Affiliate Program Terms & Conditions
Effective Date: October 1, 2012
A Violation of any of the below Terms of Service will result in action by Acli-Mate® up to and possibly including the termination of your affiliate account(s), with or without warning.
Commission Fee: 10% of total purchases, not including taxes or shipping charges, in the form cash or in exchange for product at retail value.
ACCEPTANCE OF TERMS
This Affiliate Program Agreement (the “Agreement”) is a legal agreement and contains all of the terms and conditions between Acli-Mate® and, together with any company or other business entity you are representing, if any, (collectively, the “Affiliate”) who is participating in the Acli-Mate® Affiliate Program (the “Program”). BY REGISTERING FOR THIS PROGRAM THE AFFILIATE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement do not register for the Program.
By accepting the terms of this Agreement, Affiliate agrees that Acli-Mate® may change the terms of this Agreement in it’s sole discretion at any time provided that Acli-Mate® provides Affiliate with written notice of such change 30 days before any new change may commence. The Affiliate must provide a written acceptance or rejection of the change within thirty (30) days, succeeding the date of the notice of change. If Affiliate rejects the change or fails to provide written notice of either acceptance or rejection of the change, then Acli-Mate® may at its option either continue the Affiliate program with the changes or cancel this agreement by giving thirty (30) days written notice of cancellation sent by registered or certified mail to the Affiliate. Notwithstanding the foregoing, Acli-Mate® reserves the right to terminate, cancel, suspend or refuse access to the Program to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Program shall be subject to this Agreement.
SUBSCRIBER REFERRAL AND REGISTRATION
Acli-Mate® Affiliate Link. Affiliate may be eligible for certain commissions for every Subscriber Affiliate refers to Acli-Mate®. To be eligible for such commissions, each referral must originate from a specially coded Acli-Mate® Affiliate Link. For purposes of this Agreement, “Acli-Mate® Affiliate Link” means a visible graphic or textual indication which, when selected by an end user, directs the end user’s Internet browser connection to a Acli-Mate®-specified page or file via a URL and which establishes a direct connection between the browser and the Acli-Mate®-specified page or file. Affiliate shall place the Acli-Mate® Link on the Affiliate website or otherwise provide the Acli-Mate® Affiliate Link to a respective Subscriber, which will allow Acli-Mate® to track any person, entity or otherwise who clicks through the Acli-Mate® Affiliate Link to register for the Acli-Mate® Services.
Linking to Acli-Mate®. The necessary electronic graphic artwork and corresponding links to Acli-Mate®’ website and all HTML thereto for the Acli-Mate® Affiliate Link shall be available to Affiliate via www.Acli-Mate®.com/acli-mate-affiliate-program/. Such link may only be in the form of text, a button, a banner or any other format provided by Acli-Mate®. Affiliate shall not modify or alter the Acli-Mate® Affiliate Link without prior written consent of Acli-Mate®. The HTML for such link will also include a special promotion identifier that enables the tracking and reporting of all Subscribers acquired through the Acli-Mate® Affiliate Link. Affiliate is responsible for integrating the Acli-Mate® Affiliate Link into Affiliate’s website properly and for providing the Acli-Mate® Affiliate Links to Subscriber in the proper format, which includes ensuring that, as between the Acli-Mate® Affiliate Links and the Acli-Mate® website, each of the Acli-Mate® Affiliate Links properly utilizes the aforementioned special identifier link formats. Acli-Mate® SHALL NOT BE LIABLE TO AFFILIATE WITH RESPECT TO AFFILIATE’S FAILURE TO PROPERLY INTEGRATE THE Acli-Mate® AFFILIATE LINK, INCLUDING TO THE EXTENT THAT SUCH FAILURE MAY RESULT IN ANY REDUCTIONS OF COMMISSION FEES (AS DEFINED BELOW) THAT WOULD OTHERWISE BE PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.
TRACKING AND REPORTING
For the purposes of this Agreement, tracking and reporting will be provided by Acli-Mate®. During the term of this Agreement, Affiliate will be provided a unique ID and password which will permit Affiliate access to password-protected Web pages located at http://www.Acli-Mate.com so that Affiliate may receive statistics regarding the number of Subscribers that originated from the Acli-Mate® Links. The reports available on Linkshare will also detail the Commission Fees that are due to Affiliate in accordance with the Fee Schedule (as defined below). The form, content and timing of the foregoing reports may vary from time to time in Acli-Mate®’ sole discretion. Affiliate agrees and acknowledges that the statistics and reports provided by Acli-Mate®.com are the official, definitive and final measurements of the number of Subscribers that have originated from the Acli-Mate® Affiliate Link as well as the fees payable to Affiliate from Acli-Mate® pursuant to the terms of this Agreement.
License Grant of Acli-Mate® Affiliate Link. Subject to all the terms and conditions of this Agreement, Acli-Mate® hereby grants to Affiliate a restricted, non-exclusive, non-transferable license to use and publicly display the Acli-Mate® Link, solely for their receipt, access, use and viewing in the manner described herein. Acli-Mate® retains all rights, title, and interest in and to all of the copyrights, patent rights, trademark rights and other proprietary rights to the Acli-Mate® Affiliate Links pursuant to this Agreement.
Acli-Mate® Affiliate Link License Restrictions. In addition to any other restrictions herein on the use of the Acli-Mate® Link, Affiliate agrees to the following: (i) Affiliate shall not access, transmit, display or otherwise make available (or allow end users or any other third party to transmit or make available) Acli-Mate® Link to any third party, except as explicitly provided herein; (ii) Affiliate shall not alter, delete or modify any attributions included within the Acli-Mate® Affiliate Link; (iii) Acli-Mate® shall have the right, in its reasonable discretion and upon notice to Affiliate, to require Affiliate to immediately cease any and all use of any particular Acli-Mate® Affiliate Link: and (iv) Affiliate may not impose any separate charges or fees for use or access to the Acli-Mate® Affiliate Link.
License Grant of Acli-Mate® Logos. Subject to all the terms and conditions of this Agreement, Acli-Mate® hereby grants Affiliate a nonexclusive, non-transferable license to use the Acli-Mate® trademarks, logos, and copyrighted material (“Acli-Mate® Marks”) solely on the Affiliate’s website and solely in connection with this Agreement. Affiliate hereby acknowledges and agrees that (i) the Acli-Mate® Logos are owned solely and exclusively by Acli-Mate® or its subsidiaries, (ii) except as set forth herein, Affiliate has no right, title or interest in or to the Acli-Mate® Logos; and (iii) all use of the Acli-Mate® Logos by Affiliate shall inure to the benefit of Acli-Mate® and its subsidiaries. Affiliate agrees that it shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of Acli-Mate® or of any Acli-Mate® Logo.
Use and Display of Acli-Mate® Logos. Affiliate acknowledges and agrees that the presentation and image of Acli-Mate® Logos should be uniform and consistent with respect to all services, activities and products associated with the Acli-Mate® Logos. Accordingly, Affiliate agrees to use the Acli-Mate® Logos solely in the manner in which Acli-Mate® shall specify from time to time in Acli-Mate®’ sole discretion.
Marketing Practices. With respect to soliciting Subscribers and marketing the Acli-Mate® Services, all advertising and promotional materials are subject to the terms of this Agreement. Acli-Mate® may request to review and approve any Affiliate’s marketing materials, including but not limited to any e-mails or e-mail campaigns. Affiliate further agrees: (i) to be solely responsible for all expenses and fees incurred in connection with the participation in the Program; (ii) use best efforts to successfully market, advertise and sell Acli-Mate® Services during the term of this Agreement; (iii) not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Acli-Mate® or its products or services; (iv) not make any representations, warranties, or guarantees on behalf of Acli-Mate®, or otherwise concerning Acli-Mate® Services that are inconsistent with or in addition to any such representations, warranties, or guarantees made by Acli-Mate®; and (v) use the then-current name as used by Acli-Mate® (but will not represent or imply that Affiliate is an employee, part of, or affiliated with Acli-Mate®).
Search Marketing Restrictions. Affiliate agrees not to bid on words which may include or be related to Acli-Mate® Logos or similar terms, which may include but not be limited to, “Acli-Mate,” “Acli-Mate.com,” “www.Acli-Mate.com,” “Acclimate.com” or “Acli Mate”.
Loyalty Program and Incentive Offers Restrictions. In the event that Affiliate wishes to offer prizes, points or cash offers as incentives or as part of a loyalty program, Affiliate shall provide Acli-Mate® with written notice of its intent to implement any such program (“Incentive Program Notice”). Upon receipt of such Incentive Program Notice, Acli-Mate® in its sole discretion shall provide written approval within 30 days for any such program and may modify the Affiliate’s commission payment and conditions.
Affiliate will create a process by which email recipients may opt-out of receiving future email from Affiliate. Affiliate must have the necessary processes in place to immediately remove such email address from its email list. Among other things, Affiliate must maintain a do not email list and every opt-out request must be placed on this list.
If Affiliate intends to generate email through a third party supplier, Affiliate must disclose the identity of that supplier to Acli-Mate®. Affiliate is responsible for all emails generated on Affiliate’s behalf by a third party and such emails must comply with all requirements set forth in this Agreement.
Affiliate must comply in all respects with the CAN-SPAM Act of 2003. Among other things, Affiliate must have all lists scrubbed against its do not email list before any email campaign begins and at least every 10 days during each campaign.
Acli-Mate® may request that Affiliate immediately stop any email campaign containing Acli-Mate® Content or Acli-Mate® Logos, for any reason, in its sole discretion.
AFFILIATE REPRESENTATIONS AND WARRANTIES
Affiliate represents and warrants that:
Affiliate has the full and legal power and authority to enter into this Agreement, and/or to perform its obligations hereunder. By entering into this Agreement, Affiliate does not violate any other agreement by which Affiliate is bound. With respect to any performance hereunder, Affiliate shall comply with good business practices and all applicable laws, regulations and rules of any government body or agency or other competent authority. Affiliate will comply with the applicable then-current Member Agreement. Any website created or built by Affiliate shall not include (i) child pornography or obscene content, (ii) illegal content, or (iii) any other inappropriate materials.
Payment Terms. Subject to the terms and conditions of this Agreement and pursuant to the then-current Payout Schedule set forth on the Acli-Mate® website (the “Payout Schedule”), Affiliates will be paid a Commission Fee (“Commission Fee”) by Acli-Mate® for each person who purchases one of the following products:
Acli-Mate® Mountain Sport Drink Mix tubs
Acli-Mate® Mountain Sport Drink Mix packets
Acli-Mate® Mountain Sport Drink Mix boxes
Acli-Mate® products or goods
For an Affiliate to earn a Commission Fee for a Subscriber, the Subscriber must have i) followed the Acli-Mate® Link that is provided to Subscriber by Affiliate or is otherwise located on the Affiliate’s website to the Acli-Mate® website; ii) the Subscriber must have successfully purchased one of the products above; and iii) Acli-Mate® must have received valid payment from Subscriber. Payment to Affiliate shall occur within forty-five (45) days from the end of each month in which Affiliate earns a Commission Fee. Notwithstanding the above, for each month that Affiliate does not earn at least Fifty Dollars ($50.00) in Commission Fees, payment shall not be issued to Affiliate for that month but shall be deferred until the cumulative amount is at least Fifty Dollars ($50.00). Acli-Mate® shall not be liable with respect to any Commission Fees not received by Affiliate as a result of Affiliate’s failure to notify Acli-Mate® of a change in Affiliate’s principle place of address. Acli-Mate® shall have no obligation to pay Commission Fees per any promotion, promotion code, coupon or coupon promotional opportunity that is not specifically authorized for the Affiliate Program.
Payment Options. All affiliate payments are made through PayPal. This is done to ensure that the payment is secure and can be tracked. All affiliates will be required to provide their PayPal email address upon signing up for an affiliate account.
Taxes. Excluding any taxes based on ‘Acli-Mate®’ income, Affiliate shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority based on Affiliate’s revenue or income under this Agreement or any Client Agreement.
Fraud and Fraudulent Activity. Acli-Mate® shall have no obligation to pay Commission Fees to Affiliate for Subscribers if it is determined in good faith by Acli-Mate® that there has been fraudulent activity on the Affiliate’s website. For exemplary purposes only without limitations, if an unreasonable number of Subscribers have originated from the Acli-Mate® Affiliate Links on Affiliate’s website during any period of time, then Acli-Mate® shall have the right to examine Affiliate’s records to the extent necessary to determine whether any fraudulent activity has occurred involving the Acli-Mate® Links on Affiliate’s website and/or Affiliate’s account at the Reporting Site. Furthermore, Acli-Mate® shall have no obligation to pay commission fees to Affiliate in the event of Subscriber obtaining a charge back or refund or if Acli-Mate® determines in good faith that Subscribers created their accounts solely for the purpose of aiding and abetting Affiliate to increase commission amounts without the intent of being a long term Acli-Mate® Subscriber.
Each party agrees that it may have access to confidential or proprietary, technical or business information of the other party and/or its suppliers, including but not limited to, the content of this Agreement (collectively, “Confidential Information”). Each party will maintain the strict confidentiality of the Confidential Information of the other party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither party will use the Confidential Information for any purpose except those contemplated by this Agreement.
Affiliate shall not disparage Acli-Mate®, or any Acli-Mate® Logo and/or Acli-Mate® products or services thereof, or place any disparaging content on the Affiliate’s or Clients website(s).
Affiliate acknowledges and agrees that it shall not attempt to switch, divert, or convert a Subscriber from the Acli-Mate® Services to any product or service that is competitive to Acli-Mate®’ products or services.
Acli-Mate® reserves the right at anytime and from time to time to modify, discontinue, temporarily or permanently, the Program (or any part thereof) with or without notice. Affiliate agrees that Acli-Mate® shall not be liable to Affiliate or to any third party for any modification, suspension or discontinuance of the Program. In the event that Affiliate does not agree with any such modification, Affiliate shall terminate its participation in the Program, which shall be Affiliate’s sole and exclusive remedy.
Term and Termination. Unless terminated earlier as provided herein, this Agreement shall remain in full force unless otherwise terminated by Acli-Mate®. Either party may terminate this Agreement at any time upon providing notice to the other party.
Effect of Termination. In the event that this Agreement is terminated for any reason, Affiliate will only be eligible for Commission Fees earned as a result of Subscribers who were acquired up to the date of termination or expiration. Upon termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate and Affiliate will immediately cease use of, and remove from the Affiliate’s website, all Acli-Mate® Logos, Acli-Mate® Materials, and Acli-Mate® Affiliate Links. Termination or expiration of this Agreement shall have no effect with respect to any rights or obligations existing under a Client Agreement. Except to the extent expressly provided to the contrary in this Agreement, any rights to Commission Fees earned, any right of action for breach of the Agreement prior to termination, and the following provisions shall survive the termination of this Agreement: Sections 6,7,8,11,13,14. Furthermore, upon termination or expiration of this Agreement and upon Acli-Mate®’ request, Affiliate shall either return or destroy any Materials or other Confidential Information provided to Affiliate by Acli-Mate®.
Affiliate shall defend and indemnify at its expense, and hold Acli-Mate® and each of its affiliates, directors, officers, agents, employees and sub-licensees harmless from losses, damages, liabilities, costs and expenses, including without limitation, any proceeding, investigation or claim, to the fullest extent permitted by law arising out of or in connection with: (a) Affiliate’s performance under this Agreement or any Client Agreement; (b) an assertion that the information, content or other materials or services provided or made available by Affiliate infringe any copyright, patent, trademark or other property right of any third party; (c) any breach by Affiliate of its obligations, representations and warranties under this Agreement; or (d) any claim related to the content on Affiliate’s website or content provided by Affiliate to a Client for a Client Site. Affiliate shall notify Acli-Mate® within 5 business days, in writing of any claim or proceeding involving Acli-Mate®.
Acli-Mate® SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH THIS AGREEMENT, EVEN IF ACLI-MATE® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Acli-Mate® BE LIABLE TO AFFILIATE OR ANY THIRD PARTY IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT PAID TO AFFILIATE BY Acli-Mate® HEREUNDER.
LIMITATION OF LIABILITY
Acli-Mate® SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH THIS AGREEMENT, EVEN IF Acli-Mate® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Acli-Mate® BE LIABLE TO AFFILIATE OR ANY THIRD PARTY IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT PAID TO AFFILIATE BY Acli-Mate® HEREUNDER.
The parties are independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. Affiliate is solely responsible for all of its employees or agents and its labor costs and expenses arising therewith. Acli-Mate® will not furnish or otherwise reimburse Affiliate for any office space, office or business equipment, clerical support, telephone, travel, or any other expense which Affiliate may incur as a result its performance under this Agreement.
This Agreement may not be assigned by either party without the prior written consent of the non-assigning party. Notwithstanding the foregoing, Acli-Mate® may assign this Agreement to any acquirer of all or of substantially all of its equity securities, assets or business related to the subject matter of this Agreement. Any attempted assignment in violation of this Agreement shall be null and void and without effect. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement and may be changed only in writing signed by both parties. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures. The services hereunder are offered by Acli-Mate® Formulations LLC, located at 80 Camino Del Rio #3, Gunnsion, Colorado 81230.