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This Affiliate Program Agreement (this “Agreement“), made and entered by and between eComEngine, LLC (“eComEngine“) and you, the affiliate (“you” or “Affiliate“), contains the complete terms and conditions that apply to your participation in the eComEngine (“eComEngine”) affiliate program (the “Affiliate Program” or “Program“). All current eComEngine products (“Product”) are included in this affiliate program agreement.
The term of this Agreement will begin upon our acceptance of your affiliate application and will end when terminated by either party. Either you or eComEngine may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination sent via email. You are only eligible to earn commission on sales occurring during the term of this Agreement.
You must use and provide a valid email address and other contact information through which you can be reached to participate in the Affiliate Program; if you do not, your account will be deactivated.
Upon termination of this Agreement for any reason, the license granted herein shall also terminate and you will immediately cease use of, and remove from your website, all promo codes and/or affiliate links to any eComEngine owned website, and all eComEngine trademarks or product names, 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.
Commission and Payment
eComEngine agrees to pay you the commissions specified below only for customers referred to any eComEngine product trial sign up page by the unique link provided to you from eComEngine (a “Referred Customer“), or where the customer uses a custom coupon code provided to you by eComEngine.
The commission eComEngine will pay you is as follows:
During the term of this Agreement, eComEngine hereby grants to you a limited, personal, revocable, non-exclusive license to establish and maintain a hypertext or logo link (the “Link“) which, when clicked upon, directs Referred Customers to the eComEngine website. Affiliate shall not frame any part of the eComEngine website by segmenting the browser and displaying any eComEngine page in a separate window or screen. Any affiliate links from your website to eComEngine’s website should be tagged as “no follow.”
During the term of this Agreement, eComEngine hereby grants to Affiliate, a limited, personal, revocable, non-exclusive license to use any eComEngine trademarks and product names solely for purpose of establishing and maintaining the link described above. All uses of the eComEngine trademarks and product names by Affiliate shall be in accordance with the quality control standards that eComEngine may establish from time to time. All other uses or modifications of the eComEngine trademarks and product names are strictly prohibited. eComEngine retains all rights in and to its trademark product names not expressly granted to Affiliate herein. Affiliate acknowledges the goodwill associated with the eComEngine trademarks and product names, and agrees that all goodwill, including any increase in value of the eComEngine trademarks and product names pursuant to this Agreement, will inure solely to eComEngine’s benefit. Affiliate will not claim any title or any proprietary right to the eComEngine trademarks and product names or in any derivation, adaptation, or variation of them.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting the revised agreement on our website and sending you a notice of change. Modifications may include, for example, changes in the scope of available commission structure, 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 notification to you of the changed agreement will constitute binding acceptance of the change.
To begin the enrollment process, you will submit a complete affiliate application from our website. We will evaluate your application and will notify you of your acceptance or rejection. We may reject your application if we determine (at our sole discretion) that your website (or other electronic means used to post a link to any eComEngine website) is unsuitable for the Program. If we reject your application, you are welcome to reapply to the program at any time. You should also note that if we accept your application and your website is thereafter determined (at our sole discretion) to be unsuitable for the program, we may terminate this agreement.
For your website to be considered acceptable to eComEngine, your website should:
Upon the expiration or any termination of this Agreement, eComEngine may continue to provide any services or sell any products to any and all Paid Customers and Referred Customers, bill and collect any fees or payments from such Paid Customers and Referred Customers and otherwise treat all such Paid Customers and Referred Customers in the same manner as any other customer of eComEngine without any obligation to pay commissions or otherwise compensate you. Furthermore, even though Paid Customers and Referred Customers may also be your customers, you acknowledge and agree that eComEngine shall have the unlimited right to treat such Paid Customers and Referred Customers as its own customers, including, but not limited to, the right to sell any other product or service to such Paid Customers and Referred Customers, the right to refer such Paid Customers and Referred Customers to eComEngine’s preferred providers and so forth.
Except as otherwise provided in this Agreement or with the consent of eComEngine, Affiliate agrees that all information, including, without limitation, the terms of this Agreement, eComEngine business and financial information, eComEngine customer, supplier and vendor lists, and pricing and sales information concerning eComEngine Products or any of our affiliates shall remain strictly confidential and secret and shall not be used, directly or indirectly, by Affiliate for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates.
If you commit fraud or falsify information in connection with registering users with any eComEngine Product through the links on your website, this Agreement will be terminated immediately and you will forfeit all commissions otherwise earned by you. In addition, you will be liable to eComEngine for any and all claims or damages that eComEngine suffers as a result of such actions. You will also be responsible for returning to eComEngine all commissions received for fraudulent sales, and we will not hesitate to pursue all legal causes of action against you to the fullest extent possible under the law.
Limitation of Liability
We will not be liable for indirect, special or consequential damages, or any loss of revenue, profits or data, arising in connection with this Agreement or the Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed one month’s commission paid or payable to you under this Agreement.
Relationship of Parties
eComEngine and you are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this Section. eComEngine may cite your name, URL, company logos, and trademarks, in connection with your participation in the program in materials including but not limited to postings on our website, newsletters, advertisements, and other communications.
Tracking of Clicks and Advertising Orders
eComEngine will be solely responsible for tracking clicks and orders made to customers who follow an affiliate’s link or input the affiliate’s code. An affiliate will be solely responsible for ensuring that its links are formatted properly and maintained in a manner which allows eComEngine to track such sales. No commission shall be paid if the application cannot be tracked by eComEngine.
eComEngine will process orders placed by Referred Customers who follow links from your website to eComEngine Product trial sign up pages. eComEngine will also process any orders that come through our call center. eComEngine reserves the right, in its sole discretion, to reject a Referred Customer sent to our website from your website.
Responsibilities of Your Website
You will be solely responsible for the development, operation, and maintenance of your website and for all materials that appear on your website.
You may NOT redirect (through: frames, meta refreshes, 301, 302, or any other method) any page on your website to an eComEngine page. The only allowable method to move traffic from your website to any eComEngine website is by placing one of the banners or links provided by eComEngine on your website or web page.
You may NOT copy text or literature off of any eComEngine website with the exception of text or literature provided explicitly for affiliates to use and place on their website. All content on the eComEngine website is copyrighted material and copyright violations will be treated seriously.
You are solely responsible for:
You are solely responsible for all items placed on your website and eComEngine expressly disclaims all liability for such content and for all violations of the matters listed above. Further, you will indemnify, defend and hold eComEngine harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance, and content of your website.
You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to eComEngine and receiving our consent.
When participating in Pay Per Click (“PPC”) advertising, you must adhere to our PPC guidelines as follows:
Any pay-per-click advertising campaign requires written approval by eComEngine.
You may not bid on any eComEngine trademarks or product names, including any variations or misspellings thereof, for search or content based campaigns on advertising networks, search services, or similar services, including but not limited to Google AdWords, BingAds, Facebook, Twitter, LinkedIn, and any other ad exchange network.
You may not use eComEngine trademarks or product names in sequence with any other keyword (i.e. eComEngine Coupons).
You may not use eComEngine trademarks or product names in your ad title, ad copy, display name or in the display URL.
You may not directly link to our website from any PPC ad or use redirects that yield the same result. Visitors must be directed to an actual page on your website.
You may not bid in any manner appearing higher than eComEngine for any search term in any auction style PPC advertising program, including but not limited to eComEngine’s competitors’ names.
If you automate your PPC campaigns, it is your responsibility to exclude eComEngine trademarks and product names from your program and we strongly suggest you add all eComEngine trademarks and product names as negative keywords. We have a strict no-tolerance policy on PPC trademark bidding. You will forfeit, at minimum, all commissions from the past 30 days and your commission will be set to 0% without warning if you engage in PPC bidding that uses eComEngine trademarks or product names. We reserve the right to add additional terms to our trademarks and product names at any time, and this Agreement applies to the use of any such additional terms.
Off-Line Advertising Policy
Affiliate may not use current or future eComEngine trademarks or product names in any offline advertising materials without the prior written consent of eComEngine. Offline advertising may be permitted with review and approval regarding the creative, marketing materials and strategy. In addition, Affiliate may not use any “negative hook” advertising tactics or any type of misleading advertising. If any such tactics are used by Affiliate, Affiliate will forfeit all commissions generated as a result of such advertising and eComEngine shall have the right to immediately terminate this Agreement.
Content, including, but not limited to, datafeeds, banners, and articles, provided by eComEngine is copyrighted. You are granted a temporary and revocable license to use it while marketing eComEngine and its products.
Except with the express written consent of eComEngine, no competing ads may be generated, nor revenue therewith, using content provided by eComEngine. This includes, but is not limited to, Google Adsense, Quigo AdSonar, and other contextual ad services provided by search engines. Other advertisements may be placed on the webpage, but may not use any eComEngine owned content to generate the content, or context of any ad.
Spamming is not allowed and will not be tolerated. Affiliates will be removed from the Affiliate Program and forfeit any pending commission if they are caught spamming. All email campaigns must be approved in advance by eComEngine and must comply with all elements of the CAN-Spam Act.
No Affiliate will replace, intercept, interfere, hinder, disrupt or otherwise alter in any manner any user’s access, view or usage of, or other aspect of the user’s experience at, any Affiliate’s webpage (as defined below) in a manner that causes or otherwise results in a different experience from that was otherwise intended by such Affiliate. No Affiliate will block, alter, direct or redirect, or substitute, insert or append itself to, or otherwise intercept or interfere in any manner with, any click-through or other traffic-based transaction that originated from an Affiliate webpage (including without limitation any return visit to eComEngine websites to which such click-through or other traffic reached or intended to reach) with the result of reducing compensation or other payment earned by or owing to an Affiliate or increasing any payment obligation of eComEngine with respect to any individual transaction.
Spyware and Other Parasites
Any affiliate suspected of a relationship, formal or informal, with any provider of spyware or parasitic software (as judged by any interference with the operation by design of eComEngine and/or its partner websites) is subject to punitive actions by eComEngine, without notice, including but not limited to: suspension of Affiliate account; termination of Affiliate account; forfeiting of all payments to Affiliate; and public notification of affiliate’s suspected malfeasance. eComEngine encourages Affiliates to report suspicions of such relationships; and, should substantial proof, as judged by eComEngine, be provided, eComEngine reserves the right to assign a value equal to unpaid monies earned by the offending Affiliate (or a part thereof) to the reporting Affiliate as a bounty.
Disclaimer; No Warranty
eComEngine makes no express or implied warranties or representations with respect to the eComEngine website or the Affiliate Program (including, without limitation, warranties of fitness, merchantability, no infringement, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our website will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
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 websites that are similar to or compete with your website. 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.
BY ACCEPTING THIS CONTRACT, YOU CONFIRM YOU ARE AN ADULT OF AT LEAST 18 YEARS OF AGE (19 OR 21 WHERE APPLICABLE).
If eComEngine determines that a breach (or potential breach) of this Agreement may result in damages or consequences that will be immediate, severe, and/or incapable of adequate redress after the fact, so that a temporary restraining order or other immediate injunctive relief is the only adequate remedy, eComEngine may seek such remedies in any court of competent jurisdiction. If such relief is awarded, then (a) Affiliate shall pay all of eComEngine’s costs and reasonable attorneys’ fees related thereto and (b) the remaining requirements of this section shall not apply and the parties may proceed with the litigation so filed.
Except as set forth in the immediately preceding paragraph, any and all claims, demands, causes of actions and other matters in question arising out of or relating to this Agreement, or the alleged breach hereof (a “Dispute“), shall be finally resolved by binding arbitration administered by the American Arbitration Association (the “AAA”) under the Commercial Arbitration Rules and Mediation Procedures then in force to the extent such rules are not inconsistent with the provisions of this Agreement. The arbitral tribunal shall be composed of one arbitrator mutually agreed to by the parties; however, if the parties cannot agree on the appointment of an arbitrator, then the arbitrator shall be appointed by the AAA (the “Arbitrator“).
The seat of the arbitration shall be in Henrico, VA. The hearings in any arbitration shall be held at such seat or at such other place(s) as the parties may agree. Subject to any relevant legal privilege against disclosure, the Arbitrator shall have the power to make all orders necessary for the disclosure of documents that are reasonably related to the Dispute, which orders the parties consent in advance to obey. If a party fails or refuses to comply with an order for discovery, the Arbitrator may take that failure into account when deciding the issues and may infer that the documents not produced would have supported the opposing party’s claims.
This Agreement and the relationship between the parties created by this Agreement shall be governed by the provisions of this Agreement, which shall be construed to give maximum effect to the intent of the parties expressed herein. To the extent not addressed by the provisions of this Agreement, this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding any conflict of law rule or principle that might otherwise refer to the substantive law of another jurisdiction. The Arbitrator shall decide any Dispute in accordance first with this Agreement, and then by reference to such governing law, except to the extent that some provision of the governing law would invalidated or limit the effectiveness of any of the provisions of this Agreement.
The validity, construction and interpretation of this Agreement, and all procedural aspects of the arbitration conducted pursuant to this Agreement, shall be decided by the Arbitrator (except as limited by the paragraph above). The Arbitrator shall not decide the Dispute ex aqueo et bono or as amiable compositeur or by reliance on any other doctrine or principle that would permit the Arbitrator to avoid the application of this Agreement and/or the governing law. The Arbitrator shall not have the authority to modify or amend any term or provision of this Agreement. The Arbitrator shall have the power to enter such interim orders as it deems necessary and the parties agree to accept and honor any interim orders and agree that such interim orders may be enforced as necessary in any court having relevant jurisdiction.
The award rendered by the Arbitrator shall be in writing, shall give reasons for the decisions reached and shall be signed and dated by the Arbitrator. A copy of the award shall be contemporaneously delivered to each party. The party against whom an award is assessed a monetary obligation or has an injunctive or mandatory order imposed on it shall pay that obligation or comply with that order on or before the 30th calendar day following the date of the award (or such other date as the Arbitrator may provide). The award shall be final and binding on the parties and may be confirmed in, and judgment upon the award entered by, any court having jurisdiction over the parties. The award shall be entitled to all of the protections and benefits of a final judgment as to any Dispute, including compulsory counterclaims that were or could have been presented to the Arbitrator, shall be final and binding on the parties and shall be non-appealable to the maximum extent permitted by applicable law.
It is the intent of the parties that the arbitration shall be conducted expeditiously, without initial recourse to the courts and without interlocutory appeals of the Arbitrator’s decisions to the courts. However, if a party refuses to honor its obligations to arbitrate under this Agreement, the other party may obtain appropriate relief compelling arbitration in any court having jurisdiction over the refusing party. The parties may apply to any court having relevant jurisdiction for orders requiring witnesses to obey subpoenas issued by the Arbitrator. Prior to the appointment of the Arbitrator, a party may apply to any court having relevant jurisdiction for an order preserving the status quo ante and/or evidence in anticipation of arbitration (for the avoidance of doubt, such an application is not intended to constitute a waiver of the right to arbitrate Disputes nor does it refer any Dispute to any court for decision). Any and all of the Arbitrator’s orders and decisions may be enforced by any court having relevant jurisdiction. Each party agrees that arbitration pursuant to this Agreement shall be the exclusive method for resolving Disputes and that it will not commence an action or proceeding, except as provided in the first paragraph of this section.
Except to the extent necessary for proceedings relating to enforcement of this agreement to arbitrate, the award or other related rights of the parties, the fact of the arbitration, the arbitration proceeding itself, all evidence, memorials or other documents exchanged or used in the arbitration and the arbitrators’ award shall be maintained in confidence by the parties to the fullest extent permitted by applicable law. However, a violation of this covenant shall not affect the enforceability of this Agreement (including the parties’ agreement to binding arbitration) or of the Arbitrator’s award.
The Arbitrator shall designate a prevailing party in its final award. Pursuant to this determination, the Arbitrator shall award to the prevailing party its attorneys’ fees, costs and expenses of the arbitration (including the Arbitrator’s fees and expenses) in full. The award shall include interest unless the Arbitrator determines it is not appropriate. Interest shall run from the date of any breach or violation of this Agreement, which shall be determined by the Arbitrator in its award (or, if not determined in the award, from the date of filing the request for arbitration), through the date the award is paid in full. Interest shall be calculated and compounded monthly at the rate published from time to time by Citibank N.A. as its prime lending rate (or such other similar rate as selected by the Arbitrator).
The provisions of this section are independent of the remaining provisions of this Agreement and the parties intend that they shall continue in effect even though one or more provision in this Agreement shall be determined to be null or void.
The laws of the United States and the State of Virginia will govern this Agreement, without reference to rules or laws governing conflict of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Henrico, VA and you irrevocably consent to the jurisdiction and venue of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this 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 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.
This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof, and supersedes any prior agreements and understandings, both written and oral, which may have existed or exist between the parties with respect to the subject matter hereof. You may not modify this Agreement.