DmiSoftware Affiliate Partner Program Agreement
This Agreement contains the complete terms and conditions that apply to participation in the DmiSoftware.com Affiliate Program (the “Program”). As used in this Agreement “DmiSoftware.com” means Digital Millenium Inc., “Affiliate” means applicant, “Site” means a World Wide Web site, “DmiSoftware.com Site” means www.DmiSoftware.com, and “Affiliate Site” means applicant’s Web site.
1. Enrollment in the Program
To begin the enrollment process, Affiliate will submit a complete Affiliate Program application via the DmiSoftware.com Site. DmiSoftware.com will evaluate Affiliate’s application in good faith and will notify Affiliate of acceptance or rejection. DmiSoftware.com may reject Affiliate’s application if DmiSoftware.com determines for any reason in its sole discretion that Affiliate Site is unsuitable for the Program. Sites containing any of the Content Restrictions listed below are unsuitable for participation in the DmiSoftware.com Affiliate Program:
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- promote products or services via UCE (unsolicited commercial email)
- promote violence
- promote illegal activities
- violate intellectual property rights
- are defamatory in nature
- Sites with less than 10,000 Unique Visitors a month will NOT be accepted.
2. Promoting Offers on Affiliate Site
Affiliate will promote DmiSoftware.com on various buttons, banners, and/or text links from one or more places in Affiliate Site at all times during this Agreement. DmiSoftware.com will provide all banners, buttons, text and artwork (“Creative”) and will specify the corresponding URL Links (“Links”) for each location. Affiliate will be responsible for the placement of these Links in Affiliate Site. Affiliate may not alter Creative or create additional promotional elements without express written permission by DmiSoftware.com.
Creative supplied by DmiSoftware.com to Affiliate for use in Affiliate Site may include banner advertisements, buttons, Links to the DmiSoftware.com Site and/or text links to DmiSoftware.com Site, containing one or more logos and/or words identifying DmiSoftware.com and related products, which are subject to the terms and conditions hereof. In utilizing the Links, Affiliate agrees to cooperate fully with DmiSoftware.com in order to establish and maintain such Links. Affiliate shall display such graphic images or text prominently throughout Affiliate Site as Affiliate sees fit. A Link may only be modified and/or expanded with DmiSoftware.com’s written consent. Each Link connecting users of Affiliate Site to DmiSoftware.com Site will in no way alter the look, feel or functionality of the DmiSoftware.com Site. DmiSoftware.com has the right in its sole discretion to monitor Affiliate Site at any time and from time to time to determine if Affiliate is in compliance with the terms of this Agreement.
3. Order Processing
DmiSoftware.com will process Orders placed by customers who follow the Links from Affiliate Site to DmiSoftware.com Site. DmiSoftware.com reserves the right to reject Orders that do not comply with any requirements that DmiSoftware.com periodically may establish. DmiSoftware.com is responsible for all aspects of order processing. Among other things, DmiSoftware.com will prepare order forms; process Orders; and handle customer service.
DmiSoftware.com will track traffic and Affiliate Fee data resulting from individuals using Links from Affiliate Site to DmiSoftware.com Site and will make available to Affiliate monthly unaudited reports. The form, content, and frequency of the reports may vary from time to time in DmiSoftware.com’s sole discretion. To permit accurate tracking, reporting, and fee accrual, Affiliate must ensure that the Links between Affiliate Site and DmiSoftware.com Site are properly formatted per specifications provided by DmiSoftware.com.
4. Affiliate Fee Payment
DmiSoftware.com will pay Affiliate an Affiliate Fee (“Affiliate Fee”) which will be equal to 40 Percent of Revenue generated by Offers ordered by traffic coming to DmiSoftware.com Site from Affiliate Site using a DmiSoftware.com supplied Link and order the Offers using DmiSoftware.com’s ordering system (“Orders”). No Affiliate Fee shall be paid on Orders from customers not obviously referred by Affiliate Site.
The Percentage of Revenue and Percentage of Payout shall be determined by DmiSoftware.com and is subject to change at any time. DmiSoftware.com will make a reasonable attempt to notify Affiliate via electronic mail of change in Percentage of Revenue, but cannot guarantee the success of such notification. Payments will be calculated on a monthly basis. Due to the additional time necessary for accounting and printing of statements and checks, processing returns and validating chargebacks, approximately forty (40) days following the end of each calendar month, DmiSoftware.com will send Affiliate a check for the sum of any Affiliate Fee earned less any fraudulent, canceled, returned orders or chargebacks. DmiSoftware.com in its sole discretion will determine the validity of each Order received for an Offer. DmiSoftware will pay for checks that are paid to the affiliate by regular mail. However if Affiliate wishes to get the check payment via courier service such as FedEx, e.t.c. , appropriate charges shall be deducted from Affiliate’s payments. (Usually $25 for Courier in U.S.)
To be paid an affiliate shall have a minimum of $50 earnings. Any payment of less than this amount shall be automatically shifted to the next billing month until the amount equals or exceeds $50 limit.
If Affiliate is terminated from the Program due to fraud, no outstanding fees owed to Affiliate will be paid.
Offers and availability may vary from time to time. Because Offers may change, Affiliate may not include individual Offer information in Affiliate Site. DmiSoftware.com will use reasonable efforts to present accurate information, but cannot guarantee the availability of any particular Offer.
If Affiliate Site violates any of the Program guidelines or policies, or is responsible in any way for fraudulent Orders, this Agreement will be immediately and automatically terminated without notice. Affiliate may be required to repay all funds received from DmiSoftware.com related to fraudulent or potentially fraudulent Orders and may be subject to additional penalties or charges. DmiSoftware.com will prosecute to the fullest extent of the law. Fraud also includes violation of the specified Content Restrictions within the Affiliate Site.
6. Policies and Pricing
Customers who order through this Program will be deemed to be customers of DmiSoftware.com. Accordingly, all DmiSoftware.com rules, policies, and operating procedures concerning customer Orders, customer service, and downloads will apply to those customers. DmiSoftware.com may change policies and operating procedures at any time. For example, DmiSoftware.com will determine the fees and pricing, if any, for all Offers under this Program in accordance with its own pricing policies. Prices and availability may vary from time to time.
7. Limited License
DmiSoftware.com grants Affiliate a non-exclusive, non-transferable, revocable right to (i) access DmiSoftware.com Site through Links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such Links during the term of this Agreement, to use and display the Creative provided by DmiSoftware.com for Links which may include DmiSoftware.com’s logos, trade names, trademarks and similar identifying material (collectively “Licensed Materials”), solely for the purpose of promoting DmiSoftware.com and/or related products and services on Affiliate Site. Any use of the Licensed Materials by Affiliate must comply with any reasonable usage guidelines communicated by DmiSoftware.com to Affiliate from time to time. Nothing contained in this Agreement will give Affiliate any right, title or interest in or to the Licensed Materials or the goodwill affiliated therewith, except for the limited usage rights expressly provided above. Affiliate acknowledges and agrees that, as between DmiSoftware.com and Affiliate, DmiSoftware.com is the sole owner of all rights in and to the Licensed Materials.
Affiliate may not alter, modify or change the Licensed Materials in any way. Affiliate is only entitled to use the Licensed Materials to the extent it is a member, in good standing, of the Program. DmiSoftware.com reserves all rights in the Licensed Materials including icon, the message, any other images, trade names and trademarks, and all other intellectual property rights. DmiSoftware.com may revoke this license at any time. Affiliate agrees not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays DmiSoftware.com and/or related products in a negative light.
Affiliate shall not create, publish, distribute, or permit any written material that makes reference to DmiSoftware.com without first submitting such material to DmiSoftware.com and receiving written consent, which DmiSoftware.com agrees shall not be unreasonably withheld.
9. Responsibility for Affiliate Site
Affiliate is solely responsible for the development, operation, and maintenance of Affiliate Site and for all materials that appear on Affiliate Site. For example, Affiliate will be solely responsible for: the technical operation of Affiliate Site and all related equipment; posting Creative and Links on Affiliate Site; the accuracy and appropriateness of materials posted on Affiliate Site; ensuring that materials posted on Affiliate Site do not violate or infringe upon the rights of any third party or the Content Restrictions (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights); and ensuring that materials posted on Affiliate Site are not libelous or otherwise illegal. DmiSoftware.com hereby disclaims all liability for these matters.
10. Term of the Agreement
The term of this Agreement will begin upon DmiSoftware.com’s acceptance of Affiliate Program application and will end when terminated by either party. Either Affiliate or DmiSoftware.com may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Affiliate may also terminate this Agreement by permanently removing all Links to the DmiSoftware.com Site. DmiSoftware.com may also terminate this Agreement by notifying Affiliate via electronic mail. DmiSoftware.com will make a reasonable attempt to notify Affiliate via electronic mail of termination, but cannot guarantee success of such notification.
Affiliate is only eligible to earn fees on Offers occurring during the term, and fees earned through the date of termination will remain payable only if the related Orders are not canceled or returned. DmiSoftware.com may withhold Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid.
DmiSoftware.com may modify any of the terms and conditions contained in this Agreement, at any time and in DmiSoftware.com’s sole discretion, by posting a change notice or a new agreement on DmiSoftware.com Site. DmiSoftware.com will make a reasonable attempt to notify Affiliate via electronic mail of such modification(s), but cannot guarantee success of such notification. Modifications may include, for example, changes in the scope of available Affiliate Fee and/or Referral Fee, fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE’S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING DMISOFTWARE.COM’S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON DMISOFTWARE.COM SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12. Relationship of Parties
Affiliate and DmiSoftware.com are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent between the parties. Affiliate will have no authority to make or accept any offers or representations on DmiSoftware.com’s behalf. Affiliate will not make any statement, whether on Affiliate Site or otherwise, that reasonably would contradict anything in this Section. Affiliate, as an independent contractor, will have sole responsibility for its expenses, employees, sales representatives and agents.
13. Limitation of Liability
DmiSoftware.com will not be liable for any indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if DmiSoftware.com has been advised of the possibility of such damages. Further, DmiSoftware.com’s aggregate liability arising with respect to this Agreement and the Program will not exceed the total fees paid or payable to Affiliate under to this Agreement.
AFFILIATE ACKNOWLEDGES AND AGREES THAT DMISOFTWARE.COM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DMISOFTWARE.COM SITE, OPERATION OF THE DMISOFTWARE.COM SITE, OR THE ACCURACY OF ANY INFORMATION DELIVERED HEREUNDER, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM PATENT, TRADEMARK, OR COPYRIGHT INFRINGEMENTS, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT. DMISOFTWARE.COM SHALL NOT HAVE ANY LIABILITY TO AFFILIATE, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE OR TO ANY OTHER PERSON. IN ADDITION, DMISOFTWARE.COM MAKES NO REPRESENTATION THAT OPERATION OF THE DMISOFTWARE.COM SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND DMISOFTWARE.COM WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
15. Representations and Warranties
Affiliate hereby represents and warrants to DmiSoftware.com that this Agreement has been duly and validly executed and delivered by Affiliate and constitutes a legal, valid and binding obligation, enforceable against Affiliate in accordance with its terms; and that the execution, delivery and performance by Affiliate of this Agreement are within Affiliate’s legal capacity and power, has been duly authorized by all requisite action on Affiliate’s part, requires the approval or consent of no other persons, and neither violates nor constitutes a default under (i) the provision of any law, rule, regulation, order, judgement or decree to which Affiliate is subject or which is binding upon Affiliate, or (ii) the terms of any other agreement, document or instrument applicable to Affiliate or binding upon Affiliate.
DmiSoftware.com may disclose to Affiliate certain information as a result of Affiliate’s participation in the Program, which information DmiSoftware.com considers to be confidential (“Confidential Information”). For purposes of this Agreement, the term “Confidential Information” shall include, but not be limited to, any modifications to the terms and provisions of this Program Agreement made specifically for Affiliate Site and not generally available to other members of the Program, Site, business and financial information relating to DmiSoftware.com, customer and vendor lists relating to DmiSoftware.com, and pricing and sales information for DmiSoftware.com and any members of the Program, other than Affiliate. Confidential Information shall also include any information that DmiSoftware.com designates as confidential during the term of this Agreement. Affiliate agrees not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Affiliate for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. Confidential Information does not include information, technical data or know-how which (i) is in the possession of the Affiliate at the time of disclosure as shown by the Affiliate’s written files and records immediately prior to the time of disclosure, (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature other than as a result of any improper inaction or action of Affiliate or any other party, or (iii) is required to be disclosed by applicable law or proper legal, governmental or other competent authority (provided that the party making the disclosure shall be notified sufficiently in advance of such requirement so that it may seek a protective order or equivalent with respect to such disclosure, which the other party shall fully comply with).
Affiliate hereby agrees to indemnify, defend and hold harmless DmiSoftware.com, its shareholders, officers, directors, employees, agents, partners, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including reasonable attorney’s fees and costs) of any nature whatsoever incurred or suffered by DmiSoftware.com (collectively the “Losses”), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim or threatened claim that DmiSoftware.com’s use of Affiliate’s Trademarks infringes on the rights of any third party; (ii) the breach of any representation or warranty made by Affiliate herein; or (iii) or any claim related to Affiliate Site.
18. Independent Investigation
AFFILIATE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT DMISOFTWARE.COM MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT AND FROM COMPETITORS OF AFFILIATE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
The parties acknowledge and agree that submission of application and acceptance of this agreement will be completed either online or by electronic mail. Parties waiver their rights to a written and signed copy of this Agreement.