The undersigned ("Affiliate"), by submitting the Affiliate Application and this Affiliate Advertising Agreement (collectively, the "Agreement") to Website Wisard (Rainham) Ltd, an UK corporation ("Website Wisard™"), acknowledges that it wishes to become an Affiliate, and in consideration of Website Wisard™´ approving Affiliate’s Application, agrees to be bound by the terms and conditions of this Agreement as well as any specific terms and conditions required by any Marketer (as defined below) to participate in such Marketer’s affiliate program ("Marketer Specific Terms"). Affiliate warrants that all information provided in the Affiliate Application is true and accurate. Affiliate understands that Website Wisard™ has sole discretion over whether to accept or reject Affiliate’s Application, and that this Agreement will not be binding unless Affiliate has been notified of such acceptance.
RECITALS:
A. Affiliate is the operator and owner of the Internet Web site(s), emails, other segments or spaces on such Web site(s) and Web-based services described in the Affiliate Application (individually a "Distribution Medium" and collectively, the "Distribution Media").
B. Website Wisard™ operates an online performance-based marketing network of online distribution channels owned and/or operated by various entities with whom Website Wisard™ has contracted (collectively "Distribution Partners" or "Affiliates") (which includes the Distribution Media, other Web sites, email lists, desktop applications and wireless services) for which it solicits various entities (as well as other advertisers, advertising agencies or others) ("Marketers") to place performance-based advertising offers in the form of banners, textual links, transactional ads or other relevant media with respect to each Marketer’s products and services ("Products"), including the specific offers described in the individual Marketer Specific Terms (the "Offer"). Marketer may sometimes be referred to as Client in other agreements entered into by Website Wisard™.
1. Term
Website Wisard™ reserves the right to terminate this Agreement at any time upon notice to Affiliate via e-mail or via Website Wisard™´ Web site. Website Wisard™ may immediately terminate this Agreement without notice if Affiliate is in breach of any representation, warranty or covenant in this Agreement or any other agreement to which Affiliate and Website Wisard™ are a party. Affiliate may terminate this Agreement upon thirty (30) days written notice to Website Wisard™. The rights and obligations contained in Sections 3, 5, 6, 7, 8 and 9 of this Agreement shall survive the termination or expiration of this Agreement.
2. Acceptance
(a) Affiliate at its discretion, and upon approval by Website Wisard™ and each applicable Marketer, shall determine which Offers it will display through its Distribution Media. Any Offer displayed by Affiliate shall be displayed on the terms and conditions set forth in this Agreement and in accordance with all applicable Marketer Specific Terms. In the event that Website Wisard™ or a Marketer believes that the display, or continued display, of an Offer may subject either party or Marketer to potential liability, Affiliate shall, upon written notice from Website Wisard™, immediately remove the Offer from its Distribution Media. Affiliate shall not alter or modify the Offer as provided by Website Wisard™ or Marketer. In connection with the foregoing, Affiliate acknowledges and agrees that Affiliate's contact information, including but not limited to Affiliate's Name and Email Address, will be made available to Marketers and potential Marketers via the CommerceConnected™ (sm) interface.
(b) Affiliate shall not engage in any of the following prohibited activities:
(i) Promoting or conducting any illegal or fraudulent activity through the Distribution Media or any site linked to the Distribution Media;
(ii) Sending or causing to be sent unsolicited advertising e-mails;
(iii) the display of obscene, offensive, violent or misleading content on the Distribution Media or any site linked to the Distribution Media;
(iv) providing or allowing any incentive based promotion that provides compensation to Qualified Customers (as defined below), unless specifically authorized by Marketer;
(v) interfering with or seeking to improperly influence the referral of an end user to a web-site not included within the Distribution Media;
(vi) replacing or altering any component of the Website Wisard™ Technology that results in a reduction of compensation earned by Website Wisard™ or another Affiliate or Distribution Partner;
(vii) using invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; or
(viii) using any cookie, device, program, robot, iframes, hidden frames, popup window or any other operation or process that interferes with Website Wisard™’ ability to properly identify and track Qualified Customers.
3. Payment for Services
(a) Website Wisard™ agrees to remit to Affiliate an Advertising Fee ("Advertising Fees") payable in the amounts and on the terms as set forth in this Agreement as well as in accordance with all applicable Marketer Specific Terms for all Offers placed with Affiliate which result in the sale of Products to Qualified Customers or other specified actions completed by Qualified Customers upon the Marketer’s Web site.
(b) As used in this Agreement and in any applicable Marketer Specific Terms:
(i) "Net Monthly Sales" means the net dollar amount of Products sold to Qualified Customers during a calendar month. Net Monthly Sales are calculated exclusive of fraudulently placed orders, returned orders, transportation and packaging costs, insurance, duties, taxes and other governmental charges, and discounts or rebates actually granted by Marketer;
(ii) "Qualified Customer" means any individual or entity that is tracked by Website Wisard™´ proprietary technology, CommerceConnected™, and who (a) purchases Products from the Marketer Site within the period of time as set forth in any applicable Marketer Specific Terms of clicking through to the Marketer’s Site via hyperlinks from any Affiliate or Distribution Partner or from any other promotional placement provided by Website Wisard™ or (b) completes and submits to Marketer all information required by Marketer’s registration form within the period of time as set forth in any applicable Marketer Specific Terms of clicking through to the Marketer Site via hyperlinks from any Affiliate or Distribution Partner or from any other promotional placement provided by Website Wisard™. A person or entity that supplies information previously known or possessed by Marketer is not a Qualified Customer.
(c) In the event an individual or entity visited more than one Affiliate or Distribution Partner of Website Wisard™ prior to purchasing Products from or undertaking some other specified action on a Marketer’s Web site, the Affiliate or Distribution Partner operating the last Distribution Medium from which such individual or entity clicked through to the Marketer’s Web site shall be the only party entitled to receive an Advertising Fee.
(d) Website Wisard™ shall pay the relevant Fees to Affiliate within sixty (60) days after the end of the month in which Website Wisard™ has received payment from each applicable Marketer for such relevant Fees. Website Wisard™ shall not be obligated to make any payment of relevant Fees to Affiliate until
(1) It has received payment for such Advertising Fees from the Marketer and
(2) The aggregate amount of Advertising Fees due to Affiliate from a specific Marketer equals or exceeds fifty dollars (Ł50.00). Website Wisard™ does not aggregate payments remitted to it from different Marketers for the benefit of Affiliate. Any earned but unpaid Advertising Fees shall carry over to the next regularly scheduled payment period.
(e) Website Wisard™ will only remit payment to Affiliate if Affiliate has been accepted by Website Wisard™ as an Affiliate and has provided Website Wisard™ with a correct mailing address and a tax identification number (A1 form).
(f) Regardless of the timing of any payment made by Website Wisard™ to Affiliate hereunder, Website Wisard™ shall be authorized to chargeback any Fee paid to Affiliate that specifically relates to
(i) Products returned by Qualified Customers within ninety (90) days from the date of purchase;
(ii) Refunds or credits issued to Qualified Customers within ninety (90) days from the date of purchase; or
(iii) Overpayments to Affiliate, duplicate entries or other clear bona-fide errors. Website Wisard™ shall deduct the amount of the chargeback from and offset such amounts against any monies owed by Website Wisard™ to Affiliate. In the event that Website Wisard™ has not fully recouped, via offset, any chargeback within sixty (60) days from the date of the chargeback, Affiliate shall issue payment to Website Wisard™ for the outstanding amount of the chargeback.
(g) Amounts credited to Affiliate’s account will not bear interest.
(h) Affiliate hereby authorizes Website Wisard™ to electronically transfer (via an automated clearing house or other means) amounts owed to Affiliate to Affiliate’s account at the financial institution set forth in the Affiliate Application ("Bank"). Affiliate authorizes Bank to accept and to credit any payments transferred by Website Wisard™ to Affiliate’s account. In the event that Website Wisard™ erroneously deposits funds into Affiliate’s account, Affiliate authorizes Website Wisard™ to debit Affiliate’s account in an amount not to exceed the amount of the erroneous credit. This authorization is to remain in full force and affect until Website Wisard™ and Bank have received written notice from Affiliate of its termination. If Affiliate changes bank accounts, it agrees to immediately notify Website Wisard™ of such change in order to allow Website Wisard™ to update its records accordingly.
4. Responsibilities of Website Wisard™
Website Wisard™ covenants and agrees to use its commercially reasonable best efforts:
(a) To provide, monitor and maintain the necessary technology applications required to link Affiliate to each Marketer’s Web sites ("Website Wisard™ Technology") and track the relevant actions as set forth in the Marketer Specific Terms. Website Wisard™ Technology shall include the use of tags in HTML/Java or other appropriate languages (the "Tags") to enable Website Wisard™ to serve or provide Offers to Affiliate;
(b) to provide Affiliate with product descriptions, GIF or JPEG Images, other product attributes (including the SKU´s), product availability, order status, and shipment confirmation (each in a mutually acceptable format) for each Marketer that agrees to provide Website Wisard™ and Affiliate with such information;
(c) To provide Affiliate with real-time access to records that will allow it to monitor the volume of Offers delivered by Affiliate and the revenue produced thereby (subject to billing corrections and adjustments) in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by either party in connection with the performance of this Agreement shall be the sole property of Website Wisard™.
5. Responsibilities of Affiliate
(a) Affiliate covenants and agrees that it shall:
(i) to continue to operate and maintain the Distribution Media (including any Web pages where any Offer appears) in a manner consistent with the intent and purpose of the Distribution Medium;
(ii) To place Offers on Affiliate’s Distribution Medium and (including Web pages where any Offer appears) in accordance with the terms set forth in this Agreement and in accordance with all applicable Marketer Specific Terms;
(iii) To maintain its customer list in a manner that conforms to best practices of privacy policies;
(iv) to position the Offers on each Distribution Medium (including any Web page where any Offer appears) in such a manner to assure that the Offers are fully and clearly visible to consumers and displayed in a similar manner as other Marketers included in the Distribution Medium;
(v) Not alter, change substitute or modify the content or appearance to any end user of any web-site not included within the Distribution Media;
(vi) Not use any information or content from any web-page not included within the Distribution Media in order to refer a Qualified Customer to a Marketer Site;
(vii) Not obstruct access to any web-site not included within the Distribution Media; and (viii) not bundle downloadable shopping software applications with other applications, whereby the installation and de-installation is not obvious, easy or complete. Licensing and terms of all software downloads and applications of any type must be clearly presented to and accepted by the end-user and de-installation must be obvious, easy and complete.
(b) Affiliate agrees and warrants that it will not send, transmit and/or distribute any Offer (as defined in the Agreement) via e-mail unless the intended recipient of the email has "opted in" to receive such Offer and such e-mail is not deemed "SPAM e-mail" (as defined below). An e-mail shall be deemed to be "SPAM e-mail" if such e-mail satisfies any one or more of the following criteria:
(i) The e-mail fails to identify the Affiliate as the sender of the e-mail;
(ii) The e-mail contains a falsified sender domain name or non-responsive IP address;
(iii) The e-mail contains or includes a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;
(iv) the e-mail fails to notify the recipient that he or she may unsubscribe or "opt out" from further e-mail solicitations from the Distribution Partner/Affiliate; and
(v) The e-mail fails to contain or include a valid return e-mail address or other internet based mechanism whereby recipients can unsubscribe or "opt out" from receiving further e-mail solicitations from the Affiliate. Such return e-mail address or other internet based mechanism shall remain valid for no less than thirty (30) days from the date of transmission of the e-mail and the Distribution Partner/Affiliate shall implement all requests to unsubscribe or "opt out" within ten (10) days of receipt of such request; (vi) the e-mail fails to contain or include a valid physical postal address for the Distribution Partner/Affiliate (which shall not include a P.O. Box address);
(vii) the e-mail is sent to an individual who was not provided with an accurate, clear and conspicuous description of the marketing purposes for which his or her e-mail address may be used at the time such e-mail address was provided by the individual;
(viii) The e-mail fails to provide clear and conspicuous notice that the message is an advertisement or solicitation;
(ix) The e-mail is sent for the purpose (but not necessarily the sole purpose) of harvesting the e-mail addresses in order to send future unsolicited e-mails;
(x) The e-mail is sent unsolicited to a recipient that does not have a prior business or personal relationship with Distribution Partner/Affiliate; or
(xi) The e-mail contains nudity, profanity, sexually oriented materials, hate speech, or other obscene content.
(c) Affiliate further agrees and warrants that it will comply with all local, state and federal laws (including, but not limited to, the "CAN-SPAM" Act, effective January 1, 2004, as may be amended from time to time) regarding the sending of e-mails.
(d) Website Wisard™ will notify Affiliate of any complaint regarding their e-mail practices or any alleged violation of the above warranties. Within forty-eight (48) hours of notification, Affiliate must respond to Website Wisard™ and provide source information as to any questionable e-mails including, but not limited to, the time, date, IP address and content of the questionable e-mails along with the applicable "opt-in" information (e.g. time, date and IP address of opt-in source) of the recipient. If the Affiliate fails to provide source information satisfactory to Website Wisard™ to demonstrate that
(i) The recipient "opted in" to receive such e-mail and
(ii) The Affiliate did not send SPAM e-mail or otherwise breach the above warranties, and then Website Wisard™ has the right to immediately suspend payment to and further performance of any services by the Affiliate.
6. Indemnification; Limitation of Liability
(a) Affiliate agrees to indemnify, defend and hold harmless Website Wisard™ and each applicable Marketer (and their respective officers, directors, employees, shareholders and agents) from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys´ fees) directly or indirectly arising from or relating to
(i) any breach of this Agreement by Affiliate or
(ii) the operation and content of the Distribution Media. Affiliate acknowledges that each Marketer who displays or allows to be displayed any Offer on Affiliate’s Web site or through any of Affiliate’s Distribution Medium is an intended third party beneficiary of these indemnities. Affiliate agrees that it will not assert a defense based upon lack of privities against any Marketer seeking to enforce these indemnities.
(b) Website Wisard™ agrees to indemnify, defend and hold harmless Affiliate (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability claims, losses, damages, injuries or expenses (including reasonable attorneys´ fees) directly or indirectly arising from or relating to any breach of this Agreement by Website Wisard™.
(c) Neither Affiliate, Website Wisard™ nor any Marketer shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses of any kind arising out of this Agreement or its termination, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Neither Affiliate, Website Wisard™ nor any Marketer, shall be liable to one another for lost or imputed profits arising out of this Agreement or its termination. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from Website Wisard™´ willful misconduct or recklessness, the liability of Website Wisard™ shall not exceed the total amount of the Advertising Fees actually paid by Website Wisard™ to Affiliate under this Agreement and each applicable Marketer Specific Terms. Affiliate shall not be liable
(i) For any errors or omissions included in the Offers received from Website Wisard™ or
(ii) In the event that Affiliate encounters technical or other difficulties that may occasionally hinder the operation of the Distribution Medium.
(d) Website Wisard™ shall not be liable to Affiliate or any other person or entity for
(i) Any information provided to any person or entity by any Marketer or any illegal, inappropriate act or act of misconduct on the part of any Marketer;
(ii) System downtime of Website Wisard™ or any Marketer;
(iii) unauthorized access to, or alteration, theft or destruction of Affiliate’s Distribution Medium, data files or systems or programs through accident, fraudulent means or device; or ]
(iv) Any claim attributable to errors, omissions or other inaccuracies in the Offers.
7. Confidentiality
In connection with the business relationship contemplated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party’s vendors, and such party’s contemplated plans, strategies and prospects ("Confidential Information"). Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
8. Trademarks and Proprietary Rights
(a) Website Wisard™, on behalf of each applicable Marketer, grants Affiliate a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute the Offers in accordance with the terms of this Agreement. Website Wisard™ specifically does not grant Affiliate any right to use any Marketer’s trade name without the express written consent of Website Wisard™. Website Wisard™ grants Affiliate a limited, non-exclusive, non-transferable license for the term of this Agreement to use the Website Wisard™ Technology solely in accordance with the terms of this Agreement. Affiliate grants Website Wisard™ a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute its company name and logo for use in Website Wisard™´ promotional materials. Each license granted in this Section 8(a) is hereinafter referred to individually as "Licensed Property."
(b) Neither party shall use the other party’s Licensed Property in a manner that disparages the other party or its products or services, blurs, dilutes or otherwise diminishes the other party’s trade names, trademarks, service marks or other intellectual property, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party shall comply with the other party’s requests as to the use of the other party’s Licensed Property and will avoid any action that diminishes the value of such marks. Without limiting the foregoing, Affiliate shall not, without written permission from Marketer, (i) use any of Marketer’s brand names, keywords or derivations of either of the above for any purpose; or (ii) purchase any URL containing any of Marketer’s brand names, keywords or derivations of either of the above.
(c) Subject to the limited licenses granted to Website Wisard™ and Affiliate under Section 8(a), each party and each Marketer owns and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express written consent of such party. All data that is collected by Website Wisard™ while performing its obligations under this Agreement, remains the property of Website Wisard™. Website Wisard™ currently uses and plans to continue to use data that it collects in an aggregate manner (i.e. that information which is gathered as a group of demographic data, and is not personally or company identifiable).
9. General Provisions
(a) Representations and Warranties. Each party represents and warrants to the other party that:
(i) Such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and
(ii) Nothing contained in this Agreement or required by such party’s performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of this Agreement shall not infringe or violate upon the Intellectual Property or privacy rights of any third party.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9(A), NEITHER Website Wisard™ NOR AFFILIATE MAKE, AND EACH SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE DISTRIBUTION MEDIUM, PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND NON-INFRINGEMENT.
(b) Privacy. Throughout the Term of this Agreement, both parties agree to adhere to fair information collection practices with respect to the receipt or provision of the Services. During the term of this Agreement, Affiliate shall use reasonable commercial efforts in accordance with accepted industry standards to ensure that the Distribution Media will
(i) feature an easy to understand privacy policy that can be directly linked to from the Distribution Media that identifies the nature and scope of Affiliate’s collection and use of information gathered by Affiliate and
(ii) offer the user an opportunity to opt out from such collection and use of the data. The following language is recommended: "We may use third-party advertising companies, such as Website Wisard™., to serve or track ads on our web site and other web sites. These companies may use information (not including your name, address, email address or telephone number) about your visits to this and other web sites in order to measure advertising effectiveness and to provide advertisements about goods and services that may be of interest to you." To find out more about the use of cookies and the information-gathering practices of Website Wisard™, please refer to http://websitewisard.com/index.php/pages/privacy.html . Affiliate agrees never to alter any Website Wisard™ tags so as to include any personally identifiable or sensitive information of any visitors in such tags. (c) Jurisdiction and Governing Law. Affiliate consents to the exclusive personal jurisdiction of the courts located in UK and agree that any claim against Website Wisard™ shall be brought in the UK courts located in London, UK. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the UK, without reference to conflict of laws principles. Affiliate consents to the personal jurisdiction of the courts located in London, UK, and agree that any lawsuit between Affiliate and Website Wisard™ shall be filed in this venue.
(d) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
(e) Relationship. The relationship of Website Wisard™ and Affiliate established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other. The detailed operations of Website Wisard™ under this Agreement are subject to the sole control and management of Website Wisard™. The parties acknowledge that, except as set forth in Section 5 hereto, this Agreement sets forth a non-exclusive relationship between the parties.
(f) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective:
(i) Upon delivery when delivered in person;
(ii) Upon transmission when delivered by verified facsimile transmission; or
(iii) When delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective parties as follows. To Website Wisard™ at the address listed on its Web site; to Affiliate at the address set forth in the Affiliate Application; and to Marketer at its principal business address.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
(h) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. Website Wisard™ reserves the right to modify this Agreement at any time. Any such modification shall be immediately effective upon the posting of the modified Agreement upon the Website Wisard™ Web Site, or the Connect Commerce™ Web site, or any successor Web site. Affiliates continued display of Offers pursuant to this Agreement after the posting of such modifications shall constitute acceptance and ratification of all such modifications.
(i) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
The individual clicking on this link and submitting this application certifies that she/he is authorized to act on behalf of Affiliate and that she/he, on behalf of Affiliate, has read and accepted the terms, conditions and disclosures associated with this Agreement.
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