Get Altitude, LLC Affiliate Program Agreement
This Affiliate Program Agreement (“Agreement”) contains the general terms and conditions that apply to an individual’s or entity’s participation in the Affiliate Program (the “Program”).
As used in this Agreement, “we”, “us” or “our” means Hot Topic Media or any of our affiliated companies, as the case may be, and “you” means the applicant. A “Program Site” means a site operated by us and “site” means a World Wide Web site. “Your site” means any site on which you post Program Links. A “Product” is either (1) any proprietary product or service listed on a Program Site that is fulfilled by us or on our behalf or (2) any product or service sold by a third-party seller on any Program Site.
1. Enrollment and Participation in the Program:
To begin the enrollment process, you must submit a completed Program application. The Program application, as well as this Agreement (including updates to this Agreement that we may post from time to time). Note that additional specific terms and conditions may apply to specific Program Sites operated as part of the Program, and, once you have been accepted as a participant in the Program, you will be responsible for reviewing the additional terms and conditions for every Program Site you choose to promote. All rules and regulations, including specific terms and conditions, governing the operation of the Program may be found at http://affiliates.ebenpagan.com (“Program Website”).
We will review your application and thereafter notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site and/or promotional method is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:
- display or link to sites that contain sexually explicit materials;
- promote or encourage violence or illegal activities;
- promote or encourage discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- contain any content that, in our sole discretion, is libelous, defamatory or disparaging;
- include in their URL or anywhere on their site any trademark of ours or of our affiliates, or variations or misspellings of any of them; or
- violate the intellectual property rights of any person or violate any federal, state or local law or regulation.
- No illegal activities or marketing at all
- No misleading income claims or violations of any FTC rules
- No offering cash rebates, discounts or prizes you have to buy with money
- No automatic cookie-setters
- No spyware
- No systems that replace other affiliate’s cookies surreptitiously
- No popping up our site (or any other activity that sets a cookie) for someone who hasn’t already subscribed to our list, or who isn’t already subscribed to your list BEFORE the pop-up (with accurate email before you show them our site)
- No technology or systems that mislead customers, create “never ending pop ups” or interrupt the integrity and fairness of our program
- Any violation of the above is grounds for immediate termination of affiliate, and forfeiture of all affiliate commissions generated
If we reject your application, you are welcome to inquire of us regarding the reasons for your rejection and, if you change your business practices to respond appropriately to our objections, you may reapply at any time. Note that if we accept your application and we thereafter determine (in our sole discretion) that your site is unsuitable for the Program, we may terminate this Agreement with or without notice to you.
Participation in the Program is limited to enrollees that lawfully can enter into and perform contracts under applicable federal and state law. For example, minors are not allowed to participate in the Program.
Accompanying our notification to you that you have been accepted as a participant in the Program will be a password that will enable you to access the Program Website, where you will be able to view the specific terms and conditions applicable to each Program Site. You will be able to participate in the promotion of each Program Site by accepting the specific terms and conditions applicable to that site.
2. Placing Links on Your Site
You may use your password to access our on-line library of graphical and text files (“Links”). A Link may be to a Product or to a Program Site, and may be downloaded by you and placed anywhere on your site(s), in your sole discretion. A Product Link may contain a short description, review or other content that describes the Product. You may add or delete Links at any time without our approval, however, as a condition to your participation in the Program, you may not edit or alter in any way (other than to re-size) any Link or any content served through any Link.
Each Link will connect directly to either a specific Product or a specific Program Site. To ensure accurate tracking, reporting and fee accrual, each Link downloaded by you and placed on your site(s) will be “tagged” to identify you and your site(s). It is your responsibility to ensure that each of the Links between your site(s) and any Program Site is working properly and correctly formatted to identify your site(s); we will not be liable to you with respect to any failure of any Link, including any reduction of fees that would otherwise be paid to you by reason of such failure.
3. Order Processing & Tracking
We will process Product orders placed by customers who follow a Link from an affiliate site to a Program Site (please note that, in the case of a customer who follows Links from more than one affiliate site, orders will be correlated with the site visited immediately prior to the placement of an order). We reserve the right to reject orders that do not comply with any requirements that we may establish. We will be responsible for all aspects of order processing and fulfillment, including the preparation of order forms, processing of payments, cancellation of orders and Product returns, as well as the handling of all customer service queries. We will track (1) sales made to customers who purchase Products by using Links from your site to any Program Site and (2) returns and/or failures to pay, by customer. Our refund period is 30 days with an additional 5 day grace period, unless specified otherwise on the Product Site.
4. Commissions on Product Sales
We will pay you commissions on Product sales to customers who click on a Link on your site and purchase the Product during a session. A “session” means a visit to a Program Site by a customer that ends either when the customer orders a Product or the number of hours specified on the Program Website. We will not pay fees on any Product sales that occur after the session has expired.
5. Commission Schedule
During each calendar month, for Products sold during sessions initiated through Links on your site you will earn fees in accordance with the fee structure described below and as amended from time to time.
Flat Fee Structure. Subject to the terms and conditions of this Agreement, we will pay you a flat fee for each Product sale made during sessions initiated through Links on your site. The fee for each Product is set in the specific terms and conditions for each Program Site, as found on the Program Website. From time to time, in our sole discretion, we may exclude certain Products or change the fees payable on any Product.
Performance Fee Structure. We reserve the right, from time to time, to propose to any participant a performance fee structure that may offer commissions based on a percentage of net revenues (i.e., revenue net of all costs for shipping, handling, taxes separately stated and charged to the customer, service charges, credit card processing fees, returns and bad debt write-offs), rather than flat fees. Such structure may (1) be temporary or permanent, (2) apply only to certain sites or Products and (3) be made available to certain participants and not to others, in our sole and absolute discretion.
We will pay the commissions you earn 45 days after the close of a product launch on products with a refund period of 30 days. Payment will be made by either check or Paypal, depending on the preference made in your affiliate application. Due to the nature of some products the refund period may be extended, therefore extending the commission payout period to reflect the refund period.
We are obligated to obtain certain tax information from Program participants who are citizens, residents or entities incorporated in the United States, and from Program participants who are not citizens or residents but whose businesses are taxable in the United States. If we believe you are a Program participant from whom we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your fee payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
7. Policies and Pricing
Persons referred to any Program Site through a Link will be deemed to be our customers. Accordingly, all of our rules, policies and procedures concerning customer list management, customer orders, customer service and sales will apply to those customers. We may change our policies and procedures at any time, in our sole discretion. For example, we will determine the prices to be charged for Products in accordance with our own pricing policies. Because Product prices and availability may vary from time to time, your site may only display Product prices when we serve the link in which those prices are displayed.
8. Identifying Yourself as a Program Participant
You may not issue any press release with respect to this Agreement or your participation in the Program; such action may result in your termination from the Program. We will make available to you a graphic file that identifies your site as a Program participant and you may display this graphic somewhere on the home page of your site. We may modify the text or graphic image of this notice from time to time.
9. Limited Licenses
In connection with, and during the term of, your participation in the Program, you will be granted a revocable, non-exclusive, non-sublicensable, worldwide, royalty-free limited license to display and use the Links such other text or images for which we grant express permission, solely for the purpose of identifying your site as a Program participant and to assist in generating Product sales. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights and, except for the limited license granted hereby, you do not and will not obtain any rights in any intellectual property, including, without limitation, the Links and any intellectual property associated therewith, Link formats, technical specifications, guidelines or graphical artwork, or any Program Site domain name.
In connection with, and during the term of, your participation in the Program, you will grant to us a revocable, non-exclusive, non-sublicensable, worldwide, royalty-free limited license to use your name and logo(s) solely for the purpose of identifying your site as a Program participant.
10. Responsibility for Your Site
You will be solely responsible for the development, operation, and maintenance of your site and for all content that may appear on your site. For example, you will be solely responsible for:
- the technical operation of your site and all related equipment
- creating and posting Product descriptions on your site and linking those descriptions to any Program Site
- the accuracy and appropriateness of materials posted on your site (including, among other things, all Product-related materials)
- ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
- ensuring that materials posted on your site are not libelous or otherwise illegal
We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance and contents of your site.
11. Your Agreements
As a condition to your participation in the Program, you agree to each of the following conditions, covenants and agreements:
Compliance With All Laws. You will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing via e-mail, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
Compliance With The Terms and Conditions of This Agreement. By completing the Program Application and participating in the Program you are agreeing (i) to comply with all of the Program terms and conditions set forth in this Agreement, (ii) to identify in your Program Application the URL(s) of any and all site(s) on which you post Links (in the case of sites that you add to the Program after your acceptance, you will notify us via e-mail prior to posting any Link(s)) and (iii) that you will not engage in any of the prohibited activities set forth in Section 1, above.
Acknowlegement re Visitor Information. You acknowledge that, by participating in the Program and placing any Links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use and disclosure of any and all such information, consistent with the Privacy Policies on each Program Site.
Acknowledgement re Monitoring. You acknowledge that we may monitor your site(s) for the purpose of ensuring the quality and reliability of any Links you have placed on your site(s) (for example, to detect links that are broken or non-functional, links to Products that are out of stock or otherwise unavailable, etc.). To facilitate this activity, you agree that we may take such actions and that you will not seek to block or otherwise interfere with such actions, and that we may use any technical means at our disposal to overcome any methods used on your site to block or interfere with such monitoring.
Acknowledgement re Receipt of Notices. You acknowledge that we may from time to time send you e-mail updates about the Program or notices associated with the Program or this Agreement. By participating in the Program, you consent to our sending you these e-mail updates and notices.
Restricted Activities re Product Sales. You may not: (i) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using any Link on your site(s) to access any Program Site; (ii) make any orders or subscription requests, or engage in other transactions of any kind on any Program Site on behalf of any third party, or authorize, assist or encourage any other person or entity to do so; (iii) attempt to circumvent the fee schedule or artificially increase your fees, including but not limited to the purchase of any Products during sessions initiated by you through the Links on your site for your own use, for resale or for any other commercial use of any kind; or (iv) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert fees from, any other web site that participates in the Program.
Restricted Activities re Links and Sites. You may not: (i) read, intercept, record, redirect, interpret or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (ii) in any way modify, redirect, suppress, or substitute the operation of any interactive feature of any Program Site; (iii) other than providing Links on your site in accordance with this Agreement, post or serve any advertisements or promotional content promoting any Program Site or otherwise around or in conjunction with the display of any Program Site (e.g., through any framing technique or technology or pop-up or pop-under windows), or assist, authorize, or encourage any third party to take any such action; (iv) engage in marketing activities that create or reference any negative brand association or contain any form of derogatory content; or (v) cause any page of any Program Site to open in a customer’s browser other than as a result of the customer clicking on a Link on your site.
Restricted Activities re Customers. You may not: (i) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring; or (ii) seek to purchase or register any keywords, search terms or other identifiers that include such words that we may, from time to time, specify (“Proprietary Terms”) for use in any search engine, portal, sponsored advertising service or other search or referral service. We retain the right to request, from time to time, that you cause any applicable web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such web search engine offers such exclusion capabilities.
If we determine, in our sole discretion, that you have engaged in any of the foregoing activities or refused promptly to comply with a reasonable request from us we may (without limiting any other rights or remedies available to us) withhold any fees otherwise payable to you under this Agreement and/or terminate this Agreement.
12. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Program 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. Upon the termination of this Agreement you will immediately cease use of, and remove from your site, all links to any Program Site, and all of our 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. You are eligible to earn fees only on sales of Products that occur during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may amend or modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on any Program Site. Modifications may include, for example, changes in the amount of fees, fee schedules, payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT AND THEREBY WITHDRAW FROM THE PROGRAM. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ANY PROGRAM SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
14. Relationship of Parties
You and we are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between us. 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 site or otherwise, that reasonably would contradict anything in this Section.
15. 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 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 the total fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Program or any Product (including, without limitation, warranties of fitness, merchantability, noninfringement or any implied warranties arising out of a course of performance, dealing or trade usage). In addition, we make no representation that the operation of any Program Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
17. Independent Investigation
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 WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB 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.
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in San Francisco, California except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of California (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
This Agreement will be governed by the federal laws of the United States and the state of California, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which consent may be withheld for any reason or no reason at all. 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 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.