Affiliate Program Terms & conditions v1.1Legal Notice and Terms of Service for our Product Affiliate Program Participation
You must read the following terms and conditions (this "Agreement"). By registering to be an Affiliate of our product (the "Software"), you are agreeing to be bound and abide by the notices, terms and conditions stated herein and you are tendering your personal guarantee of these terms and conditions. We may amend this Agreement at any time without prior notice by posting new, updated or revised terms of the Agreement for the Affiliate Program.
ACTING AS AN AFFILIATE OF OUR PRODUCT OF OUR COMPANY CONSTITUTES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE AGREEMENT.
Our Company (The "Licensor") grant you a personal, limited, non-exclusive, non-transferable, non-assignable license to act as an Affiliate for the Software provided that you adhere to all the terms and conditions of this Agreement.
By agreeing to be an Affiliate, you agree that this Agreement is a legally binding and valid contract, agree to abide by all the terms and conditions of this Agreement and agree to take all necessary steps to ensure that the terms and conditions of the Agreement are not violated by any person or entity under their control or in their service.
We, the Company and you, the Affiliate are entering into a simple business agreement in the best interests of both parties. Affiliate and our Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent between the parties. All copyrighted material and trademarked names and logos used in accordance with this Agreement by either or both parties remain the exclusive intellectual property of the respective originating or issuing parties. No transference of intellectual property ownership or conveyance of rights is intended or conferred in this Agreement. Sales and interests in this Agreement may not be transferred or sold to any other entity and all business between the parties is subject to the terms of this Agreement.
This Agreement grants you the right to advertise the Software and to earn revenue from sales that result from your advertisements. You certify that the web sites where you place the banners and links to the application are controlled by you and/or you have the right and authorization to place such banners and links on the respective site(s). The Company reserves the right not to accept any site into the Affiliate Program based on site content. Sites related to (but not limited to):
Our Company will own all right, title and interest in and to all information that is created or collected in the operation of the Company site and reserves the right to amend or terminate this Agreement at any time, with or without notice to Affiliate.
Affiliate Responsibilities
It is the responsibility of Affiliate to market the Application in a legal, ethical and honest fashion and Affiliate agrees that the Company will be held harmless from any and all actions of Affiliate and Affiliate marketing and promotional programs. Affiliate shall at all times comply with all local and Federal spam, fax broadcast and telemarketing laws. Any affiliate advertisement that does not comply with applicable local, state or federal laws is strictly forbidden and shall be expressly defined as unauthorized use of the Company’s trademarks, marks and names. Should action be brought against the Company for such activity by Affiliate, Affiliate agrees to bear all costs and penalties associated with such activity including, but not limited to Company’s legal costs for any alleged infraction of these laws. The Company reserves the right to amend all pricing plans, commissions or conditions relative to this agreement.
Payment Terms
Once a License of the Application is sold to a consumer which originated from a banner or link from your Affiliate ID code, the Company will pay you the following revenue share based on the following terms.
(a) during each calendar quarter. On 1 January, your affiliate level is reset to the Basic Level.
(b) based on a full license sale at the retail price of $16.95 - $0.67 of purchase transaction fees.
In order for us to encourage people to buy the full license of the application, we also offer single ringtone purchases for our customers, for only $2.99. The share of your revenue from the ringtones purchases is the same as for the license purchases.
**** based on the retail price of $2.99
Note: The number of ringtones will not count for the affiliate level, but they will generate revenue (according to the affiliate level and percentage share) for you as shown in the table above.
There are no fees to join the Affiliate Program and there are no minimum sales. However, there will be no revenue share paid out to you on the first license that is sold in each of the: a) first two full calendar months of being an affiliate, or b) first two payout periods (in the event payouts for revenue share are not on a monthly basis).
For avoidance of doubt, please see this example* schedule:
* this example is only for clarification purposes
The Company will pay you into your PayPal account every time you have earned a minimum of $50 in commissions. Provided you earn that minimum every month, you will be paid every month after the sales were generated. If your earnings don’t exceed $50 we will carry your amount due to the next month, and so on, until your commissions due add up to at least $50. If you earn below $50 in commissions per year, you will be paid annually.
When a payment is due to you, payments are made 15-20 days after the end of the previous month (e.g. January payments are made between 15-20 February).
Any returned software, charge backs, refunds or fees from a returned or disputed order will be adjusted in the following fee payment to you. The Affiliate will be responsible for all expenses connected with the money transfer to your account and a processing fee of $1.50 may be applied.
The Company will provide Affiliate with a unique affiliate code and access to and online electronic sales reports specifying the number of licenses of the Application that have been sold, so you can review your sales. For a sale to generate a commission to an Affiliate, the customer must complete the order form and remit full payment for the service ordered.
Modifications
By posting a Notice or a new Agreement on this site, we may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. These modifications may include, but not limited to changes in the scope of available fees, fee schedules, payment procedures and Program rules. If any of the modifications are UNACCEPTABLE TO YOU, your only recourse is to terminate this Agreement. If you CONTINUE PARTICIPATION IN THE PROGRAM following the posting of a Change Notice or new Agreement, it will be considered as your acceptance of the change.
Restrictions
You agree that you will not promote the Software in a country where such promotions are prohibited by any law, government agency, restriction or regulation. Additionally, you agree not to promote the products on the following web sites:
You are expressly prohibited from copying, modifying, merging, leasing, redistributing, assigning or transferring in any matter, the Software or any portion thereof.
You are prohibited from reverse engineering, decompiling, translating, disassembling, deciphering, decrypting, or other wise attempting to discover the source code of the Software.
You agree not to use the Software to violate the rights of others including the rights of copyright owners over their copyright material.
Affiliate shall not issue nor cause to be issued any news/media/press release that uses the Company’s or Application’s trademarks or logo without prior written consent from the Company.
Affiliates are expected to not participates or initiate in any mass unsolicited e-mailing (i.e. spamming). Violation of this policy will result in the termination of this contract and immediate dismissal from our Affiliate Program, with no refund to funds due to Affiliate at time of termination.
It is illegal to promote the Application to make ringtones from any recording that the user does not have the necessary permission from the copyright owner. Copyright infringement may be subject to criminal prosecution or civil penalties. Copy-protected CDs and DRM-protected music files are not readable.
LICENSOR’S WARRANTIES AND DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN LICENSOR AND YOU, THE AFFILIATE PROGRAM IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY THAT (i) PARTICIPATING IN THE AFFILIATE PROGRAM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) THE OPERATION OF OUR SITE OR THE AFFILIATE SITES OR AFFILIATE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE REPORTED FROM THE AFFILIATE PROGRAM. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN JURISDICTIONS WHERE WARRANTIES, GUARANTEES, REPRESENTATIONS, AND/OR CONDITIONS OF ANY TYPE MAY NOT BE DISCLAIMED, ANY SUCH WARRANTY, GUARANTEE AND/OR REPRESENTATION IS: (1) HEREBY LIMITED TO THE PERIOD OF EITHER (a) THIRTY (30) DAYS FROM THE DATE OF AGREEING TO PARTICIPATE IN THE AFFILIATE PROGRAM, OR (b) THE SHORTEST PERIOD ALLOWED BY LAW IN THE APPLICABLE JURISDICTION IF A THIRTY (30) DAY LIMITATION WOULD BE UNENFORCEABLE.
IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE OF ANY MACHINE, COMPUTER, OR TELEPHONIC DEVICE, DATA OR PROFITS, WHETHER OR NOT LICENSOR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AFFILIATE PROGRAM. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Personal information
Licensor will not redistribute or sell your information provided in connection with your participation in the Affiliate Program. You are responsible for compliance with your local laws, bylaws, policies, and etc. If required by legal authorities with appropriate documentation you understand that Licensor will provide any and all information regarding your use of the Software.
Indemnification
You agree to indemnify and hold harmless Licensor, its directors, officers, shareholders, parents, subsidiaries, affiliates, agents, and licensors, from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of this Agreement. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide us with such cooperation as is reasonably requested by us.
Termination
The Company reserves the right to terminate any affiliate with or without cause at the sole discretion of the Company with or without notice.
Your Warranties
You will defend and indemnify Licensor against any claims arising out of any breach of your warranty and representation and in connection therewith Licensor shall be entitled to retain counsel of its own choice at your expense.
In the event any paragraph or portion of any paragraph of this Agreement shall be determined to be invalid or unenforceable for any reason, such invalidity of unenforceability shall not affect the validity and enforceability of the remaining valid and enforceable paragraphs hereof, and shall be the invalid or unenforceable portion shall be deemed amended but only to the extent necessary to make such portion enforceable and compatible with the remaining terms of this Agreement, and if such portion cannot be so amended the Agreement will be construed as if such invalid or unenforceable paragraph or portion had not been inserted.
This Agreement shall be governed by and construed in accordance with the laws of Delaware. Each party hereby consents to the submission of any dispute arising hereunder to the federal or state courts located within the state of Delaware and submits to the jurisdiction of such court for the purpose of resolution of any claim hereunder.
Unless otherwise specified, this Agreement constitutes the entire agreement between you and Licensor with respect to the Affiliate Program and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and Licensor with respect to the Software and related Affiliate Program.
|