Spohn Performance, Inc.
494 E Lincoln Ave
Myerstown, PA 17067
TEL: 717-866-6033
Web: www.spohn.net Email: affiliate@spohn.net
Affiliate Agreement
Foreword:
Ouraffiliates are very important to us. We do our best to treat you withthe fairness and respect you deserve. We simply ask the sameconsideration of you. We have written the following affiliate agreementwith you in mind, as well as to protect our company's good name. Soplease bear with us as we take you through this legal formality.
Ifyou have any questions, please don't hesitate to let us know. We arestrong believers in straight-forward and honest communication. Forquickest response please email us at affiliate@spohn.net.You can also reach us via phone, toll-free: 1-888-365-6064 (8AM-5PMEastern, Monday-Friday), ask for Steve Spohn, who is our affiliateprogram manager.
Affiliate Agreement:
PLEASE READ THE ENTIREAGREEMENT.
YOU MAY PRINT THIS AGREEMENT FOR YOUR RECORDS
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SPOHN PERFORMANCE, INC.
BYSUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READAND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOUAGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
1. Overview
Thisagreement contains the complete terms and conditions that apply to youbecoming an affiliate in Spohn Performance, Inc.'s Affiliate MarketingProgram. The purpose of this Agreement is to allow HTML linking betweenyour website and the spohn.net website. Please note thatthroughout this Agreement, "we", "us", and "our" refer to SpohnPerformance, Inc. and "you", "your" and "yours" refers to the affiliate.
2. Affiliate Obligations
2.1To begin the enrollment process, you will complete and submit theonline application at the ShareaSale.com website. We may reject yourapplication at our sole discretion. We may cancel your application ifwe determine that your site is unsuitable for our Program, including ifit:
2.1.1 Promotes sexually explicit materials
2.1.2 Promotes violence
2.1.3 Promotes discrimination based on race, sex, religion,nationality, disability, sexual orientation, or age
2.1.4 Promotes illegal activities
2.1.5Incorporates any materials which infringe or assist others to infringeon any copyright, trademark or other intellectual property rights or toviolate the law
2.1.6 Includes "spohn" or variations or misspellings thereofin its domain name.
2.1.7Is otherwise in any way unlawful, harmful, threatening, defamatory,obscene, harassing, or racially, ethnically or otherwise objectionableto us in our sole discretion.
2.1.8 Contains software downloads that potentially enable diversions ofcommission from other affiliates in our program.
2.1.9You may not create or design your website or any other website that youoperate, explicitly or implied in a manner which leads customers tobelieve you are Spohn Performance, Inc., or any other affiliatedbusiness.
2.2 As amember of Spohn Performance, Inc.'s Affiliate Program, you will haveaccess to Affiliate Account Manager. Here you will be able to reviewour Program's details and previously published affiliate newsletters,download HTML code (that provides for links to web pages within thespohn.net website) and banner creatives, and browse and gettracking codes for any available coupons and deals. In order for us toaccurately keep track of all guest visits from your site to ours, youmust have the HTML code that we provide for each banner, text link,widget, video or other affiliate link we provide you with.
2.3Spohn Performance, Inc. reserves the right, at any time, to review yourplacement and approve the use of Your Links and require that you changethe placement or use to comply with the guidelines provided to you.
2.4The maintenance and the updating of your site will be yourresponsibility. We may monitor your site as we feel necessary to makesure that it is up-to-date and to notify you of any changes that wefeel should enhance your performance.
2.5 It is entirely yourresponsibility to follow all applicable intellectual property and otherlaws that pertain to your site. You must have express permission to useany person's copyrighted material, whether it be a writing, an image,or any other copyrightable work. We will not be responsible (and youwill be solely responsible) if you use another person's copyrightedmaterial or other intellectual property in violation of the law or anythird party rights.
3. Spohn Performance,Inc. Rights and Obligations
3.1We have the right to monitor your site at any time to determine if youare following the terms and conditions of this Agreement. We may notifyyou of any changes to your site that we feel should be made, or to makesure that your links to our website are appropriate and to notifyfurther to you of any changes we feel should be made. If you do notmake the changes to your site that we feel are necessary, we reservethe right to terminate your participation in the Spohn Performance,Inc. Affiliate Program.
3.2 Spohn Performance, Inc. reserves theright to terminate this Agreement and your participation in the SpohnPerformance, Inc. Affiliate Program immediately and without notice toyou should you commit fraud in your use of the Spohn Performance, Inc.Affiliate Program or should you abuse this program in any way. If fraudor abuse is detected, Spohn Performance, Inc. shall not be liable toyou for any commissions for such fraudulent sales.
3.3 This Agreement will begin upon our acceptance of your Affiliateapplication, and will continue unless terminated hereunder.
4. Termination
Eitheryou or we may end this Agreement AT ANY TIME, with or without cause, bygiving the other party written notice. Written notice can be in theform of mail, email or fax. In addition, this Agreement will terminateimmediately upon any breach of this Agreement by you.
5. Modification
Wemay modify any of the terms and conditions in this Agreement at anytime at our sole discretion. In such event, you will be notified byemail. Modifications may include, but are not limited to, changes inthe payment procedures and Spohn Performance, Inc.'s Affiliate Programrules. If any modification is unacceptable to you, your only option isto end this Agreement. Your continued participation in SpohnPerformance, Inc.'s Affiliate Program following the posting of thechange notice or new Agreement will indicate your agreement to thechanges.
6. Payment
SpohnPerformance, Inc. (spohn.net) uses a third party to handleall of the tracking and payment. The third party is the ShareaSale.comaffiliate network. Kindly review the network's payment terms andconditions.
7. Access to AffiliateAccount Manager
Youwill create a password so that you may enter ShareaSale.com's secureAffiliate Account Manager. From their website you will be able toreceive your reports that will describe our calculation of thecommissions due to you.
8. Promotion Restrictions
8.1You are free to promote your own websites, but naturally any promotionthat mentions Spohn Performance, Inc. could be perceived bythe public or the press asa joint effort. You should know that certain forms of advertising arealways prohibited by Spohn Performance, Inc. For example, advertisingcommonly referred to as "spamming" is unacceptable to us and couldcause damage to our name. Other generally prohibited forms ofadvertising include the use of unsolicited commercial email (UCE),postings to non-commercial newsgroups and cross-posting to multiplenewsgroups at once. In addition, you may not advertise in any way thateffectively conceals or misrepresents your identity, your domain name,or your return email address. You may use mailings to customers topromote spohn-performance.com so long as the recipient is already acustomer or subscriber of your services or website, and recipients havethe option to remove themselves from future mailings. Also, you maypost to newsgroups to promote spohn.net so long as thenewsgroup specifically welcomes commercial messages. At all times, youmust clearly represent yourself and your websites as independent fromSpohn Performance, Inc. If it comes to our attention that you arespamming, we will consider that cause for immediate termination of thisAgreement and your participation in the Spohn Performance, Inc.Affiliate Program. Any pending balances due to you will not be paid ifyour account is terminated due to such unacceptable advertising orsolicitation.
8.2 Affiliates that use Pay-Per-Click (PPC) campaigns are NOTpermitted to bid on the following keywords: Spohn, Spohn Performance or anymisspellings or similar alterations of these - be it separately or incombination with other keywords.Basically what we're saying is you may not use our trademarked brandname (Spohn, Spohn Performance or use "Spohn" combined with any otherkeyword), all other keywords are fair game.
8.3 Affiliates are prohibited from purchasing our products throughtheir own affiliate links.
8.4Affiliate shall not transmit any so-called "interstitials","Parasiteware", "Parasitic Marketing", "Shopping AssistanceApplication", "Toolbar Installations and/or add-ons", "ShoppingWallets" or "deceptive pop-ups and/or pop-unders" to consumers from thetime the consumer clicks on a qualifying link until such time as theconsumer has fully exited spohn.net (ie., no page from ourwebsite or any spohn.net content or branding is visible onthe end user's screen). As used herein a. "Parasiteware" and "ParasiticMarketing" shall mean an application that (a) through accidental ordirect intent causes the overwriting of affiliate and non-affiliatecommission tracking cookies through any other means than a customerinitiated click on a qualifying link on a web page or email; (b)intercepts searches to redirect traffic through an installed software,thereby causing , pop-ups, commission tracking cookies to be put inplace or other commission tracking cookies to be overwritten where auser would under normal circumstances have arrived at the samedestination through the results given by the search (search enginesbeing, but not limited to, Google, MSN, Yahoo, Overture, AltaVista,HotBot and similar search or directory engines); (c) set commissiontracking cookies through loading of Merchant site in IFrames, hiddenlinks and automatic pop ups that open spohn.net; (d)targets text on websites, other than those websites 100% owned by theapplication owner, for the purpose of contextual marketing; (e)removes, replaces or blocks the visibility of Affiliate banners withany other banners, other than those that are on websites 100% owned bythe owner of the application.
9. Grant of Licenses
9.1We grant to you a non-exclusive, non-transferable, revocable right to(i) access our website through HTML links solely in accordance with theterms of this Agreement and (ii) solely in connection with such links,to use our logos, trade names, trademarks, and similar identifyingmaterial (collectively, the "Licensed Materials") that we provide toyou or authorize for such purpose. You are only entitled to use theLicensed Materials to the extent that you are a member in good standingof Spohn Performance, Inc.'s Affiliate Program. You agree that all usesof the Licensed Materials will be on behalf of Spohn Performance, Inc.and the goodwill associated therewith will inure to the sole benefit ofSpohn Performance, Inc.
9.2 Each party agrees not to use theother party's proprietary materials in any manner that is disparaging,misleading, obscene or that otherwise portrays the party in a negativelight. Each party reserves all of its respective rights in theproprietary materials covered by this license. Other than the licensegranted in this Agreement, each party retains all right, title, andinterest to its respective rights and no right, title, or interest istransferred to the other.
10. Disclaimer
SpohnPerformance, Inc. makes no express or implied representations orwarranties regarding spohn.net service and website or theproducts or services provided therein, any implied warranties ofspohn.net ability, fitness for a particular purpose, andnon-infringement are expressly disclaimed and excluded. In addition, wemake no representation that the operation of our website will beuninterrupted or error free, and we will not be liable for theconsequences of any interruptions or errors.
11. Representations andWarranties
You represent and warrant that:
11.1This Agreement has been duly and validly executed and delivered by youand constitutes your legal, valid, and binding obligation, enforceableagainst you in accordance with its terms;
11.2 You have the fullright, power, and authority to enter into and be bound by the terms andconditions of this Agreement and to perform your obligations under thisAgreement, without the approval or consent of any other party;
11.3 You have sufficient right, title, and interest in and to therights granted to us in this Agreement.
12. Limitations ofLiability
Wewill not be liable to you with respect to any subject matter of thisagreement under any contract, negligence, tort, strict liability orother legal or equitable theory for any indirect, incidental,consequential, special or exemplary damages (including, withoutlimitation, loss of revenue or goodwill or anticipated profits or lostbusiness), even if we have been advised of the possibility of suchdamages. Further, notwithstanding anything to the contrary contained inthis Agreement, in no event shall Spohn Performance, Inc.'s cumulativeliability to you arising out of or related to this Agreement, whetherbased in contract, negligence, strict liability, tort or other legal orequitable theory, exceed the total commission fees paid to you underthis Agreement.
13. Indemnification
Youhereby agree to indemnify and hold harmless Spohn Performance, Inc.,and its subsidiaries and affiliates, and their directors, officers,employees, agents, shareholders, partners, members, and other owners,against any and all claims, actions, demands, liabilities, losses,damages, judgments, settlements, costs, and expenses (includingreasonable attorneys' fees) (any or all of the foregoing hereinafterreferred to as "Losses") insofar as such Losses (or actions in respectthereof) arise out of or based on (i) any claim that our use of theaffiliate trademarks infringes on any trademark, trade name, servicemark, copyright, license, intellectual property, or other proprietaryright of any third party, (ii) any misrepresentation of arepresentation or warranty or breach of a covenant and agreement madeby you herein, or (iii) any claim related to your site, including,without limitation, content therein not attributable to us.
14. Confidentiality
Allconfidential information, including, but not limited to, any business,technical, financial, and customer information, disclosed by one partyto the other during negotiation or the effective term of this Agreementwhich is marked "Confidential", will remain the sole property of thedisclosing party, and each party will keep in confidence and not use ordisclose such proprietary information of the other party withoutexpress written permission of the disclosing party.
15. Miscellaneous
15.1You agree that you are an independent contractor, and nothing in thisAgreement will create any partnership, joint venture, agency,franchise, sales representative, or employment relationship between youand Spohn Performance, Inc. You will have no authority to make oraccept any offers or representations on our behalf. You will not makeany statement, whether on Your Site or any other of Your Site orotherwise, that reasonably would contradict anything in this section.
15.2Neither party may assign its rights or obligations under this Agreementto any party, except to a party who obtains all or substantially all ofthe business or assets of a third party.
15.3 This Agreementshall be governed by and interpreted in accordance with the laws of theCommonwealth of Pennsylvania without regard to the conflicts of lawsand principles thereof.
15.4 You may not amend or waive any provision of this Agreement unlessin writing and signed by both parties.
15.5This Agreement represents the entire agreement between us and you, andshall supersede all prior agreements and communications of the parties,oral or written.
15.6 The headings and titles contained in thisAgreement are included for convenience only, and shall not limit orotherwise affect the terms of this Agreement.
15.7 If anyprovision of this Agreement is held to be invalid or unenforceable,that provision shall be eliminated or limited to the minimum extentnecessary such that the intent of the parties is effectuated, and theremainder of this Agreement shall have full force and effect.
