ABC AFFILIATE PROGRAM
TERMS AND CONDITIONS
PLEASE READ CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE ABC AFFILIATE PROGRAM. PARTICIPATION IN THE ABC AFFILIATE PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS, PLEASE DO NOT REGISTER OR PARTICIPATE IN THE ABC AFFILIATE PROGRAM.
Introduction: The
following ABC Affiliate Program Terms and Conditions (the “Agreement”) describes
the terms of which America’s Best Companies, Inc (“ABC,” “Us,” “We”), a leading
seller of small business membership services including, but not limited to,
discount programs, website development, America’s Best magazine (the “Membership
Program”) and you, the individual or entity (the "Affiliate," “You”),
allows You to participate in the ABC Affiliate Program (the “Affiliate Program”).
By clicking to accept this Agreement, you agree to participate in the Affiliate
Program subject to this Agreement. ABC and Affiliate together may be
individually referred to as a “Party” or collectively referred to as the
“Parties.” In consideration of the covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Affiliate Responsibilities:
2. Affiliate Marketing Guidelines:
2.1 Advertising. “Advertising” includes, but is not limited to: television advertising, infomercials, radio advertising, print, billboards, posters, internet banner ads, pop-up ads, emails and other internet content and advertising, and shall be synonymous with the term Advertisement in the Agreement. All portions of the Affiliate Site, web page or any advertisement that references the Services, includes the ABC Marks, and/or a other authorized trademark or trade name which usage has been granted in accordance with the Agreement, will be considered “Advertising” subject to the approval requirements set forth in this Agreement and any other policies and procedures provided to You.
2.2 Approval of Advertising. Only Advertising approved by Us in writing may be used to market the Services. All Advertising generated by You or your agents must be submitted to Us through the Affiliate Portal in the “Contact us” page for approval. We shall use commercially reasonable efforts to approve or disapprove all such Advertising within ten (10) business days of receipt; provided, however, that failure to approve or disapprove any Advertising shall not be deemed approval by ABC. Approved Advertisements that are modified, amended, altered or changed in any manner by You are no longer approved and are subject to the approval process set forth in this Part 2. Upon a sale, transfer, removal, change of URL or cessation of use of any approved Affiliate Site or webpage, any such website will no longer be deemed approved for purposes of advertising the Services.
2.3 Advertising Guidelines. Advertising must: (a) be completely factual; (b) conform to the highest industry standards of advertising; (c) conform completely to applicable laws, including, if applicable CAN-SPAM Act of 2003; and (d) You must develop a comprehensive plan to comply with all applicable legal requirements and, upon Our request, demonstrate your full compliance with such laws. Advertising must also adhere to this Guide, the terms and conditions of the Agreement, and all policies and procedures provided to You. The following are some general guidelines that You need to follow in creating any Advertising:
a. Some states prohibit certain uses of the term "Free" in advertisements or marketing materials, or restrict the advertisement of prices with a mail-in rebate. Please check the state laws where you conduct business for clarification. In any case, use of the word "Free" in advertising or marketing materials requires the appropriate legal disclaimer in close proximity to the word "Free."
b. Standard direct mail is allowed but only if such direct mail is sent only to your membership or customer lists, the direct mail contains your extension and promotional code reflecting your Affiliate ID and it is clear that the direct mail is being sent by You.
c. Direct email solicitation may be permitted if the emails follow the requirements set forth below:
i. You are prohibited from generating email that offers the Services or in any way contains references or links to ABC or supplier not otherwise authorized by ABC, without first obtaining written approval from Us. After You obtain written approval from Us, You must comply in all respects with this Agreement. ABC’s written approval must be obtained for each email campaign.
ii. In addition to You complying with all applicable laws, Affiliate is required to comply with the following email rules:
1. The “From” line of each email must contain either Affiliate’s name. Neither ABC’s nor a supplier’s name may be included or referenced in any way in the “From” line.
2. The recipient of your email has been clearly and fully notified of the collection and use of his email address. The recipient is then sent an email asking them to confirm they would like to remain on the list. The recipient must take a positive action, either replying to the email or clicking on a link, before the subscription is activated.
4. Spam is unsolicited email also known as UCE (Unsolicited Commercial Email). By sending email to only to those who have requested to receive it, you are following accepted permission-based email guidelines. All mail must be sent only to confirmed opt-in subscribers.
5. You will create a process by which email recipients may opt-out of receiving future email from Affiliate. You must have the necessary processes in place to immediately remove such email address from its email list. Among other things, Affiliate must maintain a “do not email list” and every opt-out request must be placed on this list. You agree to honor opt-out request and not e-mail recipients who have opted out of receiving communications from You.
6. If You intend to generate email through a third party vendor, You must disclose the identity of that vendor to Us. You are responsible for all emails generated on your behalf by a third party and such emails must comply with all requirements set forth in this Exhibit.
7. You must submit for ABC’s prior written approval a marketing plan describing how many times and how often an email will be generated to any one email address. You are not permitted to send an email to any one email address more than once in any 30-day period for advertisements of the Services.
8. You must at a minimum have all email lists scrubbed against ABC’s and suppliers’ “do not email” list and Affiliate’s own “do not email” list before any email campaign begins.
9. At ABC’s request, You must provide the statistics regarding each email campaign, including without limitation, the number of emails sent, the number of recipients who clicked through, the number of applicants for whom You submitted credit applications and total gross activations.
10. Any email offering Services must contain all applicable ABC/supplier rate plan information.
11. ALL affiliates are strictly prohibited from sending any email marketing messages including SPAM or UCE (Unsolicited Commercial Email). If you wish to market your Affiliate link via email then please contact us at ABC Directly for prior written approval. ABC takes spamming very seriously and failure to abide by this rule will result in the termination of your ABC Affiliate account, and the forfeiture of any outstanding commissions due to you.
d. You may not use any adware services (also referred to as contextual or behavioral network services), via a third party or via its own internal operations. Adware services are defined as pop-up ads, banner ads, page views or other forms of media based on user behavior, including search queries or visits to specific URLs, which are served based on software downloaded by the user. Adware service networks forbidden include, but are not limited to, Claria, WhenU, HotBar, Exact Advertising, 180 Solutions, MarketMaker, Best Offers, Zone Media, Tremor Network and Contextweb.
e. Linking to or otherwise pulling images or materials from a supplier’s website is strictly prohibited. You may only use images and materials provided by ABC to You for Advertising purposes under this Agreement.
f. You must not advertise the Services on unsuitable websites. Such websites may include: websites that are under construction; websites containing hate, violence, sexually explicit, offensive, and/or illegal content; websites promoting excessive drinking and/or drug use; websites that promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, and/or age; websites with materials that may be considered libelous, disparaging, and/or defamatory; websites misusing or misspelling ABC’s and/or supplier’s name or other trademarks, service marks, trade names and/or logos; websites that incorporate materials that infringe upon copyright, trademark or other intellectual property rights of a third-party; or websites which, in ABC’s sole opinion, may negatively effect ABC’s or supplier’s brand.
g. Telemarketing – ABC does not permit outbound telemarketing in any circumstances including the use of dialers or facsimile advertising (fax blasting). Violation of this policy will result in Affiliate’s immediate termination without payment of commissions.
2.4 The
Affiliate Program is designed for Affiliates based in the
3. Limited License: We grant to You, and You accept, a limited non-exclusive, non-transferable, non-sublicenseable, revocable license to (i) access to the Affiliate Portal by up to three (3) designated employees of Affiliate for use in connection with marketing the Services and managing your account; and (ii) reproduce, publicly display, transmit and broadcast the advertisements, marketing content, logos, trademarks or trade names of ABC and its suppliers available on the Affiliate Portal (collectively, the "Licensed Content") solely in connection with the promotion and sale of the Services, subject to the marketing guidelines set forth in this Agreement in Section 2. You acknowledge that the Licensed Content are the sole property of ABC and, other than the license granted in the Agreement, nothing shall be construed to grant You any right, title or interest in or to the Licensed Content.
4. Ownership: All tangible information, including but not limited to any drawings, designs, Licensed Content, information or specifications provided to You, shall at all times be, and shall be deemed to be, our property, and We shall retain all right, title and interest in and to any intellectual property rights, as amended, supplemented or modified from time to time by ABC or Affiliate. Notwithstanding anything to the contrary contained in the Agreement, Affiliate logos, trademarks, tradenames and servicemarks shall at all times be, and shall be deemed to be, the property of Affiliate.
Information pertaining to individual customers obtained by ABC or Affiliate in connection with the marketing and promotion of the Membership Program by Affiliate shall at all times be, and shall be deemed to be, owned jointly by ABC and the applicable supplier.
5. Payment: For each approved online enrollment referred by Affiliate through Affiliate Marketing Platform who has been accepted by ABC into Membership Program and paid to ABC the membership fee for the Membership Program, ABC shall pay to Affiliate a Commission as described in Appendix A of this document herein. All decisions as to payments by ABC shall be final and binding on Affiliate unless there is a showing of bad faith or gross negligence on behalf of ABC. Commissions are distributed no later than TEN (10) days after ABC has accepted the Enrollment.
6. Right to Reject: ABC has the right in its sole discretion to reject any referred company from joining the Membership Program, in which case, no Commission will be due to Affiliate.
7. Term: The initial term of this Agreement shall commence on the date of Affiliate acceptance (the “Effective Date”) and shall continue for a period of ONE (1) year, unless terminated earlier by either party. This Agreement shall automatically renew for consecutive ONE (1) year periods unless either party terminates this Agreement as set forth herein. Each party has the right to terminate this Agreement with or without cause at any time upon SIXTY (60) days’ prior written notice.
8. Proprietary Information: Each Party agrees that it will not make use of, disseminate, or in any way disclose any of the other Party’s or a supplier’s Proprietary Information (as defined below) to any other person, firm, or business, except for any purpose the disclosing party may authorize in writing at a later time. “Proprietary Information” shall include, without limitation, performance, sales, financial, contractual and marketing information, ideas, technical data and concepts originated by the disclosing Party, or a party on its behalf, not previously published or otherwise disclosed to the general public, including the terms of this Agreement.
9. Representation and Warranties: Each Party represents and warrants to the other Party the following: (a) it has all right, title and power necessary to enter into and perform its obligations under the Agreement; and (b) it is and shall remain in compliance with all federal, state and local laws applicable to the conduct of its business and performance of its obligations under this Agreement, including, but not limited to, CAN-SPAM Act of 2003; and (c) You further represents that the promotional activities conducted pursuant to this Agreement do not and will not contain any material that (i) is misleading or deceptive, or (ii) is libelous, defamatory, obscene, or pornographic, intended to harass or annoy, or Link to any site containing material of the type described in the preceding sentence.
10. Indemnification:
a. Each Party shall indemnify, defend, and hold harmless the other Party and its officers, directors, employees, and agents (and with respect to your indemnification obligations, suppliers) from and against any and all third- party damages, liabilities, costs and expenses (including reasonable attorney's fees) arising from or relating to such Party’s breach of any of its (a) representations or warranties set forth in Section 9 above; and (b) with respect to your indemnification of ABC, any breach of Sections 1, and 4.
b. The Party seeking indemnification (the “Indemnitee”) shall promptly notify the indemnifying Party (the “Indemnitor”) of any such claim and the Indemnitor shall bear full responsibility for the defense of such claim at its sole cost, provided, however, that (a) the Indemnitor shall keep the Indemnitee informed of, and consult with the Indemnitee in connection with the progress of such litigation or settlement; (b) the Indemnitor shall not have any right, without the Indemnitee’s prior written consent, which consent shall not be unreasonably conditioned, withheld or delayed, to settle any such claim; and (c) Indemnitee shall have the right to participate in the defense of a claim with counsel of its choice at its own expense.
c. The indemnifying Party's obligations are conditioned upon the indemnified Party (a) providing the indemnifying Party with prompt written notice of any claim, suit or proceeding for which the indemnified Party is seeking indemnity; and (b) reasonably cooperating with the defense or settlement negotiations, as the case may be, conducted by the indemnifying Party.
11. Disclaimer of Warranties: EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9 ABOVE, EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATION, EXPRESS OR IMPLIED, REGARDING THEIR RESPECTIVE OBLIGATIONS AND OFFERINGS UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES ARISING OUT OF THE COURSE OF PERFORMANCE, DEALING OR TRADE USAGE, GUARANTEES, AND CONDITIONS OF ANY KIND, WHETHER INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE.
12. Limitation of Liability: EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, AND CLAIMS ARISING UNDER SECTION 8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR CLAIMS ARISING UNDER THIS AGREEMENT, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF ANTICIPATED PROFITS OR LOST BUSINESS, WHETHER FORESEEABLE OR UNFORSEEABLE. THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, AND BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.
13. Modification: AFFILIATE ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT MAY BE MODIFIED BY ABC BY POSTING A NOTICE OF SUCH MODIFICATION ON THE AFFILIATE PORTAL. AFFILIATE’S CONTINUED ACCESS TO THE AFFILIATE PORTAL AND/OR MARKETING OF THE SERVICES SHALL BE AN UNREFUTABLE ACCEPTANCE OF ANY SUCH MODIFICATION.
14. Arbitration and Governing Law: This
Agreement shall be governed and construed in accordance with the laws of the
State of
15. Amendment: No provisions of this Agreement may be amended except by a writing executed by both parties.
16. Entire Agreement: This Agreement constitutes the entire agreement and understanding of the parties hereto with regard to the subject matter contained herein and supersedes all prior agreements and understandings between the parties dealing with such subject matter, whether written or oral. This Agreement may not be modified by custom, usage of trade, or course of dealing or performance.
Appendix A
All Accepted ABC Referrals into Membership Program =
$100.00 Commission Paid to Affiliate