Magazine-Agent AWIN Network Affiliate Agreement
Please read this affiliate program agreement (the "Agreement") carefully before submitting your application
("Application") for participation in the Magazine-Agent AWIN Network Affiliate Program (the "Affiliate Program"). This Agreement is a binding contract between the individual submitting the Application or the entity on whose behalf the Application is being submitted ("you" and "your") and Contrix Inc. (“Magazine-Agent”). By submitting the Application, you certify that you have read, and effective at the time of your submission accept and agree to, all of the terms and conditions set forth in this Agreement.
RECITALS
WHEREAS, "Performance Marketing" occurs when individual web sites that generate their own traffic
(“Performance Partners”) partner with online merchants (“Performance Merchants”) and the Performance Merchants pay a commission or other reward for those visitors resulting in a measurable action such as a closed sale, lead, hit, or other action; and
WHEREAS, AWIN Inc. (formerly ShareASale.com, Inc.) operates a service and network that, among other things, facilitates the administration of Performance Marketing efforts between Performance Partners and Performance Merchants (the “AWIN Service”); and
WHEREAS, you are a Performance Partner of the AWIN Service (an “AWIN Member”); and
WHEREAS, Magazine-Agent is a Performance Merchant that has established an Affiliate Program via the AWIN Service for the purpose of (i) allowing AWIN Members to submit an Application to become an Affiliate (as defined below), (ii) allowing Affiliates to advertise and promote Magazine-Agent's products on their web sites, and (iii) allowing Affiliates to establish links from Affiliate’s sites to Magazine-Agent's website for the purpose of allowing users of Affiliates’ sites to purchase products from Magazine-Agent; and
WHEREAS, you desire to be accepted by Magazine-Agent as an Affiliate (as defined below) in the Affiliate Program, and to advertise and promote Magazine-Agent's products on your web site and to allow users of your site to visit Magazine-Agent's web site (“Magazine-Agent.com”) for the purpose of purchasing Magazine-Agent's products, among other things.
NOW, THEREFORE, in consideration of the covenants and premises contained herein, the parties agree as follows:
INCORPORATION OF PREAMBLE AND RECITALS
The above preamble and recitals are incorporated by reference in, and made part of, this Agreement.
ENROLLMENT IN THE AFFILIATE PROGRAM
To enroll in the Affiliate Program, you must be an active AWIN Member and submit a complete Application via the AWIN Service. Magazine-Agent will evaluate your Application and you will be notified via an e-mail sent to you through the AWIN Service (to the most recent email address that you have provided AWIN) of Magazine-Agent’s approval or rejection of you as an Affiliate (as defined below). Magazine-Agent may reject your Application for any reason or for no reason in its sole discretion. Magazine-Agent will reject your Application if it determines, in its sole discretion, that your site includes anything that is unlawful, harmful, threatening, defamatory, obscene, harassing, discriminatory, or otherwise objectionable. Further, Magazine-Agent will reject your Application if Magazine-Agent believes that you participate in spyware, adware or parasiteware techniques for driving traffic. If Magazine-Agent rejects your Application, you may reapply for participation in the Affiliate Program at any time. For purposes of this Agreement, you will become an “Affiliate” only if and when Magazine-Agent approves your Application; you will remain an “Affiliate” only while (i) you remain an active AWIN Member, (ii) neither you nor Magazine-Agent has notified the other in writing (including electronically) that your status as an Affiliate has been terminated, and (iii) neither you nor Magazine-Agent has used the AWIN Service to indicate that your status as an Affiliate has been terminated; and you will cease to be an “Affiliate” when either (i), (ii) or (iii) above is no longer accurate. All parts of this Agreement referring to “Affiliate” will apply to you only while you remain an “Affiliate” pursuant to the above definition. However, this Agreement is effective immediately when you submit your Application, and all other parts of this Agreement will apply to you regardless of whether you become or remain an Affiliate.
SEARCH GUIDELINES
You shall not purchase search engine keywords or domain names that use
Magazine-Agent’s trademark "Magazine-Agent.com" or variations or misspellings thereof. You shall not purchase, bid on or register keywords, search terms, domain names, or other identifying terms that include without limitation "Magazine-Agent.com" or variations or misspellings thereof for use in any search engine, portal, sponsored advertising service or other search or referral service. Affiliates found in violation of this policy will be immediately terminated from the Affiliate Program and will forfeit all commissions.
INVESTIGATIVE RIGHTS
Magazine-Agent reserves the right to research and investigate you and your activities at any time, to determine whether or not you may be breaching any part of this Agreement. Affiliates found in breach of the Agreement will be immediately terminated and will forfeit all commissions. Magazine-Agent may monitor your site at any time to determine compliance. Notwithstanding anything to the contrary, you hereby agree that all of your commissions shall be automatically forfeited if you breach this Agreement.
LINKS
Magazine-Agent will authorize the AWIN Service to make technology available to Affiliate that will permit Affiliate to place images and text on Affiliate’s site advertising Magazine-Agent products and to provide links with special uniform resource locators (“URLs”) that will allow users to enter Magazine-Agent.com and have transactions tracked back to Affiliate for commission calculation.
MAGAZINE-AGENT'S OBLIGATIONS
Magazine-Agent shall use commercially reasonable efforts to process all orders (order entry, payment processing, shipping, handling cancellations and returns, and related customer service) from customers who use Links, and to work with the AWIN Service to ensure the accuracy of Links and transaction reporting. Magazine-Agent may refuse or cancel any order and no commission shall be payable for such orders.
AFFILIATE'S OBLIGATIONS
You are solely responsible for the development, operation and maintenance of your site, ensuring accuracy, legality, and that no content infringes rights of third parties. You agree to keep AWIN updated with current contact information, and agree not to use Links to make purchases for yourself or reselling purposes.
COMMISSIONS
Affiliate shall earn commission for eligible purchases tracked by the AWIN Service within defined timeframes. Commission rates are available via the AWIN Service and may change at any time. Commissions are reversed for cancelled or returned orders.
SPECIAL HANDLING OF AMAZON PAYMENT ORDERS
Due to technical limitations with Amazon Payments, Magazine-Agent may only pass a flat $20.00 sale to the AWIN Service. Magazine-Agent reserves the right to update systems if a solution is developed.
COMMISSION PAYMENT
The AWIN Service is responsible for administering all commission payments. Please visit https://www.awin.com for more information.
REPORTS OF SALES
The AWIN Service is the sole provider of Transaction Reports. Visit https://www.awin.com to access Transaction Reports.
POLICIES AND PRICING
Users who buy Magazine-Agent's products through the Affiliate Program are customers of Magazine-Agent. Accordingly, all of Magazine-Agent's policies (including prices and pricing policies), and operating procedures concerning customer orders, customer service, and product sales shall apply. Magazine-Agent may change its policies and operating procedures at any time. Magazine-Agent reserves the right to change prices of products at any time and from time to time. Except as may be permitted by Magazine-Agent, you may not include price information in your product descriptions. You understand and agree that Magazine-Agent shall be the sole owner of any and all data and information Magazine-Agent (or its representatives) obtains or gathers from, or in connection with, end users visiting or transacting business on Magazine-Agent.com or otherwise transacting business with Magazine-Agent, including without limitation, all transaction, usage and preference data.
PUBLICITY
Other than Links, you may not create or publish material referencing Magazine-Agent without prior written consent.
LICENSES AND TRADEMARKS
Magazine-Agent grants Affiliate a limited, non-exclusive, non-transferable, revocable right (i) to access Magazine-Agent through the Links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such Links, to use the Magazine-Agent trademark and logo and similar identifying material relating to Magazine-Agent (but only in the form(s) that is made available through the AWIN Service) (collectively, the "Licensed Materials"), for the sole purpose of promoting Magazine-Agent products on Affiliate’s site. Except as expressly set forth in this Agreement, Affiliate may not copy, distribute, alter, modify, reverse engineer, or create derivative works from the Licensed Materials. Magazine-Agent may revoke Affiliate’s license at any time. Any goodwill arising out of your use of the Licensed Materials shall ensure for the benefit of Magazine-Agent only. Affilliate shall not make any specific use of any Licensed Materials for purposes other than promoting Magazine-Agent's products on your site. Affiliate agrees not to use the Licensed Materials in a manner that is misleading or deceptive or disparages Magazine-Agent, Magazine-Agent.com, the Affiliate Program or Magazine-Agent’s products or services or that otherwise portray Magazine-Agent, in its discretion, in a negative light. Magazine-Agent reserves all rights in the Licensed Materials. At no time during the Term or thereafter will you challenge, or assist others in challenging, the validity of the Magazine-Agent Licensed Materials or the registration thereof or attempt to register any confusingly similar trademarks, service marks, logos, trade names or domain names. Except for the limited license set forth herein, no license or other rights to the Licensed Materials will be deemed granted to you hereunder or in connection with the Affiliate Program, by implication, estoppel or otherwise. The licenses granted hereunder shall run concurrently with the term of this Agreement.
TERM AND TERMINATION
The term begins upon Application submission. Either party may terminate Affiliate status at any time. Provisions survive termination except Affiliate rights.
MODIFICATION
Magazine-Agent may modify this Agreement with seven (7) days’ notice via AWIN. Continued participation constitutes acceptance.
RELATIONSHIP OF PARTIES
Independent contractor relationship only.
DISCLAIMERS
No warranties are provided regarding the Affiliate Program or Magazine-Agent products.
REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant that:
This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding. LIMITATION OF LIABILITY
MAGAZINE-AGENT SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, MAGAZINE-AGENT’S AGGREGATE LIABILITY ARISING FROM THIS AGREEMENT AND THE AFFILIATE PROGRAM FOR ALL MATTERS OTHER THAN THE PAYMENT OF COMMISSIONS SHALL NOT EXCEED $5,000. UNDER NO CIRCUMSTANCES SHALL MAGAZINE-AGENT BE LIABLE FOR ANY HARM OR DAMAGES OF ANY TYPE CAUSED TO AFFILIATE BY THE SAS SERVICE OR THE OPERATOR THEREOF. INDEMNIFICATION
You shall indemnify and hold harmless Magazine-Agent 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 (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) your breach of this Agreement, (ii) the breach or inaccuracy of any representation or warranty made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to Magazine-Agent. INDEPENDENT INVESTIGATION
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT MAGAZINE-AGENT MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT POTENTIAL AFFILIATES AND MARKETING PARTNERSHIPS 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. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTY, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. GOVERNING LAW
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 located in New York County within The State of New York, and you irrevocably consent to the exclusive jurisdiction of such courts.
EQUITABLE RELIEF
You agree that any breach by you of your obligations regarding trademarks, service marks, trade names or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of your obligations regarding trademarks, service marks, trade names or user data, Magazine-Agent will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction, without the need of posting any bond or surety.
MISCELLANEOUS
No assignment without consent (except by Magazine-Agent). Agreement is binding upon successors and assigns. Prevailing party in disputes may recover legal fees.
NOTICES
Except where stated to the contrary, all notices given pursuant to this Agreement if sent by you to Magazine-Agent shall either be sent (i) via registered or certified mail, postage prepaid, return receipt requested or (ii) via Federal Express, UPS or DHL to: Magazine-Agent: Magazine-Agent
Attn: Legal Services
110 East 42nd Street – Suite 1311
New York, NY 10017. Notices to Affiliates: via AWIN Service or most recent contact information.
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