This affiliate marketing agreement (the “Agreement”) is between you and ETVCorp (“we” or “us”) and governs your participation in the SatelliteDirect Affiliate Program (the “Program”). By participating in the Program, you fully and unconditionally agree to the terms and conditions set forth in this Agreement.
1. APPLICATION AND PARTICIPATION
You represent and warrant that (i) the information included in your application is truthful and accurate; (ii) if you are an individual, you are at least 18 years old; (iii) if you are an entity, the person submitting the application has the full right, power and authority to enter into this Agreement on behalf of such entity; and (iv) your execution and performance of this Agreement does not and will not violate any agreement by which you are bound. You agree that you will keep your contact information current, with a functioning email address at all times. You agree to respond within twenty-four (24) hours to any email communication from us or our administrator ClickBank.
2. PROGRAM ADMINISTRATION
We have retained the services of ClickBank to manage and administer the Program. ClickBank will serve as the data interchange between you and us.
3. REFERRAL FEES AND PAYMENTS
Referral fees are paid for qualified purchases generated from the Links. We reserve the right to change the referral fees at any time, without prior notice or liability to you. Earning and payment terms are set forth in the ClickBank terms and conditions, which are available at www.clickbank.com/accounting.html.
4. POLICIES AND PRICING
Customers purchasing our products through the Program will be deemed our customers. All rules, policies, terms, conditions and procedures concerning customer orders, customer service and our product sales will apply to those customers. We may change our policies and procedures, including pricing, at any time. We, at our sole discretion, will determine the prices to be charged for products sold under the Program in accordance with our own pricing policies. Prices and availability of our products may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
5. MARKETING AND PROMOTION
5.1. Requirements for All Marketing
You agree that you are solely responsible for all marketing and promotional activities you conduct in the course of your participation in the Program, including but not limited to keyword marketing and email marketing (“Marketing Activities”). You agree that all Marketing Activities will comply with all applicable laws, rules, and regulations, policies and guidelines, including those of the United States Federal Trade Commission governing endorsements and testimonials. You are solely liable for any damages or losses incurred as a result of or in connection with any Marketing Activities you undertake in violation of this Agreement and/or any applicable law, rule or regulation.
You will provide clear and conspicuous disclosure of your status as a paid SatelliteDirect affiliate on the home page of Your Site, or, if Your Site includes a Terms of Service or similar document, within the body of such document in a separate provision entitled “Disclosure”.
Without limiting the generality of the foregoing requirements, you agree that in promoting SatelliteDirect:
(a) You will not engage in Marketing Activities that we deem, in our sole discretion, to be inappropriate.
(b) You will not use pop-up or pop-under advertisements.
(c) You will clearly and conspicuously include, without modification, all terms and conditions that we instruct you to include.
(d) You will not engage in Marketing Activities that advertise, offer or promise rebates, coupons, vouchers or other consideration in connection with purchases from us.
(e) You will not use the names, trademarks and/or logos of our competitors other than in a comparative manner.
(f) You will not use the names, trademarks and/or logos of content providers, including but not limited to broadcast or cable television channels (e.g., ABC, CBS, FOX, TBS, AMC) or movie channels (e.g., HBO, SHOWTIME), or the name, titles, trademarks and/or logos of programs, including sporting events, teams, and their owners (e.g., NFL, MLB, NBA) (collectively, “Prohibited Terms”).
You further agree that we may, at any time and in our sole discretion, demand that you promptly and permanently remove or revise any claim, copy, creative elements, or other promotional material, or cease any or all Marketing Activities, that we deem inappropriate for any reason.
5.2. Your Site.
You are solely responsible for, and we hereby disclaim all liability for, the development, content, use, operation, hosting, and maintenance of, and all costs associated with, Your Site. You agree that Your Site will not copy or resemble the look and feel of, or create the impression that it is part of, any official SatelliteDirect website(s). You agree that Your Site will comply with all applicable laws, rules and regulations, including, without limitation, all laws, rules and regulations applicable to the collection, use, disclosure, retention and security of individuals’ personal information.
We may suspend or terminate your participation in the Program at any time, without notice or liability to you, if Your Site, in our sole discretion, displays, promotes, or links to:
(a) Illegal content, products, services, materials or activities;
(b) Content that is harassing, libelous, defamatory, abusive, threatening, harmful, pornographic, obscene or that is otherwise tortious, offensive or objectionable (in our sole judgment) or which may give rise to liability or violate any law;
(c) Content that infringes on the intellectual property rights or other rights of any person or entity;
(d) Content that contains, downloads or installs any viruses, worms, bugs, Trojan horses or other harmful code, files or programs designed to, or capable of, interrupting, destroying or limiting the functionality of any computer software or hardware or telecommunications equipment;
(e) Content intended to attract children under 18 years of age;
(f) Content that disparages us or our business partners;
(g) Content that promotes any product or service of a competitor of ours; or
(h) Content that discloses any personally identifying or private information about any person or entity with his, her, or its legally sufficient consent.
As a participant in the Program, you may use, subject to the terms and conditions of this Agreement, the banners, text, images and corresponding links to our sites (collectively, the “Links”) we make available to you. The Links make it possible to track and report all of the qualified purchases of the SatelliteDirect software acquired through the website(s) identified in your application (“Your Site”), provided that cookies have not been disabled on the web browser used to connect to website where the purchase is made. It is your responsibility to integrate the Links into Your Site properly and in accordance with our instructions. We will not be liable to you with respect to your failure properly to integrate the Links into Your Site, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to you.
5.4. Additional Requirements For Keyword Marketing
When promoting Your Site via paid keyword advertising, you must follow these guidelines:
(a) The phrase ‘Affiliate Site’ must be included at the end of each keyword submission, so that users will be aware that they are accessing our website through Your Site.
(b) You must not give the impression that you are us or otherwise use phrases such as ‘Official Site’.
(c) You will not purchase or attempt to purchase the names or trademarks of our competitors as keywords.
(d) You will not use or attempt to use the name or trademarks of our competitors in advertisement copy.
(e) You will not purchase or attempt to purchase any Prohibited Terms as keywords.
(f) You will not use or attempt to use any Prohibited Terms in advertisement copy.
5.5. Additional Requirements For Email Marketing
5.5.1. CAN SPAM
You will fully comply with the email marketing and privacy laws, rules and regulations of any jurisdiction into which you transmit email promoting the Links on Your Site. When promoting the Links on Your Site through email marketing sent to residents of the United States, you will fully comply with the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, all rules and official guidance promulgated by the Federal Trade Commission (“FTC”) pursuant to the Act, the Federal Communication Commission’s rules and orders regulating the transmission of commercial email to wireless devices and all other applicable federal, state and local laws and regulations (the “CAN SPAM Act”).
5.5.2. Address Lists
(a) You will take commercially reasonable efforts to ensure, prior to a campaign promoting the Links, that your email list (“Email List”) has been filtered to remove duplicate addresses, and those that are undeliverable or otherwise appear to be invalid.
(a) You may not promote the Links in emails sent through open proxies, from email or IP addresses registered through fraud or false pretenses, or to persons whose addresses were gathered in any automated process, harvesting or screen scraping, or through any means in violation of an Internet Service Provider’s policies, or as the result of randomly generated combinations of characters.
(b) You must include complete and accurate transmission and header information in each email, as well as a “from” line that accurately identifies you as the initiator of the message.
(c)Upon our request, you will promptly provide a full list of domain names, routing information and IP addresses that will be, are being or were used to send emails promoting the Links. In addition, upon our request, you will promptly provide an explanation of the transparency of the return domain names, the List Owners’ contact information and all other information that permits email recipients to identify senders. If at any time your and/or List Owners’ IP addresses or domain names are mass-blocked or blacklisted, you will inform us immediately.
The subject line of all emails promoting the Links must accurately reflect the content of the message. You must clearly disclose that each email is an advertisement.
5.5.5. Opt-Out Mechanism and Compliance
You must include in each email a link that allows the recipient to opt-out of receiving future emails. You will not (and will not allow others to) sell, remarket or use the email address of any person who has opted out for any reason other than to comply with this Agreement and the law.
5.5.6. Other Requirements
Upon our request, you will promptly identify, in writing, any measures you have taken to comply with service providers’ email policies. You agree that you are an “initiator,” as that term is defined in the CAN SPAM Act, of messages advertising the Links.
5.5.7. Monitoring: By Us
You acknowledge and agree that we may, in our discretion, monitor your emailing activities under this Agreement. Without limitation, we may do so through the use of a third-party monitoring service.
5.5.8. Monitoring: By You
(a) You agree that you will implement reasonable procedures to ensure, on an ongoing basis, that your unsubscribe/opt-out capabilities function in accordance with the requirements of the CAN SPAM Act. Without limiting the foregoing, this means that you will, at a minimum, do the following:
(i) Establish email accounts with Gmail, Yahoo, and Hotmail, and add such addresses to the lists to which you transmit email promoting the Links;
(ii) For each such address, use the unsubscribe/opt-out mechanism contained in the email to opt-out of future emails; and
(iii) Repeat this procedure on a regular basis, at least once every two (2) weeks for the term of this Agreement.
(b) If, at any time, your monitoring reveals that your unsubscribe procedures are not functioning as required by the CAN SPAM Act or the terms of this Agreement, you will immediately notify us and take immediate steps to remedy the problem.
In addition to the termination provisions contained in Section 8 of this Agreement, if you violate any of the provisions of this Section, your participation in the Program will be subject to immediate termination, including the forfeiture of any referral fees earned but not yet paid.
6. LIMITED LICENSE
We hereby grant to you a limited, nonexclusive, revocable license to display the Links on Your Site and in email messages sent pursuant to the terms of this Agreement, solely as necessary for, and for the purpose of, promoting the products associated with the Links and identifying you as a participant in the Program. We reserve all proprietary rights in and to the Links not expressly granted herein. You acknowledge that all use of the Links by you inures solely to the benefit of us and that you do not acquire any rights in the Links as a result of such use. You will remove Links immediately upon our request. You may not sublicense, assign or transfer this license, and any attempt at such sublicense, assignment or transfer is void. We may revoke this license at any time by giving you written notice, and you agree upon receipt of such notice to immediately cease using all Links.
7. MODIFICATION OF THIS AGREEMENT
We may modify this Agreement at any time, and will send notice of any material modifications to the current email address provided by you. Your sole recourse in the event any such modification is unacceptable to you is to terminate this agreement and your participation in the Program, provided that we will pay to you all amounts due to you prior to your termination. Such termination by you will be effective immediately upon our receipt of notice thereof.
8. TERM AND TERMINATION
This Agreement will be effective on the date we accept the Application and will continue until either party terminates this Agreement as set forth herein. You may terminate this Agreement by ceasing to promote our sites, products and services. We may terminate this Agreement immediately, or restrict your participation in the Program, without notice or liability to you, in the event that you breach this Agreement. In such event, you will forfeit all amounts earned by you and not yet paid prior to termination. We also reserve the right to modify or discontinue any part of the Program at any time.
9. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION
This Section 9 will survive the termination or expiration of this Agreement.
9.1. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, “DISCLAIMED DAMAGES”); PROVIDED THAT YOU WILL REMAIN LIABLE TO US TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL OUR LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES NOT EXCLUDED IN THE IMMEDIATELY PRECEDING SENTENCE EXCEED THE AMOUNT PAID OR PAYABLE BY US TO YOU UNDER THIS AGREEMENT.
9.2. Disclaimer of Warranties
THE PROGRAM, SATELLITEDIRECT, AND THE LINKS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
You agree to defend, indemnify and hold harmless us, our related companies, and each such company’s respective officers, directors, employees, agents, and shareholders from and against any claim, loss, damage, expense or cost, including reasonable attorneys’ fees and costs, arising, directly or indirectly, in whole or in part, out of any claim, demand, action, suit, investigation, arbitration or other proceeding by a third party based on or in connection with (i) your breach of any covenant, duty, representation or warranty contained in this Agreement; (ii) Your Site; (iii) your Marketing Activities, including the use of Prohibited Terms; and (iv) your Email List.
This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of law provisions. You agree to submit to the exclusive jurisdiction of the federal and state courts of the Commonwealth of Massachusetts. Our failure to enforce any provision of this Agreement will not constitute a waiver of that or any other provision. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain enforceable. You will not assign this Agreement or your participation in the Program to any third party without our prior written consent. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between us. You acknowledge that you have read this Agreement, that you understand it and that you fully and unconditionally agree to it. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement and that we and our affiliates may operate websites that compete with Your Site.