Housing Works, Inc.
Program Terms
Housing Works Operating Agreement for Affiliate Network
This Housing Works Operating Agreement for Affiliate Network (the "Agreement"), contains the complete terms and conditions that apply to a party's participation as a marketing affiliate in the affiliate network of Housing Works (the "Program"). As used in this Agreement, "we", "us", “our” or “Housing Works” means Housing Works, Inc. and its parent company(ies), affiliated or related entities and subsidiaries, collectively, and "you" or “your” means the applicant affiliate party. "Site" means eshop.housingworks.org that you will link to using Qualifying Links as defined in Section 2 of this Agreement.
1. Enrollment in the Program. Eligible applicants may submit a completed Program application to begin the enrollment process ("Application"). Submission of your Application to the Program constitutes acceptance to the terms set forth in this Agreement. We will evaluate your Application and notify you of your acceptance or rejection. We may accept or reject any Application in our sole discretion. If, in our sole discretion, we determine for any reason that your Affiliate Website (defined below) is unsuitable for the Program, your Application will be rejected. If your Application is not accepted, you may reapply to the Program at any time; however, you should not and may not link to our Site unless you are approved for the Program.
As a member of the Affiliate Program, you grant Housing Works permission to distribute any email communication directly to you that Housing Works determines is necessary in order to continue as a member of the Program, regardless of your choice to opt-out from certain communications.
Housing Works currently uses ShareASale as our Program service provider. ShareASale provides Housing Works affiliates with a simple interface to track all their sales, impressions, click-throughs and commissions. Creating an ShareASale account does not guarantee your participation in the Program.
2. Links on Your Website or Third Party Websites. Upon acceptance into the Program, we will make available to you Qualifying Links that are subject to the terms and conditions of this Agreement. A "Qualifying Link" is a link from an Affiliate Website to our Site using one of the URLs or graphic links provided by Housing Works, the ShareASale platform, or by other means determined by us for use in the Program. All Qualifying Links must link directly and exclusively to the Site.
Housing Works reserves the right to approve each and every website that links to our Site through a Qualifying Link (each an “Affiliate Website”). If you use a Qualifying Link on an Affiliate Website without seeking explicit authorization, your continued use of that Qualifying Link shall be considered a breach of this Agreement subject to the remedies set forth in Section 10 below; provided, however, that use of such Qualifying Link will nonetheless be subject to the requirements set forth in this Agreement.
The Qualifying Links will serve to identify your Affiliate Website as an authorized part of the Program and will establish a trackable link from the Affiliate Website to our Site. You agree that when displaying Qualifying Links on the Website there will be a clear and conspicuous disclosure that it is an advertisement placed near enough to such Qualifying Links so as to fully disclose such status. For more information on disclosure requirements, see Section 3(c) below. Housing Works reserves the right to take immediate steps should you not comply with this requirement, including but not limited to the suspension or termination of this Agreement and expulsion from the Program.
You also agree that you will display on the Affiliate Website only those logos, trade names, trademarks, graphic images and similar identifying material ("Licensed Materials") that are provided by us or by the ShareASale platform, and you will substitute such content with any new Licensed Materials provided by us or the ShareASale platform from time to time as directed by Housing Works. A web widget that is pre-approved in writing by Housing Works for use on your Affiliate Website may be considered a Qualifying Link for purposes of this Agreement. Accordingly, web widgets are subject to all of the terms and conditions of this Agreement that apply to Qualifying Links.
Only valid Qualifying Links will be tracked for purposes of determining Referral Fees (as defined below) that you may be eligible to receive on sales of Qualifying Products (as defined below) generated through your participation in the Program.
Only Qualifying Links may be used to link an Affiliate Website to areas within our Site. You may not link directly to a Site without use of a Qualifying Link. You may post as many Qualifying Links to our Site as you like on a website, provided that you ensure that each Affiliate Website containing a Qualifying Link posted by you meets the terms of this Agreement, including without limitation, that such Affiliate Website is suitable for participation in the Program, does not fall into the "prohibitions" set forth in Section 3, and you take responsibility for all Affiliate Websites on which you post a Qualifying Link in accordance with Section 9. The position, prominence and nature of links on an Affiliate Website shall comply with any requirements specified in this Agreement but otherwise will be in your discretion.
You acknowledge, and you agree to disclose in the privacy policy or notice of any Affiliate Website, that by participating in the Program and placing a Qualifying Link, we may place or recognize cookies on visitors’ browsers, and receive information from or about visitors to such Affiliate Website or communications between such Affiliate Website and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in our privacy policy related to the Site. Notwithstanding the foregoing, you may not collect, store, cache, or otherwise use any account information of Housing Works customers.
Further, Housing Works may, at its discretion, decline to accept, require adherence to an additional set of terms and conditions, or require the posting of specific copy for any Affiliate Website that (1) donates, directs or transfers any portion of their Referral Fees or affiliate benefits to any charitable website, education-related website, organization or program; or (2) provides rewards back to their members in the form of points or cash-back, or conduct other similar loyalty programs in connection with purchases made by members via their websites.
We will be responsible for all aspects of order processing and fulfillment of orders placed by customers who follow your Qualifying Links to the Site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish and update from time to time. Among other things, we will prepare orders forms; process payments, cancellations, and returns; and handle customer service. Through the ShareASale platform, you have the ability to track sales made to customers who purchase products using your Qualifying Links, and you can review reports summarizing this sales activity. To permit accurate tracking, reporting, and fee accrual, you must ensure that your Qualifying Links are properly formatted. The form, content, and frequency of the reports are limited to those reports and capabilities available through the ShareASale platform and may vary from time to time in our and/or the ShareASale platform's reasonable discretion. Housing Works is not responsible for any changes to the ShareASale platform's format, timing, or types of reports. Housing Works will not be responsible for improperly formatted links regardless of whether you have made modifications to the code or not. In addition, you understand and agree that we are unable to track or provide credit for sales from customers that are referred to us with browsers that block cookies or that otherwise do not have their browser settings enabled in a way that permits the tracking of a Qualifying Link.
3. Prohibitions. You understand and acknowledge that this Agreement is made on a non-exclusive basis between you and Housing Works and is solely for the purpose of allowing you to link to the Site as part of your participation in the Program. As a condition to your acceptance and participation in the Program, you agree to the following prohibitions:
a. General Prohibitions. You may not:
i. engineer any website containing a Qualifying Link in such a manner that pulls internet traffic away from our Site;
ii. provide a portion of your Referral Fees (as defined below) to websites or organizations that would violate any of the above criteria;
iii. violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), or any term of this Agreement;
iv. publish, link to, sell, otherwise distribute, or place a Qualifying Link on the same page or in close proximity to any Objectionable Content. For purposes of this Agreement, "Objectionable Content" means any material, including textual, audio or video material, which contains or promotes any of the following, as determined by Housing Works in its sole discretion:
1. sexually explicit material;
2. violence or hate toward any persons or groups, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
3. illegal activities;
4. the use of alcohol, tobacco, or gambling/lottery;
5. the use of pyramid, "ponzi", or similar investment schemes;
6. the buying, selling, exchange, or trade of crypto or virtual currency (for example, Coinbase, Trezor, CashApp, Gemini, and similar websites);
7. defamatory, fraudulent, or harassing content to Housing Works or any third party;
8. content that violates the intellectual property rights of Housing Works or its suppliers;
9. disparaging content about Housing Works or any of its executives, officers, employees, or agents;
10. is under construction or not live at the time of Application; or
11. is non-US based or are websites that primarily serve a non-US based audience.
v. attempt to modify or alter our Site in any way;
vi. make any representations, either express or implied, or create an appearance that a visitor to your Affiliate Website is visiting our Site, e.g., "framing" or "wrapping" the Site in any manner;
vii. "scrape" or "spider" the Site or any other websites for content (such as images, logos or text);
viii. place ads on, or participate in any way in, ad networks or paid search content networks;
ix. link or redirect any Qualifying Link to any website other than our Site, including, for example, your own websites;
x. shorten or obscure a Qualifying Link, including through use of any link shortening service, button, hyperlink or other ad placement, in a way that may mislead or confuse a customer;
xi. engage in any direct or indirect relationships with ISPs and/or mobile carriers that results in the delivery or act of address bar keyword and URL error trafficking (e.g., a user mistypes a web address in the ISP's address bar or search bar, and, as a result, is redirected to a web page that contains a Qualifying Link that directs the user to the Site);
xii. use any type of method, software, automated script, or technology which attempts to intercept or redirect traffic or Referral Fees to or from any website, or otherwise artificially increase Referral Fees, including through any click spam, botnets, traffic generated by non-human visitors, or use of stolen credit card information to make purchases in connection with the Program;
xiii. use any Trademark (as defined in Section 8 below), or any Licensed Materials to advertise or engage in services that result in a sale occurring on your website, whether or not you then have the item fulfilled through the Site;
xiv. without the express prior written approval of Housing Works, use any Trademark, or any Licensed Material in an advertisement that is not created or provided by Housing Works in any way that might suggest or imply or mislead or is likely to mislead a visitor to your Affiliate Website into believing that Housing Works or any related entity was the creator or sponsor of such advertisement;
xv. re-distribute Licensed Materials to websites which can reasonably be viewed as Housing Works’s competitors;
xvi. re-distribute, display or syndicate Licensed Materials and/or Housing Works's datafeed, including any product information set forth therein, to any third party partner, network or agency;
xvii. employ, use, or receive any direct or indirect benefit from, any "cookie stuffing" methods (e.g., use of "cookie stuffing" to cause ShareASale's tracking systems to conclude that a user has clicked through a Qualifying Link - and to pay commissions accordingly - even if the user has not actually clicked through any such link);
xviii. cause spyware to be installed on another person’s computer, or use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on a website in a way that interferes with a person’s ability to view that website;
xix. display any material on an Affiliate Website that contains viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines;
xx. without the prior written approval of Housing Works, use any widgets on your Affiliate Website that: (a) include any Trademarks (as defined in Section 8); (b) include any Licensed Materials (as defined in Section 2); or (c) directly or indirectly send traffic to Housing Works;
xxi. forward, redistribute, or otherwise repurpose any or all Qualifying Links to any third party;
xxii. release Housing Works’s sales circulars, advertisements, or other information prior to their authorized release dates; or
xxiii. purchase products or services sold or promoted on the Site through a Qualifying Link for resale or commercial use of any kind.
b. Prohibitions Regarding Use of Electronic Communications. “Electronic Communication” includes email messages, text messages, and any other form of non-verbal communication occurring without the use of physical mail. You may NOT do any of the following using Electronic Communication unless you first obtain in advance Housing Works's express written permission. These prohibitions are in addition to, and not in place of, all prohibitions and restrictions that you are bound to under the ShareASale membership agreement, as amended. You may not:
i. generate or use Electronic Communication using or containing Trademarks (as defined in Section 8 below), or any variation or misspelling thereof, or products, or any of the Qualifying Links or URLS provided to you as part of the Program;
ii. send any other Electronic Communication that in any way suggests or implies or misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that Housing Works or any related entity was the sender or sponsor of such Electronic Communication or procured or induced you to send such Electronic Communication;
iii. forward, redistribute, or otherwise repurpose any Electronic Communication that Housing Works sends to its affiliates and/or customers; or
iv. generate or send any unsolicited Electronic Communication (spam) under this Agreement.
4. Referral Fees. We will pay you a fee commission, via the ShareASale platform, on certain product sales to third parties generated from our Site only (“Referral Fees”). For a product sale to generate a Referral Fee, the customer must:
a. use a browser that has its cookies setting enabled;
b. follow a Qualifying Link (in the format specified by Housing Works) from your Affiliate Website to the Site;
c. purchase the Qualifying Product using our automated ordering system;
d. accept delivery of the Qualifying Product at the shipping destination; and
e. remit full payment to us.
We will pay to the ShareASale platform for ultimate payment to you, Referral Fees on products that are actually purchased by a customer within the relevant cookie window after the customer has initially entered our Site ("Referral Fee Time") as long as the customer reenters our Site directly during that time (and not through another affiliate link). We will not pay Referral Fees on any products that are purchased on our Site when a customer has re-entered our Site (other than through a Qualifying Link from your website) after the Referral Fee Time, even if the customer previously followed a link from your website to our Site. Referral Fees will not be earned on products where a customer's purchase of the product derived from search results driven from free or natural search. This includes results containing Qualifying Links displayed in a search engine's free/non-paid, natural, or organic search results in response to a search query which sends customers directly to the Site without the customer first being sent to an Affiliate Website and the customer clicking on a link to arrive at the Site.
Not all items sold on the Site are eligible to earn Referral Fees in the Program. For example (and not in limitation), the purchase of special event admission tickets, services or experiences, any item sold on a consignment basis or available for local pick-up only, donations, any purchases made with gift cards or online gift cards, and customer service invoice adjustments and reorders, are not eligible to earn Referral Fees. Products that are entitled to earn Referral Fees in the Program are referred to herein as "Qualifying Products”. We reserve the absolute right and discretion to exclude items from Referral Fee eligibility at any time; and you acknowledge and agree that we cannot and do not warrant or guarantee that you will be paid a referral fee on any item(s).
5. Referral Fee Schedule. You will earn Referral Fees based on the sale price of Qualifying Products, according to fee schedules to be established by us from time to time. "Sale price" means the sale price listed on our Site and excludes costs for shipping, handling, gift-wrapping, rebates, refunds, returns, chargebacks, cancellations and taxes/VAT. The current Referral Fee schedule is available to you upon request. We reserve the right, at our sole discretion, to change, modify, add or remove portions of the Referral Fee schedule, at any time, without notice to you. You acknowledge that in such circumstances, you will accept the Referral Fee rates and payouts actually paid to you.
If you have any questions concerning a certain item’s eligibility for a Referral Fee and/or the rate thereof, please contact Sabina Zabell at s.zabell@housingworks.org.
6. Referral Fee Payment. Approximately ninety (90) days following the end of each calendar month, you will receive a check for the Referral Fees earned on Qualifying Products that were shipped during that month, less any taxes that we or the ShareASale platform are required by law to withhold from the final payment to you. You agree and acknowledge that you have the sole responsibility and liability for any and all taxes, contributions, penalties, or other sums arising out of the Referral Fees. If a customer returns a product that generated a Referral Fee, you will see a deduction for the corresponding Referral Fee from your next monthly payment. If there is no subsequent payment, you will receive an invoice for the Referral Fee payable within sixty (60) days of your receipt of the invoice. All determinations of Qualifying Links and whether a Referral Fee is payable will be made by the ShareASale platform and Housing Works and will be final and binding.
You are solely responsible for the transmission of your information through the ShareASale platform and ensuring the security of your ShareASale username and password. Housing Works will not be responsible for any losses arising out of your failure to maintain the security of your ShareASale username and password, including any unauthorized use or disclosure of your information, and any account activity taken by unauthorized actors.
7. Policies and Pricing. Customers who buy products through this Program will be deemed to be customers of Housing Works without affecting their status as your customer. Accordingly, all Housing Works rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers with respect to their transactions at Housing Works. We may change our policies and operating procedures at any time consistent with applicable laws and without notice to you. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. You may include current price information in your product descriptions only if such information is provided to you by Housing Works, provided that you remain responsible for maintaining accurate and up-to-date pricing information and disclosing to users, where applicable, that in the event of any price difference between your website and the Site, the price listed on the Site will govern. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product.
8. Ownership; Limited License; Restrictions. The Sites and all content and materials made available through Sites, and all copyrights, trademarks, trade dress, and other intellectual property rights therein (collectively, the “IP”) are owned or controlled by or licensed to Housing Works, and are protected by U.S. and international trademark, copyright, and other intellectual property laws. Subject to your compliance with this Agreement, we grant you a limited, nonexclusive, nontransferable, revocable right to access our Site through the Qualifying Links and use the IP solely in accordance with the terms of this Agreement and solely in connection with the Licensed Materials, only as provided to you by us, through the ShareASale platform, or by other means selected by us, and solely for the purpose of identifying your Affiliate Website as a Program participant and to assist in generating the sale of Housing Works products.
You acknowledge that this Agreement does not provide you with any ownership or other intellectual property rights in the Site, IP, or Licensed Materials other than the limited license rights contained herein. We reserve all of our rights in the Site, IP, Licensed Materials and of our other proprietary rights. You may not sublicense, assign or transfer any such licenses, and any attempt at such sublicense, assignment or transfer is void. Further, you understand and agree that you have no ownership rights in (a) materials you submit to us, including, without limitation, feedback provided about the Program; (b) to any account you may have with us; or (c) other access to the Site or features therein. To the extent that you provide us or submit to us any feedback, materials, data, ideas, or content, you hereby assign, transfer, and grant to us any and all right, title, and interest you may have in such materials. We may terminate or revoke your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion.
YOU COVENANT AND AGREE NOT TO USE ANY TRADEMARK (AS DEFINED BELOW) FOR ANY PURPOSE OR IN ANY MANNER WHATSOEVER, EXCEPT FOR THAT WHICH IS EXPRESSLY APPROVED IN WRITING BY US, AND, IN THAT CASE, ONLY IN THE MANNER WE SO EXPRESSLY APPROVED AND PURSUANT TO ANY TERMS AND CONDITIONS UPON WHICH WE GRAND OUR APPROVAL (IN OUR SOLE AND ABSOLUTE DISCRETION) AND, IN ANY EVENT, ONLY IN FURTHERANCE OF YOUR PARTICIPATION IN THE PROGRAM AND NOT FOR ANY USE OR IN ANY MANNER THAT IS REASONABLY LIKELY TO IMPAIR OUR REPUTATION, GOODWILL, RELATIONSHIPS OR ABILITY TO ACHIEVE OUR BUSINESS, CORPORATE OR FUNDAMENTAL OBJECTIVES. For purposes of this Agreement, “Trademark(s)” include any trade name, trademark, logo, service mark, trade dress, patent, copyright, trade secret, design, slogan, tag line, and any other form of intellectual property owned or registered by or exclusively licensed to or identifiable with Housing Works or any person or entity comprising Housing Works.
9. Responsibility for Affiliate Website. You will be solely responsible for the development, operation, and maintenance of your Affiliate Website and for all content that appears on an Affiliate Website. For example, you will be solely responsible for:
a. the technical operation of your Affiliate Website and all related data hosting operations, hardware, and other equipment that may be necessary to operate your Affiliate Website;
b. creating and posting product descriptions on an Affiliate Website and linking those descriptions to our Site;
c. updating product information, content and item descriptions (including, but not limited to, product price and availability) within 24 hours of any update of such product information, content and/or item description at the Site or from data feed content provided through the ShareASale platform;
d. the accuracy, timeliness, and appropriateness of content posted on the Affiliate Website (including, among other things, all product-related materials);
e. removing any Licensed Materials and Trademarks from the Affiliate Website as soon as any Objectionable Content appears on the Affiliate Website; and
f. notifying us and the ShareASale platform of any malfunctioning of the Qualifying Links or other problems with your participation in the Program in accordance with the terms of this Agreement.
10. Term and Termination. The term of this Agreement will begin upon our acceptance of your Application and will end when terminated by either party. You may terminate this Agreement at any time, with or without cause, by giving us (five) 5 days’ prior written notice of termination. We may terminate this Agreement immediately at any time, with or without cause, by giving you written notice of termination. Upon termination, all Site related content and links shall be promptly removed from Affiliate Websites. You are only eligible to earn Referral Fees on sales of Qualifying Products occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event we overpay you, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
In addition to Housing Works’s right to terminate this Agreement without cause, as set forth above, violation of any of the terms or prohibitions contained in this Agreement by you, your Network (as defined below), your sub-affiliate, or any other agent may result in, among other things, (a) the immediate termination of this Agreement (which may include termination of your entire Network, in Housing Works’s sole discretion); (b) the withholding or non-payment of Referral Fees due to you and/or your Network, including, without limitation, any Referral Fees arising out of a suspected breach of this Agreement; or (c) the commencement of an action by Housing Works against you and/or your Network seeking, without limitation, injunctive relief, recovery of actual, statutory or punitive damages.
Your compliance with this Agreement will be at all times subject to investigation by Housing Works or its agents of your website and practices as they relate to the Agreement. In connection therewith, we have the right in our sole and absolute discretion to monitor any Affiliate Website at any time, and you agree to provide us with unrestricted access thereto or other records and documentation reasonably requested by Housing Works for purposes of verifying your compliance with this Agreement. Failure to comply with the foregoing requirements may be subject to the breach remedies set forth above.
11. Modification. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our Site. Housing Works is not responsible for your failure to receive notice of changes, and you agree to review these terms periodically to ensure that you are familiar with the most recent version of such terms, policies and operating procedures. Modifications may include, for example, changes in the scope of available Referral Fees, Referral Fee Schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12. Relationship of Parties. You and Housing Works are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this section.
13. Representations and Warranties; Indemnification. You represent and warrant:
a. You have the full right, power and authority to enter into this Agreement, grant the rights granted herein, and fully perform your obligations hereunder;
b. The Affiliate Website(s), and any other websites you own or operate, and the linking thereof to the Site, does not and will not infringe any patents, copyrights, trademarks, trade secrets or other intellectual property rights or violate the right of privacy, publicity or other rights of any third party, nor has any claim of such infringement or violation been threatened or asserted against you; and
c. You have obtained and will maintain in force all necessary notices, consents, and licenses to enable you to participate in the Program, and you will at all times comply with all applicable laws, ordinances, regulations, rules, codes and industry standards, guidelines and principles, as may be modified from time to time including any foreign laws including EU and similar associations if any Services are to be performed outside of the USA, which are relevant to your performance under this Agreement, including, without limitation , the California Consumer Privacy Act of 2018; Regulation (EU) 2016/679 of the European Parliament, the Council of the European Union and the European Commission (“GDPR”) and all laws implementing the GDPR; the CAN-SPAM Act of 2003; and the Children’s Online Privacy and Protection Act of 1998.
You acknowledge that by entering into and performing your obligations under this Agreement, we do not assume and shall not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of any Affiliate Website. Accordingly, in addition to any other indemnification obligations contained in this Agreement, you shall protect, defend, hold harmless and indemnify Housing Works Inc., its parent, subsidiary and affiliated companies, and their respective agents, officers, directors, employees, clients, donors, volunteers, partners, representatives, contractors, successors and assigns (“Indemnified Parties”) from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties against any of the Indemnified Parties arising from or connected with: (1) any of the content or activities of any Affiliate Website (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business; (2) any breach of this Agreement or any representation, warranty, obligation, or covenant contained therein by you or your employees, agents, representatives, contractors, sub-affiliates, or Network; (3) your misuse, unauthorized modification or unauthorized use of the services or materials provided by us hereunder; or (4) any other of your or your employees’, agents’, representatives’, contractors’, sub-affiliates’, or Network’s acts or omissions.
Housing Works will use reasonable efforts to notify you of any indemnified claim, provided that the failure or delay in notification shall not relieve you of your obligations under this section. You shall defend the indemnified claim at your own expense using counsel reasonably acceptable to Housing Works; however, in addition to the foregoing, the Indemnified Party reserves the right to also be represented by counsel at its expense, including at any proceeding or settlement discussions related thereto. You may not settle or consent to the entry of judgment with regard to any indemnified claim without the Indemnified Party’s written consent. The Indemnified Party may, at its election, assume the defense, settlement or other resolution of any such indemnified claim with counsel of its own choosing, which shall not otherwise relieve you of your obligations under this section, including your obligation to be liable for all costs and expenses incurred by the Indemnified Party in connection with the defense and settlement of any claim.
14. Limitation of Liability. We will not be liable for indirect, special, punitive, incidental, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total Referral Fees paid to you under this Agreement in the prior twelve (12) months preceding the date the liability first arises.
15. Disclaimers. We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors; however, we will make commercially reasonable efforts to correct errors or interruptions promptly.
16. 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 YOUR WEB SITE. NOTHING HEREIN SHALL OBLIGATE HOUSING WORKS TO PROVIDE YOU ANY EXCLUSIVE RIGHTS OR BENEFITS, AND YOU UNDERSTAND THAT THIS AGREEMENT IS MADE ON AN EXPRESSLY NON-EXCLUSIVE BASIS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATIONS, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17. Miscellaneous. This Agreement will be governed by the laws of the United States and the state of New York, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts having jurisdiction and venue in or for Kings County, New York or, at our option, New York County, New York and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
18. Publicity. You shall not create, publish, distribute, make or permit any public announcement of this Agreement or the relationship contemplated hereunder, (including, but not limited to, any press release, client list, screen shot, advertisement or any promotional material) without first submitting such material to us and receiving our written approval, which we may withhold in our sole discretion.
19. Confidentiality. Except as otherwise provided in this Agreement or with our prior written consent, you agree that all information and materials made available by or on behalf of Housing Works hereunder and/or otherwise arising from or in connection with the Program that is not generally known or available to the public through a source or sources other than you or your affiliates, or that you should reasonably know or assume is confidential, including, without limitation, the terms of this Agreement, our business and financial information, our customer lists, customer information, and customer purchase history, and our pricing and sales information (“Confidential Information”), shall be and remain the property of Housing Works. You agree and acknowledge on your behalf and on behalf of all your representatives that they shall have no proprietary interest in any of the Confidential Information, and will not disclose, communicate or publish the Confidential Information to any person or entity, nor use, except as authorized by this Agreement or otherwise in writing by Housing Works, any of the Confidential Information that you or your representatives produce, receive, acquire or obtain. You shall take (and cause all your representatives to take) all necessary steps to ensure that the Confidential Information is securely maintained.
Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process, upon written notification to Housing Works. In the event anyone in possession of Confidential Information becomes legally compelled to disclose any of the Confidential Information, you shall provide us with prompt notice thereof and shall not divulge any information until Housing Works (or its designees) has had the opportunity to seek a protective order or other appropriate remedy to curtail such disclosure. If such actions by Housing Works(or its designees) are unsuccessful, or Housing Works (or its designees) otherwise waives the right to seek such remedies, you or your relevant representative shall disclose only that portion of the Confidential Information which it is legally required to disclose.
20. Networks & Sub-Affiliates. The requirements of this Section 20 apply to your use of the Program as a Network. A "Network" is defined as any affiliate that operates one or more websites as sub-affiliates through one (1) Application to the Program. You agree to all the terms and conditions of this Agreement on behalf of all sub-affiliates operating under the Network and are responsible for any action or inaction by such sub-affiliates. You must seek prior written approval from Housing Works before choosing to operate as a Network. You must provide to Housing Works a list of all sub-affiliates working within your Network within twenty-four (24) hours of any request from Housing Works. Any violation of this Agreement by any sub-affiliate may result in immediate termination of the entire Network from the Program.
This Housing Works Operating Agreement for Affiliate Network (the "Agreement"), contains the complete terms and conditions that apply to a party's participation as a marketing affiliate in the affiliate network of Housing Works (the "Program"). As used in this Agreement, "we", "us", “our” or “Housing Works” means Housing Works, Inc. and its parent company(ies), affiliated or related entities and subsidiaries, collectively, and "you" or “your” means the applicant affiliate party. "Site" means eshop.housingworks.org that you will link to using Qualifying Links as defined in Section 2 of this Agreement.
1. Enrollment in the Program. Eligible applicants may submit a completed Program application to begin the enrollment process ("Application"). Submission of your Application to the Program constitutes acceptance to the terms set forth in this Agreement. We will evaluate your Application and notify you of your acceptance or rejection. We may accept or reject any Application in our sole discretion. If, in our sole discretion, we determine for any reason that your Affiliate Website (defined below) is unsuitable for the Program, your Application will be rejected. If your Application is not accepted, you may reapply to the Program at any time; however, you should not and may not link to our Site unless you are approved for the Program.
As a member of the Affiliate Program, you grant Housing Works permission to distribute any email communication directly to you that Housing Works determines is necessary in order to continue as a member of the Program, regardless of your choice to opt-out from certain communications.
Housing Works currently uses ShareASale as our Program service provider. ShareASale provides Housing Works affiliates with a simple interface to track all their sales, impressions, click-throughs and commissions. Creating an ShareASale account does not guarantee your participation in the Program.
2. Links on Your Website or Third Party Websites. Upon acceptance into the Program, we will make available to you Qualifying Links that are subject to the terms and conditions of this Agreement. A "Qualifying Link" is a link from an Affiliate Website to our Site using one of the URLs or graphic links provided by Housing Works, the ShareASale platform, or by other means determined by us for use in the Program. All Qualifying Links must link directly and exclusively to the Site.
Housing Works reserves the right to approve each and every website that links to our Site through a Qualifying Link (each an “Affiliate Website”). If you use a Qualifying Link on an Affiliate Website without seeking explicit authorization, your continued use of that Qualifying Link shall be considered a breach of this Agreement subject to the remedies set forth in Section 10 below; provided, however, that use of such Qualifying Link will nonetheless be subject to the requirements set forth in this Agreement.
The Qualifying Links will serve to identify your Affiliate Website as an authorized part of the Program and will establish a trackable link from the Affiliate Website to our Site. You agree that when displaying Qualifying Links on the Website there will be a clear and conspicuous disclosure that it is an advertisement placed near enough to such Qualifying Links so as to fully disclose such status. For more information on disclosure requirements, see Section 3(c) below. Housing Works reserves the right to take immediate steps should you not comply with this requirement, including but not limited to the suspension or termination of this Agreement and expulsion from the Program.
You also agree that you will display on the Affiliate Website only those logos, trade names, trademarks, graphic images and similar identifying material ("Licensed Materials") that are provided by us or by the ShareASale platform, and you will substitute such content with any new Licensed Materials provided by us or the ShareASale platform from time to time as directed by Housing Works. A web widget that is pre-approved in writing by Housing Works for use on your Affiliate Website may be considered a Qualifying Link for purposes of this Agreement. Accordingly, web widgets are subject to all of the terms and conditions of this Agreement that apply to Qualifying Links.
Only valid Qualifying Links will be tracked for purposes of determining Referral Fees (as defined below) that you may be eligible to receive on sales of Qualifying Products (as defined below) generated through your participation in the Program.
Only Qualifying Links may be used to link an Affiliate Website to areas within our Site. You may not link directly to a Site without use of a Qualifying Link. You may post as many Qualifying Links to our Site as you like on a website, provided that you ensure that each Affiliate Website containing a Qualifying Link posted by you meets the terms of this Agreement, including without limitation, that such Affiliate Website is suitable for participation in the Program, does not fall into the "prohibitions" set forth in Section 3, and you take responsibility for all Affiliate Websites on which you post a Qualifying Link in accordance with Section 9. The position, prominence and nature of links on an Affiliate Website shall comply with any requirements specified in this Agreement but otherwise will be in your discretion.
You acknowledge, and you agree to disclose in the privacy policy or notice of any Affiliate Website, that by participating in the Program and placing a Qualifying Link, we may place or recognize cookies on visitors’ browsers, and receive information from or about visitors to such Affiliate Website or communications between such Affiliate Website and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in our privacy policy related to the Site. Notwithstanding the foregoing, you may not collect, store, cache, or otherwise use any account information of Housing Works customers.
Further, Housing Works may, at its discretion, decline to accept, require adherence to an additional set of terms and conditions, or require the posting of specific copy for any Affiliate Website that (1) donates, directs or transfers any portion of their Referral Fees or affiliate benefits to any charitable website, education-related website, organization or program; or (2) provides rewards back to their members in the form of points or cash-back, or conduct other similar loyalty programs in connection with purchases made by members via their websites.
We will be responsible for all aspects of order processing and fulfillment of orders placed by customers who follow your Qualifying Links to the Site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish and update from time to time. Among other things, we will prepare orders forms; process payments, cancellations, and returns; and handle customer service. Through the ShareASale platform, you have the ability to track sales made to customers who purchase products using your Qualifying Links, and you can review reports summarizing this sales activity. To permit accurate tracking, reporting, and fee accrual, you must ensure that your Qualifying Links are properly formatted. The form, content, and frequency of the reports are limited to those reports and capabilities available through the ShareASale platform and may vary from time to time in our and/or the ShareASale platform's reasonable discretion. Housing Works is not responsible for any changes to the ShareASale platform's format, timing, or types of reports. Housing Works will not be responsible for improperly formatted links regardless of whether you have made modifications to the code or not. In addition, you understand and agree that we are unable to track or provide credit for sales from customers that are referred to us with browsers that block cookies or that otherwise do not have their browser settings enabled in a way that permits the tracking of a Qualifying Link.
3. Prohibitions. You understand and acknowledge that this Agreement is made on a non-exclusive basis between you and Housing Works and is solely for the purpose of allowing you to link to the Site as part of your participation in the Program. As a condition to your acceptance and participation in the Program, you agree to the following prohibitions:
a. General Prohibitions. You may not:
i. engineer any website containing a Qualifying Link in such a manner that pulls internet traffic away from our Site;
ii. provide a portion of your Referral Fees (as defined below) to websites or organizations that would violate any of the above criteria;
iii. violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), or any term of this Agreement;
iv. publish, link to, sell, otherwise distribute, or place a Qualifying Link on the same page or in close proximity to any Objectionable Content. For purposes of this Agreement, "Objectionable Content" means any material, including textual, audio or video material, which contains or promotes any of the following, as determined by Housing Works in its sole discretion:
1. sexually explicit material;
2. violence or hate toward any persons or groups, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
3. illegal activities;
4. the use of alcohol, tobacco, or gambling/lottery;
5. the use of pyramid, "ponzi", or similar investment schemes;
6. the buying, selling, exchange, or trade of crypto or virtual currency (for example, Coinbase, Trezor, CashApp, Gemini, and similar websites);
7. defamatory, fraudulent, or harassing content to Housing Works or any third party;
8. content that violates the intellectual property rights of Housing Works or its suppliers;
9. disparaging content about Housing Works or any of its executives, officers, employees, or agents;
10. is under construction or not live at the time of Application; or
11. is non-US based or are websites that primarily serve a non-US based audience.
v. attempt to modify or alter our Site in any way;
vi. make any representations, either express or implied, or create an appearance that a visitor to your Affiliate Website is visiting our Site, e.g., "framing" or "wrapping" the Site in any manner;
vii. "scrape" or "spider" the Site or any other websites for content (such as images, logos or text);
viii. place ads on, or participate in any way in, ad networks or paid search content networks;
ix. link or redirect any Qualifying Link to any website other than our Site, including, for example, your own websites;
x. shorten or obscure a Qualifying Link, including through use of any link shortening service, button, hyperlink or other ad placement, in a way that may mislead or confuse a customer;
xi. engage in any direct or indirect relationships with ISPs and/or mobile carriers that results in the delivery or act of address bar keyword and URL error trafficking (e.g., a user mistypes a web address in the ISP's address bar or search bar, and, as a result, is redirected to a web page that contains a Qualifying Link that directs the user to the Site);
xii. use any type of method, software, automated script, or technology which attempts to intercept or redirect traffic or Referral Fees to or from any website, or otherwise artificially increase Referral Fees, including through any click spam, botnets, traffic generated by non-human visitors, or use of stolen credit card information to make purchases in connection with the Program;
xiii. use any Trademark (as defined in Section 8 below), or any Licensed Materials to advertise or engage in services that result in a sale occurring on your website, whether or not you then have the item fulfilled through the Site;
xiv. without the express prior written approval of Housing Works, use any Trademark, or any Licensed Material in an advertisement that is not created or provided by Housing Works in any way that might suggest or imply or mislead or is likely to mislead a visitor to your Affiliate Website into believing that Housing Works or any related entity was the creator or sponsor of such advertisement;
xv. re-distribute Licensed Materials to websites which can reasonably be viewed as Housing Works’s competitors;
xvi. re-distribute, display or syndicate Licensed Materials and/or Housing Works's datafeed, including any product information set forth therein, to any third party partner, network or agency;
xvii. employ, use, or receive any direct or indirect benefit from, any "cookie stuffing" methods (e.g., use of "cookie stuffing" to cause ShareASale's tracking systems to conclude that a user has clicked through a Qualifying Link - and to pay commissions accordingly - even if the user has not actually clicked through any such link);
xviii. cause spyware to be installed on another person’s computer, or use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on a website in a way that interferes with a person’s ability to view that website;
xix. display any material on an Affiliate Website that contains viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines;
xx. without the prior written approval of Housing Works, use any widgets on your Affiliate Website that: (a) include any Trademarks (as defined in Section 8); (b) include any Licensed Materials (as defined in Section 2); or (c) directly or indirectly send traffic to Housing Works;
xxi. forward, redistribute, or otherwise repurpose any or all Qualifying Links to any third party;
xxii. release Housing Works’s sales circulars, advertisements, or other information prior to their authorized release dates; or
xxiii. purchase products or services sold or promoted on the Site through a Qualifying Link for resale or commercial use of any kind.
b. Prohibitions Regarding Use of Electronic Communications. “Electronic Communication” includes email messages, text messages, and any other form of non-verbal communication occurring without the use of physical mail. You may NOT do any of the following using Electronic Communication unless you first obtain in advance Housing Works's express written permission. These prohibitions are in addition to, and not in place of, all prohibitions and restrictions that you are bound to under the ShareASale membership agreement, as amended. You may not:
i. generate or use Electronic Communication using or containing Trademarks (as defined in Section 8 below), or any variation or misspelling thereof, or products, or any of the Qualifying Links or URLS provided to you as part of the Program;
ii. send any other Electronic Communication that in any way suggests or implies or misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that Housing Works or any related entity was the sender or sponsor of such Electronic Communication or procured or induced you to send such Electronic Communication;
iii. forward, redistribute, or otherwise repurpose any Electronic Communication that Housing Works sends to its affiliates and/or customers; or
iv. generate or send any unsolicited Electronic Communication (spam) under this Agreement.
4. Referral Fees. We will pay you a fee commission, via the ShareASale platform, on certain product sales to third parties generated from our Site only (“Referral Fees”). For a product sale to generate a Referral Fee, the customer must:
a. use a browser that has its cookies setting enabled;
b. follow a Qualifying Link (in the format specified by Housing Works) from your Affiliate Website to the Site;
c. purchase the Qualifying Product using our automated ordering system;
d. accept delivery of the Qualifying Product at the shipping destination; and
e. remit full payment to us.
We will pay to the ShareASale platform for ultimate payment to you, Referral Fees on products that are actually purchased by a customer within the relevant cookie window after the customer has initially entered our Site ("Referral Fee Time") as long as the customer reenters our Site directly during that time (and not through another affiliate link). We will not pay Referral Fees on any products that are purchased on our Site when a customer has re-entered our Site (other than through a Qualifying Link from your website) after the Referral Fee Time, even if the customer previously followed a link from your website to our Site. Referral Fees will not be earned on products where a customer's purchase of the product derived from search results driven from free or natural search. This includes results containing Qualifying Links displayed in a search engine's free/non-paid, natural, or organic search results in response to a search query which sends customers directly to the Site without the customer first being sent to an Affiliate Website and the customer clicking on a link to arrive at the Site.
Not all items sold on the Site are eligible to earn Referral Fees in the Program. For example (and not in limitation), the purchase of special event admission tickets, services or experiences, any item sold on a consignment basis or available for local pick-up only, donations, any purchases made with gift cards or online gift cards, and customer service invoice adjustments and reorders, are not eligible to earn Referral Fees. Products that are entitled to earn Referral Fees in the Program are referred to herein as "Qualifying Products”. We reserve the absolute right and discretion to exclude items from Referral Fee eligibility at any time; and you acknowledge and agree that we cannot and do not warrant or guarantee that you will be paid a referral fee on any item(s).
5. Referral Fee Schedule. You will earn Referral Fees based on the sale price of Qualifying Products, according to fee schedules to be established by us from time to time. "Sale price" means the sale price listed on our Site and excludes costs for shipping, handling, gift-wrapping, rebates, refunds, returns, chargebacks, cancellations and taxes/VAT. The current Referral Fee schedule is available to you upon request. We reserve the right, at our sole discretion, to change, modify, add or remove portions of the Referral Fee schedule, at any time, without notice to you. You acknowledge that in such circumstances, you will accept the Referral Fee rates and payouts actually paid to you.
If you have any questions concerning a certain item’s eligibility for a Referral Fee and/or the rate thereof, please contact Sabina Zabell at s.zabell@housingworks.org.
6. Referral Fee Payment. Approximately ninety (90) days following the end of each calendar month, you will receive a check for the Referral Fees earned on Qualifying Products that were shipped during that month, less any taxes that we or the ShareASale platform are required by law to withhold from the final payment to you. You agree and acknowledge that you have the sole responsibility and liability for any and all taxes, contributions, penalties, or other sums arising out of the Referral Fees. If a customer returns a product that generated a Referral Fee, you will see a deduction for the corresponding Referral Fee from your next monthly payment. If there is no subsequent payment, you will receive an invoice for the Referral Fee payable within sixty (60) days of your receipt of the invoice. All determinations of Qualifying Links and whether a Referral Fee is payable will be made by the ShareASale platform and Housing Works and will be final and binding.
You are solely responsible for the transmission of your information through the ShareASale platform and ensuring the security of your ShareASale username and password. Housing Works will not be responsible for any losses arising out of your failure to maintain the security of your ShareASale username and password, including any unauthorized use or disclosure of your information, and any account activity taken by unauthorized actors.
7. Policies and Pricing. Customers who buy products through this Program will be deemed to be customers of Housing Works without affecting their status as your customer. Accordingly, all Housing Works rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers with respect to their transactions at Housing Works. We may change our policies and operating procedures at any time consistent with applicable laws and without notice to you. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. You may include current price information in your product descriptions only if such information is provided to you by Housing Works, provided that you remain responsible for maintaining accurate and up-to-date pricing information and disclosing to users, where applicable, that in the event of any price difference between your website and the Site, the price listed on the Site will govern. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product.
8. Ownership; Limited License; Restrictions. The Sites and all content and materials made available through Sites, and all copyrights, trademarks, trade dress, and other intellectual property rights therein (collectively, the “IP”) are owned or controlled by or licensed to Housing Works, and are protected by U.S. and international trademark, copyright, and other intellectual property laws. Subject to your compliance with this Agreement, we grant you a limited, nonexclusive, nontransferable, revocable right to access our Site through the Qualifying Links and use the IP solely in accordance with the terms of this Agreement and solely in connection with the Licensed Materials, only as provided to you by us, through the ShareASale platform, or by other means selected by us, and solely for the purpose of identifying your Affiliate Website as a Program participant and to assist in generating the sale of Housing Works products.
You acknowledge that this Agreement does not provide you with any ownership or other intellectual property rights in the Site, IP, or Licensed Materials other than the limited license rights contained herein. We reserve all of our rights in the Site, IP, Licensed Materials and of our other proprietary rights. You may not sublicense, assign or transfer any such licenses, and any attempt at such sublicense, assignment or transfer is void. Further, you understand and agree that you have no ownership rights in (a) materials you submit to us, including, without limitation, feedback provided about the Program; (b) to any account you may have with us; or (c) other access to the Site or features therein. To the extent that you provide us or submit to us any feedback, materials, data, ideas, or content, you hereby assign, transfer, and grant to us any and all right, title, and interest you may have in such materials. We may terminate or revoke your license to use the Licensed Materials for any reason at any time in our sole and absolute discretion.
YOU COVENANT AND AGREE NOT TO USE ANY TRADEMARK (AS DEFINED BELOW) FOR ANY PURPOSE OR IN ANY MANNER WHATSOEVER, EXCEPT FOR THAT WHICH IS EXPRESSLY APPROVED IN WRITING BY US, AND, IN THAT CASE, ONLY IN THE MANNER WE SO EXPRESSLY APPROVED AND PURSUANT TO ANY TERMS AND CONDITIONS UPON WHICH WE GRAND OUR APPROVAL (IN OUR SOLE AND ABSOLUTE DISCRETION) AND, IN ANY EVENT, ONLY IN FURTHERANCE OF YOUR PARTICIPATION IN THE PROGRAM AND NOT FOR ANY USE OR IN ANY MANNER THAT IS REASONABLY LIKELY TO IMPAIR OUR REPUTATION, GOODWILL, RELATIONSHIPS OR ABILITY TO ACHIEVE OUR BUSINESS, CORPORATE OR FUNDAMENTAL OBJECTIVES. For purposes of this Agreement, “Trademark(s)” include any trade name, trademark, logo, service mark, trade dress, patent, copyright, trade secret, design, slogan, tag line, and any other form of intellectual property owned or registered by or exclusively licensed to or identifiable with Housing Works or any person or entity comprising Housing Works.
9. Responsibility for Affiliate Website. You will be solely responsible for the development, operation, and maintenance of your Affiliate Website and for all content that appears on an Affiliate Website. For example, you will be solely responsible for:
a. the technical operation of your Affiliate Website and all related data hosting operations, hardware, and other equipment that may be necessary to operate your Affiliate Website;
b. creating and posting product descriptions on an Affiliate Website and linking those descriptions to our Site;
c. updating product information, content and item descriptions (including, but not limited to, product price and availability) within 24 hours of any update of such product information, content and/or item description at the Site or from data feed content provided through the ShareASale platform;
d. the accuracy, timeliness, and appropriateness of content posted on the Affiliate Website (including, among other things, all product-related materials);
e. removing any Licensed Materials and Trademarks from the Affiliate Website as soon as any Objectionable Content appears on the Affiliate Website; and
f. notifying us and the ShareASale platform of any malfunctioning of the Qualifying Links or other problems with your participation in the Program in accordance with the terms of this Agreement.
10. Term and Termination. The term of this Agreement will begin upon our acceptance of your Application and will end when terminated by either party. You may terminate this Agreement at any time, with or without cause, by giving us (five) 5 days’ prior written notice of termination. We may terminate this Agreement immediately at any time, with or without cause, by giving you written notice of termination. Upon termination, all Site related content and links shall be promptly removed from Affiliate Websites. You are only eligible to earn Referral Fees on sales of Qualifying Products occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event we overpay you, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
In addition to Housing Works’s right to terminate this Agreement without cause, as set forth above, violation of any of the terms or prohibitions contained in this Agreement by you, your Network (as defined below), your sub-affiliate, or any other agent may result in, among other things, (a) the immediate termination of this Agreement (which may include termination of your entire Network, in Housing Works’s sole discretion); (b) the withholding or non-payment of Referral Fees due to you and/or your Network, including, without limitation, any Referral Fees arising out of a suspected breach of this Agreement; or (c) the commencement of an action by Housing Works against you and/or your Network seeking, without limitation, injunctive relief, recovery of actual, statutory or punitive damages.
Your compliance with this Agreement will be at all times subject to investigation by Housing Works or its agents of your website and practices as they relate to the Agreement. In connection therewith, we have the right in our sole and absolute discretion to monitor any Affiliate Website at any time, and you agree to provide us with unrestricted access thereto or other records and documentation reasonably requested by Housing Works for purposes of verifying your compliance with this Agreement. Failure to comply with the foregoing requirements may be subject to the breach remedies set forth above.
11. Modification. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our Site. Housing Works is not responsible for your failure to receive notice of changes, and you agree to review these terms periodically to ensure that you are familiar with the most recent version of such terms, policies and operating procedures. Modifications may include, for example, changes in the scope of available Referral Fees, Referral Fee Schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12. Relationship of Parties. You and Housing Works are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this section.
13. Representations and Warranties; Indemnification. You represent and warrant:
a. You have the full right, power and authority to enter into this Agreement, grant the rights granted herein, and fully perform your obligations hereunder;
b. The Affiliate Website(s), and any other websites you own or operate, and the linking thereof to the Site, does not and will not infringe any patents, copyrights, trademarks, trade secrets or other intellectual property rights or violate the right of privacy, publicity or other rights of any third party, nor has any claim of such infringement or violation been threatened or asserted against you; and
c. You have obtained and will maintain in force all necessary notices, consents, and licenses to enable you to participate in the Program, and you will at all times comply with all applicable laws, ordinances, regulations, rules, codes and industry standards, guidelines and principles, as may be modified from time to time including any foreign laws including EU and similar associations if any Services are to be performed outside of the USA, which are relevant to your performance under this Agreement, including, without limitation , the California Consumer Privacy Act of 2018; Regulation (EU) 2016/679 of the European Parliament, the Council of the European Union and the European Commission (“GDPR”) and all laws implementing the GDPR; the CAN-SPAM Act of 2003; and the Children’s Online Privacy and Protection Act of 1998.
You acknowledge that by entering into and performing your obligations under this Agreement, we do not assume and shall not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of any Affiliate Website. Accordingly, in addition to any other indemnification obligations contained in this Agreement, you shall protect, defend, hold harmless and indemnify Housing Works Inc., its parent, subsidiary and affiliated companies, and their respective agents, officers, directors, employees, clients, donors, volunteers, partners, representatives, contractors, successors and assigns (“Indemnified Parties”) from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties against any of the Indemnified Parties arising from or connected with: (1) any of the content or activities of any Affiliate Website (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business; (2) any breach of this Agreement or any representation, warranty, obligation, or covenant contained therein by you or your employees, agents, representatives, contractors, sub-affiliates, or Network; (3) your misuse, unauthorized modification or unauthorized use of the services or materials provided by us hereunder; or (4) any other of your or your employees’, agents’, representatives’, contractors’, sub-affiliates’, or Network’s acts or omissions.
Housing Works will use reasonable efforts to notify you of any indemnified claim, provided that the failure or delay in notification shall not relieve you of your obligations under this section. You shall defend the indemnified claim at your own expense using counsel reasonably acceptable to Housing Works; however, in addition to the foregoing, the Indemnified Party reserves the right to also be represented by counsel at its expense, including at any proceeding or settlement discussions related thereto. You may not settle or consent to the entry of judgment with regard to any indemnified claim without the Indemnified Party’s written consent. The Indemnified Party may, at its election, assume the defense, settlement or other resolution of any such indemnified claim with counsel of its own choosing, which shall not otherwise relieve you of your obligations under this section, including your obligation to be liable for all costs and expenses incurred by the Indemnified Party in connection with the defense and settlement of any claim.
14. Limitation of Liability. We will not be liable for indirect, special, punitive, incidental, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total Referral Fees paid to you under this Agreement in the prior twelve (12) months preceding the date the liability first arises.
15. Disclaimers. We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors; however, we will make commercially reasonable efforts to correct errors or interruptions promptly.
16. 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 YOUR WEB SITE. NOTHING HEREIN SHALL OBLIGATE HOUSING WORKS TO PROVIDE YOU ANY EXCLUSIVE RIGHTS OR BENEFITS, AND YOU UNDERSTAND THAT THIS AGREEMENT IS MADE ON AN EXPRESSLY NON-EXCLUSIVE BASIS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATIONS, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17. Miscellaneous. This Agreement will be governed by the laws of the United States and the state of New York, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts having jurisdiction and venue in or for Kings County, New York or, at our option, New York County, New York and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
18. Publicity. You shall not create, publish, distribute, make or permit any public announcement of this Agreement or the relationship contemplated hereunder, (including, but not limited to, any press release, client list, screen shot, advertisement or any promotional material) without first submitting such material to us and receiving our written approval, which we may withhold in our sole discretion.
19. Confidentiality. Except as otherwise provided in this Agreement or with our prior written consent, you agree that all information and materials made available by or on behalf of Housing Works hereunder and/or otherwise arising from or in connection with the Program that is not generally known or available to the public through a source or sources other than you or your affiliates, or that you should reasonably know or assume is confidential, including, without limitation, the terms of this Agreement, our business and financial information, our customer lists, customer information, and customer purchase history, and our pricing and sales information (“Confidential Information”), shall be and remain the property of Housing Works. You agree and acknowledge on your behalf and on behalf of all your representatives that they shall have no proprietary interest in any of the Confidential Information, and will not disclose, communicate or publish the Confidential Information to any person or entity, nor use, except as authorized by this Agreement or otherwise in writing by Housing Works, any of the Confidential Information that you or your representatives produce, receive, acquire or obtain. You shall take (and cause all your representatives to take) all necessary steps to ensure that the Confidential Information is securely maintained.
Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process, upon written notification to Housing Works. In the event anyone in possession of Confidential Information becomes legally compelled to disclose any of the Confidential Information, you shall provide us with prompt notice thereof and shall not divulge any information until Housing Works (or its designees) has had the opportunity to seek a protective order or other appropriate remedy to curtail such disclosure. If such actions by Housing Works(or its designees) are unsuccessful, or Housing Works (or its designees) otherwise waives the right to seek such remedies, you or your relevant representative shall disclose only that portion of the Confidential Information which it is legally required to disclose.
20. Networks & Sub-Affiliates. The requirements of this Section 20 apply to your use of the Program as a Network. A "Network" is defined as any affiliate that operates one or more websites as sub-affiliates through one (1) Application to the Program. You agree to all the terms and conditions of this Agreement on behalf of all sub-affiliates operating under the Network and are responsible for any action or inaction by such sub-affiliates. You must seek prior written approval from Housing Works before choosing to operate as a Network. You must provide to Housing Works a list of all sub-affiliates working within your Network within twenty-four (24) hours of any request from Housing Works. Any violation of this Agreement by any sub-affiliate may result in immediate termination of the entire Network from the Program.