BY AGREEING WITH THE “Terms of Service”, YOU INDICATE YOUR UNDERSTANDING AND ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS BEFORE CHECKING THE “Terms of Service” BOX.
This Agreement describes the terms and conditions that apply to your participation in the TrueShip Affiliate Program (the “Affiliate Program”). As used in this Agreement, “you” means the individual or organization completing the Application referred to in Paragraph 1 below, “TrueShip” means TrueShip Software llc. “Site” means a World Wide Web site and, depending on the context, refers either to TrueShip’s Site, or to the Site, as identified in your Application, that you will link to the TrueShip Site. A “Customer” is any person or entity that is not you or your agent who is referred to the Site through an Internet connection (“Link”) to a Web site or Web site content operated by another person or entity (“Advertiser”) from an Advertiser authorized promotional method used by such Publisher.
1. Application Process.
In order to participate in the Affiliate Program, you must complete the Affiliate Program Application available on the TrueShip Site. We will evaluate the Application and you will automatically be accepted into the Affiliate Program unless we notify you that your Application has been rejected. We may accept or reject your Application in the exercise of our sole discretion for any rea
son.
2. Establishment of Links.
Once you have been accepted to participate in the Affiliate Program, you will have access to TrueShip graphic and textual links through the TrueShip Site (each of these links sometimes being referred to herein as a “Licensed Mark” or “Link”) which you will prominently display on your Web Site. The Link will serve to identify you as a participant in the Affiliate Program and will establish a hypertext link from your Site to the TrueShip Site.
To permit accurate tracking, reporting and payment of commissions hereunder, you will have access to special “tagged” Link formats through the TrueShip Site to be used in all Links between your Site and the TrueShip Site. You must ensure that each of the Links between your Site and the TrueShip Site properly use such special link formats (“Special Links”). You will only earn commissions with respect to activity on the TrueShip Site occurring directly through use of Special Links.
You are responsible for the accuracy and appropriateness of all materials posted on your Web Site, and for ensuring that materials posted on your Web Site do not include materials that are unlawful, harmful, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable, or include or promote sexually explicit or “adult” materials, violence or discrimination.
2.1 Prohibited Uses of Links.
(i) Locations. You may not place Links to a third party Site or Site content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Publishers using IRC channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by TrueShip.
(ii) Non-Bona Fide Transactions. You must promote TrueShip such that you do not mislead the Customer, and such that the Links deliver a bona fide Qualifying Purchase by the Customer through the Link. You shall not cause any Qualifying Purchases to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for a Qualifying Purchase where you or your agent is the Customer. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Qualifying Purchase. You shall not earn Commissions for non-bona fide Qualifying Purchase.
(iii) Infringement. None of Your promotional activities may infringe on TrueShip’s proprietary rights (including but not limited to trademark rights), or a third party’s proprietary rights.
3. Your Obligations to TrueShip
(a) Accurate, Up-to-Date Information. You agree to provide TrueShip with accurate information about you and your promotional methods, and to maintain up-to-date “Account” information (such as contact information, Web Sites used, etc.). In your Account, you must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as “special”. Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by TrueShip. TrueShip reserves the right to define any program as special.
(b) Use of Links. You represent and warrant that all promotional means used by you will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that You will not mislead others. You agree to: (i) use ethical and legal business practices, (ii) comply with the Affiliate Program’s terms and this Agreement, (iii) maintain a privacy policy on your Web site and for any non-Web site based promotional method made available to Customers, and (iv) obtain written approval by TrueShip for any promotion other than displaying a Link on your Web Site. TrueShip must approve all of your promotional activities and may deem your promotional activities inappropriate and a material breach of this Agreement in TrueShip’s sole discretion. Any suspected fraudulent, abusive or otherwise illegal content or activity by you through your promotional methods, or that is perpetrated through use of the Affiliate Program, is grounds for immediate termination of this Agreement or deactivation of your Account.
(c) Promotional Methods. You represent and warrant that you will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications. You represent and warrant that you will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by your Web Site content /Site visit or by downloadable software applications for which you are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/unders cannot be used in conjunction with (i) TrueShip installation requirements, (ii) enduser agreement requirements, (iii) afsrc=1 requirements, (iv) requirements prohibiting usurpation of a Commission that might otherwise result in a Commission to another Affiliate (e.g. by purposefully detecting and forcing a subsequent click-through on a TrueShip Link) and (v) non-interference with competing Affiliate referrals.
(d) Personally Identifiable Information of Customers. You represent and warrant that you will not enable the Link to collect personally identifiable information of Customers that would allow TrueShip to personally identify Customers.
(e) Privacy. You must conspicuously post your privacy policy on Your Web Site and otherwise make it available to all Customers. Your privacy policy must comply with all laws and regulations regarding the privacy of Customer information, be commercially reasonable, and fully and accurately disclose your collection and use of Customer information. You must fully and accurately disclose your use of third party technology, including TrueShip’s Link, use of cookies and options for discontinuing use of such cookies.
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f) Usage and Security of Account. You shall be responsible for all usage and activity on your account and for loss, theft or unauthorized disclosure of your password (other than through TrueShip’s negligent or willful conduct or omission). You shall provide TrueShip with prompt written notification of any known or suspected unauthorized use of your Account or breach of the security of your Account.
4. Limited License
Subject to the terms and conditions of this Agreement, TrueShip hereby grants to you, for the term of this Agreement, a non-exclusive, non-transferable, revocable license to display the Licensed Marks solely in connection with providing a link from your Site to the TrueShip Site. You may not modify the Licensed Marks or Links in any way, and must follow any TrueShip instructions regarding their use, appearance and display.
TrueShip shall have the right to demand the withdrawal of the Licensed Marks from your Web Site if, in TrueShip’s sole opinion, your Site conflicts with, interferes with, or is detrimental to TrueShip’s interests, reputation, business, practices, procedures or policies, or which might subject TrueShip to unfavorable regulatory action, violate any law, infringe the rights of any person, or subject TrueShip to liability for any reason. Upon written notice from TrueShip to withdraw the Licensed Marks, you shall cease using the Licensed Marks on your Site as soon as possible, but in any event within three (3) days of the date of receipt of TrueShip’s written notice.
5. Account Processing
TrueShip will process all orders placed by customers who follow Special Links from your Site to the TrueShip Site. All such customers will subsequently be customers of TrueShip (“Customers”). TrueShip reserves the right to reject orders that do not comply with any requirements that TrueShip may establish from time to time. TrueShip will be responsible for all aspects of order processing and fulfillment.
You acknowledge that you shall not be a party to any transaction between any Customer and TrueShip and all aspects of such orders including, but not limited to, purchase terms, payment terms, warranties, and guarantees shall be solely between the Customer and TrueShip.
6. Commissions
Only products and services: (i) sold by TrueShip; (ii) purchased or licensed by Customers linking to the TrueShip Site from your Web Site using a Special Link; and (iii) for which TrueShip has received full payment (“Qualifying Purchase”), will qualify you for a commission. You understand and agree that TrueShip products and services may be available without charge for a trial period of up to 60 days and that no Commission will be paid to you until the completion of such trial period and receipt by TrueShip of full payment by a Customer for such TrueShip products and/or services. Commissions will be paid on the 20th day of each calendar month for Qualifying Purchases reported for the previous month, provided Your Account balance exceeds the required “Minimum Account Balance”. Commission Payments earned through the date of termination of this Agreement will remain payable only if the purchased products or services are not returned or cancelled by the Customer and will be net of all taxes, credit card processing fees, returns, charge backs, and other similar charges. The commission percentage shall be as set forth on the TrueShip Affiliate Program Join Page, which percentage may be changed from time to time by TrueShip by posting a different percentage on the TrueShip Affiliate Program Join Page.
You will receive Commission Payments for Qualifying Purchases placed during the term of this Agreement. You expressly understand and agree that no Commission Payments will be due from TrueShip to you for any orders placed by Customers after this Agreement has been terminated.
7 Tracking Transactions and Commissions
TrueShip will determine the actual Commission that should be credited to your Account. TrueShip may, at its sole discretion, apply an estimated Commission, if: (i) you are referring Customers to the Site as verified by clicks through TrueShip Links, (ii) where there is an error in the Site’s recording of a Customer’s Link activity. (iii) where TrueShip is able to perform a historical analysis of your promotion to determine an equitable amount of estimated Commission.
7.1 Charge-backs
TrueShip may apply a debit to your Account in an amount equal to a Commission previously credited to Your Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Customer by TrueShip; or (v) your failure to comply with TrueShip’s program terms (“Charge-back”). Charge-backs may be applied to your Account at any time, including previous payment cycles.
7.2 Access to Tracking and Reporting Tools
TrueShip will provide you with access to tracking and reporting tools, and to support services. From time to time TrueShip may offer optional services for a fee. Fees for such optional services are at TrueShip’s then-current published rates or as may be quoted by TrueShip, and are payable in advance or may be off-set against your positive Account balance (at TrueShip’s discretion). Tracking detail regarding Qualifying Purchases are not guaranteed to be available on a real-time basis and there may be reporting delays regarding some Qualifying Purchases. TrueShip may make available, for fees that TrueShip shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Affiliate Program.
7.3 Support
Support for your program is available on-line through your Affiliate Console. Online help also allows you to check the status of all issues. Phone support may also be available during operating hours, except holidays.
7.4 Dormant Accounts
If your Account has not been credited with a valid Qualifying Purchase, that has not been Charged-back during any rolling, six consecutive calendar month period (“Dormant Account”), a dormant account fee at TrueShip’s then-current rate shall be applied to your Account each calendar month that your Account remains an open yet Dormant Account or until your Account balance reaches a zero balance, at which time the Account shall become deactivated. Qualifying Purchases will not be counted if the Qualifying Purchase subsequently becomes a Charge-back.
7.5 Negative Accounts
You may have a negative balance if your Account is debited amounts equivalent to previous Commissions for Charge-backs and you do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, you must immediately remit payment to TrueShip in an amount sufficient to bring your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly. You will be notified of a negative balance by email and/or mail and will have 30 days to bring your account current.
8. Term and Termination
The term of this Agreement will begin on TrueShip’s acceptance of your Affiliate Program Application and will end immediately upon termination by either party. Either TrueShip or you may terminate this Agreement at any time, with or without cause and without liability, by giving the other party notice of termination. Notices transmitted via email shall be effective notice hereunder. Upon termination of this Agreement for any reason, you will remove the Licensed Marks, Links, and all other TrueShip trademarks, trade dress, logos and other material provided to you by TrueShip from your Site and any and all servers in your possession or control as soon as technically feasible, but in no event shall the Licensed Marks remain on your Site more than three (3) days after such termination.
9. Limitation of Liability
TrueShip will not be liable for any delay in accessing and/or inability to access the TrueShip Site whether due to an act of God, action by any government entity, strike, network difficulty, electronic malfunction, or any other reason, or any reliability or effectiveness related to the TrueShipSite. TrueShip makes no warranty or representation that the operation of the TrueShip Site will be uninterrupted or error-free, and TrueShipwill in no event be liable for the consequences of any interruptions or errors.
TRUESHIP PROVIDES THE TRUESHIP SITE AND ALL INFORMATION AND SERVICES AVAILABLE THEREIN “AS IS” AND MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS REGARDING TRUESHIP OR ANY SERVICES OR INFORMATION PROVIDED BY TRUESHIP. TRUESHIP DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT. TRUESHIP SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING: (i) THE NUMBER OF PERSONS OR ENTITIES THAT WILL ACCESS OR “CLICK THROUGH” TO THE TRUESHIP SITE FROM YOUR WEB SITE; (ii) ANY BENEFIT THAT YOU MIGHT OBTAIN FROM INCLUDING THE LICENSED MARK(S) ON YOUR WEB SITE; OR (iii) THE AMOUNT OR VOLUME OF COMMISSIONS THAT YOU MIGHT EXPECT TO RECEIVE OR ACTUALLY RECEIVE PURSUANT TO THIS AGREEMENT.
IN NO EVENT WILL TRUESHIP BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR COMMERCIAL LOSSES, LOST PROFITS, OR REVENUES FROM ANY CAUSE, WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT TRUESHIP HAS BEEN ADVISED OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES OR LOSSES. YOU AGREE THAT THE TOTAL LIABILITY OF TRUESHIP HEREUNDER WITH RESPECT TO ANY CLAIM SHALL NOT EXCEED THE COMMISSIONS PAID BY TRUESHIP TO YOU HEREUNDER.
You represent and warrant that you will make no promises, representations or warranties, whether written or oral, with regard to TrueShip or the services provided by TrueShip, beyond those provided by TrueShip in writing. You will indemnify and hold TrueShip harmless from all damages, claims and liabilities (including attorneys’ fees and costs) resulting from a breach of the foregoing representation and warranty.
10. Modifications
TrueShip may modify in its sole discretion any of the terms and conditions contained in this Agreement at any time at its sole discretion by posting a change notice or a new Agreement on the TrueShip Site. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following the posting of a change notice on the TrueShip Site will constitute binding acceptance of the change.
11. General Provisions
No claim or other action arising out of this Agreement, regardless of the form of action, may be brought by either party more than one (1) year after the cause of action accrued.
You agree to indemnify, defend and hold TrueShip harmless from and against any and all liability, claims, losses, damages, injuries or expenses (including attorneys’ fees and costs) relating to the development, operation, maintenance and contents of your Site.
Neither party shall be responsible for delay or failure in performance resulting from acts beyond its control. Such acts shall include, but not be limited to: an act of God; an act of war; riot; an epidemic, fire, flood or other disaster; an act of government; or a strike or lockout.
You may not assign this Agreement or any of the rights or liabilities hereunder, without the written consent of TrueShip.
The Agreement shall be governed by the laws of the State of Arizona, USA without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Maricopa County, Arizona.
This Agreement contains the entire agreement between the parties and there are no understandings or agreements relative hereto other than those which are expressed therein’
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party shall have the power or authority to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
