This Affiliate Partner Program Agreement ("Agreement") contains the complete terms and conditions that govern a party's participation in the Digital Traffic Institute Partner Program (the, "Program").
As used in this Agreement, the terms "we," "us," "our" or "Company" means Digital Traffic Institute and the terms "you" or "your," means the applicant party.
Program participation requires acceptance of the terms and conditions set forth in this Agreement.
1. Definitions. Throughout this Agreement, capitalized terms shall have the meaning ascribed to them in quotes. In addition, the following definitions apply:
a. "Advertising" or "Advertisements" means any and all banner advertisements, text links, or other solicitations provided by Company to you to promote the Company's Services and/or which contain a Link to the Company's Site.
b. "Link" means a Company-provided embedded graphic, icon, or text, containing a unique hypertext pointer to the URL address for the Company Site embedded in an Advertisement, and which identifies the number of consumers that become Subscribers as a direct result of an Advertisement.
c. "Services" means all of the services offered on the Company Site, including, but not limited to, any online training and tutorial services, and any other products or services as the Company may offer, modify, or amend, from time-to-time.
d. "Site" means a World Wide Web site. The "Company Site" means the Company's website located at http://digitaltrafficinstitute.com, and/or any other additional, substitute or successor Site that may be designated by the Company. " Your Site" means any website(s) and any software application(s) that you link to the Company Site.
e. "Subscriber" means a person who (i) subscribes to the Company's Services directly using a Link and through such Link, successfully registers and becomes a paying member of the Company's Services (i.e., with valid and accurate name, address, email address, and payment information) via the Company Site; (ii) does not cancel his/her subscription within the time permitted by the Company to do so; (iii) does not obtain a refund from the Company for such subscription; and (iv) has not previously subscribed to the Company's Services (collectively, "Qualified Subscription")
2. Description of the Program. The purpose of the Program is to permit you to advertise and promote the Company's Services on your Site and to earn Referral Fees for Qualified Subscriptions made by your end users. In order to facilitate your advertisement of the Services, we may make available to you Advertisements, data, images, text, link formats, widgets, links and other linking tools, and other information in connection with the Program (" Content"). All Content is the Company's Intellectual Property.
3. Program Enrollment Process. In order to enroll in the Program, you must complete and submit an accurate Program application ("Application"). We will evaluate your Application and will notify you of your acceptance or rejection. We reserve the right, in our sole and absolute discretion, to accept or reject your Application for any, or no reason, whatsoever. If your Application is accepted, you will receive an email notification of such acceptance ("Acceptance"). If your Application is temporarily rejected, you are welcome to reapply to the Program after two (2) weeks of receiving the notice of rejection. If your Application is permanently rejected, you will not be able to reapply to the Program. A permanent rejection may be made for a number of reasons, including, but not limited to, "Unsuitable Sites", such as Sites that:
a. promote sexually explicit materials
b. promote violence
c. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
d. promote illegal activities
e. violate intellectual property rights
f. promote or contain libelous or defamatory materials
g. violate privacy rights
h. promote the use of pyramid, "ponzi", or similar investment schemes
i. are under construction or not live at the time of Application
You will ensure that the information in your Application, including your contact information, is complete and accurate. Upon Acceptance to the Program, you will ensure that your email address, and other contact and account information, is kept up-to-date at all times. You hereby give us permission to email or otherwise communicate with you regarding any matters relating to the Program and to this Agreement. You agree that we or our representatives may store, use and process your contact data in connection with this Program, including, but not limited to, account administration, maintenance and support activities, and payment.
4. Term and Termination. The "Term" of this Agreement will commence upon our Acceptance of your Application and will end when terminated by either party upon written email notice to the other party. Upon termination of this Agreement, a Partner must immediately cease serving Advertisements. No Referral Fees shall be due with respect to Subscribers who register after the date of the notice of termination. We reserve the right to withhold your final payment for a reasonable period of time as necessary to calculate properly any amount due to you. Upon termination of this Agreement, all rights and obligations of you or us under this Agreement will be extinguished, except for those rights and obligations that either by their express terms survive or that are otherwise necessary for the enforcement of this Agreement.
5. Company Obligations. Upon Acceptance of your Application, you will be provided with access to the "Affiliate Center", which will provide you with performance reports, information about Referral Fees payable to you and the number of Subscribers generated from use of Advertising through your Link. You may only use Advertising provided to you by the Company or which has been pre-approved by us in writing. The Advertising will be made available to you in the Affiliate Center.
6. Referral Fee.
a. During the Term and with respect to Qualified Subscriptions, the Company will pay you a fee ("Referral Fee") for each new Subscriber. The Company reserves the right to adjust the Referral Fee payable to you for any reason, including but not limited to the extent of any reporting errors, Charge-backs, fraudulent Subscriptions or intentional manipulations of the registration process, or as required for business reasons, all as determined in our reasonable, good faith discretion. For the purposes of this Agreement, a "Charge-back" of a Referral Fee may occur in the following events: (i) a Subscriber receives a cash refund for the Services; (ii) a sale that is eligible for a Referral Fee is later determined to be fraudulent, duplicate, false or otherwise unqualified by the Company; or (iii) the Company, in its sole discretion, determines that a Subscriber was acquired by a Partner in breach of the terms of this Agreement. We are under no obligation to provide a mechanism of appeal to a Partner for any Charge-backs.
b. In addition to all other remedies available to us, we reserve the right to refuse to make any payment to you with respect to any Subscriber that the Company determines was obtained as a result of promotional efforts that were in breach of this Agreement. Unless otherwise expressly stated in writing by the Company, Referral Fees shall be in accordance with the pricing schedule set forth in the Partner Resource Center. The Company reserves the right to change the Referral Fees at any time by providing notice to you either via email or by a posting in the Partner Resource Center.
c. Referral Fees are paid on a monthly basis. Following the end of each calendar month, we will send you a check for the Referral Fees properly earned in accordance with this Agreement, less any taxes that we are required by law to withhold. However, if the Referral Fees payable to you for any calendar month are less than fifty dollars and one cent (US$50.01), we will hold those fees until the total amount due is at least $50.01 or (if earlier) until this Agreement is terminated. If there is any Charge-back, we will deduct the corresponding fee from your next monthly payment.
d. We reserve the right to automatically deactivate an Affiliate that drives less than five (5) clicks in a ninety (90) day period.
7. Partner Program Rules. Upon our request, you will provide us with written certification that you have complied with this Section 7.
a. You will ensure that your Site is not and does not become an Unsuitable Site.
b. You will not use the trademarks or logos of any party other than the Company in any Advertising by you in connection with this Program.
c. Subject to the terms of this Agreement and solely for the limited purposes of advertising the Company's Services on, and directing end users to, the Company Site in connection with the Program, the Company hereby grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to copy and display Content solely on your Site and in accordance with any relevant usage and/or trademark rules that are provided by the Company at any time. The foregoing license will immediately and automatically terminate upon termination of this Agreement, or earlier, if you are in breach of any provision herein. Upon termination or revocation of your license, you will promptly remove from your Site and delete or otherwise destroy all of the Content and other Company Intellectual Property.
d. You will (i) only use Content to send end users to the Company Site in order to procure Subscriptions for the Company's Services, and will not link any Content to, or direct traffic to, any page of a Site other than the Company Site; and (ii) link each use of the Content solely to the Company Site.
e. You will not engage in any offline promotional, marketing, or other advertising activities without the prior written approval of Company.
f. You will not add to, delete from, modify, make derivative works of, or otherwise alter any Content in any way, including by adding additional information, except that you may resize Content consisting of a graphic image in a manner that maintains the original proportions of the image.
g. You will not sell, resell, redistribute, sublicense, or transfer any Content or any application that uses, incorporates, or displays any Content. For example, you will not use, or enable or facilitate the use of, Content on or within any application, platform, Site, or service (including social networking sites) that requires you to sublicense or otherwise give any rights in or to any Content to any other person or entity, nor will you display such links on a Site that is not your Site.
h. You will promptly remove from your Site and delete or otherwise destroy any Content that is no longer displayed on the Company Site or that we notify you is no longer available for your use.
i. You will not use any Content, including any name or likeness embodied in that Content, in a manner that implies a person's or company's endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, party, or cause (including by placing unrelated third party materials in close proximity to Content).
j. You will not bid on or purchase, either directly or indirectly, keywords, search terms, or other identifiers or otherwise participate in keyword auctions on any Search Engine, with respect to any of our trademarks, logos, or otherwise, without the express written permission of the Company's General Counsel.
k. Your Site will not in any way copy or resemble the look and feel of the Company Site, nor shall you create the impression that your Site is the Company Site or a part of the Company Site. You shall not use the Company name or any variation or misspellings thereof in your URL. You shall not frame or permit the framing of any page of the Company Site.
l. With respect to 'Electronic Communications' (i.e., email messages and text messages), you may not (i) generate or use Electronic Communication using or containing Company IP, or any variation or misspelling thereof, or other Content provided to you as part of the Program; (ii) send any other Electronic Communication that in any way suggests, implies, misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that the Company or any related entity was the sender or sponsor of such Electronic Communication or procured or induced you to send such Electronic Communication; (iii) forward, redistribute, or otherwise repurpose any Electronic Communication that we send to our Partners, affiliates and/or customers; and (iv) generate or send any unsolicited Electronic Communication (spam) under this Agreement. You will act in compliance with all applicable federal, state and local laws and regulations, including without limitation, the CAN-SPAM Act of 2003 ("CAN-SPAM"), and you agree to protect, defend, indemnify and hold harmless us and our related entities from and against any claims, actions, liabilities, losses, damages, costs or expenses, including without limitation, attorneys' fees and costs of litigation, incurred by us or our related entities arising out of or in connection with your violation of any of the terms or prohibitions contained in this Agreement or any law, rule or regulation.
m. You are solely responsible for the development, operation, and maintenance of your Site, and for all materials that appear on your Site. For example, you are solely responsible for: (i) the technical operation of your Site and for all related equipment; (ii) creating and posting the descriptions of the Services on your Site and linking those descriptions to the Company Site; (iii) the accuracy and appropriateness of materials posted on your Site; (iv) ensuring that materials posted on your Site do not violate or infringe upon any of our intellectual property rights or those of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights); (v) ensuring that materials posted on your Site are not libelous or otherwise illegal; (vi) ensuring that you link to the Company Site in the format specified by us; (vii) clearly disclosing on your Site how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including us and other advertisers) may serve content and advertisements, collect information directly from visitors, and place or recognize cookies on visitors' browsers.
n. You will not offer any person or entity any consideration or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using Links.
o. You will not take any action that could reasonably cause any customer confusion as to our relationship with you.
p. You will not frame the Company Site, or any part of it, within your Site. However, displaying a Link on your Site in accordance with the Agreement will not be considered framing the Company Site.
q. You will not post or serve any Links or other content promoting the Company Site within any pop-up or pop-under windows, transitional page ads, or layer ads around or in conjunction with the display of any Site that is not your Site.
r. You will not attempt to intercept or redirect (including via software installed on users' computers) traffic from or on, or divert advertising fees from, any Site that participates in the Program.
s. You will not artificially generate clicks or impressions on your Site whether by way of a robot or software program or otherwise.
t. You will not display or otherwise use any of our customer reviews or star ratings, in part or in whole, on your Site unless you have obtained a Link directly from us.
u. You will not cloak, hide, spoof, or otherwise obscure the URL of your Site containing Links (including by use of a redirecting page) such that we cannot reasonably determine the site from which a customer clicks through such Link to the Company Site.
v. No employee of Company or any member of the family of an employee of the Company may be a Partner or benefit, directly or indirectly, from any Referral Fee payable hereunder.
8. Permitted Promotions. You are permitted to promote the Company and the Services only through approved Links directly to the Company Site. All promotional activities undertaken by you to promote the Company's Services will be made in accordance with all applicable laws and regulations including, without limitation, the CAN SPAM Act of 2003 or any successor legislation and/or other laws and/or regulations that govern online and Electronic Communications, marketing, advertising and/or communications. With respect to Electronic Communications, you represent and warrant that (a) all recipients will be permission-based subscribers; (b) you will not involve the Company in deceptive or misleading advertising or trade practices, or violations of privacy laws, (c) all Electronic Communications will accurately identify you as the initiator of the communication in the 'from' line, and (d) your mailing domain is publicly registered. You are not allowed to register for the Services on behalf of any third party. You are only permitted to link third parties to the Company Site, and any and all information pertaining to such third parties, shall be the sole and exclusive property of Company.
9. Modification. We may modify any term or condition of this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Company Site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE COMPANY SITE AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
10. Indemnification. You acknowledge that by entering into this Agreement, we do not assume and should not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of your Site. Accordingly, in addition to any other indemnification obligations contained in this Agreement, you shall protect, defend, hold harmless and indemnify us and our related entities from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false (including court costs and reasonable attorneys' fees) incurred as a result of claims of customers or other third parties against us and our licensors, officers, directors, employees and agents arising from or connected with any of the content or activities of your Site and your business (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business, or your misuse, unauthorized modification or unauthorized use of the services or materials provided by us hereunder.
11. Publicity. You cannot create, publish, distribute, make or permit any public announcement of this Agreement or the relationship contemplated hereunder, (including, but not limited to, any press release, client list, screen shot, advertisement or any promotional material) without first submitting such material to us and receiving our express written approval, which we may withhold in our sole discretion.
12. 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 total liability to you hereunder will not exceed the total Referral Fees paid or payable to you under this Agreement in the three (3) month period immediately preceding the date of the event giving rise to the claim.
14. DISCLAIMERS. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD OR SERVICES PROVIDED THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUF OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE).
WE MAY DISCONTINUE PROVIDING, OR MAY CHANGE THE NATURE OR FUNCTIONS OF, THE SERVICES OR ANY FEATURES, AT ANY TIME. WE DO NOT WARRANT THAT THE SERVICES WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. WE ARE NOT RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR APPLICATION OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.
NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR THROUGH THE API, COMPANY CONTENT, OR THE COMPANY SITE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER,
WE ARE NOT RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE API OR COMPANY CONTENT, OR (Z) ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT.
15. 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.