This Affiliate Program Operating Agreement (the "Agreement") is made and entered into by and between Universal Marketing Partners LLC dba Long Ball Media Group ("LongBallMedia" or "we"), and you, ("you" or "Affiliate") the party submitting an application to become a LongBallMedia affiliate. The terms and conditions contained in this Agreement apply to your participation with the LongBallMedia affiliate program ("Affiliate Program"). Each Affiliate Program offer (an "Offer") may be for any offering by LongBallMedia or a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement. Each and every time you access the LongBallMedia website, you hereby accept the terms and conditions set forth here. The terms of this Agreement shall supersede any agreement entered into between the parties and any other agreement shall not apply.
1. Enrollment in the Affiliate Program
a. You must submit an Affiliate Program application from our website. You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
2. Obligations of the Parties
a. Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement, Affiliate agrees as follows:
1. We will make available to you via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the "Links") which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, "Media"). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site.
2. We will pay Affiliate for each Qualified Action (the "Commission"). A "Qualified Action" means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by LongBallMedia and (v) is not later determined by LongBallMedia to be fraudulent, potentially fraudulent, incomplete, unqualified, refunded, charged-back or a duplicate.
3. We will pay you any Commissions earned monthly on a net 30 days basis unless otherwise stipulated via written documentation or email, provided that your account is currently greater than $50. Accounts with a balance of less than $50 will roll over to the next month, and will continue to roll over monthly until $50 is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
4. Payment for Commissions is dependent upon Clients providing such funds to LongBallMedia, and therefore, you agree that LongBallMedia shall only be liable to you for Commissions to the extent that LongBallMedia has received such funds from the Clients. You hereby release LongBallMedia from any claim for Commissions if LongBallMedia has not received such funds from the Clients.
5. If Affiliate has an outstanding balance due to LongBallMedia under this Agreement or any other agreement between the Affiliate and LongBallMedia, whether or not related to the Affiliate Program, Affiliate agrees that LongBallMedia may offset any such amounts due to LongBallMedia from amounts payable to Affiliate under this Agreement.
a. Affiliate also agrees to:
1. Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
2. Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that LongBallMedia informs you that it considers objectionable (collectively, "Objectionable Content").
3. Not make any representations, warranties or other statements concerning LongBallMedia or Client or any of their respective products or services, except as expressly authorized herein.
4. Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by Universal Marketing Partners LLC or Clients or a part of the Program Web Site, without prior written permission from us.
5. Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
6. Comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
8.Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by LongBallMedia or Client, or as required by applicable laws regarding such Offers.
9. Make sure to not place LongBallMedia ads on any online auction platform (i.e. eBay, Amazon, etc).
10. During the term of this Agreement and for a period of twelve months thereafter, Affiliate shall not conduct business, either directly or indirectly, with Client except via LongBallMedia.
11. Affiliate will only display, distribute and use creative, including email content and subject lines, in the exact form as approved in writing and supplied by LongBallMedia.
b. The following additional program-specific terms shall apply to any promotional programs set forth below:
1. Email Campaigns. For all email campaigns, Affiliate must download the "Suppression List" from the Offers section of LongBallMedia. Affiliate shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. LongBallMedia will provide an opt-out method in all Links, however, if any opt-out requests come directly to Affiliate, Affiliate shall immediately forward them to LongBallMedia at email@example.com. Affiliate's emails containing the Links may not include any content other than the Links, except as required by applicable law.
a.Affiliate agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to LongBallMedia pursuant to this Agreement or otherwise. Affiliate further agrees that it will not mail or market to any suppression files generated through the LongBallMedia network, and that doing so may result in Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to LongBallMedia pursuant to this Agreement or otherwise.
b.Campaign Approval Process
1. Initial written Approval is required for ALL email campaigns prior to deployment or distribution. LongBallMedia written approval is a condition precedent to an Action being considered valid.
1.1. BEFORE it distributes or deploys a campaign, Affiliate shall submit examples of ALL emails it intends to distribute, to LongBallMedia at firstname.lastname@example.org.
1.2. LongBallMedia will review the email(s), including From/Subject line, text/html content and disclaimers, and either provide written approval or corrections to be made and resubmitted for approval.
1.3. LongBallMedia will try to review and approve/request revisions the same day they are received, 7 days a week.
2. Once an email has been approved:
2.1. Affiliate may distribute or deploy the approved email without further need for approval, as long as no changes have been made to any of the approved campaign elements, including: From/Subject line, text/html content or disclaimer.
2.2. After initial approval, any time that Affiliate or any Sub-Affiliate's Company makes a change to any of the elements, including From/Subject line, text/html content or disclaimer, the campaign must be re-submitted for written approval before re-deployment.
3. Any campaign that is distributed or deployed before LongBallMedia has provided written approval, or with any elements that have not been pre-approved by LongBallMedia, even if the campaign is compliant, will not be paid (since all resulting Actions are invalid) and a penalty may be enforced.
4. It is the responsibility of the Affiliate to ensure that it has the most up-to-date creative materials.
5. LongBallMedia may require the seeding of Affiliate’s or any Sub-Affiliate's Company’s list for additional compliance monitoring.
2. Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by LongBallMedia in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and plain-english end user license agreement and the software be easily removed according to generally accepted methods.
3. Affiliate Network Campaigns. For all Affiliate's that maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (the "Network") for access and use by those affiliates in Affiliate's Network (each a "Third Party Affiliate"). Affiliate agrees that it will expressly forbid any Third Party Affiliate to modify the Links in any way. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose web site or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this Agreement prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to LongBallMedia the identity and contact information for such Third Party Affiliate. Affiliate shall promptly remove any Third Party Affiliate from the Affiliate Program and terminate their access to future Offers of LongBallMedia in the Network upon written notice from LongBallMedia. Unless LongBallMedia has been provided with all truthful and complete contact information for a Third Party Affiliate and such Third Party Affiliate has affirmatively accepted this Agreement as recorded by LongBallMedia, Affiliate shall remain liable for all acts or omissions of any Third Party Affiliate.
a. Except as otherwise provided in this Agreement or with the consent of LongBallMedia, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
4. Limited License & Intellectual Property
a. We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site.
b. You may not alter, modify, manipulate or create derivative works of the Links or any LongBallMedia graphics, creative, copy or other materials owned by, or licensed to, LongBallMedia in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of LongBallMedia's trademarks, service marks, copyrights, patents or trade secrets. You agree that LongBallMedia may use any suggestion, comment or recommendation you choose to provide to LongBallMedia without compensation. All rights not expressly granted in this Agreement are reserved by LongBallMedia.
a. This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all LongBallMedia or Client intellectual property, and will cease representing yourself as a LongBallMedia or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
a. In addition to any other rights and remedies available to us under this Agreement LongBallMedia reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) LongBallMedia determines that you have violated this Agreement, (ii) LongBallMedia receives any complaints about your participation in the Affiliate Program which LongBallMedia reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, LongBallMedia reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
7. Anti-Spam Policy
a. You agree to strictly comply with all laws, rules and regulations, including the CAN-SPAM Act of 2003, as amended (the “Act”) relating to or arising out of the provision of services hereunder. All emails sent in connection with the Affiliate Program must include the appropriate party's opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to LongBallMedia for approval by sending it to your LongBallMedia representative and upon receiving written approval from LongBallMedia of your email the email may be transmitted to third parties.
b. It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon LongBallMedia's approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon LongBallMedia's approval. Prior to each sending of emails, you agree to suppress any email addresses that are in the most recent suppression file. You may not use any suppression list for any purpose whatsoever other than to suppress against which names you may legally contact. You will only distribute and use email creative, including subject lines, in the exact form as approved and supplied by LongBallMedia and such mailings will contain Client’s physical address and the required functioning unsubscribe link(s).
a. With respect to any CPA, CPL, CPC, Revenue Share or other performance-based campaign, payments will only be made for each unique United States user who completes each field in the advertisement with responses that meet the Client's lead criteria and provides complete, accurate and non-fraudulent information, as determined by LongBallMedia, completes all required actions, and who is accepted and paid for by the Client. Payments will not be made for any consumer credit card order that subsequently has been cancelled, refunded, charged-back or that appears suspicious or potentially fraudulent, as determined by LongBallMedia. You will forfeit all rights to receive any payments pursuant to this Agreement in the event you violate any of the terms or conditions of this Agreement. In no event shall LongBallMedia’s liability, if any, to affilaite exceed the average monthly amount LongballMedia actually pays affiliate pursuant to each campaign. You shall be responsible for all of the actions of each of your affiliates and other entities that provide services, either directly or indirectly, to you.
9. Representations and Warranties
a. You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement.
a. This Agreement may be amended from time to time and any such Agreement, as amended, shall appear on this page. Please visit this page from time to time and re-read the Agreement then in effect to see if any material change to this Agreement has been made. Your continued participation in this affiliate program will constitute your acceptance of the terms of this Agreement, as amended. In addition, LongBallMedia may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from LongBallMedia to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
11. Independent Investigation
a. You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
a. Affiliate hereby agrees to indemnify, defend and hold harmless LongBallMedia and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) relating to or arising out of (i) the breach or alleged breach of any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, either directly or indirectly, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or LongBallMedia or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
a. THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, LONGBALLMEDIA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. LONGBALLMEDIA DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. LONGBALLMEDIA EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. LONGBALLMEDIA DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
14.Limitation of Liability
a. IN NO EVENT SHALL LONGBALLMEDIA BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE CONTROL OF LONGBALLMEDIA. IN NO EVENT WILL LONGBALLMEDIA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT LONGBALLMEDIA HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. LONGBALLMEDIA'S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY LONGBALLMEDIA IN COMMISSIONS DURING THE TWO (2) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
15. Governing Law & Miscellaneous
a. Affiliate shall be responsible for the payment of all attorneys’ fees and expenses incurred by LongBallMedia to enforce the terms of this Agreement. This Agreement contains the entire agreement between LongBallMedia and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that LongBallMedia shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether LongBallMedia "clicks through" or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without LongBallMedia's prior written consent. LongBallMedia may assign this Agreement at any time without notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of this Agreement and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of LongBallMedia. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing or any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to its conflict of law principles. The parties agree that any action brought by a party to enforce or interpret this Agreement shall be brought in a state or federal court in New York County, New York. The parties further agree that if any such action is brought outside of New York County, New York, they consent to a transfer to a court of competent jurisdiction in New York County, New York.
b. By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety, have legal capacity to enter into said Agreement, and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and actual or express authority to bind such business entity to this Agreement.