LinkConnector Affiliate Terms and Conditions
Click on the "+" to expand the applicable terms and conditions or the "-" to contract them. In the event of any inconsistency between the provisions of the Level 2 or Level 3 terms and conditions and the Level 1 terms and conditions, the terms and conditions set forth in Level 1 (LinkConnector Terms and Conditions) shall control, regardless of the inconsistency. In the event of any inconsistency between the provisions of the Level 3 terms and conditions and the Level 2 terms and conditions, the terms and conditions set forth in Level 2 (Merchant Terms and Conditions) shall control, regardless of the inconsistency.
INTRODUCTION: LinkConnector Corporation (“LinkConnector”), of 1001 Winstead Drive, Suite 300, Cary, North Carolina 27513, provides you access to LinkConnector’s Merchant Affiliate Programs subject to your compliance with the terms and conditions below (“Agreement”). Please read this Agreement carefully. By enrolling or participating as an Affiliate, defined herein, with LinkConnector (“LC Affiliate”), you agree to be bound by these terms and conditions and are eligible to receive compensation from a Merchant based on tracked actions of your End Users related to the promotion of a Merchant’s products or services. As of November 1, 2019; and in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged; Affiliate and LinkConnector agree as follows…
The following terms shall have the meanings set forth below:
“Account Detail” means Affiliate name, Affiliate Sites, Affiliate’s contact information—including, but not limited to any contact name, email address, physical address, tax ID and telephone number.
“Adware” means any software application, residing on an End User’s machine, with their permission, which is used by LC Affiliate in conjunction with an Affiliate Program.
“Affiliate” means a person or company that agrees to promote Merchant Services or the Merchant Site in accordance with Merchant Terms and Merchant Campaign Terms in exchange for a Commission.
“Affiliate Event” means an individual action by an End User; such as a Click Event, Lead Event, Sale Event, Revenue Event, or Go Event; within an approved Campaign that is tracked and recorded in a LinkConnector Transaction Table for which payment has been promised to an LC Affiliate by the Merchant.
“Affiliate Program” means a pay-for-performance program where an Affiliate receives a commission for sending an End User to the Merchant Site which then generates an Affiliate Event.
“Affiliate Promotion” means any link, banner, and other creative used by an Affiliate on any electronic device (e.g., laptop, desktop, mobile phone, etc.) or printed material (e.g., magazine ad, signage, etc.) to promote a merchant’s product or services with the intention of receiving compensation from the merchant through their Affiliate Program.
“Affiliate Site” means the Internet World Wide Web presence operated by or for LC Affiliate, (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“Affiliate Transaction” means any Event caused by the action of an End User which is recorded by LinkConnector and written to the LinkConnector Transaction Table.
“Campaign” means a logical grouping of Merchant Links and Events in the LinkConnector network through which Merchants manage their program. By way of example, a Campaign might be called ‘Book Sales’ and include Merchant Links which promote only books and Events which record only sales for books.
“Click Event” is an Affiliate Event that allows the Merchant to credit LC Affiliates for incoming clicks originating from an Affiliate Promotion to the Merchant Site. The minimum commission payable to Affiliates for a Click Event is typically $0.02 per click.
“Commission” is the amount payable to Affiliates for Affiliate Events. The Merchant, generally in the form of either a percentage of the sale amount or a flat fee, determines commission amounts.
“Cookie Duration” is an Event property representing the period in which an End User can return to Merchant Site and an LC Affiliate might still receive a Commission.
“Data Protection Regulation” means any applicable data protection, privacy or similar laws that apply to data processed in connection with this Agreement, including for EU citizens any regulations implementing the Data Protection Directive 95/46/EC or GDPR (as applicable) or Privacy and Electronic Communications Directive 2002/58/EC and for US citizens, FTC Guidance, US state and federal legislation relating to data privacy and security.
“End User” means an Internet user who clicks to the Merchant Site using a Merchant Link.
“End User Data” means all information and data of an End User collected by LC Affiliate, including, but not limited to, name, address, telephone number and email address.
“Event” is an Affiliate Event.
“Event State” is an Affiliate Event designated as a Valid Event, Pending Event, or Invalid Event.
“Go Event” is an Affiliate Event that allows the Merchant to credit LC Affiliates for outgoing clicks from the Merchant Site. The minimum commission payable to LC Affiliates for a Go Event is typically $0.02 per event.
“Intellectual Property” means all industrial and intellectual property rights existing from time to time including any patents, design rights, registered designs, trademarks, service marks, copyrights, moral rights, trade secrets, know-how, and all applications and registrations therefore, and all goodwill associated therewith.
“Invalid Event” is an Affiliate Event that has been disapproved by Merchant or LinkConnector for payment to LC Affiliate.
“Lead Event” is an Affiliate Event that allows the Merchant to credit LC Affiliates for End User Data obtained when an End User performs a specified action such as filling out a form, registering for a service, or downloading a file from the Merchant’s Site. The minimum commission payable to LC Affiliates for a Lead Event is typically $1.00 per lead.
“LinkConnector Affiliate Manager” is the web-based interface that can be accessed with one username and password which LC Affiliate uses to manage its Merchant Affiliate Program(s). The LinkConnector Affiliate Manager is accessible on LinkConnector’s login page at Account Login.
“LinkConnector Services” means the various related content, links, products and services provided by LinkConnector on or through the LinkConnector Site.
“LinkConnector Site” means the Internet World Wide Web presence operated by or for LinkConnector, located on the Internet through the http://www.LinkConnector.com URL (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“LinkConnector Transaction Table” means a table in LinkConnector’s online database that contains information about End User actions related to Merchant Links, Events, and related Affiliates.
“Marks” means logos, trademarks, trade names, service marks or other identifying emblems, words or designs of LinkConnector or LC Affiliate, as the case may be, to designate and identify itself or the particular products or services its offers.
“Merchant” means a person or company that offers an Affiliate Program through LinkConnector and agrees to pay Affiliates for promoting Merchant Services.
“Merchant Affiliate Program” means all of the Merchant’s past and present Campaigns within the LinkConnector Services.
“Merchant Campaign Terms” are the terms set by the Merchant as conditions for participating in a particular Merchant’s Campaign. At a minimum they include this Agreement in its entirety, the Merchant’s Terms and any Campaign-specific terms reflected in the Merchant Campaign information available to LC Affiliate online through the LinkConnector Affiliate Manager.
“Merchant Link(s)” means an advertisement in the form of a banner, text link, or object (e.g., HTML creative, Flash creative, etc.) used in an Affiliate Promotion. When clicked, the link directs an End User to the Merchant Site.
“Merchant Service(s)” means the product(s) or service(s) offered by the Merchant through the Merchant Site.
“Merchant Site” means the Internet World Wide Web presence operated by or for Merchant, (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).
“Merchant Terms” are the terms set by the Merchant as conditions for participating in their Merchant Affiliate Program. At a minimum they include this Agreement in its entirety and any account-specific terms reflected in the Merchant Campaign information available to LC Affiliate online through the LinkConnector Affiliate Manager.
“Pending Event” is an Affiliate Event that is being considered for approval as a Valid Event or disapproval as an Invalid Event by Merchant or LinkConnector.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”) who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Revenue Event” is an Affiliate Event that allows the Merchant to reward an Affiliate beyond any Commissions paid for individual Merchant Transactions.
“Sale Event” is an Affiliate Event that allows the Merchant to credit LC Affiliates for purchases by an End User of Merchant Services on the Merchant Site. The minimum commission payable to LC Affiliates for a Sale Event is typically $1.00 per sale.
“Server-Side Cookie” is information, stored by LinkConnector, about End User actions related to Affiliate Promotion. This information is stored in a LinkConnector Transaction Table at the time of a click from the End User to the Merchant Site.
“Service Level Guarantee” means the LinkConnector Site will be unavailable to the general public for no more than forty-eight (48) aggregate hours during any thirty (30) day period, excluding routine maintenance which shall occur during the hours of 2 a.m. to 7 a.m. Eastern Time no more than twice per month.
“Service Level Minimums” means industry standard service levels for like services, including, without limitation, standards for supporting online transactions, providing accurate and secure transmission of personal, credit card and other information, prevention of unauthorized access to End User Data, and availability of the Affiliate Site to End Users.
“Spyware or Malware” means any software application, residing on an end user machine, without their permission, which is used by LC Affiliate in conjunction with an Affiliate Program.
“Valid Event” is an Affiliate Event that has been approved by Merchant or LinkConnector for payment to LC Affiliate.
All other initially capitalized terms shall have the meanings assigned to them in this Agreement.
2. LICENSES/OWNERSHIP OF LINKCONNECTOR SITE.
2.1 Rights Granted by LC Affiliate.
(a) License; License Restrictions. LC Affiliate grants to LinkConnector a nonexclusive, nontransferable, royalty-free (without right to sublicense) license to use and display, during the Term of this Agreement, LC Affiliate Marks, solely for the purpose of linking to the Affiliate Site. LinkConnector agrees that LC Affiliate Marks are and will remain the sole property of LC Affiliate and agrees not to contest the ownership of such LC Affiliate Marks, nor misappropriate LC Affiliate Marks for LinkConnector’s own use. Affiliate reserves all rights to control the use of LC Affiliate Marks, and LinkConnector shall not change or modify LC Affiliate Marks in any manner without prior written authorization from LC Affiliate.
(b) Reservation of Rights. Except as expressly granted in this Agreement, LinkConnector shall have no other rights of any kind in LC Affiliate Marks or the Affiliate Site. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any of LC Affiliate’s Intellectual Property or proprietary technology other than the use of LC Affiliate Marks in accordance with the terms of this Agreement. LinkConnector acknowledges that LC Affiliate Marks and the Affiliate Site are the sole property of LC Affiliate, and this Agreement only grants LinkConnector a limited right to link to the Affiliate Site under the terms and conditions of this Agreement. The LC Affiliate Marks may not be used as a feature or design element of any other logo without prior written authorization from LC Affiliate.
2.2 LinkConnector Ownership Rights. All content, writings, graphics, tables, sounds and other materials on the LinkConnector Site, the design, layout and general look and feel of the LinkConnector Site, and all Intellectual Property embodied therein or pertaining thereto, (other than LC Affiliate supplied materials or LC Affiliate Marks on the LinkConnector Site) shall remain the sole and exclusive property of LinkConnector or its licensors. LinkConnector will retain sole control and ownership over the look and feel, content, layout and design of the LinkConnector Site. Nothing under this agreement shall be construed as granting to LC Affiliate any license or right in or to any Intellectual Property of LinkConnector.
3. RIGHTS AND OBLIGATIONS OF THE PARTIES.
3.1 LinkConnector’s Rights and Obligations.
(a) LinkConnector shall meet the Service Level Guarantee.
(b) LinkConnector shall be solely and exclusively responsible for all operation, hosting, and maintenance on the LinkConnector Site.
(c) LinkConnector shall provide automated, real-time tracking; reporting; and analysis of Merchant Links and Events on every Affiliate Transaction recorded for LC Affiliate.
(d) LinkConnector shall provide monthly Commission processing and payment for LC Affiliate on behalf of Merchant.
(e) LinkConnector has the right to not accept individuals, or any multi-level marketing, franchised, reseller, or third-party websites, and reserves the right to not accept Affiliates in certain vertical markets or Affiliates it deems, in its sole discretion, harmful to LinkConnector.
(f) LinkConnector reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Affiliate Site for any reason at any time, with or without notice to LC Affiliate and regardless of whether such Affiliate Site was previously accepted.
(g) LinkConnector or Merchant may change the Event State for Events to Invalid Event in the LC Affiliate Account in circumstances of (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Event; (iv) LC Affiliate’s failure to comply with Merchant Campaign Terms; and (v) non-receipt of payment from, or refund of payment to, the User by the Merchant for a Sale Event. A Merchant shall not have the right to invalidate Affiliate Transactions because of a Merchant’s determination that Commissions or fees were paid out through other promotional efforts.
(h) LinkConnector has the right to consider assigning an Affiliate Event to any Affiliate not using Adware, before considering such assignment to any Affiliate using Adware.
(i) LinkConnector shall observe any applicable Data Protection Regulations.
(j) LinkConnector shall provide Data Subjects, defined herein, with information about how Personal Data is being processed on the LinkConnector Site.
(k) LinkConnector shall notify LC Affiliate in accordance with section 12.7 without undue delay upon becoming aware of a breach affecting Personal Data. Additionally, LinkConnector shall provide LC Affiliate with sufficient information to allow LC Affiliate to meet any obligations to report or inform Data Subjects of the breach under or in connection with any applicable Data Protection Regulation.
3.2 LC Affiliate’s Rights and Obligations.
(a) LC Affiliate shall be solely and exclusively responsible for all operation, hosting, and maintenance on Affiliate Site(s) and shall meet Service Level Minimums on any Affiliate Site used in a Merchant Affiliate Program.
(b) Except as provided herein, LC Affiliate may not modify LinkConnector Affiliate Code without prior written consent from LinkConnector or the affected Merchant. LC Affiliate may not alter, copy, modify, take, sell, reuse, or divulge any LinkConnector Affiliate Code, except as is necessary to partake in a Merchant Affiliate Program. Requests for changes to LinkConnector Affiliate Code should be sent to in accordance with section 12.7.
(d) LC Affiliate agrees and represents that all information provided for the purpose of enrolling as an Affiliate will be accurate, complete and current. LC Affiliate is responsible for keeping account information up to date using the Affiliate Manager, including, but not limited to, financial information and contact name, phone number, and email.
(e) In addition to and without limiting LC Affiliate obligations under this Agreement, the LC Affiliate is obligated to abide by any Merchant Terms and Merchant Campaign Terms applicable to any Campaign in which LC Affiliate participates. If any conflict arises amongst this Agreement and the Merchant Terms and/or Merchant Campaign Terms, this Agreement shall prevail. If any conflict arises between the Merchant Terms and the Merchant Campaign Terms, the Merchant Terms shall prevail.
(f) LC Affiliate is obligated to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation) and any other laws or regulations that govern email marketing and communications when promoting any Merchant Affiliate Program.
(g) LC Affiliate may use approved Adware only after receiving written approval from LinkConnector, which LinkConnector may withhold at its sole discretion. LC Affiliate may not use Spyware or Malware.
(h) LC Affiliate agrees not to pursue any Affiliate Program directly with any Merchant for which the LC Affiliate has had a relationship in LinkConnector with a Merchant’s Affiliate Program in the previous six (6) months. LC Affiliate further agrees to contact LinkConnector, in accordance with section 12.7, if contacted directly by any Merchant with the intent to establish any Affiliate Program outside of LinkConnector providing the LC Affiliate has had a relationship with a Merchant’s Affiliate Program in LinkConnector in the previous six (6) months.
(i) LC Affiliate agrees that all communications with Merchants using LinkConnector’s internal e-mail system provided as part of the LinkConnector Services will be solely related to the promotion or execution of the Merchant Affiliate Program.
4.1 The LC Affiliate is not barred by this agreement from participating in any other Affiliate Program offered by a LinkConnector competitor or from participating in any in-house Merchant Affiliate Program.
5.1 Commissions. LC Affiliate will receive commission (“Commission”) for all Valid Events.
5.2 Payment Terms.
(a) All payments are based on Affiliate Events, designated as a Valid Event, Invalid Event, or Pending Event, which are accounted and audited by LinkConnector. The Event State shall be considered binding on LC Affiliate.
(b) LC Affiliate will be paid on funded Commissions typically within twenty (20) business days after the end of a calendar month. All accounts will be settled in U.S. dollars ($US). No payments will be issued for any amounts less than $100, if issued by check; or for any amounts less than $50, if issued by any other payment method (each collectively known as “Minimum Payment”). Any Commissions earned less than the Minimum Payment will carry over to the next month. If LinkConnector terminates this Agreement in accordance with section 11.2(a) or if LC Affiliate terminates this Agreement in accordance with section 11.2(b) and earned Commissions of less than the Minimum Payment are owed to LC Affiliate, such Commissions shall be forfeited to LinkConnector. If a Minimum Payment has not been earned for over 365 days, those Commissions older than 365 days shall be forfeited to LinkConnector. Also, if a Commissions check is not cashed within 120 days, those Commissions shall be forfeited to LinkConnector.
(c) Every Affiliate account based in the United States must have a unique Employer Identification Number (EIN) or Social Security Number, as applicable, associated with the account. If LC Affiliate is based in the United States, payments exceeding six hundred dollars ($600.00) per calendar year will be made to LC Affiliate only after they provide proper tax identification information.
(d) Any bank service fees incurred by LinkConnector due to an error in LC Affiliate account information are LC Affiliate’s responsibility and will be deducted from Commissions due to LC Affiliate.
(e) LinkConnector is hereby released by LC Affiliate for any claim for payment of a Commission until such time as LinkConnector has received payment from the relevant Merchant. LC Affiliate recourse for any earned Commissions not paid to LC Affiliate shall be to make a claim against the relevant Merchant(s), and LinkConnector disclaims any and all liability for such payment.
(f) If LinkConnector discovers that LC Affiliate was overpaid in error for any reason, LinkConnector has the right to recover the overpayment from future Commissions earned by LC Affiliate.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 By LinkConnector. LinkConnector represents, warrants and covenants that (i) it has sufficient rights to grant LC Affiliate the rights and licenses set forth herein; (ii) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the LinkConnector Services and the LinkConnector Site are not false or misleading; (viii) the LinkConnector Services and the LinkConnector Site do not produce, provide or are in any manner related to pornographic products or services (which LinkConnector shall have complete discretion to define); and (ix) the LinkConnector Services and the LinkConnector Site are neither defamatory, libelous, militant, hateful, slanderous or threatening.
6.2 By LC Affiliate. LC Affiliate represents, warrants and covenants that (i) it has sufficient rights to grant LinkConnector the rights and licenses set forth herein; (ii) to the best of its knowledge, the LC Affiliate and the Affiliate Site do not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the LC Affiliate and the Affiliate Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the LC Affiliate and the Affiliate Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the LC Affiliate and the Affiliate Site are not false or misleading; (viii) the LC Affiliate and the Affiliate Site do not produce, provide or are in any manner related to pornographic products or services (which LinkConnector shall have complete discretion to define), or their subsidiaries or foundations funded by such companies whose function is to improve acceptance of such products by the public; (ix) the LC Affiliate and the Affiliate Site are neither defamatory, libelous, militant, hateful, slanderous or threatening (which LinkConnector shall have complete discretion to define); and (x) that LC Affiliate will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software) without prior permission from LinkConnector, which LinkConnector may withhold at its sole discretion.
7. DISCLAIMERS; LIMITATION OF LIABILITY.
7.1 Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTIONS 3 AND 6, LC AFFILIATE’S OBLIGATION TO MEET SERVICE LEVEL MINIMUMS, AND LINKCONNECTOR’S OBLIGATION TO MEET A SERVICE LEVEL GUARANTEE, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE AFFILIATE SITE(S) OR THE LINKCONNECTOR SERVICE INCLUDING, BUT NOT LIMITED TO, A WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
7.2 Limitation of Liability. EXCEPT AS PROVIDED IN SECTION 9, IN NO EVENT SHALL EITHER PARTY, OR ITS RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENT COMPANIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, POTENTIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOST PROFITS OR LOST REVENUES) EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. FORCE MAJEURE.
8.1 A party shall not be considered to be in default in the performance of any obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term “uncontrollable force,” as used in this Agreement, shall mean an unanticipated event which is not reasonably within the control of the affected party and which by exercise of reasonable due diligence, such affected party could not reasonably have been expected to avoid, overcome or obtain or cause to be obtained a commercially reasonable substitute therefor. Such causes may include, without limitation, the following: flood, earthquake, tornado, storm, fire, terrorist attack, explosion, public emergency, civil disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority (whether valid or invalid), and action or non-action by or inability to obtain or keep the necessary authorizations or approvals from any governmental agency or authority; however, no party shall be relieved of its obligations hereunder, if its failure of performance is due to removable or remediable causes which such party fails to remove or remedy using commercially reasonable efforts within a reasonable time period. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give prompt notice of such fact to the other, followed by written confirmation of that notice, and shall exercise due diligence to remove such inability with all reasonable dispatch.
9.1 By LC Affiliate. LC Affiliate agrees to indemnify, defend and hold harmless LinkConnector and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against LinkConnector: (i) alleging that Affiliate Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; (ii) arising out of or relating to Affiliate Site(s) or the Affiliate Marks; or (iii) due to a breach by LC Affiliate of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.
9.2 By LinkConnector. LinkConnector agrees to indemnify, defend and hold harmless LC Affiliate and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims made by third parties against LC Affiliate: (i) alleging that LinkConnector’s Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; or (iii) due to a breach by LinkConnector of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.
9.3 Procedures. The Indemnified Party shall (i) promptly notify the Indemnifying Party in accordance with section 12.7 of such suit, claim, or proceeding; (ii) give the Indemnifying Party reasonable information, assistance and cooperation required to defend such suit, claim, or proceeding; and (iii) allow the Indemnifying Party to control the defense of any such action and all negotiations for its settlement or compromise. The Indemnified Party may be represented in the defense of any such claim, at the Indemnified Party’s expense, by counsel of the Indemnified Party’s selection. The Indemnifying Party shall have no liability for settlements or costs incurred without its consent. The Indemnifying Party shall not enter into any settlement that imposes liability or restrictions on the Indemnified Party without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld or delayed.
10. OWNERSHIP OF USER DATA; CONFIDENTIALITY.
10.1 Confidentiality. LinkConnector and LC Affiliate agree that any and all information identified by the other as “Confidential” and/or “Proprietary”, or which, under all of the circumstances, ought reasonably to be treated as Confidential and/or Proprietary, will not be directly or indirectly disclosed to any third person without the express consent of the other party for a period of three (3) years following termination of this Agreement and that neither party will make use of Confidential Information except under the terms of this Agreement. These confidentiality obligations shall not apply to any information which: (i) is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) is already known to the receiving party before disclosure by the disclosing party; (iii) is developed through the independent efforts of the receiving party; (iv) the receiving party rightfully receives from a third party without restriction as to confidentiality or use; or (v) is requested pursuant to a subpoena; provided, that the party responding to such subpoena gives the other party reasonable notice and opportunity to intervene to quash such subpoena.
10.2 Privacy of Consumer Financial Information. Notwithstanding anything in this Agreement to the contrary, if it is necessary for LC Affiliate to disclose any End User Data to LinkConnector for any reason, LinkConnector agrees that at no time shall LinkConnector use or disclose any such End User Data that LinkConnector may obtain in connection with this Agreement, except as required by law; provided that nothing herein shall require LC Affiliate to disclose End User Data to LinkConnector.
11. TERM OF AGREEMENT AND TERMINATION.
If LC Affiliate is dissatisfied with LinkConnector, any Merchant Affiliate Program, or with any of the terms and conditions contained herein, LC Affiliate’s sole and exclusive remedy is to terminate Affiliate account. LC Affiliate may cancel their account with LinkConnector at any time by sending notice in accordance with section 12.7.
11.1 Term. The term of this Agreement shall begin on the date the LC Affiliate applies for an account and shall continue until terminated by any of the actions enumerated in section 11.2.
11.2 Termination. This Agreement will terminate in the event of any of the following:
(a) Immediately after a material breach, provided that the non-breaching party gives the other notice in accordance with section 12.7 of a material breach by the other of this Agreement and a request for a cure, unless the breach is cured that day.
(b) Immediately once notice of termination by either party is received by the other party in accordance with section 12.7.
11.3 Effect of Termination.
(a) Upon termination of this Agreement, all licenses granted to LC Affiliate and LinkConnector hereunder shall automatically terminate.
11.4 Survival. Sections 5 (to the extent the payment obligations accrue prior to termination), 7, 9, 10, 11.3 and 12 shall survive any expiration or termination of this Agreement.
11.5 Suspension. LinkConnector reserves the right, at its sole discretion to suspend the LC Affiliate if it suspects a material breach of section 3.2. If LinkConnector takes action to suspend, LinkConnector may do so immediately, but LinkConnector is not relieved of its obligation to notify the LC Affiliate per section 11.2(a).
12.1 Choice of Law. The Parties agree that this Agreement shall be governed by and interpreted in accordance with the laws of the State of North Carolina (including by not limited to the Uniform Electronic Transactions Act as enacted in North Carolina), without regard to conflict of laws provisions thereof. Furthermore, the parties agree that any dispute (including litigation) that arises between the parties shall have its venue in the state or federal courts of Wake County, North Carolina.
12.2 Assignment. LC Affiliate may not assign all or any portion of this Agreement without the prior written consent of LinkConnector, which consent may be withheld at LinkConnector’s sole discretion.
12.3 Relationship of the Parties. No partnership, joint venture, employment, agency, franchise, or other form of agreement or relationship is implied or intended by this Agreement. The parties shall be independent contractors for all purposes in connection with this Agreement.
12.4 Entire Agreement. The parties agree that this Agreement constitutes the entire agreement between the parties as of the date hereof with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, whether oral or written. The parties agree that this Agreement may be modified or amended from time to time hereafter by LinkConnector as it deems necessary and LC Affiliate agrees (in consideration for LinkConnector agreeing to continue doing business with LC Affiliate) to be bound by such amendments after indicating their agreement through LinkConnector’s Affiliate Manager.
12.5 Press Releases. Neither party shall issue any press release or announcement relating to the relationship contemplated by this Agreement without the prior written consent of the other party.
12.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
12.7 Notices. All notices, requests, consents, and other communications under this Agreement from LC Affiliate shall be in writing and shall be deemed delivered (i) two business days after being sent by registered or certified mail, return receipt requested, postage prepaid or (ii) one business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery. If from LinkConnector to LC Affiliate, immediately upon email to the primary contact email address is deemed an acceptable means of notification. In each case to the intended recipient as set forth below:
If to LC Affiliate by email to the primary contact email address listed in the account summary,
If to LinkConnector, at 1001 Winstead Drive, Suite 300, Cary, North Carolina 27513, Attention: Choots Humphries, or via email using the form available at http://www.linkconnector.com/member/contact.htm or at such other address or addresses as may have been furnished in writing by LinkConnector to the other Party in the manner set forth in this section, with a copy to Richard Stephenson, Stephenson & Stephenson, LLP, 1100 Crescent Green, Suite 220, Cary, NC 27518 regarding any legal communications.
12.8 Section Headings. Section headings are for descriptive purposes only and shall not be used to interpret the meaning of this Agreement.
12.9 Attorneys’ Fees. If either party fails to pay any amounts due under this Agreement or otherwise breaches this Agreement and the non-breaching party retains an attorney to collect such amounts or remedy such breach, then the breaching party shall be obligated to pay any amounts due herein including said non-breaching reasonable attorneys’ fees incurred in collecting such amounts and court costs.
12.10 Non-Waiver. No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver thereof. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver of any subsequent breach or default of any other term or condition of this Agreement.
12.11 Tax Status and Obligations. LinkConnector is not obligated to provide LC Affiliate with tax and/or legal advice and nothing communicated by LinkConnector to LC Affiliate shall be construed as such. LC Affiliate is obligated to independently assess and comply with all relevant tax and legal requirements and is responsible for its own sales tax collection and reporting obligations arising from Commissions earned through the Merchant Affiliate Programs. Any Merchant information provided to LC Affiliate, including Merchant address, shall be provided accurately; however, LC Affiliate, not LinkConnector, is responsible for verifying the accuracy of information provided to LinkConnector by a Merchant.
BY CHECKING THE BOX INDICATING THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS OPERATING AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE PARTNER WEBSITE, YOU (A) AGREE TO BE BOUND BY THIS OPERATING AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS OPERATING AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS OPERATING AGREEMENT. IN ADDITION, IF THIS OPERATING AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS OPERATING AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.
1. Description of the Program
The purpose of the Program is to permit you to advertise Products on your site and to earn advertising fees OR commissions for Qualifying Purchases (defined in Section 7) made by your end users. A “Product” is any item sold on the Partner Website, other than any products that are explicitly defined as excluded products here (collectively, “Excluded Products”). Product may also include certain services, if any, expressly included on the Affiliate Program Commissions Schedule. In order to facilitate your advertisement of Products, we may make available to you data, images, text, link formats, widgets, links, and other linking tools, and other information in connection with the Program ("Content"). Content specifically excludes any data, images, text, or other information or content relating to products offered on any site other than the Partner Site.
To begin the enrollment process, you must submit a complete and accurate Program application. You must identify your site in your application. We will evaluate your application and notify you of its acceptance or rejection. We may reject your application in our sole discretion including if we determine that your site is unsuitable. Unsuitable sites include those that:
(a) promote or contain sexually explicit materials;
(b) promote violence or contain violent materials;
(c) promote or contain libelous or defamatory materials;
(d) promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
(e) promote or undertake illegal activities;
(f) include any trademark of Shinymod, its Partner Sites or its affiliates, or a variant or misspelling of a trademark of Shinymod, its Partner Sites or its affiliates, in any domain name, subdomain name, or in any username, group name, or other identifier on any social networking site; or
(g) otherwise violate intellectual property rights.
If we reject your application, you are welcome to reapply at any time. However, if we accept your application and we later determine that your site is unsuitable, we may terminate this Operating Agreement at any time in our sole discretion.
You will ensure that the information in your Program application and otherwise associated with your account, including your email address and other contact information and identification of your site, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and this Operating Agreement to the email address then-currently associated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
3. Links on Your Site
After you have been notified that you have been accepted into the Program, you may display Special Links on your site. “Special Links” are links to the Partner Site that you place on your site in accordance with this Operating Agreement, that properly utilize the special “tagged” link formats we provide, and that comply with the Affiliate Program Linking Requirements Special Links permit accurate tracking, reporting, and accrual of advertising fees.
You may earn advertising fees only as described in Section 7 and only with respect to activity on the Partner Site occurring directly through Special Links. We will have no obligation to pay you advertising fees if you fail to properly format the links on your site to the Partner Site as Special Links, including to the extent that such failure may result in any reduction of advertising fee amounts that would otherwise be paid to you under this Operating Agreement.
If you wish to include Special Links in a software application designed and intended for use on mobile phones, tablets, or other handheld devices (“Mobile Application”), you must include the name of the Mobile Application and the link to your Mobile Application in your application to the Program. The suitability and other requirements of this Section 3 and the Mobile Application Policy will apply to Mobile Applications. We will evaluate your application and notify you of its acceptance or rejection. A Mobile Application that is accepted will be an "Approved Mobile Application" for the purposes of this Agreement.
Special Links displayed in Approved Mobile Applications may be served by the Affiliate API or Partner API(“Affiliate API”) or the Product Advertising API, including any Special Links displayed within an integrated web browser and must use the Affiliate ID we have assigned to you expressly for your Approved Mobile Applications.
4. Program Requirements
By participating in the Program, you agree that you will comply with the Affiliate Program Participation Requirements and all pages, schedules, policies, guidelines, and other documents and materials referenced in this Operating Agreement (collectively, “Operational Documentation”).
You will provide us with any information that we request to verify your compliance with this Operating Agreement or any Operational Documentation. If we determine that you have not complied with any requirement or restriction described on the Associates Program Participation Requirements page or any other Operational Documentation or that you have otherwise violated this Operating Agreement, we may (in addition to any other rights or remedies available to us): (a) withhold any advertising fees payable to you under this Operating Agreement,; (b) close any other accounts you may have or may open in the future, without payment of any advertising fees; (c) terminate this Operating Agreement, ; or (d) undertake all of the above actions.. In addition, you hereby consent to us:
sending you emails relating to the Program from time to time;
monitoring, recording, using, and disclosing information about your site and visitors to your site that we obtain in connection with your display of Special Links (e.g., that a particular customer clicked through a Special Link from your site before buying a Product on the Partner Site) in accordance with the Privacy Notice; and
monitoring, crawling, and otherwise investigating your site to verify compliance with this Operating Agreement and the Operational Documentation.
5. Responsibility for Your Site
You will be solely responsible for your site, including its development, operation, and maintenance and all materials that appear on or within it. For example, you will be solely responsible for:
the technical operation of your site and all related equipment;
displaying Special Links and Content on your site in compliance with this Operating Agreement and the Operational Documentation and any agreement between you and any other person or entity (including any restrictions or requirements placed on you by any person or entity that hosts your site);
creating and posting, and ensuring the accuracy, completeness, and appropriateness of, materials posted on your site (including all Product descriptions and other Product-related materials and any information you include within or associate with Special Links);
using the Content, your site, and the materials on or within your site in a manner that does not infringe, violate, or misappropriate any of our rights or those of any other person or entity (including copyrights, trademarks, privacy, publicity or other intellectual property or proprietary rights);
using the Content, your site, and the materials on or within your site in a manner that is not harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous or otherwise in any manner whatsoever;
any use that you make of the Content and the Shinymod Marks, whether or not permitted under this Operating Agreement.
We will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, and all other matters described in this Section 5; (c) your use of any Content, whether or not such use is authorized by or violates this Operating Agreement, any Operational Documentation, or applicable law; (d) your violation of any term or condition of this Operating Agreement or any Operational Documentation; or (e) your or your employees' negligence or willful misconduct.
6. Order Processing
We will process Product orders placed by customers who follow Special Links from your site to the Partner Site. We reserve the right to reject orders that do not comply with any requirements on the Partner Site, as they may be updated from time to time. We will track Qualifying Purchases (defined in Section 7) for reporting and advertising fee accrual purposes and will make available to you reports summarizing those Qualifying Purchases.
7. Advertising Fees
We will pay you advertising fees on Qualifying Purchases in accordance with Section 8 and the Affiliate Program Commissions Schedule. In the event any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent advertising fees payable to you under this Operating Agreement. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when (a) a customer clicks through a Special Link on your site to the Partner Site; (b) during a single Session that the customer adds a Product to his or her shopping cart and places the order for that Product no later than 89 days following the customer’s initial click-through; or (c) the Product is shipped to, and paid for by, the customer.
A “Session” begins when a customer clicks through a Special Link on your site to the Partner Site and ends upon the first to occur of the following: (x) 24 hours elapses from that click; (y) the customer places an order for a Product; or (z) the customer follows a Special Link to the Partner Site that is not your Special Link.
Qualifying Purchases exclude, and we will not pay advertising fees on any of, the following:
any Product that, after expiration of the applicable Session, is added to a customer’s Shopping Cart, or is streamed or downloaded by a customer, even if the customer previously followed a Special Link from your site to the Partner Site;
any Product purchase that is not correctly tracked or reported because the links from your site to the Partner Site are not properly formatted;
any Product purchased through a Special Link by you or on your behalf, including Products you purchase through Special Links for yourself, friends, relatives, or associates (e.g., personal orders, orders for your own use, and orders placed by you for or on behalf of any other person or entity);
any Product purchased for resale or commercial use of any kind;
any Product purchased after termination of this Operating Agreement;
any Product order where a cancellation, return, or refund has been initiated; and
any Product purchased by a customer who is referred to the Partner Site through any of the following:
a Prohibited Paid Search Placement; or
a link to the Partner Site, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through your submission of data to that site or otherwise.
any Qualifying Purchase wherein you have offered any person or entity any consideration or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using Special Links (e.g., by implementing any “rewards” or loyalty program that incentivizes persons or entities to visit the Partner Site via your Special Links).
any Product purchased through a Special Link in a Mobile Application that was not an Approved Mobile Application or where the Special Link in an Approved Mobile Application was not served by the AMA API, Product Advertising API or other linking tools that we make available to you.
any Qualifying Purchase, which takes place in India, made through a mobile device or tablet wherein:
the mobile application of the Partner Site is pre-loaded by the original equipment manufacturer ("OEM") on the device or tablet; or
the mobile application of the Partner Site is installed through a maintenance release or firmware update or firmware based notifications sent by the OEM or the notification partner; or
the mobile application of the Partner Site is installed from a source other than Google Play store or iOS App Store
“Prohibited Paid Search Placement” means an advertisement that you purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. “Proprietary Term” means keywords, search terms, or other identifiers that include the word “Shinymod,” or any other trademark of Shinymod or its affiliates, or variations or misspellings of any of those words (e.g., "goaffpor"). “Redirecting Link” means a link that sends users indirectly to the Partner Site via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage. “Search Engine” means Google, Yahoo, Bing, or any other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks.
8. Advertising Fee Payment
We will pay you advertising fees on a monthly basis for Qualifying Purchases shipped, streamed, or downloaded (as applicable) in a given month, subject to any applicable withholding or deduction described below. We will pay you approximately 60 days following the end of each calendar month, but we may accrue and withhold advertising fees until the total amount due to you is at least INR1000 in case of NEFT transfers.
The advertising fee payable to you is inclusive of all taxes including applicable service tax or goods and services tax or other tax or levy that you may be required to remit in connection with such services for which you will raise a valid invoice under applicable law(s) and regulations and report it in the returns within the prescribed time limit so that Partner Site can take input tax credit of the taxes paid. You undertake to comply with any of the applicable provisions of such law including but not limited to:
timely issuance of GST compliant invoices;
making the invoices available to Partner Site;
depositing applicable taxes on a periodic basis; and
correctly reporting them to the government under tax laws.
If at any time credit of taxes is denied or payment of taxes is sought from Partner Site or Shinymod, due to, but not limited to, issuance of a deficient invoice, default in payment of taxes, inappropriate reporting in the returns filed or non-compliance of applicable laws and regulations by you, you shall indemnify Partner Site and Shinymod against any denied credits or taxes recovered as well as any interest and penalties imposed on Partner Site and Shinymod. If required by applicable Indian tax law, we may deduct or withhold taxes, levies or any similar amounts from the advertising fees payable to you. If you are an Indian resident, advertising fees payable to you will be subject to income tax withholding at the rate stipulated under applicable law. If you are not an Indian resident or have not provided us your PAN (Permanent Account Number), the rate of tax withholding applicable to you will vary. Further, if you are a non-resident, you agree to provide necessary documentation, as may be required, for Partner Site and Shinymod to satisfy any reporting or any obligations with respect to the advertising fee payable to you. If we deduct or withhold taxes from advertising fees payable to you, we will issue to you the relevant withholding tax certificate, if required under the applicable law, evidencing deposit of the taxes with the relevant regulatory authorities (for non-resident this is subject to relevant documents made available). If you provide us with a nil or reduced withholding tax certificate, we will apply such nil or reduced tax rate as the applicable withholding tax rate on advertising fees payable to you. You hereby agree that you will not pursue any claim against P or any of its affiliates, and hereby waive all such claims you may now or in the future have, in respect of any taxes Partner Site and Shinymod deposits with a relevant taxing authority pursuant to the this Operating Agreement.
9. Policies and Pricing
Customers who buy products through this Program are customers of the Partner Site with respect to all activities they undertake in connection with the Partner Site. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Partner Site will apply to those customers, and the same may be changed at any time.
10. Identifying Yourself as an Associate
You will not issue any press release or make any other public communication with respect to this Operating Agreement, your use of the Content, or your participation in the Program. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Operating Agreement. You must, however, clearly state the following on your site: “[Insert your name] is a participant in the Shinymod Affiliate Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to the partner site”
11. Limited License
Subject to the terms of this Operating Agreement and solely for the limited purposes of advertising Products on, and directing end users to, the Partner Site in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) copy and display the Content solely on your site; and (b) use only those of our trademarks and logos that we may make available to you as part of Content (those trademarks and logos, collectively, “Shinymod Marks”) solely on your site and in accordance with the Affiliate Program Trademark Guidelines
All licenses set forth in this Section 11 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Operating Agreement or any Operational Documentation, or otherwise upon termination of this Operating Agreement. In addition, we may terminate the license set forth in this Section 11 in whole or in part upon written notice to you. You will promptly remove from your site and delete or otherwise destroy all of the Content and Shinymod Marks with respect to which the license set forth in this Section 11 is terminated or as we may otherwise request from time to time.
Associates Program IP License (“License”)
By accepting the Operating Agreement, or by accessing or using the Product Advertising Content (as defined hereinafter), including the proprietary application programming interfaces and other tools (collectively, the “PA API”) that permit you to access and use certain types of data, images, text, and other information and content relating to Products (“Product Advertising Content”) which we may make available to you, you agree to be bound by this License.
Subject to the terms of this License and solely for the limited purposes of participation in the Associates Program in strict compliance with the Operating Agreement (including this License and the other Operational Documentation), we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to: (a) copy and display Product Advertising Content solely on your Site; (b) use only those of the Shinymod Marks we make available to you as part of the Product Advertising Content, solely on your Site and in accordance with the Associates Program Trademark Guidelines, unless otherwise provided for in this Operating Agreement, and (c) access and use the PA API, Data Feed, and Product Advertising Content solely in accordance with the Specifications and this License.
12. Reservation of Rights; Submissions
Other than the limited licenses expressly set forth in Section 11, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Operating Agreement or the License hereunder otherwise, acquire any ownership interest or rights in or to, the Program, Special Links, link formats, Content, PA API, Data Feeds, Product Advertising Content, any domain name owned or operated by us, information and materials on any Partner Site or the Associates Site, our and our affiliates’ trademarks and logos (including the Shinymod Marks), and any other intellectual property and technology that we provide or use in connection with the Program (including any application program interfaces, software development kits, libraries, sample code, and related materials).
If you provide us or any of our affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Operating Agreement, any Content, or your participation in the Program, or if you modify any Content in any way, (collectively, “Your Submission”), you hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (y) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (z) our and our sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission.
13. Compliance with Laws
In connection with your participation in the Program you will comply with all applicable laws of India including but not limited to ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you.
14. Term and Termination
The term of this Operating Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Operating Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon any termination of this Operating Agreement, any and all licenses you have with respect to Content will automatically terminate and you will immediately stop using the Content and Shinymod Marks and promptly remove from your site and delete or otherwise destroy all links to the Partner Site, all Shinymod Marks, all other Content, and any other materials provided or made available by or on behalf of us to you under this Operating Agreement or otherwise in connection with the Program. We may withhold accrued unpaid advertising fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Operating Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 5, 9, 10, 12, 13, 14, 16, 17, 18, 19, and 20, together with any accrued but unpaid payment obligations of us under this Operating Agreement, will survive the termination of this Operating Agreement. No termination of this Operating Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Operating Agreement prior to termination.
We may modify any of the terms and conditions contained in this Operating Agreement (and any Operational Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Operational Documentation on the Partner Site or by sending notice of such modification to you by email to the email address then-currently associated with your Associates account (any such change by email will be effective on the date specified in such email and will in no event be less than two business days after the date the email is sent). Modifications may include, for example, changes to the Associates Program Advertising Fee Schedule, Associates Program Participation Requirements, payment procedures, and other Program requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS OPERATING AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE PARTNER SITE OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
16. Relationship of Parties
You and we are independent contractors, and nothing in this Operating Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. You will not make any statement, whether on your site or otherwise, that contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Operating Agreement, you will be deemed to have taken the action yourself.
17. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, THE PARTNER SITE, THE Shinymod SITE OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, THE PARTNER SITE, THE Shinymod SITE AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS OPERATING AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
THE PROGRAM, THE Shinymod SITE, THE PARTNER SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE PARTNER SITE, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, Shinymod.com DOMAIN NAME AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING THE Shinymod MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME IN OUR SOLE DISCRETION. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, OPERATIONAL DOCUMENTATION, THE Shinymod SITE, OR THE AFFILIATE-PROGRAM SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS OPERATING AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
19. Governing law and Disputes
This Operating Agreement will be governed by the laws of the Republic of India, without regard to the principle of conflict of laws. The courts at [Haryana] shall have the exclusive jurisdiction over any dispute relating or arising in any way from the matter under the Program or this Operating Agreement.
Notwithstanding anything to the contrary in this Operating Agreement, we may seek injunctive or other relief in any court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Operating Agreement or operate sites that are similar to or compete with your site. You may not assign this Operating Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Operating Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Operating Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Operating Agreement. In the event of any conflict between this Operating Agreement and the Operational Documentation, the Affiliate Program Excluded Products page will control over this Operating Agreement, which will control over the remainder of the Operational Documentation. Whenever used in this Operating Agreement, the terms “include(s),” “including,” “e.g.,” and “for example” mean, respectively, “include(s), without limitation,” “including, without limitation,” “e.g., without limitation,” and “for example, without limitation.” Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Operating Agreement, may be made, taken, or given in our sole discretion. Any information relating to us or our affiliates provided by us in connection with the Operating Agreement that is not known to the general public is considered ("Confidential Information"). You agree that: (a) all Confidential Information will remain Shinymod's exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your performance under the Operating Agreement and ensure that persons who have access to Confidential Information will be made aware of and will comply with the obligations in this provision; and (c) you will not otherwise disclose Confidential Information to any individual, company, or other third party (other than your affiliates). You agree that we may, in our sole discretion, disclose or make available any information provided or submitted by you or related to your performance under this Operating Agreement to any judicial, quasi-judicial, governmental, regulatory or any other authority as may be required by us to co-operate and/ or comply with any of their orders, instructions or directions or to fulfill any requirements under applicable laws. You represent and warrant that you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
MOBILE APPLICATION POLICY
These Mobile Guidelines (“Mobile Guidelines”) apply to your inclusion of Special Links in your Approved Mobile Application. "We," "us," or "our" means Shinymod.com, its Partner Sites or any of its affiliates, as the case may be. "You" means the user agent for the associate account associated with the Approved Mobile Application. All capitalized terms used below that are not defined on this page have the meanings given to them in the Operating Agreement. Strict compliance with these Mobile Guidelines is required at all times, and any violation of these Mobile Guidelines will automatically terminate the Operating Agreement.
Your Mobile Application:
must be free to download and all Referral links must be accessible without paying for access;
must have original content;
must not emulate our Partner Site own shopping app functionality (if any);
must not have price tracking and/or price alerting functionality, unless approved in advance by Shinymod or its Partner Site in writing;
must not host or render Partner site's web pages in WebViews.
We may modify this Mobile Application Policy at any time and in our sole discretion by posting a change notice or revised or a revised Mobile Application Policy on the Shinymod or the Partner Site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM. YOUR CONTINUED INCLUSION OF SPECIAL LINKS IN YOUR APPROVED MOBILE APPLICATION FOLLOWING OUR POSTING OF A CHANGE NOTICE OR A REVISED MOBILE APPLICATION POLICY ON THE PARTNER SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
We reserve the right, exercisable in its sole discretion, to take appropriate action against any use without permission or any use that does not conform to this Mobile Application Policy.
|Email Marketing Allowed:||Yes|
|Search Engine Marketing Allowed:||Yes|
|Naked Coupon Capable:||Yes|
|Incentive/Rewards Sites Allowed:||Yes|