APERION AUDIO AFFILIATE AGREEMENT
Effective October 1, 2007
PLEASE READ THE ENTIRE AGREEMENT.
PLEASE PRINT THIS AGREEMENT FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND APERION AUDIO, INC. (DBA APERIONAUDIO.COM).
BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND THAT YOU UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY AND HELD LEGALLY RESPONSIBLE FOR THE COMPLIANCE OF EACH AND EVERY TERM AND CONDITION.
1. Overview
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Aperion Audio’s Affiliate Program. The purpose of this Agreement is to allow HTML linking between your Web site and Aperion Audio’s Web site. Throughout this Agreement, "we," "us," and "our" refer to Aperion Audio and "you," "your," and "yours" refer to the affiliate.
2. Affiliate Obligations
2.1. The enrollment process will begin when you complete and submit the online application hosted on the Commission Junction (CJ.com) server. The fact that we auto-approve applications does not imply that we will not re-evaluate your particular application at a later time. We reserve the right to review and reject your application at our sole discretion. Furthermore, we may cancel your application if we determine that your Web site is unsuitable for our program, including, but limited to, if it:
2.1.1. Promotes sexually explicit materials;
2.1.2. Promote violence;
2.1.3. Promotes discrimination of any type, including, but not limited to, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
2.1.4. Promotes illegal activities;
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights or to violate any law;
2.1.6. Includes "AperionAudio.com" or any variation or misspellings thereof in its domain name;
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable to us IN OUR SOLE DISCRETION;
2.1.8. CONTAINS SOFTWARE DOWNLOADS THAT POTENTIALLY ENABLE DIVERSIONS OF COMMISSION FROM OTHER AFFILIATES IN OUR PROGRAM;
2.1.9. You may not create or design your Web site, or any other Web site (with or without the Aperion Audio logo) that you own or operate, in such a manner that it either explicitly or implicitly resembles our Web site nor may you design your Web site in a manner which leads customers to believe that you are, or in any way represent, Aperion Audio or any other affiliated business.
2.2 As a member of Aperion Audio’s Affiliate Program, you will have access to the Affiliate Account Manager, which is provided by Commission Junction (CJ.com). Here you will be able to review our Program's details and previously-published affiliate newsletters; download HTML code (that provides links to Web pages within the Aperion Audio Web site) and banner creatives; and browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your Web site to ours, YOU MUST USE THE HTML CODE THAT WE PROVIDE FOR EACH BANNER, TEXT LINK, OR OTHER AFFILIATE LINK WITH WHICH WE PROVIDE YOU.
2.3. Aperion Audio reserves the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use of such links to comply with the guidelines provided to you in this Agreement.
2.4. The maintenance and updating of your Web site will be your responsibility. We reserve the right to monitor your Web site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your Web site. You must have express permission to use any other person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. WE WILL NOT BE RESPONSIBLE (AND YOU WILL BE SOLELY RESPONSIBLE) IF YOU USE ANOTHER PERSON'S COPYRIGHTED MATERIAL OR OTHER INTELLECTUAL PROPERTY IN VIOLATION OF ANY LAW OR ANY THIRD PARY RIGHTS.
3. Aperion Audio Rights and Obligations
3.1. We reserve the right to monitor your Web site at any time to determine if you are in compliance with the terms and conditions of this Agreement. We may notify you of changes to your Web site that we feel should be made, or to ensure that your links to our Web site are appropriate. If you do not make the changes to your Web site that we feel are necessary, we reserve the right to terminate your participation in the Aperion Audio Affiliate Program.
3.2. Aperion Audio reserves the right to terminate this Agreement and your participation in the Aperion Audio Affiliate Program immediately and without notice to you should you commit fraud in your participation of the Aperion Audio Affiliate Program, or should you abuse this program in any way. IF SUCH FRAUD OR ABUSE IS DETECTED, APERION AUDIO SHALL NOT BE LIABLE TO YOU FOR ANY COMMISSIONS ARISING FROM SUCH FRAUDULENT SALES. IN THE CASE OF FRAUD OR ABUSE, WE RESERVE THE RIGHT TO PROSECUTE THE OFFENDING PARTY TO THE FULLEST EXTENT OF THE LAW IN RENUMERATION FOR ANY LOSS, REAL OR PERCEIVED, THAT OUR COMPANY ENGENDERS AS A RESULT OF SUCH ACTIVITY, INCLUDING, BUT NOT LIMITED TO, OUR TIME SPENT IN REGULATING YOUR ACTIVITIES (BILLED AT $250 PER HOUR); APPLICABLE LEGAL FEES; THE DEFAMATION OF OUR COMPANY NAME; ETC.
3.3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
4. Termination
Either you or we may terminate this agreement AT ANY TIME, with or without cause, by giving the other party a written notice. Written notice can be in the form of mail, email, or fax. In addition, this Agreement will terminate IMMEDIATELY AND WITHOUT NOTICE upon any breach of this Agreement by you.
5. Modification
We reserve the right to modify any terms or conditions of this Agreement at any time at our sole discretion. In the event that any of the terms or conditions of this Agreement are modified, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and Aperion Audio’s Affiliate Program rules. While we encourage open communication, if any modification is ultimately unacceptable to you, your only option is to end this Agreement. Your continued participation in the Aperion Audio Affiliate Program following the posting of the change notice or new Agreement on our Web site will indicate your agreement to the changes.
6. Payment
Aperion Audio uses a third party to handle all of the tracking and payment. This third party is the Commission Junction (CJ.com) affiliate network. Please review the network's payment terms and conditions.
7. Access to Affiliate Account Manager
You will create a user account, including a password, so that you may enter Commission Junction’s secure Affiliate Account Manager. From Commission Junction’s Web site you will be able to receive your reports that will describe our calculation of the commissions due to you.
8. Promotion Restrictions
8.1. While you are free to promote your own Web sites as you see fit, any promotion that mentions Aperion Audio, or that links to our Web site, could be perceived by the public or the press as a joint effort. In order to maintain our corporate image, there are certain forms of advertising that are always prohibited by Aperion Audio. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause harm to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups, and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Aperion Audio so long as the recipient is already a customer or subscriber of your services or Web site, and recipients have the option to remove themselves from future mailings. AS PREVIOUSLY STATED, YOU ARE SOLELY RESPONSIBLE FOR ADHERING TO ANY LAWS GOVERNING YOUR ADVERTISING CAMPAIGNS, INCLUDING BUT NOT LIMITED TO THE CAN-SPAM ACT OF 2003, AND THE STIPULATIONS OUTLINED IN THIS SECTION ARE TO BE UNDERSTOOD AS ADDING TO FEDERAL AND STATE GUIDELINES. Additionally, you may post to newsgroups to promote Aperion Audio so long as the newsgroup specifically welcomes commercial messages. That is, in posting to new groups we will hold you responsible for adhering to all rules and regulations of that newsgroup, and violating the terms and conditions of the newsgroup will be cause for termination of this agreement and forfeiture of any unpaid commissions. At all times, you must clearly represent yourself and your Web sites as independent from AperionAudio.com. If it comes to our attention that you are spamming, or misrepresenting yourself or our company in any way, such will be cause for immediate termination of this Agreement and your participation in the Aperion Audio Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
8.2. You may not bid on Aperion Audio's trademarked brand names, which includes "Aperion", "Aperion Audio", and "AperionAudio.com."
8.3 You may use trademarked terms in the Display URL of Paid Search Engines ONLY if they are displayed after the "slash" following a URL that you are the owner of. (See below examples). At no time will direct linking to our home page be allowed, you MUST have a non-redirected page destination for Pay Per Click traffic to land on. Aperion Audio will be happy to supply content and product listings for this and all landing pages on your site(s).
At no time can 'AperionAudio.com' appear in the Display URL, even if it is after the slash.
Acceptable display URL Examples:
http://www.yourdomain.com/Aperion
http://www.yourdomain.com/AperionAudio
8.4. Affiliates are not prohibited from purchasing our products through their own affiliate links. While we will pay the base commission on all such qualifying actions, such actions will not be considered in any promos or bonuses run by our Affiliate Program.
8.5. Affiliates shall not transmit any so-called "interstitials," "Parasiteware™," "Parasite Marketing," "Shopping Assistance Application," "Toolbar Installations and/or Add-ons," "Shopping Wallets," or "deceptive pop-ups and/or pop-unders" to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Aperion Audio Web site (i.e., no page from our Web site or any AperionAudio.com’s content or branding is visible on the end-user's screen). As used herein a. "Parasiteware™" and "Parasitic Marketing" shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any means other than a customer initiated click on a qualifying link on a Web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing: pop-ups; commission tracking cookies to be put in place; and/or other commission tracking cookies to be overwritten where a user would, under normal circumstances, have arrived at the same destination through the results given by the search (search engines including, but not being limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot, and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop-ups that open AperionAudio.com’s Web site; (d) targets text on Web sites, other than those Web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces, or blocks the visibility of Affiliate banners with any other banners, other than those that are on Web sites owned 100% by the owner of the application.
9. Grant of Licenses
9.1. We grant you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms and conditions of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purposes. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Aperion Audio’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Aperion Audio and the goodwill therewith will inure to the sole benefit of Aperion Audio.
9.2. Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene, or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
10. Disclaimer
APERION AUDIO MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING APERION AUDIO SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF APERION AUDIO ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEB SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. 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;
11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL APERION AUDIO’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
13. Indemnification
You hereby agree to indemnify and hold harmless Aperion Audio, 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, or (iii) any claim related to your Web site, including, without limitation, content therein not attributable to us.
14. Confidentiality
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15. Miscellaneous
15.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Aperion Audio. 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 Web site or any other of your Web sites or otherwise, that reasonably would contradict anything in this Section.
15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially of the business or assets of a third party.
15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Oregon without regard to the conflicts of laws and principles thereof.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms and conditions of this Agreement.
15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect.