconditional right to do one or more of the following if we suspect that fraudulent activity has occurred or you violate the communication policy as described in this section: (i) deny or reverse any orders, (ii) require that you refund any or all commissions associated therewith, and/or offset such refunds against any sums payable or becoming payable to you, (iii) set your commission to $0, and/or (iv) suspend or terminate you from participating in the Affiliate Program. We understand that errors or violations may be a result of automated processes; however, it is incumbent upon you to ensure that appropriate safeguards are in place to ensure compliance with the terms and conditions of the Affiliate Program.
COMPANY RIGHTS. We have the right to monitor your websites at any time, whether to determine your compliance with the terms and conditions of this Agreement or otherwise. We may notify you of any changes to your website(s) that we feel should be made, or to make sure that your links to our websites are appropriate and whether any changes should be made. We reserve the right at any time to suspend or terminate your participation in the Affiliate Program. We further reserve the right to deny or enforce the refund of any and all commissions payable or paid to you that are associated with any violation(s) by you of this Agreement (e.g., without limitation, violations of provisions regarding PPC, Social Media, your website content, links, FTC disclosures, advertising, etc.), as well as the right to offset any or all such commissions paid to you against future commissions payable to you, or otherwise seek indemnity from you under this Agreement for such violation(s). The foregoing rights of Company shall also apply to any commissions resulting from fraudulent activity of any kind, whether conducted by customers or otherwise.
TERMINATION; SURVIVAL. You or Company may at any time terminate this Agreement with or without cause or reason; provided, however, that all rights, obligations and provisions under this Agreement relating to confidentiality, indemnification, customer protection, data and systems security, payments, remedies and all other provisions necessary, prudent or desirable to enforce the terms of this Agreement, shall survive the termination of this Agreement. Our denial of your application to become an affiliate under the Affiliate Program shall constitute a termination of this Agreement. Upon the termination of this Agreement, you will immediately cease use of, and remove from your websites, all links to our websites, all of our trademarks, trade dress, and logos, and all other materials made available by or on behalf of us to you in connection with the Affiliate Program. You will not be eligible to earn any commissions with regard to any link offs that occur after termination of this Agreement.
OUR CUSTOMERS. All persons and entities who enter our website(s) or submit enrollment requests through our Affiliate Program are our customers, irrespective of whether their originating clicks occurred on your website. Our policies and operating procedures, which are subject to change at any time by us, shall apply to all of such customers. Prices and availability for services and/or products on our websites are subject to change at any time, and on an ongoing basis, without notice to anyone.
CONFIDENTIALITY. All of our Confidential Information and intellectual property is and shall at all times remain our sole property, notwithstanding anything to the contrary contained in this Agreement or otherwise. You agree to keep in strict confidence any and all of our Confidential Information that is or may become in your possession or known by you, and in no event or circumstance shall you disclose any such Confidential Information to any third party or use any such Confidential Information for any purpose whatsoever except in compliance with this Agreement as an affiliate in the Affiliate Program. You shall at all times use your best commercially reasonable efforts to safeguard and secure any and all of our Confidential Information, and in no event less than reasonable care. You shall promptly return to us all tangible forms of our Confidential Information upon termination of this Agreement. Your obligations and our rights regarding our Confidential Information shall survive the termination of this Agreement.
ORDERS. For you to be eligible to receive a commission for a sale under the Affiliate Program, (i) the customer enrollment request on our website must directly result and originate from the customer entering our website by clicking the Affiliate Program link from one of your websites, (ii) the customer must submit an order and be accepted by (and commence service with) a service provider on our website, or purchase a product from a seller on our website, as applicable, (iii) such service order or product sale must not be rescinded or canceled, and (iv) Company shall be entitled to a commission from the service provider or product seller with regard to such service order or sale. We or our service providers and sellers will be responsible for processing orders and will handle all customer service issues. We will track orders and sales from customers who enter our websites using the Affiliate Program link from your website to our website.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL OF OUR SERVICES AND THE SERVICES AND PRODUCTS OFFERED ON OUR WEBSITES ARE PROVIDED “AS IS” AND WE MAKE NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION THEREWITH. WE EXPRESSLY HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE, SPECIFIC OR OTHERWISE. WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, TO YOU AS TO THE TOTAL AMOUNT OF REVENUE THAT WILL BE GENERATED BY YOU, IF ANY, AS A RESULT OF THIS AGREEMENT. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
LIMITATIONS OF LIABILITY. NEITHER WE NOR YOU WILL BE LIABLE TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
INDEMNIFICATION. You hereby agree to indemnify and hold harmless Company and its officers, directors, employees, contractors, affiliates, agents, managers and members, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' and paralegals’ fees and costs) (any or all of the foregoing hereinafter referred to as "Losses") arising out of, relating to, based upon or resulting from (i) any claim of infringement, misappropriation or unauthorized use with regard to any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) your actual or alleged breach of any representation, warranty, covenant or agreement made by you, or your violation of any provision, in this Agreement, or (iii) any claim related to your operations, marketing, advertising, marketing practices, or any of your websites, including, without limitation, any content therein.
MODIFICATION. We may modify the terms and conditions of this Agreement at any time at our sole discretion upon notice, which may be by email or other electronic means, such as posting an updated Agreement for this Affiliate Program on our website. Your continued participation in this Affiliate Program following such notice will conclusively constitute your agreement to the modified or updated Agreement. If you object to any change to this Agreement, your sole recourse will be to terminate this Agreement.
MISCELLANEOUS. You agree that you are an independent contractor, are fully responsible for (and shall pay) any and all Federal, state and local taxes applicable to you with regard commissions or otherwise in connection with the Affiliate Program, and that nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between you and us. You will have no authority to accept any offers or orders, or make any representations on our behalf, and will not make any statement, whether on any of your websites or otherwise, to the contrary or which may be construed to the contrary. You may not assign your rights or obligations under this Agreement. Any action or proceeding to enforce this Agreement shall be brought exclusively in the Federal or state courts located in Harris County, Texas, and you and Company expressly consent to the jurisdiction of said courts. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Texas without giving effect to any conflict of law provisions. You may not amend or waive any provision of this Agreement without our express written consent. This Agreement represents the entire agreement between us and you and supersedes all prior agreements and communications, oral or written. Headings and titles contained in this Agreement are included for convenience only and shall not in any way affect the terms of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect. Any failure or repeated failure by us to enforce any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
INDEPENDENT INVESTIGATION. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU ACKNOWLEDGE THAT WE MAY AT ANY TIME ACCEPT OTHERS INTO THE AFFILIATE PROGRAM UPON TERMS AND CONDITIONS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, WARRANTY, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
SAS AFFILIATE PROGRAM AGREEMENT
This SAS Affiliate Program Agreement (“Agreement”) is hereby made between you (“Affiliate”) and Electricity Ratings, LCC (“Company”) and sets forth the terms and conditions of your joining and participating as an affiliate under our SAS Affiliate Program (“Affiliate Program”). This Agreement shall conclusively become effective and binding upon you and Company upon your 1) submitting an application to join, or otherwise agreeing to become an affiliate or participant under, our Affiliate Program, 2) electronically signing or otherwise agreeing to the terms and conditions of this Agreement or our Affiliate Program, or 3) commencing any marketing or sales related activities in connection with our Affiliate Program. BY TAKING ONE OR MORE OF THE FOREGOING ACTIONS, YOU ARE 1) AGREEING TO BECOME AN AFFILIATE UNDER OUR AFFILIATE PROGRAM, 2) REPRESENTING TO US THAT YOU HAVE READ AND FULLY UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND 3) ACKNOWLEDGING AND AGREEING THAT THIS AGREEMENT IS LEGALLY BINDING UPON YOU AND THAT YOU ARE RESPONSIBLE FOR COMPLYING WITH ALL OF TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU ARE RESPONSIBLE UNDER THIS AGREEMENT FOR ALL ACTIONS OF YOUR AFFILIATES, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS, DIRECTORS, MEMBERS AND MANAGERS, AND ENSURING THEIR COMPLIANCE OF ALL OF THE TERMS OF THIS AGREEMENT WHICH ARE APPLICABLE TO YOU.
ACCORDINGLY, PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT VERY CAREFULLY BEFORE YOU JOIN OUR AFFILATE PROGRAM OR COMMENCE ANY MARKETING OR SALES RELATED ACTIVITIES IN CONNECTION WITH OUR AFFILIATE PROGRAM.
CERTAIN DEFINITIONS. As used in this Agreement: (i) “we”, “us”, or “our” refers to Company and our websites; (ii) “you” or “your” refers to Affiliate and your websites, and expressly and specifically includes all or your employees, contractors, affiliates, agents, officers, directors, members and managers; (iii) “our website” refer to one or more websites owned and operated by us for which we provide you a link under our Affiliate Program; (iv) “your website” refers to one or more websites that you link to any of our websites; (v) “Confidential Information” means non-public, proprietary information of a party, whether in oral, tangible or electronic form, including but not limited to, business and marketing plans and strategy, methods of doing business, distribution channels, customers, customer information and data, financial information and condition, costs or pricing structure, and technology or code used in their business, and (vi) “your affiliates” include and refer to any entity that directly or indirectly controls, is controlled by, or is under common control with you. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities or otherwise, and such control will be presumed if an entity owns 50% or more of the ownership interests, directly or indirectly, of any other entity.
AFFILATE PROGRAM ACCEPTANCE. After you have submitted an application to become an affiliate under our Affiliate Program, we will notify you as to whether or not your application has been accepted. We reserve the right to decline your application or any or all of your websites, or to withdraw our acceptance of you or any of your websites under the Affiliate Program, at any time and for any or no reason, subject to applicable law, and further reserve the right to review and reevaluate your application, website(s), operations and marketing activities at any time. We further reserve the right at any time without notice to pause, suspend, or disable any or all links to our websites, with or without cause or reason. If you feel we have made an incorrect decision, please contact and provide us with further information in writing as to why your application should not be declined or withdrawn.
SHAREASALE.COM AFFILIATE NETWORK. Our SAS Affiliate Program is offered through the ShareASale.com Affiliate Marketing Network (the “SAS Network”). YOU HEREBY REPRESENT AND WARRANT TO US THAT YOU HAVE CAREFULLY READ AND FULLY UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THE SAS NETWORK. Tracking and payment under this Agreement will be handled and managed through the SAS Network. It is your responsibility and obligation to create an user account and password with the SAS Network in order for you to access and use the SAS Network’s affiliate account interface and gain access to your activity and payment reports. All payments to you under this Affiliate Program will be processed through the SAS Network.
REPRESENTATIONS AND WARRANTIES. You represent and warrant that (i) this Agreement has been duly and validly entered into by you and constitutes your legal and binding obligation, enforceable against you in accordance with its terms, and (ii) you have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
LIMITED AUTHORIZATION. As an affiliate in the Affiliate Program, you will have non-exclusive, non-transferable, revocable authority from us, subject at all times to the terms and conditions of this Agreement, to (i) enable visitors on your websites to link off to certain of our websites, as determined solely by us, through HTML links, and (ii) solely in connection with such links, use materials and content provided by us, which may include (as determined by us) content and our logos, trade names, trademarks, and similar identifying material (collectively, “Company Materials”) that we provide to you or authorize for such purpose. You are only entitled to use Company Materials solely as an affiliate under the Affiliate Program, and the goodwill associated therewith will inure to the sole benefit of us. You shall not modify any Company Materials, and may not use or display any Company Materials in association with any content, or in any manner or context, that is disparaging, misleading, obscene, or that otherwise portrays us, our customers or you in a negative light. Except for the limited authorization granted under this section, you do not obtain any rights whatsoever under this Agreement in or to any of our or any other party’s intellectual property, including, without limitation, in connection with any links, link formats, technical specifications, guidelines, or graphical artwork, or with respect to our or any other party’s domain name.
RESTRICTIONS. Your business operations, marketing practices, website(s) and/or any content thereon may not: (i) infringe upon our websites or any of our intellectual property, publicity, privacy, or other rights, or those of any other person or entity, (ii) violate any applicable Federal, state or local law, rule or regulation, including, without limitation, those promulgated by any public utility commission or other governmental agency, (iii) include any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials, (iv) enable or contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that can or are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
LINKING TO OUR WEBSITE. Upon your acceptance into the Affiliate Program, Company Materials and links to our websites will be made available to you. Your acceptance in the Affiliate Program constitutes your agreement to abide by this Agreement, including, without limitation, the following: (i) you will only use the linking code we provide to you for each banner, text link, or other affiliate link obtained from the affiliate interface without change or manipulation, (ii) we reserve the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with our guidelines or standards, as determined solely by us, (iii) all domains that use your affiliate link must be listed in your affiliate profile, (iv) your website(s) will not in any way copy, resemble, or mirror the look and feel of any of our websites, (v) you will not use any means to create the impression that any of your websites are any of our websites, or any part of any of our websites, including, without limitation, framing of any of our websites in any manner, (vi) you may not engage in any cookie stuffing or false or misleading links on your website, and will not attempt to mask the referring URL information (i.e. page where the click is originated), (vii) you will not utilize redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain (aka cloaking), (viii) you will follow all applicable intellectual property and other laws, rules and regulations that pertain to your websites, and must have the express permission to use the copyrighted material of any other person or entity, such as written content, images, or any other copyrightable work (you will be solely responsible for, and indemnify us against any claims relating to, your use of copyrighted material or other intellectual property of another person or entity), (ix) you shall at all times recognize our right, title, and interest in and to all of our registered and unregistered trademarks, service marks, logos, corporate and trade names, (x) you will not, in connection with this Agreement or the Affiliate Program, display or reference on your website(s) any of our trademarks, logos or other marks, or those of any third-party (including sellers appearing on our websites) unless you have obtained prior written consent.
PAY-PER-CLICK (PPC) GUIDELINES. You may not conduct or engage in any pay-per-click (“PPC”) bidding on any terms containing our legal name or trade names, names of any of our websites, or the name or trade name (or any product or service trade name) of any service or product provider available on our websites (collectively, “Restricted Terms”), including any variations or misspellings thereof, for search or content-based campaigns on Google, Bing, MSN, Yahoo, Facebook or any other network, unless we give you prior written permission. You may not use any Restricted Terms in sequence or conjunction with any other keyword. You may not use Restricted Terms in your ad title, ad copy, display name or as the display URL without our express prior written permission. You may not direct link to our websites from any PPC ad or use redirects that yield the same result. You may not bid in any manner appearing higher than us for any search term in any auction-style PPC advertising program. If you automate your PPC campaigns, it is your responsibility to exclude Restricted Terms from your program, and you may wish to add Restricted Terms as negative keywords.
ADVERTISING & PUBLICITY. You shall not create, publish, distribute, or print any written material that makes reference to our Affiliate Program without our prior written consent. If you intend to promote our Affiliate Program via email campaigns, you must: (i) abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to our Affiliate Program, (ii) send such emails on your behalf and not imply that such emails are being sent on behalf of us, and (iii) provide us with copies of such email templates.
SOCIAL MEDIA. Promotion on Facebook, Twitter, Instagram, YouTube and other social media platforms is permitted under these general guidelines: (i) you are permitted to promote offers to your own lists, (ii) you are not permitted to post affiliate links on our social media accounts or company pages, (iii) you are not permitted to run social media ads using any Restricted Terms, and (iv) you are not permitted to create any social media accounts that include Restricted Terms or any other intellectual property of us or any service or product providers on any of our websites.
FTC DISCLOSURE REQUIREMENTS. You shall include a disclosure statement within all pages, blog/posts, or social media posts where affiliate links for the Affiliate Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement must be clear and concise, stating that you are being compensated for your review or endorsement. If you received the service or product for free from us or from the affiliate management team for review, this must be clearly stated in your disclosure. DISCLOSURES MUST BE MADE AS CLOSE AS POSSIBLE TO THE CLAIMS; DISCLOSURES SHOULD BE PLACED ABOVE THE FOLD; SCROLLING SHOULD NOT BE NECESSARY TO FIND THE DISCLOSURE; POP-UP DISCLOSURES ARE PROHIBITED. For more information about Federal Trade Commission (“FTC”) disclosure and endorsement requirements and guidelines, please review the FTC materials available at http://www.ftc.gov.
COMMUNICATION POLICY. It is our policy to maintain open and honest communications with our affiliates as a key component to the mutual success with our Affiliate Program. Accordingly, we may from time to time request clarification, data or information from you regarding orders, clicks or other activities that we suspect may be inaccurate, fraudulent or associated with a possible violation of our terms and conditions. You agree to fully cooperate in good faith with all such requests and to reply in a timely and responsive manner to our inquiries. The following includes, without limitation, examples of violations of this communication policy: (i) you are uncooperative, intentionally vague, misleading or untruthful, (ii) you are not responsive within a reasonable time period and after multiple attempts to contact you (using the contact information listed in your SAS Network profile), or (iii) you are unwilling or unable to substantiate or validate the source of your traffic to the Affiliate Program with clear and demonstrable proof. We reserve the absolute and unconditional right to do one or more of the following if we suspect that fraudulent activity has occurred or you violate the communication policy as described in this section: (i) deny or reverse any orders, (ii) require that you refund any or all commissions associated therewith, and/or offset such refunds against any sums payable or becoming payable to you, (iii) set your commission to $0, and/or (iv) suspend or terminate you from participating in the Affiliate Program. We understand that errors or violations may be a result of automated processes; however, it is incumbent upon you to ensure that appropriate safeguards are in place to ensure compliance with the terms and conditions of the Affiliate Program.
COMPANY RIGHTS. We have the right to monitor your websites at any time, whether to determine your compliance with the terms and conditions of this Agreement or otherwise. We may notify you of any changes to your website(s) that we feel should be made, or to make sure that your links to our websites are appropriate and whether any changes should be made. We reserve the right at any time to suspend or terminate your participation in the Affiliate Program. We further reserve the right to deny or enforce the refund of any and all commissions payable or paid to you that are associated with any violation(s) by you of this Agreement (e.g., without limitation, violations of provisions regarding PPC, Social Media, your website content, links, FTC disclosures, advertising, etc.), as well as the right to offset any or all such commissions paid to you against future commissions payable to you, or otherwise seek indemnity from you under this Agreement for such violation(s). The foregoing rights of Company shall also apply to any commissions resulting from fraudulent activity of any kind, whether conducted by customers or otherwise.
TERMINATION; SURVIVAL. You or Company may at any time terminate this Agreement with or without cause or reason; provided, however, that all rights, obligations and provisions under this Agreement relating to confidentiality, indemnification, customer protection, data and systems security, payments, remedies and all other provisions necessary, prudent or desirable to enforce the terms of this Agreement, shall survive the termination of this Agreement. Our denial of your application to become an affiliate under the Affiliate Program shall constitute a termination of this Agreement. Upon the termination of this Agreement, you will immediately cease use of, and remove from your websites, all links to our websites, all of our trademarks, trade dress, and logos, and all other materials made available by or on behalf of us to you in connection with the Affiliate Program. You will not be eligible to earn any commissions with regard to any link offs that occur after termination of this Agreement.
OUR CUSTOMERS. All persons and entities who enter our website(s) or submit enrollment requests through our Affiliate Program are our customers, irrespective of whether their originating clicks occurred on your website. Our policies and operating procedures, which are subject to change at any time by us, shall apply to all of such customers. Prices and availability for services and/or products on our websites are subject to change at any time, and on an ongoing basis, without notice to anyone.
CONFIDENTIALITY. All of our Confidential Information and intellectual property is and shall at all times remain our sole property, notwithstanding anything to the contrary contained in this Agreement or otherwise. You agree to keep in strict confidence any and all of our Confidential Information that is or may become in your possession or known by you, and in no event or circumstance shall you disclose any such Confidential Information to any third party or use any such Confidential Information for any purpose whatsoever except in compliance with this Agreement as an affiliate in the Affiliate Program. You shall at all times use your best commercially reasonable efforts to safeguard and secure any and all of our Confidential Information, and in no event less than reasonable care. You shall promptly return to us all tangible forms of our Confidential Information upon termination of this Agreement. Your obligations and our rights regarding our Confidential Information shall survive the termination of this Agreement.
ORDERS. For you to be eligible to receive a commission for a sale under the Affiliate Program, (i) the customer enrollment request on our website must directly result and originate from the customer entering our website by clicking the Affiliate Program link from one of your websites, (ii) the customer must submit an order and be accepted by (and commence service with) a service provider on our website, or purchase a product from a seller on our website, as applicable, (iii) such service order or product sale must not be rescinded or canceled, and (iv) Company shall be entitled to a commission from the service provider or product seller with regard to such service order or sale. We or our service providers and sellers will be responsible for processing orders and will handle all customer service issues. We will track orders and sales from customers who enter our websites using the Affiliate Program link from your website to our website.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL OF OUR SERVICES AND THE SERVICES AND PRODUCTS OFFERED ON OUR WEBSITES ARE PROVIDED “AS IS” AND WE MAKE NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION THEREWITH. WE EXPRESSLY HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE, SPECIFIC OR OTHERWISE. WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, TO YOU AS TO THE TOTAL AMOUNT OF REVENUE THAT WILL BE GENERATED BY YOU, IF ANY, AS A RESULT OF THIS AGREEMENT. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
LIMITATIONS OF LIABILITY. NEITHER WE NOR YOU WILL BE LIABLE TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
INDEMNIFICATION. You hereby agree to indemnify and hold harmless Company and its officers, directors, employees, contractors, affiliates, agents, managers and members, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' and paralegals’ fees and costs) (any or all of the foregoing hereinafter referred to as "Losses") arising out of, relating to, based upon or resulting from (i) any claim of infringement, misappropriation or unauthorized use with regard to any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) your actual or alleged breach of any representation, warranty, covenant or agreement made by you, or your violation of any provision, in this Agreement, or (iii) any claim related to your operations, marketing, advertising, marketing practices, or any of your websites, including, without limitation, any content therein.
MODIFICATION. We may modify the terms and conditions of this Agreement at any time at our sole discretion upon notice, which may be by email or other electronic means, such as posting an updated Agreement for this Affiliate Program on our website. Your continued participation in this Affiliate Program following such notice will conclusively constitute your agreement to the modified or updated Agreement. If you object to any change to this Agreement, your sole recourse will be to terminate this Agreement.
MISCELLANEOUS. You agree that you are an independent contractor, are fully responsible for (and shall pay) any and all Federal, state and local taxes applicable to you with regard commissions or otherwise in connection with the Affiliate Program, and that nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between you and us. You will have no authority to accept any offers or orders, or make any representations on our behalf, and will not make any statement, whether on any of your websites or otherwise, to the contrary or which may be construed to the contrary. You may not assign your rights or obligations under this Agreement. Any action or proceeding to enforce this Agreement shall be brought exclusively in the Federal or state courts located in Harris County, Texas, and you and Company expressly consent to the jurisdiction of said courts. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Texas without giving effect to any conflict of law provisions. You may not amend or waive any provision of this Agreement without our express written consent. This Agreement represents the entire agreement between us and you and supersedes all prior agreements and communications, oral or written. Headings and titles contained in this Agreement are included for convenience only and shall not in any way affect the terms of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect. Any failure or repeated failure by us to enforce any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
INDEPENDENT INVESTIGATION. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU ACKNOWLEDGE THAT WE MAY AT ANY TIME ACCEPT OTHERS INTO THE AFFILIATE PROGRAM UPON TERMS AND CONDITIONS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, WARRANTY, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.