This Agreement contains the complete terms of use that are a condition to your
participation as an Affiliate in the Affiliate Program of American Business Card
and the establishment of links from your affiliate website to our website, "
AmericanBusinessCard.com." As used in this Agreement, "we" means
AmericanBusinessCard.com and "you" means the applicant.
1. Enrollment in the Affiliate Program To begin the enrollment
process, you will submit a complete Affiliate Program application via our site.
We will 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
Program for any reason, including, but not limited to, inclusion of content
that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing,
or racially, ethnically, or otherwise objectionable. If we reject your application,
you are welcome to reapply to the Affiliate Program at any time. If we accept
your application and your site is thereafter determined (in our sole discretion)
to be unsuitable for our Affiliate Program, we may terminate this Agreement
at any time.
2. Promotion of our Affiliate Relationship (a) As an Affiliate
Site, we will 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"), which, subject to the terms of use
herein, you may display as often and in as many areas on your site as you desire.
The Links will serve to identify your site as a member of our Affiliate Program
and will establish a link from your website to ours. The Links may connect to
different product areas of our site. To permit accurate tracking, reporting,
and referral fee accrual, we will provide you with "tagged" link formats
to be used in all links between your site and our site. You must ensure that
each of the links between your site and our site properly utilizes such special
link formats. (b) You agree that you will display on your site only those graphic
or textual images indicating a Link that are provided by us, and you will substitute
such images with any new images provided by us from time to time throughout
the term of this Agreement. 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. (c) Affiliate must accurately promote our products, prices, and promotions
and is prohibited from displaying misleading or false information about our
products, our offers or us. (d) As an Affiliate Site, we will, upon your request,
make available materials to you that you may, if you choose, incorporate into
a promotional email to your users. Any and all emails sent by you incorporating
materials obtained from American Business Card or otherwise referencing or promoting
American Business Card or its products must comply with the following Email
Guidelines:
(i) The distribution and presentation of the email must adhere to all local,
state and federal laws and regulations that apply to Internet advertising and
commercial emails.
(ii) Each email must be copied to affiliates@americanbusinesscard.com
(iii) American Business Card and its products must be described in an accurate
manner.
(iv) An email must not be distributed to anyone who has not expressly requested
to receive such commercial emails from you (opted-in).
(v) The email must make it clear that you are an independent third party.
(vi) The email must include a valid opt-out option; must not indicate directly
or by implication that American Business Card is the sender of the email; and
must not include “American Business Card”, the name of a American
Business Card employee, or a return email address similar to AmericanBusinessCard@anycompanyname.com
in the From line.
(vii) Opt-out requests from recipients of the email must be processed in a timely
manner.
(viii) You must cooperate with American Business Card in the investigation and
resolution of any questions, complaints or other issues arising from your email,
including providing American Business Card with the information necessary to
fully investigate the issue.
(ix) You must include your name in the printable portion of the email such that
the recipient and American Business Card can identify you from a printed copy
of the email. You will not use an “alias” in any email referencing
American Business Card.
3. Our Responsibilities We will be responsible for providing
all information necessary to allow you to make appropriate Links from your site
to our site. We will be solely responsible for processing every order placed
by a customer following a special Link from your site, for tracking the volume
and amount of sales generated by your site, and for providing information to
you regarding sales statistics. The form, content and frequency of such information
may vary from time to time at our discretion. We will be responsible for order
entry, payment processing, shipping, cancellations, returns, and related customer
service.
4. Other Responsibilities and Opportunities of Affiliate Sites
(a) If you qualify and agree to participate as an Affiliate Site, you shall
display Links prominently throughout your site as you see fit and with our consent.
(b) Contests and Promotions: As an Affiliate Site, you will be entitled to participate
and promote on your site any sweepstakes, contests, and special promotions we
may in our sole discretion offer, and in connection therewith, we shall make
such contests and promotions available to users of your site. In addition, you
will be entitled to earn commissions as set forth in sections 5 and 6 below.
(c) Compliance with the Agreement: We have the right in our sole discretion
to monitor your site and all of your marketing and promotional activities at
any time and from time to time to determine if you are in compliance with the
terms of this Agreement. If not, canceling the agreement at any time.
5. Commission Payment Determination Commissionable products
("Products") that are (a) sold by us, (b) purchased by users linking
to our website from your website through a Link, (c) delivered to a customer,
and (d) for which we have received full payment will qualify for a commission
payment (each, a "Qualifying Purchase"). If a Product that generated
a commission is returned by a customer, or is not paid for due to customer credit
card fraud or bad debt, we will deduct the corresponding commission from your
next quarterly payment. If there is no subsequent payment, we will send you
a bill for the commission. Affiliate Program commissions are subject to change
at any time without advance notice. The current commission schedule and commissionable
products can be viewed when you log into your account. We will not pay referral
fees on any products unless the purchaser enters our site through a Link of
an authorized Affiliate and completes a purchase. We will not pay referral fees
on purchases made by customers returning directly to our site (i.e. not through
a Link) even if the customer previously came to our site through a Link. We
will not pay referral fees on any Products that are purchased through any device
(an "Internet Access Appliance") that provides Internet access but
does not present our site, or permit users to access and interact with our site,
in the same manner as a desktop computer (e.g., mobile devices such as cellular
telephones or PDAs that may access only limited or modified versions of our
site). We will pay commissions via our toll free number if the customer references
the referring website.
6. Commission Payment When the total commission payment(s)
due to you (based on Section 5 above) exceeds $25.00 at the end of any calendar
quarter, you will be paid by a company check for the applicable commission (less
any taxes required to be withheld under applicable law) and a statement of activity
will be provided to you. Such commission checks and statements of activity will
be sent approximately 30 days after the end of each calendar quarter and will
be paid in US Dollars only. However, if the commissions due to you for any calendar
quarter are less than $25, we will hold such commissions until the total amount
due at the end of a calendar quarter is at least $25 or (if earlier) until this
Agreement is terminated.
7. Reports of Sales You will be given a password and have
the ability to enter a password-protected site to receive your sales statistics
on a daily basis.
8. Policies and Pricing Customers who buy American Business
products through the Affiliate Program will be deemed to be customers of American
Business Card. Accordingly, all of our rules, policies, and operating procedures
concerning customer orders, customer service, and American Business Card Product
sales will apply to those customers. We may change our policies and operating
procedures at any time. For example, we will determine the prices to be charged
for our products sold under the Affiliate Program in accordance with our own
pricing policies. Prices and availability of our products may vary from time
to time. Because price changes may affect products that you already have listed
on your site, you may not include price information in your product descriptions.
We will use commercially reasonable efforts to present accurate information,
but we cannot guarantee the availability or price of any particular product.
9. Publicity Except as expressly permitted under Paragraph
2 above, 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.
10. Licenses and Use of the American Business Card Logos and Trademarks
(a) WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS
OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT,
(ii) DISTRIBUTE EMAILS COMPLYING WITH THE EMAIL STANDARDS SET FORTH IN PARAGRAPH
2 ABOVE, AND (iii) SOLELY IN CONNECTION WITH SUCH LINKS AND EMAILS, TO USE THE
AMERICAN BUSINESS CARD TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING
TO US (BUT ONLY IN THE FORM(S) THAT THEY APPEAR ON OUR AFFILIATE SITE) (COLLECTIVELY,
THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF SOLICITING AND
ENCOURAGING YOUR USERS TO LINK FROM YOUR SITE TO OUR SITE, FOR THE PURPOSE OF
PURCHASING PRODUCTS. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS
IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS TO THE EXTENT
THAT YOU ARE A MEMBER IN GOOD STANDING OF THE AFFILIATE PROGRAM. (b) You shall
not make any use of any Licensed Materials for purposes other than selling our
products through your site for us without first submitting a sample of such
to us and obtaining the prior written consent of an American Business Card brand
manager, which consent shall not be unreasonably withheld. You agree not to
use the Licensed Materials in any manner that is disparaging or that otherwise
portrays us in a negative light. We reserve all of our rights in the Licensed
Materials and of our other proprietary rights. You hereby acknowledge our exclusive
ownership of and rights to the Licensed Materials and agree that all goodwill
arising from use of the Licensed Materials shall inure to our benefit. We may
revoke your license at any time, by giving you written notice. (c) You grant
to us a non-exclusive license to utilize your names, titles, and logos (the
"Affiliate Trademarks"), to advertise, market, promote, and publicize
in any manner our rights hereunder; provided, however, that we shall not be
required to so advertise, market, promote, or publicize. This license shall
terminate upon the effective date of the expiration or termination of this Agreement.
11. Obligations Regarding Your Site (a) You will be solely
responsible for the development, operation, and maintenance of your site and
for all materials that appear on your site. Such responsibilities include, but
are not limited to, the technical operation of your site and all related equipment;
creating and posting product reviews, descriptions, and references on your site
and linking those descriptions to our catalogue; the accuracy and propriety
of materials posted on your site (including, but not limited to, all American
Business Card Product-related materials); ensuring that materials posted on
your site do not violate or infringe upon the rights of any third party and
are not libelous or otherwise illegal. (b) We disclaim all liability for all
such 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. (c) You
hereby agree that your site will not, in any way, copy or resemble the look
and feel of our site nor will you create the impression that your site is our
site or is a part of our site, nor will you frame any page on the American Business
Card site being viewed by a user of your site who links to the American Business
Card site through a Link. (d) You also hereby agree that your site will not
contain any content of our site or any materials which are proprietary to American
Business Card, except (i) with our prior permission, or (ii) materials which
are obtained by you via the American Business Card affiliate site in accordance
with the provisions hereof or the policies or instructions thereon. You further
hereby agree that (i) your domain name does not and will not contain the word
"AmericanBusinessCard," or any variation thereof (collectively, the
"American Business Card marks"), and (ii) that you will not purchase
or otherwise contract with a third party to exploit any of the American Business
Card marks for the purpose of causing the Affiliate site to appear as a search
result or for any other reason.
12. Term of the Agreement The term of this Agreement will
begin upon our acceptance of your Affiliate 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 sending the other party written notice
of termination. It is your obligation to keep us informed of your current address.
Upon termination of this Agreement for any reason, you will immediately cease
use of, and remove from your site, all links to our site, and all 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 Affiliate Program. You are
only eligible to earn commission on sales occurring during the term, and commissions
earned through the date of termination will remain payable only if the related
American Business Card Product orders are not cancelled or returned. We may
withhold your final payment for a reasonable time to ensure that the correct
amount is paid.
13. Modification We may modify any of the terms of use contained
in this Agreement at any time, in our sole discretion, by posting a change notice
or new agreement on our site. Modifications may include, but are not limited
to, changes in the scope of available commissions, commission schedules, payment
procedures, and Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE
TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION
IN THE AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT
ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
14. Relationship (Independent Contractor) You and American
Business Card 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 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 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 AFFILIATE PROGRAM WILL
NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
16. Indemnification You hereby agree to indemnify and hold
harmless American Business Card and its subsidiaries and affiliates, and their
directors, officers, employees, agents, shareholders, partners, members, and
other owners, against any and all claims, actions, demands, liabilities, losses,
damages, judgments, settlements, costs, and expenses (including reasonable attorneys'
fees) (any or all of the foregoing hereinafter referred to as "Losses")
insofar as such Losses (or actions in respect thereof) arise out of or are based
on (i) any claim that our use of the Affiliate Trademarks infringes on any trademark,
trade name, service mark, copyright, license, intellectual property, or other
proprietary right of any third party, (ii) any misrepresentation of a representation
or warranty or breach of a covenant and agreement made by you herein, (iii)
any claim related to your site or your promotional activities, including, without
limitation, content therein not attributable to us, or (iv) any action or claim
that you sent one or more emails that were unsolicited or were otherwise not
in compliance with all applicable laws and regulations.
17. Disclaimers We make no express or implied warranties or
representations with respect to the American Business Card Website or the American
Business Card Affiliate Program (including, without limitation, warranties of
fitness, merchantability, noninfringement, or any implied warranties arising
out of course of performance, dealing, or usage). In addition, we make no representation
that the operation of our site will be uninterrupted or error-free, and we will
not be liable for the consequences of any interruptions or errors.
18. Representations and Warranties You hereby represent and
warrant to us as follows:
· This Agreement has been duly and validly executed and delivered by
you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
· The development, operation, and contents of your site do not infringe upon the copyright, trademark, or any other right of any person or entity.
19. Associations/Preferred Partners You will be paid commissions
based on a pre-determined rate. These commissions are only to be paid out when
a member/customer enters the American Business Card website through your website
and makes a purchase. Associations/Preferred Partners are given a discounted
rate to be used internally, but is not a commissionable amount. All purchases
made by the partners themselves are non-commissionable.
20 . Governing Law This Agreement will be governed by the laws
of the United States and the State of Arizona, without reference to rules governing
choice of laws. Any action relating to this Agreement must be brought in the
federal or state courts located in Scottsdale, Arizona, and you irrevocably
consent to the jurisdiction 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 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 a provision or any other provision of this Agreement.
