Effective
Date: October 26, 2004
NetMargin Affiliate Program Agreement
These terms and conditions (the “Agreement”) shall constitute the entire agreement between NetMargin, LLC (“NetMargin,” “we” or “us”), and you governing your participation as an affiliate (“Affiliate”) in the NetMargin Affiliate Program (the “Program"). By submitting
your online application to become an Affiliate (the “Application”), you are
confirming that you: a) have fully read this Agreement; b) understand all of
the terms of the Agreement; and c) agree to be fully bound by the Agreement. This Agreement is subject to change at any time, in our sole discretion, and such changes are effective upon their posting at the Program website at http://www.netmargin.com (the “Program Website” or “NetMargin Website”). Changes may include, without limitation, changes in the commission structure, payment procedures and other Program-related policies. Bookmark this page and check it frequently as it is up to you to refer to this page for any amendments and/or changes to this Agreement. By your continued participation in the Program, you are fully subject to any and all changes to this Agreement in effect at the time. 1. Enrollment in the Program 1.1 To begin the enrollment process, you must submit a complete and accurate Application. We will evaluate your Application and will promptly notify you of your Application acceptance or rejection via the e-mail address that you supply as a part of your Application. 1.2 We may reject your Application and/or terminate your participation in the Program at anytime and for any reason, in our sole discretion. Such reasons include, without limitation: A. where we believe that you are in any way in breach of this Agreement; B. where we believe that your website (“Affiliate Website”) or your e-mail database (“Affiliate Database”) is unsuitable for the Program for any reason including, without limitation, that the Affiliate Website contains material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; and C. where we believe that you are not, in any fashion, conducting permission-based e-mail marketing that fully complies with all applicable laws, rules and regulations. 2. Affiliates 2.1 We grant to Affiliates a non-exclusive, non-transferable, revocable and limited license to market the Program products and/or services in accordance with this Agreement (the “Campaign”). 2.2 We may use the personal information of an Affiliate in any manner consistent with our Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. For additional information regarding our use of information collected, please refer to the NetMargin Privacy Policy. 3.
NetMargin 3.1
NetMargin is responsible for providing the
information necessary to allow our Affiliates to carry out their rights and
duties pursuant to this Agreement. We
will be responsible for placing advertisements received from NetMargin Clients
(“Clients”) on the Program Website. 4. Term and Termination 4.1 The term of this Agreement will begin upon our written acceptance of your Application and will end when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination via e-mail. Affiliates are only eligible to earn Commissions on billings generated during the term of this Agreement. Upon any termination of this Agreement, any and all licenses granted hereunder shall immediately expire. 4.2 Obligations that, by their nature, would survive any termination of this Agreement including, without limitation, Sections 8, 11, 12 and 14, shall survive any termination of this Agreement. 5. Commissions
5.1 NetMargin shall pay commissions according to the payment terms of the Program (“Commissions”) as indicated on the Program Website. The most recent Program information, payment terms and Commission schedule will be published on the Program Website. 5.2 Commissions shall be paid to the respective Affiliate approximately fifteen (15) days after the last day of a given calendar month, for Commissions realized in that month. NetMargin, in its sole discretion, may withhold any and all payments due and owing to Affiliate until such time as Client has paid NetMargin for any Campaign. NetMargin reserves the right to reduce any and all payments owed to Affiliate where Client has offset payments owed to NetMargin. 5.3 NetMargin shall compile, calculate and post on the Program Website data that NetMargin has used to determine Affiliate’s billing and Commissions (the “Data”). Any questions or disputes regarding the Data must be submitted in writing to NetMargin within ten (10) business days of the date the Data is posted on the Program Website; otherwise the information contained therein will be deemed accurate and accepted by the Affiliate. NetMargin will investigate and resolve any Data-related questions or disputes in its sole discretion. 5.4 NetMargin shall not be responsible to pay Affiliate any and all Commissions based upon: i) those leads from e-mail recipients who have previously registered, opted in and/or are already a member of the Client website and/or campaign; and/or ii) any failure of an e-mail recipient to comply with Client’s requirement that an e-mail recipient opt-in. 5.5 Notwithstanding anything contained herein to the contrary, no Commission payments will be issued to an Affiliate for any amounts of less than $50.00 US Dollars (the "Payment Threshold"). All such amounts below the Payment Threshold shall be held, aggregated and paid to an Affiliate only when the Payment Threshold has been reached. NetMargin will not pay Commissions on any billings that occur: i) before the Affiliate is accepted into the Program; or ii) after termination of this Agreement. 5.6 You agree that the Commissions due and payable to you shall be based solely on the Data posted on the Program Website by NetMargin. NetMargin will not pay any Commissions to an Affiliate unless we have documentation to support such Commissions within our database and Data. NetMargin may require an Affiliate to provide a W-9, or similar information, as a condition to receiving any Commission payments. 5.7 NetMargin reserves the right to withhold and/or cancel Commission payments due and owing to an Affiliate at any time, in our sole discretion, when we believe that the Affiliate is in breach of this Agreement. 5.8 Customers who buy products and/or services through the Program shall not be deemed to be the customers of NetMargin. 5.9 All Commission payments due to an Affiliate will be paid in US dollars. 6. Marketing Pieces 6.1 We will make available to our Affiliates certain marketing pieces created by Client and/or NetMargin for use in the Program. In particular, NetMargin will post creatives (“Creatives”), text links and/or banner advertisements (“Banner Ads”) (collectively, the "Marketing Pieces") for use and publication by Affiliates on the Program Website. These Marketing Pieces shall contain unique Affiliate-specific identifiers/code that will enable NetMargin to track Affiliate generated click-throughs. 6.2 NetMargin may change or revise the content of the Marketing Pieces that are prepared by NetMargin at any time, in our sole discretion, and Affiliates agree to use only the most recent version of any Marketing Pieces that are prepared by NetMargin and posted on the Program Website. 6.3 Affiliates may not alter, modify or otherwise change the Marketing Pieces in any manner, whatsoever. We may terminate an Affiliate’s right to use the Marketing Pieces for any reason at any time, in our sole discretion. 6.4 Affiliates may only use Marketing Pieces supplied by NetMargin on the Program Website. Use, or the attempted use, of any other marketing materials in connection with the Program will result in the immediate termination of the Affiliate’s status, without notice. 6.5 Each Affiliate agrees that NetMargin may, in its sole discretion, direct the placement of Marketing Pieces on the Program Website. Affiliates may NOT use brand names and/or trademarks of another party (e.g., Disney or Procter & Gamble) in the "subject" or "from" lines or body of any commercial e-mail transmission. 6.6 Affiliate agrees and acknowledges that Affiliate shall not: i) incentivize offers or create the appearance of incentivizing offers; ii) place any statement in close proximity to the Marketing Piece requesting that e-mail recipients “click” on the Marketing Piece (e.g. “Please click here”); iii) place misleading statements in close proximity to the Marketing Piece; and/or iv) redirect traffic to a website other than the website listed by the particular Client. 6.7 Should Affiliate conduct e-mail marketing campaigns to its users, Affiliate must, upon the request of NetMargin, be able to supply the name, date, time and IP address where the consumer signed-up and/or gave permission to the Affiliate to conduct such e-mail campaign. Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by the Affiliate. Affiliate will respond to all consumer complaints within forty-eight (48) hours of notification, and shall immediately remove any person from its database who makes such request for removal. In addition, all e-mail must contain a functioning unsubscribe link which, when activated by user, actually and permanently removes the users e-mail address from the Affiliates database. 7. E-mail Marketing Policy/CAN-SPAM Compliance 7.1 Affiliate represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission enabling regulations (including the CAN-SPAM Act of 2003, as amended from time to time), with respect to e-mail marketing. Affiliate acknowledges that any failure to comply with this E-mail Marketing Policy may, in our sole discretion, result in the immediate termination of its Affiliate status and the forfeiture of any and all rights to any Commissions owed to the Affiliate by NetMargin. 7.2 Without limiting the generality of the foregoing, when performing e-mail marketing of any kind and on behalf of any Advertiser, Affiliate represents and warrants that Affiliate shall: A. deliver commercial e-mail only to those recipients: i) who have given Affiliate direct and/or explicit consent to receive e-mail advertising from Affiliate, as defined under applicable law, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; or (ii) with whom Affiliate has a preexisting business relationship, as defined under applicable law, and have not unsubscribed to receive e-mail advertising as of the date that the commercial e-mail was transmitted to such recipient; B. refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information);
C. not use any subject or from line that is materially false or misleading; D. refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail; E. include within all commercial e-mail sent: a valid street address for both Affiliate and the advertiser (if any); a clear and conspicuous identification that the e-mail message is an advertisement or solicitation; a clear and conspicuous opt-out notice and functional opt-out mechanism; and process unsubscribe requests within five (5) days; F. comply with all legal obligations with respect to unsubscribing consumers from Affiliate’s e-mail mailing lists; G. at least once a week, scrub the Affiliate Database against the Client suppression list that will be made available on the Program Website, subject to the provisions contained in Section 8.10 hereinbelow; and H. immediately notify NetMargin in the event that any complaint, investigation and/or litigation ensues concerning Affiliate’s e-mail practices (whether or not such complaint, investigation and/or litigation relates to Affiliate’s relationship with NetMargin). 8. Representations and Warranties: Affiliate hereby represents and warrants to us as follows: 8.1 This Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid and binding obligation which is fully enforceable against you in accordance with its terms. 8.2 Affiliate is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Affiliate’s rights and duties pursuant to this Agreement. 8.3 Affiliate will comply with all applicable state and federal laws, rules and Federal Trade Commission enabling regulations (including the CAN-SPAM Act of 2003, as amended from time to time), with respect to the Program. 8.4 Affiliate understands and agrees that NetMargin will enter into similar agreements with other NetMargin affiliates in direct competition with Affiliate. 8.5 Affiliate understands and agrees that Affiliate has independently evaluated the desirability of participating in the Program and that Affiliate has not relied on any representation and/or warranty other than those set forth in this Agreement. 8.6 The execution, delivery and performance by Affiliate of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which Affiliate is subject; (ii) any order, judgment or decree applicable to Affiliate; (iii) any provision of Affiliate’s corporate by-laws or certificate of incorporation; or (iv) any agreement or other instrument applicable to Affiliate. 8.7 Affiliate’s performance under this Agreement will not: (i) invade the right of privacy or publicity of any third person; (ii) involve any libelous, obscene, indecent or otherwise unlawful material; (iii) violate any applicable law (including, without limitation, any anti-spamming law such as the CAN-SPAM Act of 2003), rule, Federal Trade Commission enabling regulation and/or court order; and/or (d) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity. 8.8 There is no pending or, to the best of Affiliate’s knowledge, threatened claim, action or proceeding against Affiliate. 8.9 Affiliate will be solely responsible for the development, operation and maintenance of the Affiliate Website, Affiliate Database and for any and all materials that appear on the Affiliate Website. Such responsibilities include, without limitation: i) the technical operation of the Affiliate Website and all related equipment; ii) creating and posting content, descriptions and references on the Affiliate Website; iii) the accuracy and propriety of materials posted on the Affiliate Website; iv) ensuring that materials posted on the Affiliate Website do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; and v) ensuring that the Affiliate Website complies with all applicable laws. 8.10 Suppression Lists: With respect to any suppression list generated through the Program, Affilate agrees to: A. use such suppression list, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; B. regularly use such suppression list to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages; C. not use the suppression list for purposes of e-mail marketing (or provide the suppression list to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address appearing on any suppression list; D. not use any suppression list for purposes of e-mail appending in any manner whatsoever; E. hold any suppression list in trust and confidence and use same solely for the suppression purposes set forth herein; F. not retain a copy of any suppression list following termination of this Agreement; and G. not disclose any suppression list to any employee, consultant, subcontractor, or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of this Agreement. Such agreement shall be immediately forwarded to NetMargin, upon request. NetMargin reserves the right to withhold its consent to such disclosure and may, within its discretion, accordingly bar the disclosure of any and all suppression lists. 9. Publicity 9.1 Affiliate agrees that NetMargin may use Affiliate’s name (if Affiliate is an individual), Affiliate’s company name (if Affiliate is a corporation), Affiliate’s likeness (if Affiliate is an individual), the Affiliate Website address and any associated information in our marketing materials and press releases, without compensation to Affiliate. 9.2 Affiliate shall not create, publish, distribute or permit any written material that makes reference to NetMargin without first submitting such material to us and receiving our prior written consent, which we may withhold in our sole discretion. 10. Proprietary Rights 10.1 The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Program, Marketing Pieces, Program Website and the NetMargin Website are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by you of any part of the Program, Marketing Pieces, Program Website and the NetMargin Website, other than as contemplated hereunder, is strictly prohibited.
10.2 Affiliate does not acquire any ownership rights to the Program, Marketing Pieces, Program Website and/or the NetMargin Website. The availability of the Program, Marketing Pieces, Program Website and the NetMargin Website does not constitute a waiver of any rights related thereto. 11. Indemnification 11.1 Each party agrees to indemnify, defend and hold the other party, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from: A. each party’s breach of this Agreement and/or any representation or warranty contained herein; B. each party’s participation in the Program, in any manner whatsoever; and
C. any allegation that either party has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; and
D. Affiliate agrees to indemnify, defend and hold NetMargin, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from any third party claim related to the Affiliate Website and/or Affiliate’s e-mail marketing practices. 12. Disclaimers/Limitation of Liability 12.1
THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES
ARE PROVIDED ON AN "AS IS” AND "AS AVAILABLE" BASIS AND ALL
WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION,
THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF
INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PROGRAM, NETMARGIN WEBSITE AND MARKETING
PIECES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. NETMARGIN HAS NO LIABILITY, WHATSOEVER, TO
AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE’S USE OF, OR INABILITY TO USE, THE
PROGRAM, PROGRAM WEBSITE AND/OR MARKETING PIECES. IN PARTICULAR, BUT NOT AS A LIMITATION
THEREOF, NETMARGIN IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS,
LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF
WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE NEGATION OF DAMAGES SET 12.2 ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES IS EXPRESSLY DISCLAIMED. AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE PROGRAM AND ACCESS AND/OR USE OF THE PROGRAM WEBSITE AND MARKETING PIECES IS DONE SOLELY AT AFFILIATE’S OWN DISCRETION AND AT AFFILIATE’S OWN RISK. AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES THAT MAY INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. 12.3 UNDER NO CIRCUMSTANCES SHALL NETMARGIN BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE’S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE’S PARTICIPATION IN THE PROGRAM. OUR MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE PRICE THAT AFFILIATE HAS PAID TO PARTICIPATE IN THE PROGRAM. 13. Force Majeure 13.1 Affiliate agrees that NetMargin will not be liable, or be considered to be in breach of this Agreement, on account of our delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond our reasonable control and that we are unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). 13.2 If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, we will give Affiliate notice and will use commercially reasonable efforts to minimize the impact of any such event. 14. Miscellaneous. 14.1
This Agreement shall be treated as though it
were executed and performed in 14.2 Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. 14.3 Affiliate agrees that any unauthorized and/or unlawful use of the Program would result in irreparable injury to NetMargin for which monetary damages would be inadequate. In such event, NetMargin shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Affiliate without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to NetMargin. 14.4 NetMargin and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Affiliate has no authority to make or accept any offers or representations on behalf of NetMargin. Affiliate is prohibited from making any statement, whether on the Affiliate Website or otherwise, that could possibly contradict anything in this Section 14.4. 14.5 To the extent that anything in or associated with the NetMargin Website and Program Website is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. 14.6 Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. 14.7 Any attempt by any individual, whether or not an Affiliate, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Program, is a violation of both criminal and civil law and NetMargin will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity. 14.8 This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and NetMargin’s successors and assigns. Affiliate is not permitted to transfer any rights and obligations pursuant to this Agreement. Any attempt to do so will result in the immediate termination of this Agreement. |