Affiliate Agreement Terms & Conditions
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This Affiliate Agreement ("Agreement") contains the complete terms and conditions that apply to your participation as an Affiliate ("you" and "affiliate site" in the Affiliate Network of Acclaim Subscriptions (www.AcclaimSubscriptions.com) affiliate program (an "affiliate" and the "affiliate network," respectfully) and the establishment of links from your affiliate Web site to our Web site, www.acclaimsubscriptions.com (the "Acclaim Subscriptions" sites).
1. Enrollment in the Affiliate Network
To begin the enrollment process, you'll submit a complete Affiliate Network Application via our site (the "Affiliate Network Application"). We'll evaluate your application in good faith and will notify you of your acceptance or rejection in a timely manner. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Network for any reason, including, but not limited to, inclusion of content that is any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethnically or otherwise objectionable.
If we reject your application, you're welcome to reapply to the Affiliate Network at any time.
2. Promotion of our Affiliate Relationship
a. As an "Affiliate Site", we'll make available to you a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link" meaning a hyperlink established from within an Affiliate Site to the Acclaim Subscriptions Site that enables an end user of an Affiliate Site to access the "Acclaim Subscriptions" sites), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you would like. The "Link" means a hyperlink established from within an Affiliate site to the Acclaim Subscriptions site and will serve to identify your site as a member of our Affiliate Network and will establish a link from your site to our site that enables an end user of an Affiliate site to access the Acclaim Subscriptions site.
b. Agreements regarding Links: In utilizing the Links, you agree that you'll cooperate fully with us in order to establish and maintain such Links. You also agree that you'll display in your site only those graphic or textual images (indicating a link) that are provided by us, and you'll substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate Sites (the Internet Web site(s) owned or controlled by Affiliate) shall display such graphic and/or textual images prominently in relevant sections of their site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to the pertinent area of our site will in no way alter the look, feel or functionality of our site.
3. Our Responsibilities
We'll be responsible for providing all information necessary to allow you to make appropriate Link(s) from your site to our site. We'll be solely responsible for processing every customer order that follows a special Link from your site, for tracking the number of sales referrals who come from your site, and for providing information to Affiliate Sites regarding sales statistics. We'll be responsible for order processing, fulfillment, cancellations and related customer service.
4. Other Responsibilities and Opportunities of Affiliate Sites
a. If you qualify and agree to participate in the Affiliate Network, you shall display Link(s) prominently throughout your site (the "Affiliate Site") as you see fit and with our consent.
b. Compliance with the Agreement: We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you're in compliance with the terms of this Agreement.
5. Referral Fee Determination and Payment
Acclaim Subscriptions shall pay to Affiliate for all qualified paid sales minus returns resulting from a direct link from affiliate's web site to the AcclaimSubscriptions.com Site. Commissions are to be determined as per commission schedule published on the AcclaimNetwork.com Affiliate Network. Excessive fraudulent activity arising from affiliate's links may result in termination of affiliate active status and non-payment of commissions.
6. Reports of Referrals
You'll be given a password and have the ability to enter a password-protected site to receive your referral statistics on a weekly basis. All commissions and tracking is done by independent Affiliate Tracking service, Acclaim Network (www.acclaimnetwork.com).
Customers who register as a first time Acclaim Subscriptions customer through the Affiliate Network will be deemed to be customers of Acclaim Subscriptions. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and Acclaim Subscriptions orders will apply to those customers. We may change our policies and operating procedures at any time. For example, we could change the offer level at any time. We'll use commercially reasonable efforts to present accurate information.
You shall not create, publish, distribute or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent, which we agree shall not be unreasonably withheld.
9. Licenses and Use of the Acclaim Subscriptions Logo's and Trademarks
a. We grant you a non-exclusive, non-transferable, non-sub licensable license to reproduce, publicly display, and otherwise use the Acclaim Subscriptions name(s), logo(s) and any provided images (the "Acclaim Subscriptions Marks") for the sole purpose of creating links and other advertisements promoting the Acclaim Subscriptions sites on each affiliate site only as expressly permitted herein. All Affiliate Sites (the Internet Web site(s) owned or controlled by Affiliate) shall display such graphic and/or textual images prominently in relevant sections of their site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to the pertinent area of our site will in no way alter the look, feel or functionality of our site.
b. You agree that all uses of the Acclaim Subscriptions Marks shall inure to the sole benefit of and be on behalf of Acclaim Subscriptions. You acknowledge that the Acclaim Subscriptions content and the goodwill associated therewith are valuable properties belonging to Acclaim Subscriptions and that all rights thereto are and shall remain the sole and exclusive property of Acclaim Subscriptions. You shall not now or in the future contest the validity of the Acclaim Subscriptions marks. You agree that all customers that access the Acclaim Subscriptions Site from any Link are Acclaim Subscriptions customers and that Acclaim Subscriptions shall be the owner of all information or data collected by Acclaim Subscriptions in providing any product or service to them.
10. Rights and Obligations regarding Your Site
(a) Affiliate Site Links. You shall prominently display on Affiliate Site a "Acclaim Subscriptions Mark" (the Acclaim Subscriptions name, the Acclaim Subscriptions logo(s) and any images that are provided to Affiliate pursuant to this Agreement for the purpose of promoting the Acclaim Subscriptions Site by the inclusion on the Affiliate Site) provided by Acclaim Subscriptions to you and shall cause such Acclaim Subscriptions Mark to serve as a Link to the Acclaim Subscriptions Site. You'll replace any such logo or image with any new Acclaim Subscriptions Mark provided by Acclaim Subscriptions within ten (10) days after receiving notice from us to do so. You shall not modify any Acclaim Subscriptions Mark in any way.
(b) Ownership. You acknowledge and agree that (i) the "Acclaim Subscriptions Content" (the Acclaim Subscriptions Marks and all the text, data, images, design structure, any audio and audio visual material, photographs, trademarks, and other materials incorporated into the Acclaim Subscriptions Site(s)) and all portions thereof are and shall remain the sole property of Acclaim Subscriptions; (ii) nothing in this Agreement shall confer in Affiliate any right of ownership in any of the Acclaim Subscriptions Content; and (iii) Affiliate shall not now or in the future contest the validity of the Acclaim Subscriptions Marks.
(c) Sales and Traffic Information. You shall be able to access certain sales reports and traffic information related to the Acclaim Subscriptions Site(s) by accessing Acclaim Subscriptions' www.acclaimnetwork.com affiliate tracking software. Such sales reports will contain estimates of (i) the number of Internet user visits to the Acclaim Subscriptions Site from use of Links that result in paid sales; and (ii) the Bounties payable to Affiliate pursuant to Section 5 prior to any reductions for taxes, refunds, discounts, allowances, bad debt or any other adjustments. Such information will be provided for Affiliate's convenience and shall not be binding on Acclaim Subscriptions in any respect. Affiliate shall not rely on, and is not entitled to rely on, any of such information for any reason.
(d) Product and Service Terms. Except for its use of any Acclaim Subscriptions Mark as provided above and except as provided for in Section 8, you shall not refer to Acclaim Subscriptions or any offer, product or service of Acclaim Subscriptions on any Affiliate Site, whether through use of "teaser" copy or in any other manner, without obtaining Acclaim Subscriptions's prior written consent to the content of any such reference. You'll not make any representations or warranties about the Acclaim Subscriptions Site or the Acclaim Subscriptions products or services that Acclaim Subscriptions has not first approved in writing.
(e) Affiliate Site. You'll regularly maintain each Affiliate Site so that its contents are current, accessible and in good taste. You're solely responsible for the development, operation and maintenance of each Affiliate Site and all contents of each Affiliate Site. Without limiting the foregoing, you're responsible for (a) the technical operation of each Affiliate Site and related equipment; (b) the placement of correctly formatted Links, either directly or indirectly; and (c) ensuring that the contents of each Affiliate Site are not libelous, illegal, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable and do not infringe any "Intellectual Property Rights" (any and all now known or hereafter existing rights associated with works of authorship or inventions worldwide, including but not limited to copyrights, patents, trademarks, service marks, know how, "look and feel" and all other intellectual property and proprietary rights (of every kind and nature worldwide and however designated) relating to intangible property or other rights of any person or entity.
(f) Disparagement. During the term of this Agreement, you will not disparage "Acclaim Subscriptions", the "Acclaim Subscriptions Marks", the "Acclaim Subscriptions Site" or any products or services of Acclaim Subscriptions, or display any such items in a derogatory or negative manner on any Affiliate Site.
11. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your "Affiliate Network Application" and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn a Bounty on paid customer orders occurring during the term minus the cancelations and returns, and bounties earned through the date of termination. We may withhold your final payment for a reasonable time to ensure the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion. You'll be notified by email and a change notice will be posted on our site. Modifications may include, but are not limited to, changes in the scope of available Bounties, payment schedules and/or procedures, and Affiliate Network rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Network following our posting of a change notice or new agreement on our site will constitute binding acceptance of change.
13. Relationship of Parties
You and Acclaim Subscriptions are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You'll have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
Except for the limited warranty in Section 14(c) below, all products, documentation and services are provided by Acclaim Subscriptions"as is". Acclaim Subscriptions makes no promises, warranties, or representations of any kind, and Acclaim Subscriptions specifically disclaims all warranties and conditions, express, implied, statutory or otherwise, with respect to the subject matter hereof, including but not limited to implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Acclaim Subscriptions makes no representation or warranty that the operation of the Acclaim Subscriptions site(s) will be uninterrupted or error free or that Acclaim Subscriptions products will be available for purchasefrom the Acclaim Subscriptions site(s).
15. Representations, Warranties and Indemnifications
You hereby represent and warrant to us as follows:
a. Affiliate's Representations and Warranties. You represent and warrant that (i) you have full power and authority to enter into this Agreement; (ii) entering into and performance of this Agreement by you does not violate, conflict with, or result in a material default under any other contract or agreement to which you're a party, or by which you're bound; and (iii) the Affiliate Site shall not infringe, violate or misappropriate any copyright, trade secret, trademark, or other proprietary or intellectual property right of any third party or constitute libel, defamation, invasion of privacy or the violation of any right of publicity or any other right of any third party. Acclaim Subscriptions is not responsible for the content of the Affiliate Site. Acclaim Subscriptions's exclusive remedy for breach of the foregoing representations and warranties shall be your indemnification obligation set forth in Section 14(b) below.
b. Affiliate's Indemnification. You shall defend and/or settle any claim, suit or proceeding, brought by a third party against Acclaim Subscriptions resulting from breach of the representations and warranties made by you under Section 14(a) above, and you shall pay all damages or settlement amounts finally awarded against Acclaim Subscriptions to the extent based on such a claim (including payment of reasonable attorney's fees, court costs and costs of other professionals); provided that (a) Acclaim Subscriptions notifies you promptly in writing of the claim; (b) you have sole control of the defense and all related settlement negotiations, and (c) Acclaim Subscriptions provides you with reasonable assistance, information and authority to perform the above at your expense. In the event that the Affiliate Site is found to contain, or you reasonably believe that the Affiliate Site contains material in violation of Section 14(a) above, you may have to modify or replace such material, at your discretion. The foregoing indemnities shall be your sole liability hereunder with respect to the breach of the representations and warranties in Section 14(a) above.
c. Acclaim Subscriptions's Representations and Warranties. Acclaim Subscriptions represents and warrants that (i) it has full power and authority to enter into this Agreement; (ii) entering into and performance of this Agreement by Acclaim Subscriptions does not violate, conflict with, or result in a material default under any other contract or agreement to which Acclaim Subscriptions is a party, or by which it is bound; and (iii) the Acclaim Subscriptions Site shall not infringe, violate or misappropriate any copyright, trade secret, trademark, or other proprietary or intellectual property right of any third party or constitute libel, defamation, invasion of privacy or the violation of any right of publicity or any other right of any third party. You're not responsible for the content of the Acclaim Subscriptions Site. Your exclusive remedy for breach of the foregoing representations and warranties shall be Acclaim Subscriptions's indemnification obligations set forth in Section 14(d) below.
d. Acclaim Subscriptions's Indemnification. Acclaim Subscriptions shall defend and/or settle any claim, suit or proceeding, brought by a third party against you resulting from breach of the representations and warranties made by Acclaim Subscriptions under Section 14(c) above, and Acclaim Subscriptions shall pay all damages or settlement amounts finally awarded against you to the extent based on such a claim (including payment of reasonable attorney's fees, court costs and costs of other professionals); provided that (a) you notify Acclaim Subscriptions promptly in writing of the claim; (b) Acclaim Subscriptions has sole control of the defense and all related settlement negotiations, and (c) you provide Acclaim Subscriptions with reasonable assistance, information and authority to perform the above at Acclaim Subscriptions's expense. In the event that the Acclaim Subscriptions Site is found to contain, or Acclaim Subscriptions reasonably believes that the Acclaim Subscriptions Site contains material in violation of Section 14(c) above, Acclaim Subscriptions may modify or replace such material, at its discretion. The foregoing indemnities shall be Acclaim Subscriptions's sole liability hereunder with respect to the breach of the representations and warranties in Section 14(c) above.
a. Confidentiality. "Confidential Information" means proprietary information disclosed by either party (the "Disclosing Party") to the other party (the "Receiving Party"), in writing, orally or by inspection of tangible media, which, if in writing or other tangible form, is marked as "Confidential" or a similar designation, or if disclosed orally, is confirmed in writing within forty-five (45) days of disclosure. Confidential Information may also include information disclosed by a third party to a Disclosing Party. Confidential Information shall not include any information which (i) was publicly known prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known after disclosure by the Disclosing Party through no wrongful action or omission of the Receiving Party; (iii) was already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by contemporaneous written evidence in the Receiving Party's files or records; (iv) is obtained by the Receiving Party from a third party without breach of such third party's obligations of confidentiality; or (v) is independently developed by the Receiving Party without access to the Disclosing Party's Confidential Information, as shown by contemporaneous written evidence in Receiving Party's files or records; and (vi) is disclosed in response to a valid order by a court or other government body, was otherwise required by law, or was necessary to establish the rights of either party under this Agreement. The parties understand and agree that all information provided by one party to the other pursuant to this Agreement shall be deemed Confidential Information of the Disclosing Party.
b. Non-Disclosure. Each party agrees not to use the Confidential Information disclosed to it by the other party for any purpose other than as contemplated by this Agreement. Neither party will disclose any Confidential Information of the other party to third parties, except to those employees of the Receiving Party who are required to have access to such information in order to fulfill the obligations hereunder. In addition, each party shall use reasonable efforts to (i) protect the secrecy of and avoid unauthorized use and disclosure of the Disclosing Party's Confidential Information, and (ii) prevent the Disclosing Party's Confidential Information from entering the public domain or from falling into the possession of any unauthorized persons; including, without limitation, using at least the same degree of care with respect to the Confidential Information of the Disclosing Party that the Receiving Party uses to protect its own Confidential Information.
c. Permitted Usage. Notwithstanding the provisions of Sections 15(a) and 15(b) above, the Receiving Party may use or disclose Confidential Information of the Disclosing Party to the extent necessary to exercise its rights hereunder or fulfill its obligations and/or duties hereunder or defending litigation, complying with applicable governmental regulations and/or submitting information to tax or other governmental authorities, including without limitation the Securities and Exchange Commission; provided that if the Receiving Party is required by law to make any public disclosures of Confidential Information of the Disclosing Party, to the extent it may legally do so, it will give reasonable advance notice to the Disclosing Party of such disclosure and will use its reasonable efforts to secure confidential treatment of Confidential Information prior to its disclosure (whether through protective orders or otherwise).
17. Limitation of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. THE LIMITS SET FORTH IN THIS SECTION 17 WILL APPLY EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID TO AFFILIATE HEREUNDER. THE FOREGOING PROVISIONS OF THIS SECTION 17 SHALL NOT APPLY TO THE INDEMNIFICATION PROVISIONS IN SECTIONS 15(b) AND 15(d) ABOVE.
The rights, licenses and obligations in the Agreement of Sections 14 and 18 shall service and continue after the termination of this Agreement and shall remain in full force and effect and shall bind the parties hereto.
19. Governing Law
This Agreement will be governed by the laws of the State of New Your without reference to conflict of law principles and without regard to the 1980 U.N. convention on Contracts for the International Sale of Goods. Both parties shall comply with all U.S. and foreign export control laws and regulations. Each party hereby consents to the jurisdiction of and venue in the U.S. Federal courts within the Southern District of New York and the New York State courts within Kings County, New York.