UpChoose
Program Terms
This Affiliate Agreement (the "Agreement") outlines the terms and conditions governing your participation in the UpChoose Affiliate Program (the "Program"). Please review this Agreement carefully. By participating in the Program, you ("Affiliate" or "you" or "your") acknowledge that you have read, fully understand, and agree to the terms outlined herein with UpChoose ("Company" or "UpChoose" or "we" or "us" or "our"). If you are agreeing to this Agreement on behalf of a legal entity, you represent and warrant that you are authorized to legally bind that entity. If you do not agree to these terms, do not participate in the Program.
1. Enrollment:
To apply for enrollment in the UpChoose Affiliate Program, you must first become an affiliate of ShareASale.com, Inc., an Illinois corporation ("ShareASale.com"), and agree to ShareASale.com's Affiliate Service Agreement (the "ShareASale.com Agreement"), which is hereby incorporated by reference.
You may apply to participate in the Program by providing all required information to ShareASale.com for becoming a ShareASale.com affiliate and by accepting the terms of this Agreement. Upon receiving your application, we will review your website and notify you of your acceptance or rejection into our Program. While we reserve the right to accept or reject applications at our sole discretion, we encourage you to reach out if you believe we have made an incorrect decision. Including all websites you use in your profile will aid our decision-making process. If your application is accepted, you may receive discounts and affiliate commissions offered under this Program for the duration of this Agreement, provided it is not terminated.
2. Website Restrictions:
Your participating website(s) ("Your Website") must adhere to the following restrictions:
a) Your Website must not infringe on our or anyone else's intellectual property, publicity, privacy, or other rights.
b) Your Website must not violate any law, rule, or regulation.
c) Your Website must not contain any threatening, harassing, defamatory, obscene, harmful to minors, nudity, pornography, or sexually explicit materials.
d) Your Website must not contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines intended to damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
e) Your Website must not contain software or use technology that attempts to intercept, divert, or redirect Internet traffic to or from any other website, or potentially enables the diversion of affiliate commissions from another website.
f) Your Website must not mislead customers regarding the products or services available on Your Website or on the UpChoose website, located at www.upchoose.com (the "UpChoose Site").
3. Linking to Our Website:
Upon acceptance into the Program, links will be provided to you through the ShareASale.com affiliate website. By participating in our Program, you agree to adhere to the following:
a) You will use only the linking code obtained from the ShareASale.com affiliate website without manipulation.
b) All domains using your affiliate link must be listed in your affiliate profile on the ShareASale.com affiliate website.
c) Affiliates may not advertise our products on websites they do not own, including Google Product Search, Amazon, eBay, or any comparison shopping engines such as Shopzilla or Pricegrabber.
d) Your Website must not copy, resemble, or mirror the look and feel of the UpChoose Site. You may not create the impression that Your Website is the UpChoose Site or any part of the UpChoose Site, including framing the UpChoose Site.
e) You may not engage in cookie stuffing, include pop-ups, false or misleading links on Your Website, and wherever possible, you will not mask the referring URL information.
f) You may not use redirects to bounce a click off a domain from which the click did not originate to give the appearance that it came from that domain.
g) You may not create any links that lead the customer to a destination site not clearly suggested by the content of the starting site.
h) You may not create affiliate tracking links containing a tracking link for other referral programs ("Other Referral Programs"). Affiliates are permitted to participate in either the Program or Other Referral Programs, but individual links must be specific and exclusive to one program. By participating in this Program, you agree not to claim commission or credit from both the Program and Other Referral Programs for the same user.
i) You may not use your affiliate links to claim commissions for your own purchases on UpChoose.com.
4. Pay-Per-Click ("PPC") Guidelines:
a) You may not bid on any of our Trademarks, as defined in Section 5, including any variations or misspellings thereof, for search or content-based campaigns on Google, MSN, Yahoo, or any other network.
b) You may not use our Trademarks in sequence with any other keyword.
c) You may not use our Trademarks in your ad title, ad copy, display name, or as the display URL.
d) You may not direct link to the UpChoose Site from any PPC ad or use redirects that yield the same result. Affiliates must be directed to an actual page on Your Website.
e) You may not bid in any manner appearing higher than UpChoose for any search term in position 1-5 in any auction-style PPC advertising program.
If you automate your PPC campaigns, it is your responsibility to exclude our Trademarks from your PPC advertising program, and we strongly suggest you add our Trademarks as negative keywords. We have a strict no-tolerance policy on PPC trademark bidding. If you engage in PPC trademark bidding that uses our Trademarks, we may terminate your participation in the Program immediately.
5. Trademarks:
Upon acceptance into the Program, UpChoose grants you a limited, non-exclusive, revocable, royalty-free right to use the Trademarks of UpChoose during the term of this Agreement solely in connection with your participation in the Program, provided that you shall not:
a) Use the Trademarks in any manner to communicate or suggest any sponsorship or other connection between UpChoose and you other than your participation in the Program.
b) Harm or adversely affect the Trademarks or the goodwill associated with the Trademarks.
All promotional messaging and materials used by you containing such Trademarks shall be subject to UpChoose’s prior written approval. Except for the limited license provided in this Agreement, UpChoose reserves all rights in and to the Trademarks and the goodwill associated therewith. All uses of the Trademarks by you shall inure to the benefit of UpChoose. You shall not acquire, directly or by implication, any rights or license in the Trademarks except as expressly provided in this Agreement. Your right to use the Trademarks will terminate immediately if you violate any of the terms of this Agreement.
For purposes of this Agreement, "Trademarks" means "UpChoose," the UpChoose logo, and such other names, logos, trade names, trademarks, service marks, trade dress, design marks, brands, copyrights in any designs and other copyrightable subject matter, and other product identifiers of UpChoose as UpChoose may from time to time notify you to be Trademarks within the meaning of this Agreement.
6. Coupon Guidelines:
If you are enrolled in our Program and Your Website promotes coupon codes, you must adhere to our Coupon Guidelines as follows:
a) You may ONLY advertise coupon codes provided to you through the Program or displayed on the UpChoose Site. Posting any information about how to work around the requirements of a coupon/promotion (e.g., first-time customers only) will result in your removal from the Program. Coupons must be displayed in their entirety with the full offer, valid expiration date, and code.
b) You may NOT use any technology that covers up the coupon code and generates an affiliate click by revealing the code(s).
c) You may NOT advertise coupon codes obtained from our non-affiliate advertising, customer emails, paid search, or any other advertising campaign.
d) You may NOT give the appearance that any ongoing offer requires clicking from Your Website to redeem. For example, if all items on the site have free shipping over $100, you may not turn this into an offer that infers that the customer must click from Your Website to get this deal.
7. Domain Names:
The use of any of our Trademarks as part of the domain or sub-domain (for example, upchoose.website.com or www.upchoose-coupons.com) for Your Website is strictly prohibited.
8. Advertising & Publicity:
Upon acceptance into the Program, UpChoose grants you a nonexclusive, nontransferable license (the "License") to use certain banner advertisements, button links, text links, and/or other graphic or textual material (the "Promotional Materials") for display and use on Your Website. The term of the License shall expire upon the expiration or termination of this Agreement. You may not subcontract, assign, resell, lease, or sublicense any part of your participation in the Program or run a sub-affiliate program. UpChoose may make Promotional Materials available to you to display and use on Your Website provided that the manner of display complies with the following requirements:
a) You may only use the Promotional Materials to promote the UpChoose Site (and the products available thereon), and for linking to the UpChoose Site.
b) You shall use only such links to the UpChoose Site as are provided to you by UpChoose.
c) You shall not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by UpChoose without consent from UpChoose. If you wish to alter or otherwise modify the Promotional Materials, you must obtain prior written consent from UpChoose for such alteration or modification.
d) You shall not use the Promotional Materials to promote the UpChoose Site (and the products available thereon) to customers who are not physically located in the United States.
You shall not create, publish, distribute, or print any written materials that make reference to our Program unless you adhere to the following:
a) Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to the distribution of any written materials.
b) Emails must be sent on your behalf and must not imply that the email is being sent on behalf of UpChoose.
c) Emails and any related written materials must first be submitted to UpChoose for approval prior to being sent or UpChoose must be sent a copy of the email.
9. Reversal & Communication Policy:
UpChoose takes pride in its very low reversal rate, which we attribute to open communication with our affiliates. However, we reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and Program violations as outlined in this Agreement. Additionally, if we request clarification or more information on any orders or clicks that we suspect may be in violation of this Agreement, we expect that you will respond promptly and honestly. Below are violations of our communications policy.
a) You are not forthcoming, intentionally vague, or found to be lying.
b) You are not responsive within a reasonable time period and after multiple attempts to contact you using the information listed in your network profile.
c) You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
If any of the above applies, we reserve the right to reverse orders, set your commission to 0%, or suspend you from the Program for the period of orders in question. We understand that many violations may result from automated processes; however, it is your responsibility to ensure that you have appropriate checks and balances in place to proactively address these issues and adhere to our Program.
10. Intellectual Property:
UpChoose retains all rights, title, ownership, and interest in the Promotional Materials and Trademarks, including any and all copyright, trademark, or other intellectual property rights therein. Nothing in this Agreement shall be construed to grant you any right, title, or ownership in the Promotional Materials or in the underlying intellectual property, other than the right to use the Promotional Materials in accordance with the License, as set forth in Section 8.
11. Relationship of Parties:
This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between UpChoose and you. You shall provide services for UpChoose as an independent contractor. You shall have no authority to bind UpChoose to any agreement, nor shall you be considered to be an agent of UpChoose in any respect.
12. Affiliate Commissions:
Upon acceptance into the Program, you will be eligible to receive an affiliate commission (the "Commission") for each qualified lead generated. A "Qualified Lead" is defined as a person who signs up for an UpChoose subscription through your referral link.
The Commission rate for each Qualified Lead shall be as specified in the ShareASale.com affiliate program located on the ShareASale.com affiliate website. UpChoose reserves the right to modify the Commission rate from time to time, in its sole discretion.
Payment for Qualified Leads will occur upon confirmation of the lead's qualification. UpChoose will be responsible for authorizing and processing Commission payments in accordance with the terms outlined in this Agreement.
UpChoose will be entitled to withhold, deduct, and set off from any payments to be made to you hereunder any sums owed by you to UpChoose, whether in connection with this Agreement (including any breach hereof by you) or otherwise.
13. DISCLAIMER:
YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY WARRANTIES RELATED TO THE PROGRAM OTHER THAN THE EXPRESS STATEMENTS IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL UPCHOOSE BE LIABLE TO YOU UNDER THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES RELATED TO THE PROGRAM (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR PROFITS OR LOST BUSINESS AND INCLUDING COSTS ASSOCIATED WITH THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UPCHOOSE’S LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THE PROGRAM OR 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. UPCHOOSE DOES NOT WARRANT OR GUARANTEE ANY RESULTS OF PARTICIPATION IN THE PROGRAM. ALL PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS HEREUNDER ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. YOU RECOGNIZE THAT THESE DISCLAIMERS ARE AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH UPCHOOSE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. UPCHOOSE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY (TO THE EXTENT PERMITTED BY LAW), REGARDING THE PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF UPCHOOSE WHATSOEVER.
14. INDEMNIFICATION:
YOU SHALL INDEMNIFY AND HOLD HARMLESS UPCHOOSE FROM ANY CLAIM, DAMAGE, LAWSUIT, ACTION, COMPLAINT, OR OTHER COSTS ARISING OUT OF ANY WRONGFUL ACT RELATED IN ANY WAY TO YOUR PARTICIPATION IN THE PROGRAM OR YOUR BREACH OF THIS AGREEMENT. YOU SHALL ALSO INDEMNIFY AND HOLD HARMLESS UPCHOOSE FROM ANY DAMAGE, LOSS, OR OTHER COST ARISING OUT OF THE USE OR MISUSE BY YOU OF THE TRADEMARKS OR PROMOTIONAL MATERIALS.
15. CONFIDENTIALITY:
ANY INFORMATION THAT YOU ARE EXPOSED TO BY VIRTUE OF YOUR PARTICIPATION IN THE PROGRAM, WHICH INFORMATION IS NOT AVAILABLE TO THE GENERAL PUBLIC, SHALL BE CONSIDERED TO BE "CONFIDENTIAL INFORMATION." YOU MAY NOT DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY PERSON OR ENTITY, EXCEPT WHERE COMPELLED BY LAW, UNLESS YOU OBTAIN PRIOR WRITTEN CONSENT FOR SUCH DISCLOSURE FROM UPCHOOSE. YOU SHALL NOT USE ANY CONFIDENTIAL INFORMATION EXCEPT TO THE EXTENT NECESSARY TO FULFILL THE PURPOSES OF THIS AGREEMENT.
16. TERMINATION:
YOUR PARTICIPATION IN THE PROGRAM SHALL BEGIN UPON YOUR ACCEPTANCE AS AN AFFILIATE BY UPCHOOSE AND SHALL END WHEN TERMINATED BY EITHER PARTY. EITHER PARTY MAY TERMINATE SUCH STATUS AT ANY TIME, WITH OR WITHOUT CAUSE. UPON TERMINATION, ALL LICENSES GRANTED TO YOU PURSUANT TO THE PROGRAM SHALL CEASE, AND YOU SHALL USE BEST EFFORTS TO IMMEDIATELY REMOVE ALL CODES AND LINKS, REFERENCES ON YOUR WEBSITE REGARDING UPCHOOSE, AND CEASE ANY AND ALL USE OF PROMOTIONAL MATERIALS, TRADEMARKS, OR ANY OTHER TRADE OR SERVICE MARKS, TRADE NAMES, OR ANY OTHER ITEMS RECEIVED THROUGH OR USED IN CONNECTION WITH SUCH PROGRAM. SUBJECT TO SECTION 13, UPON THE TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM FOR ANY REASON, YOU WILL BE ENTITLED TO RECEIVE COMMISSIONS ONLY ON ELIGIBLE PURCHASES THAT OCCURRED PRIOR TO SUCH TERMINATION. UPCHOOSE RESERVES THE RIGHT TO TERMINATE THE PROGRAM AT ANY TIME UPON NOTICE TO YOU.
17. Compliance with Laws:
In connection with your participation in this program, you will comply with all applicable laws, rules, and regulations, including but not limited to the following laws, rules, and regulations governing marketing and promotions:
a) The CAN-SPAM Act of 2003
b) Section 5 of the FTC Act
c) The FTC's disclosure rules regarding endorsements
To comply with the FTC's disclosure rules regarding endorsements, you shall include a disclosure statement within any and all pages/posts where affiliate links for the program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from our designated affiliate management team for review, this also must be clearly stated in your disclosure.
18. Modification:
We may modify these terms and conditions at any time, at our sole discretion. If you disagree with any modification, your only recourse is to terminate this Agreement. You agree that if you continue to participate in the program following a posted modification, your continued participation constitutes binding acceptance of the modified term.
19. Governing Law; Jurisdiction:
This Agreement is governed by the laws of the State of California, without regard to its choice of law principles. You hereby irrevocably consent to jurisdiction of the state and federal courts located in Orange County, California with respect to any proceeding regarding this Agreement. You will not prosecute any action, suit, proceeding, or claim arising under or by reason of this Agreement except in such courts.
20. Social Media:
Promotion on Facebook, Twitter, and other social media platforms is permitted following these general guidelines:
a) You are allowed to promote offers to your own lists; more specifically, you’re welcome to use your affiliate links on your own Facebook, Twitter, etc. pages. For example: You may post, “25% off sale at UpChoose through Wednesday with code UPCHOOSE25.”
b) You are prohibited from posting your affiliate links on UpChoose’s Facebook, Twitter, Pinterest, etc. company pages in an attempt to turn those links into affiliate sales.
21. Operations Outside United States:
If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the European Union’s Privacy and Electronic Communications Directive if you are conducting business in or taking orders from persons in one or more of the European Union countries.
22. FTC Disclosure Requirements:
You shall include a disclosure statement within any and all pages/posts where affiliate links for our 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 should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from the affiliate management team for review, this also must be clearly stated in your disclosure.
23. General:
a) Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
b) Assignment: You may not assign this Agreement or any of its rights under this Agreement without the prior written consent of UpChoose, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns.
c) Nonwaiver: Any failure by UpChoose to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right, or remedy in that or any other instance; rather, the provision, right, or remedy will be and remain in full force and effect.
d) Relation to Other Agreements: In the event of any conflict or inconsistency between this Agreement and the Shareasale.com Agreement, the provisions of this Agreement shall prevail.
e) Entire Agreement: This Agreement sets forth our entire agreement with respect to your participation in the Program.
1. Enrollment:
To apply for enrollment in the UpChoose Affiliate Program, you must first become an affiliate of ShareASale.com, Inc., an Illinois corporation ("ShareASale.com"), and agree to ShareASale.com's Affiliate Service Agreement (the "ShareASale.com Agreement"), which is hereby incorporated by reference.
You may apply to participate in the Program by providing all required information to ShareASale.com for becoming a ShareASale.com affiliate and by accepting the terms of this Agreement. Upon receiving your application, we will review your website and notify you of your acceptance or rejection into our Program. While we reserve the right to accept or reject applications at our sole discretion, we encourage you to reach out if you believe we have made an incorrect decision. Including all websites you use in your profile will aid our decision-making process. If your application is accepted, you may receive discounts and affiliate commissions offered under this Program for the duration of this Agreement, provided it is not terminated.
2. Website Restrictions:
Your participating website(s) ("Your Website") must adhere to the following restrictions:
a) Your Website must not infringe on our or anyone else's intellectual property, publicity, privacy, or other rights.
b) Your Website must not violate any law, rule, or regulation.
c) Your Website must not contain any threatening, harassing, defamatory, obscene, harmful to minors, nudity, pornography, or sexually explicit materials.
d) Your Website must not contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines intended to damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
e) Your Website must not contain software or use technology that attempts to intercept, divert, or redirect Internet traffic to or from any other website, or potentially enables the diversion of affiliate commissions from another website.
f) Your Website must not mislead customers regarding the products or services available on Your Website or on the UpChoose website, located at www.upchoose.com (the "UpChoose Site").
3. Linking to Our Website:
Upon acceptance into the Program, links will be provided to you through the ShareASale.com affiliate website. By participating in our Program, you agree to adhere to the following:
a) You will use only the linking code obtained from the ShareASale.com affiliate website without manipulation.
b) All domains using your affiliate link must be listed in your affiliate profile on the ShareASale.com affiliate website.
c) Affiliates may not advertise our products on websites they do not own, including Google Product Search, Amazon, eBay, or any comparison shopping engines such as Shopzilla or Pricegrabber.
d) Your Website must not copy, resemble, or mirror the look and feel of the UpChoose Site. You may not create the impression that Your Website is the UpChoose Site or any part of the UpChoose Site, including framing the UpChoose Site.
e) You may not engage in cookie stuffing, include pop-ups, false or misleading links on Your Website, and wherever possible, you will not mask the referring URL information.
f) You may not use redirects to bounce a click off a domain from which the click did not originate to give the appearance that it came from that domain.
g) You may not create any links that lead the customer to a destination site not clearly suggested by the content of the starting site.
h) You may not create affiliate tracking links containing a tracking link for other referral programs ("Other Referral Programs"). Affiliates are permitted to participate in either the Program or Other Referral Programs, but individual links must be specific and exclusive to one program. By participating in this Program, you agree not to claim commission or credit from both the Program and Other Referral Programs for the same user.
i) You may not use your affiliate links to claim commissions for your own purchases on UpChoose.com.
4. Pay-Per-Click ("PPC") Guidelines:
a) You may not bid on any of our Trademarks, as defined in Section 5, including any variations or misspellings thereof, for search or content-based campaigns on Google, MSN, Yahoo, or any other network.
b) You may not use our Trademarks in sequence with any other keyword.
c) You may not use our Trademarks in your ad title, ad copy, display name, or as the display URL.
d) You may not direct link to the UpChoose Site from any PPC ad or use redirects that yield the same result. Affiliates must be directed to an actual page on Your Website.
e) You may not bid in any manner appearing higher than UpChoose for any search term in position 1-5 in any auction-style PPC advertising program.
If you automate your PPC campaigns, it is your responsibility to exclude our Trademarks from your PPC advertising program, and we strongly suggest you add our Trademarks as negative keywords. We have a strict no-tolerance policy on PPC trademark bidding. If you engage in PPC trademark bidding that uses our Trademarks, we may terminate your participation in the Program immediately.
5. Trademarks:
Upon acceptance into the Program, UpChoose grants you a limited, non-exclusive, revocable, royalty-free right to use the Trademarks of UpChoose during the term of this Agreement solely in connection with your participation in the Program, provided that you shall not:
a) Use the Trademarks in any manner to communicate or suggest any sponsorship or other connection between UpChoose and you other than your participation in the Program.
b) Harm or adversely affect the Trademarks or the goodwill associated with the Trademarks.
All promotional messaging and materials used by you containing such Trademarks shall be subject to UpChoose’s prior written approval. Except for the limited license provided in this Agreement, UpChoose reserves all rights in and to the Trademarks and the goodwill associated therewith. All uses of the Trademarks by you shall inure to the benefit of UpChoose. You shall not acquire, directly or by implication, any rights or license in the Trademarks except as expressly provided in this Agreement. Your right to use the Trademarks will terminate immediately if you violate any of the terms of this Agreement.
For purposes of this Agreement, "Trademarks" means "UpChoose," the UpChoose logo, and such other names, logos, trade names, trademarks, service marks, trade dress, design marks, brands, copyrights in any designs and other copyrightable subject matter, and other product identifiers of UpChoose as UpChoose may from time to time notify you to be Trademarks within the meaning of this Agreement.
6. Coupon Guidelines:
If you are enrolled in our Program and Your Website promotes coupon codes, you must adhere to our Coupon Guidelines as follows:
a) You may ONLY advertise coupon codes provided to you through the Program or displayed on the UpChoose Site. Posting any information about how to work around the requirements of a coupon/promotion (e.g., first-time customers only) will result in your removal from the Program. Coupons must be displayed in their entirety with the full offer, valid expiration date, and code.
b) You may NOT use any technology that covers up the coupon code and generates an affiliate click by revealing the code(s).
c) You may NOT advertise coupon codes obtained from our non-affiliate advertising, customer emails, paid search, or any other advertising campaign.
d) You may NOT give the appearance that any ongoing offer requires clicking from Your Website to redeem. For example, if all items on the site have free shipping over $100, you may not turn this into an offer that infers that the customer must click from Your Website to get this deal.
7. Domain Names:
The use of any of our Trademarks as part of the domain or sub-domain (for example, upchoose.website.com or www.upchoose-coupons.com) for Your Website is strictly prohibited.
8. Advertising & Publicity:
Upon acceptance into the Program, UpChoose grants you a nonexclusive, nontransferable license (the "License") to use certain banner advertisements, button links, text links, and/or other graphic or textual material (the "Promotional Materials") for display and use on Your Website. The term of the License shall expire upon the expiration or termination of this Agreement. You may not subcontract, assign, resell, lease, or sublicense any part of your participation in the Program or run a sub-affiliate program. UpChoose may make Promotional Materials available to you to display and use on Your Website provided that the manner of display complies with the following requirements:
a) You may only use the Promotional Materials to promote the UpChoose Site (and the products available thereon), and for linking to the UpChoose Site.
b) You shall use only such links to the UpChoose Site as are provided to you by UpChoose.
c) You shall not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by UpChoose without consent from UpChoose. If you wish to alter or otherwise modify the Promotional Materials, you must obtain prior written consent from UpChoose for such alteration or modification.
d) You shall not use the Promotional Materials to promote the UpChoose Site (and the products available thereon) to customers who are not physically located in the United States.
You shall not create, publish, distribute, or print any written materials that make reference to our Program unless you adhere to the following:
a) Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to the distribution of any written materials.
b) Emails must be sent on your behalf and must not imply that the email is being sent on behalf of UpChoose.
c) Emails and any related written materials must first be submitted to UpChoose for approval prior to being sent or UpChoose must be sent a copy of the email.
9. Reversal & Communication Policy:
UpChoose takes pride in its very low reversal rate, which we attribute to open communication with our affiliates. However, we reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and Program violations as outlined in this Agreement. Additionally, if we request clarification or more information on any orders or clicks that we suspect may be in violation of this Agreement, we expect that you will respond promptly and honestly. Below are violations of our communications policy.
a) You are not forthcoming, intentionally vague, or found to be lying.
b) You are not responsive within a reasonable time period and after multiple attempts to contact you using the information listed in your network profile.
c) You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
If any of the above applies, we reserve the right to reverse orders, set your commission to 0%, or suspend you from the Program for the period of orders in question. We understand that many violations may result from automated processes; however, it is your responsibility to ensure that you have appropriate checks and balances in place to proactively address these issues and adhere to our Program.
10. Intellectual Property:
UpChoose retains all rights, title, ownership, and interest in the Promotional Materials and Trademarks, including any and all copyright, trademark, or other intellectual property rights therein. Nothing in this Agreement shall be construed to grant you any right, title, or ownership in the Promotional Materials or in the underlying intellectual property, other than the right to use the Promotional Materials in accordance with the License, as set forth in Section 8.
11. Relationship of Parties:
This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between UpChoose and you. You shall provide services for UpChoose as an independent contractor. You shall have no authority to bind UpChoose to any agreement, nor shall you be considered to be an agent of UpChoose in any respect.
12. Affiliate Commissions:
Upon acceptance into the Program, you will be eligible to receive an affiliate commission (the "Commission") for each qualified lead generated. A "Qualified Lead" is defined as a person who signs up for an UpChoose subscription through your referral link.
The Commission rate for each Qualified Lead shall be as specified in the ShareASale.com affiliate program located on the ShareASale.com affiliate website. UpChoose reserves the right to modify the Commission rate from time to time, in its sole discretion.
Payment for Qualified Leads will occur upon confirmation of the lead's qualification. UpChoose will be responsible for authorizing and processing Commission payments in accordance with the terms outlined in this Agreement.
UpChoose will be entitled to withhold, deduct, and set off from any payments to be made to you hereunder any sums owed by you to UpChoose, whether in connection with this Agreement (including any breach hereof by you) or otherwise.
13. DISCLAIMER:
YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY WARRANTIES RELATED TO THE PROGRAM OTHER THAN THE EXPRESS STATEMENTS IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL UPCHOOSE BE LIABLE TO YOU UNDER THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES RELATED TO THE PROGRAM (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR PROFITS OR LOST BUSINESS AND INCLUDING COSTS ASSOCIATED WITH THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UPCHOOSE’S LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THE PROGRAM OR 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. UPCHOOSE DOES NOT WARRANT OR GUARANTEE ANY RESULTS OF PARTICIPATION IN THE PROGRAM. ALL PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS HEREUNDER ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. YOU RECOGNIZE THAT THESE DISCLAIMERS ARE AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH UPCHOOSE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. UPCHOOSE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY (TO THE EXTENT PERMITTED BY LAW), REGARDING THE PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF UPCHOOSE WHATSOEVER.
14. INDEMNIFICATION:
YOU SHALL INDEMNIFY AND HOLD HARMLESS UPCHOOSE FROM ANY CLAIM, DAMAGE, LAWSUIT, ACTION, COMPLAINT, OR OTHER COSTS ARISING OUT OF ANY WRONGFUL ACT RELATED IN ANY WAY TO YOUR PARTICIPATION IN THE PROGRAM OR YOUR BREACH OF THIS AGREEMENT. YOU SHALL ALSO INDEMNIFY AND HOLD HARMLESS UPCHOOSE FROM ANY DAMAGE, LOSS, OR OTHER COST ARISING OUT OF THE USE OR MISUSE BY YOU OF THE TRADEMARKS OR PROMOTIONAL MATERIALS.
15. CONFIDENTIALITY:
ANY INFORMATION THAT YOU ARE EXPOSED TO BY VIRTUE OF YOUR PARTICIPATION IN THE PROGRAM, WHICH INFORMATION IS NOT AVAILABLE TO THE GENERAL PUBLIC, SHALL BE CONSIDERED TO BE "CONFIDENTIAL INFORMATION." YOU MAY NOT DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY PERSON OR ENTITY, EXCEPT WHERE COMPELLED BY LAW, UNLESS YOU OBTAIN PRIOR WRITTEN CONSENT FOR SUCH DISCLOSURE FROM UPCHOOSE. YOU SHALL NOT USE ANY CONFIDENTIAL INFORMATION EXCEPT TO THE EXTENT NECESSARY TO FULFILL THE PURPOSES OF THIS AGREEMENT.
16. TERMINATION:
YOUR PARTICIPATION IN THE PROGRAM SHALL BEGIN UPON YOUR ACCEPTANCE AS AN AFFILIATE BY UPCHOOSE AND SHALL END WHEN TERMINATED BY EITHER PARTY. EITHER PARTY MAY TERMINATE SUCH STATUS AT ANY TIME, WITH OR WITHOUT CAUSE. UPON TERMINATION, ALL LICENSES GRANTED TO YOU PURSUANT TO THE PROGRAM SHALL CEASE, AND YOU SHALL USE BEST EFFORTS TO IMMEDIATELY REMOVE ALL CODES AND LINKS, REFERENCES ON YOUR WEBSITE REGARDING UPCHOOSE, AND CEASE ANY AND ALL USE OF PROMOTIONAL MATERIALS, TRADEMARKS, OR ANY OTHER TRADE OR SERVICE MARKS, TRADE NAMES, OR ANY OTHER ITEMS RECEIVED THROUGH OR USED IN CONNECTION WITH SUCH PROGRAM. SUBJECT TO SECTION 13, UPON THE TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM FOR ANY REASON, YOU WILL BE ENTITLED TO RECEIVE COMMISSIONS ONLY ON ELIGIBLE PURCHASES THAT OCCURRED PRIOR TO SUCH TERMINATION. UPCHOOSE RESERVES THE RIGHT TO TERMINATE THE PROGRAM AT ANY TIME UPON NOTICE TO YOU.
17. Compliance with Laws:
In connection with your participation in this program, you will comply with all applicable laws, rules, and regulations, including but not limited to the following laws, rules, and regulations governing marketing and promotions:
a) The CAN-SPAM Act of 2003
b) Section 5 of the FTC Act
c) The FTC's disclosure rules regarding endorsements
To comply with the FTC's disclosure rules regarding endorsements, you shall include a disclosure statement within any and all pages/posts where affiliate links for the program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from our designated affiliate management team for review, this also must be clearly stated in your disclosure.
18. Modification:
We may modify these terms and conditions at any time, at our sole discretion. If you disagree with any modification, your only recourse is to terminate this Agreement. You agree that if you continue to participate in the program following a posted modification, your continued participation constitutes binding acceptance of the modified term.
19. Governing Law; Jurisdiction:
This Agreement is governed by the laws of the State of California, without regard to its choice of law principles. You hereby irrevocably consent to jurisdiction of the state and federal courts located in Orange County, California with respect to any proceeding regarding this Agreement. You will not prosecute any action, suit, proceeding, or claim arising under or by reason of this Agreement except in such courts.
20. Social Media:
Promotion on Facebook, Twitter, and other social media platforms is permitted following these general guidelines:
a) You are allowed to promote offers to your own lists; more specifically, you’re welcome to use your affiliate links on your own Facebook, Twitter, etc. pages. For example: You may post, “25% off sale at UpChoose through Wednesday with code UPCHOOSE25.”
b) You are prohibited from posting your affiliate links on UpChoose’s Facebook, Twitter, Pinterest, etc. company pages in an attempt to turn those links into affiliate sales.
21. Operations Outside United States:
If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the European Union’s Privacy and Electronic Communications Directive if you are conducting business in or taking orders from persons in one or more of the European Union countries.
22. FTC Disclosure Requirements:
You shall include a disclosure statement within any and all pages/posts where affiliate links for our 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 should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from the affiliate management team for review, this also must be clearly stated in your disclosure.
23. General:
a) Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
b) Assignment: You may not assign this Agreement or any of its rights under this Agreement without the prior written consent of UpChoose, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns.
c) Nonwaiver: Any failure by UpChoose to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right, or remedy in that or any other instance; rather, the provision, right, or remedy will be and remain in full force and effect.
d) Relation to Other Agreements: In the event of any conflict or inconsistency between this Agreement and the Shareasale.com Agreement, the provisions of this Agreement shall prevail.
e) Entire Agreement: This Agreement sets forth our entire agreement with respect to your participation in the Program.