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Affiliate Terms of Service
MASTER AGREEMENT
This Master Agreement ("Agreement") is made between Custom-Cutout ("Merchant") and Your Web Site ("Partner").
TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
IMPORTANT-READ CAREFULLY: THIS AFFILIATE PROGRAM AGREEMENT, INCLUDING APPLICABLE OFFERS (COLLECTIVELY, THE "AGREEMENT"), IS A LEGAL AGREEMENT BETWEEN YOU AND CUSTOM-CUTOUT AFFILIATE PROGRAM ("PROGRAM"). BY REGISTERING FOR AND PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR OR PARTICIPATE IN THE PROGRAM
1. PARTICIPATION IN THE PROGRAM
This agreement governs participation in the Program only. Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement. You should also note that if you are accepted to participate in the Program and your Site is thereafter determined (in our sole discretion) to be unsuitable based on the criteria below for the Program, we may terminate this Agreement:
Your Site may not:
Promote graphic violence (which may include certain types of game sites)
Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
Promote sexually explicit, pornographic or obscene content (whether in text or graphics)
Promote illegal activities
Promote content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethnically or otherwise objectionable
Promote or use bulk unsolicited email (spam)
Promote speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise)
Promote content related to liquor, tobacco, firearms, drugs, gambling, crime or death
Promote politically sensitive or controversial issues (e.g. abortion, capital punishment) or other political content (e.g. lobbyists, political campaigns)
Promote any unlawful behavior or conduct
Otherwise are considered offensive or inappropriate at Custom-Cutout’s sole discretion
2. DEFINITIONS
2.1.
"Offer" means a specific offer posted by Custom-Cutouts on its Program
page. The terms and conditions of such Offers shall be incorporated
into this Agreement.
2.2. "Qualifying Link" means a Custom-Cutout
link from your Site to Custom-Cutout's Site using one of the Required
URLs or any other URL or graphic link provided by Custom-Cutout for use
in the Program. A Qualifying Link or "Linking Materials" shall be
defined as hyperlinks, buttons, banners or other user interface
established by Custom-Cutout for your Web Site.
2.3. "Qualifying
Product" means a Custom-Cutout product that is offered for sale by
Custom-Cutout at the Custom-Cutout Site and is the subject of an Offer.
2.4. "Qualifying Product Sales" means sales of Qualifying Products offered at Custom-Cutout's Site.
2.5.
"Qualifying Product Revenues" means revenues derived by us from
Qualifying Product Sales, less chargebacks, taxes, surcharges and
processing fees.
2.6. "Required URLs" means the special URLs specified in an Offer to be used to link from your Site to Custom-Cutout's Site.
2.7.
"Session" means the period between the time a Customer first clicks on
a Qualifying Link on your Site and the time the Customer makes an
online purchase at Custom-Cutout's Site, provided that such purchase is
made within 90 days of the first click and provided that no subsequent
Customer activity has occurred to override the Session during those 90
days.
2.8. "Site" means a World Wide Web Site.
3. OFFERS
3.1.
From time to time, Custom-Cutout's may post on third party site’s
Offers to pay members of a specified referral fee on certain Qualifying
Product Sales to third parties through a Qualifying Link.
3.2. The
terms of an Offer, as posted on third party site’s or otherwise
communicated to you shall be governed by the terms and conditions of
this Agreement. However, in the event of any inconsistency between the
terms of the specific Offer and the terms of this Agreement, the terms
of the Offer shall govern.
3.3. At any time prior to you providing a
Qualifying Link, Custom-Cutout, with or without notice, (a) change,
suspend or discontinue any aspect of an Offer or (b) remove, alter, or
modify any graphic or banner ad provided to you pursuant to an Offer.
You agree to promptly implement any request from Custom-Cutout to
remove, alter or modify any graphic or banner ad submitted by you that
is being used in connection with an Offer.
4. YOUR RESPONSIBILITIES
4.1.
You shall only link your Site to areas within Custom-Cutout's Site
using Required URLs for the Program. You may post as many links to the
Required URLs as you like. The position, prominence and nature of links
on Custom-Cutout's Site shall comply with any requirements specified in
the Offer, but otherwise will be in Custom-Cutout's sole discretion.
4.2.
You agree to display Custom-Cutout's Link materials appropriately on
your Web Site and/or Email and to respect Custom-Cutout's trademarks,
service marks and other rights in the Link Materials. You will use only
these Link materials to link your Web Site to Custom-Cutout's Web Site,
and you will not alter the look or feel of these Link Materials or of
our Web Site in any way. You will update to new versions of Link
Materials as Custom-Cutout makes them available or you submit a request
for a specific type of Linking Material.
4.3. Custom-Cutout will
not, and is not obligated to, make any representations, warranties or
other statements concerning you, your Site, any of your products or
services, or your Site policies, except as expressly authorized by the
Offer.
4.4. You will be solely responsible for the development,
operation and maintenance of your Site and for all materials that
appear on your Site. We disclaim all liability for such materials. You
shall indemnify and hold us harmless from all claims, damages and
expenses (including, without limitation, attorney's fees) relating to
the development, operation, maintenance and contents of your Site. You
are also responsible for notifying us any malfunctioning of the
Required URLs or other problems with your participation in the Program
in accordance with the terms of the Offer and this Agreement.
Custom-Cutout will respond in normal course to all concerns upon
notification.
4.5. You will:
1. not make any representations, warranties or other statements concerning Custom-Cutout, Custom-Cutout's Site, Commission Junction or Commission Junction's;
protect Custom-Cutout and Commission Junction's confidential information and
not use or display Custom-Cutout’s trademarks or otherwise infringe on Custom-Cutout’s rights.
4.6 Loyalty programs may participate in the Custom-Cutout affiliate program but are subject to specific terms and conditions.
4.6.1
Loyalty programs that utilize top moxie or like proprietary downloads
to credit member accounts for purchases made via browser redirects are
not permitted to participate in the Custom-Cutout Program. The use of
such marketing tactics will result in non-payment for sales generated.
4.6.2 Custom-Cutout reserves the right to request additional information regarding the source of all loyalty program sales.
4.6.3
Custom-Cutout reserves the right to adjust payment levels based on
traffic and sales reports in order to right-size sales generated via
browser redirects (all sales not generated via site driven marketing
efforts such as site placements, newsletters, etc.)
5. COMMISSIONS
As
an approved participant of Custom-Cutout's Affiliate Program, you may
earn commissions for affiliate services in accordance with this Section
5. Custom-Cutout may change or terminate the provisions of this Section
5 at any time and at Custom-Cutout's sole discretion.
5.1.
Custom-Cutout agrees to pay you the commission specified in this
Agreement if Custom-Cutout sells to a visitor to Custom-Cutout's Site
(a "Customer") a product or service that is the subject of this
Agreement and if that Customer has accessed Custom-Cutout's Site and
purchased the product or service via a Qualifying link.
5.2. For all
product sales, Custom-Cutout will pay from 10% to 15% per Qualifying
Product Revenues generated by Customers linking to Custom-Cutout's Site
from your Web Site using a Qualifying Link. The amount of the
Qualifying Product Revenues per item for products sold are subject to
change at any time in Merchant's sole and absolute discretion.
5.3.
Custom-Cutout shall have the sole right and responsibility for
processing all payment processing and fulfillment of orders for our
Products sold pursuant to this Agreement. You acknowledge that all
agreements relating to sales to Customers shall be between
Custom-Cutout and the Customer.
5.4. You acknowledge that your
entitlement to any compensation reported with respect to any tracked or
reported activity is solely a function of the terms of your agreement
with Custom-Cutout and that Custom-Cutout is solely responsible for its
payment. The fact that a compensation amount is reported for any
tracked activity does not necessarily mean that a payment is due to you
from Custom-Cutout, since payment may be subject to conditions
established by Custom-Cutout, including policies regarding order
cancellation, returned merchandise, receipt of pending credit card
authorizations and minimums for earned compensation before payment is
made. All determinations of Qualifying Links and the compensation due
to you shall be final and binding.
5.5. All determinations of
Qualifying Links and whether a commission is payable will be made by
Custom-Cutout and will be final and binding on both parties. Prices for
the products will be set solely by Custom-Cutout in its discretion.
5.6.
Only those who are approved by Custom-Cutout at the time of receipt of
a Customer offer(s) will be eligible for payment under this Agreement.
5.7.
As an independent contractor, you will be solely and entirely
responsible for any and all taxes and/or other fees or obligations
associated with the receipt of payment under this Agreement.
5.8.
The terms and conditions of this Section 5, including the fee amounts,
may be changed at any time and for any reason within Custom-Cutout's
sole discretion.
6. TERMINATION
6.1.
Either party may terminate an Offer at any time by deleting their
acceptance of the offer. Termination of a specific Offer shall not be
deemed to terminate any other Offers.
6.2. Either party may
terminate this Agreement at any time, for any reason, upon five (5)
days prior written notice of such termination to the other party. In
addition, Custom-Cutout shall be entitled to terminate this Agreement
immediately if you materially breach or violate any terms or conditions
of this Agreement, or if Custom-Cutout determines, in its sole
discretion, that there are technical, or operational issues (e.g.
interruptions caused by or shifts in online/Internet technology) that
adversely affect the implementation of the Program, or the
orders/referrals were obtained fraudulently, or through
misrepresentation, in which case Custom-Cutout reserves the right to
withhold payment of associated referral pending an investigation of the
suspected fraud or misrepresentation. Termination of this Agreement
shall also terminate any outstanding Offer. However, all rights to
payment, causes of action and any provisions that by their terms are
intended to survive termination, shall survive termination of this
Agreement.
6.3. Upon termination of this Agreement for any reason,
you will immediately cease use of, and remove from your Site, all links
to our Site, and all Custom-Cutout trademarks, trade dress and logos,
and all other materials provided by or on behalf of us to you pursuant
hereto or in connection with the Program.
6.4. You are only eligible
to earn commissions on Qualifying Product Revenues occurring during the
term of this Agreement, and referral fees earned through the date of
termination will remain payable only if the related Qualifying Products
are not canceled or returned by a Customer.
7. REPRESENTATIONS
7.1. You represent and warrant that:
1.you have the authority to enter into this Agreement and sufficient rights to grant any licenses expressed herein, and
2.any material displayed on your Site will not:
1.infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy;
2.violate any applicable law, statute, ordinance or regulation;
3.be defamatory or libelous;
4.be lewd, pornographic or obscene;
5.violate any laws regarding unfair competition, anti-discrimination or false advertising;
6.promote violence or contain hate speech;
7.promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability;
8.contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines' or
9.otherwise constitutes an "unsuitable Site" as determined by Custom-Cutout in accordance with the terms outlined in the Section 1 above titled "Participation in the Program."
7.2. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Custom-Cutout MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM OR THAT OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
8. INDEMNIFICATION
Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
9. LIMITATION OF LIABILITY
In no event will either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages arising from or related to this Agreement, the Program even if informed of the possibility of such damages. Further, Custom-Cutout’s aggregate liability arising from this Agreement and the Program shall not exceed the total referral fees paid or payable to you under this Agreement.
10. GENERAL
10.1.
No Agency. Each party shall act as an independent contractor and shall
have no authority to obligate or bind the other in any respect, and
nothing in this Agreement (including any Offer) shall create any
partnership, joint ventures, agency, franchise, sales representative or
employment relationship between the parties. Neither party shall make
any statement, whether on their sites or otherwise, that reasonably
would contradict anything in the paragraph.
10.2. Responsibility
for Binding Agreement. You acknowledge that you have read this
Agreement and agree to all its terms and conditions. You understand
that we may at any time (directly or indirectly) solicit Customer
referrals on terms that may differ from those contained in this
Agreement or operate Sites that are similar to or compete with your
Site. You have independently evaluated the desirability of
participating in the Program and are not relying on any representation,
guarantee, or statement other than as set forth in this Agreement.
10.3. Jurisdiction; Venue. This Agreement shall be governed by the laws of the State of
10.4. Counterparts;
Manifestation of Assent. This Agreement may be agreed to in more than
one counterpart, each of which together shall form one and the same
instrument. The parties agree that execution and manifestation of
assent may be achieved in any format convenient to the parties.
10.5.
Severability. The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in
whole or in part.
10.6. Assignment. You may not assign this
Agreement, by operation of law or otherwise, without our prior written
consent, which may be withheld in our sole discretion. Subject to that
restriction, this Agreement will be binding on, inure to the benefit
of, and enforceable against the parties and their respective successors
and assigns. Our failure to enforce your strict performance of any
provision of this Agreement will not constitute a waiver of our right
to subsequently enforce such provision or any other provision of this
Agreement.
10.7. Equitable Relief. The parties agree that any breach
of either of the party's obligations regarding trademarks, service
marks or trade names, confidentiality, links or the removal of links,
and/or user data may result in irreparable injury for which there may
be no adequate remedy at law. Therefore, in the event of any breach or
threatened breach of a party's obligations regarding trademarks,
service marks or trade names, confidentiality, links or the removal of
links, and/or user data, the aggrieved party will be entitled to seek
equitable relief in addition to its other available legal remedies in a
court of competent jurisdiction.
10.8. Obligation to Mediate in Good
Faith. Except as provided in this Section 10.7, before either party
initiates a lawsuit against the other relating to this Agreement, the
parties agree to mediate all disputes and claims arising out of or
relating to this Agreement, the parties' performance under it, or its
breach. To this end, either party may request, after informal
discussions have failed to resolve a dispute or claim, that each party
designate an officer or other management employee with authority to
bind the party to meet in good faith and attempt to resolve the dispute
or claim through mediation. During their discussions, each party will
honor the other's reasonable requests for information that is not
privileged and relates to the dispute or claim. This Section does not
apply
1.should the expiration of the statute of limitations for a cause of action be imminent, or
2.if a party is seeking an injunction pursuant to Section 10.8.
10.9.
Force Majeure. You acknowledge that Custom-Cutout’s servers, equipment,
and services (e.g. tracking and reporting) may be subject to temporary
modifications or shutdowns due to causes beyond Custom-Cutout’s
reasonable control. Such temporary service interruptions will not
constitute a material breach of this Agreement. Custom-Cutout and will
use commercially reasonable efforts to provide the services
contemplated under this Agreement and to remedy any temporary
interruptions or other problems that adversely affect the Program.
10.10.
Attorneys' Fees. In the event any action is commenced to construe or
enforce any provision of this Agreement, the prevailing party, in
addition to all other amounts such party is be entitled to receive from
the other party, will be entitled to receive its reasonable attorneys'
fees and costs incurred in bringing such action.
10.11. Survival.
Sections 8 (Termination), 10 (Indemnification), 11 (Limitation of
Liability), and 12 (General), including all subsections thereof, shall
survive the termination of this Agreement.
10.12. Modifications. We
may modify any of the terms and conditions contained in this Agreement,
at any time and in our sole discretion, by posting a change notice on
the Custom-Cutout site. Modifications may include, for example, changes
in the scope of available referral fees, referral fee schedules,
payment procedures, and Program rules. IF ANY MODIFICATION IS
UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT.
YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A
CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING
ACCEPTANCE OF THE CHANGE.
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