Effective date: 08/30/2016
If you have any questions, please don’t hesitate to let us know. For the quickest results e-mail firstname.lastname@example.org or call 888-878-9058.
Thank you for your support,
ProMera Sports™ Affiliate Program Manager
PLEASE READ THE ENTIRE AGREEMENT. YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU (“Affiliate”) and ProMera Sports™ (“Company”). BY SUBMITTING THE ONLINE APPLICATION, AND BY REFERRING VISITORS, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY BOUND BY EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions governing your relationship with the Company and, if applicable, your participation in the ProMera Sports™ Affiliate Program (the “Program”). The purpose of this Agreement is to allow HTML linking between your web site and the ProMera Sports™ web site for the purpose of referring potential customers.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application at the ProMera Sports™ website. We will evaluate your application at our convenience. We may reject your application at our sole discretion. We will reject your application or cancel an existing affiliate account if we determine that your site is unsuitable for our Program, including if it:
2.1.1. Promotes sexually explicit materials.
2.1.2. Promotes violence.
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
2.1.4. Promotes illegal activities.
2.1.5. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
2.3. ProMera Sports™ reserves the right, at any time, to review your placement and reject the use of links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and the updating of your site will be your responsibility and at your cost. It is entirely your responsibility to comply with all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights. It is your obligation to review the Terms of Service for the Affiliate Program regularly. You must stay aware of any changes to the Terms of Service.
3. Term and Termination
This Agreement will begin upon our acceptance of your affiliate application, and will continue unless terminated hereunder. Either you or we may end this Agreement on three (3) business days’ written advance notice to the other party; with or without cause Termination notice may be provided via email and will be effective immediately, including that you must immediately cease all advertising activities. All moneys then due will be paid during the next billing cycle, subject to any final accounting.
After one year of inactivity using your assigned discount code(s) on www.promerasports.com, you will no longer be considered an affiliate and you will no longer be eligible for discount or to earn commissions. Your coupon codes will become invalid and to reactivate your affiliate status, you will need to re-apply. There is no guarantee that you will receive the same discount codes.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email, (which may be provided by email to the email address provided in the course of your registration with the Company). Modifications may include, but are not limited to, changes in the payment procedures and the ProMera Sports™ affiliate Program rules. If any modification is unacceptable to you, you may terminate this Agreement. You must notify us of your acceptance of any changes to the Program and your continued participation in the Program following the email of the change notice and the new Agreement on our site will indicate your agreement to the changes.
5. Commissions & Payment
5.1 ProMera Sports™ is a PPS (pay-per-sale) affiliate program. We pay affiliates recurring commission on referred customers.
5.2 Affiliates are paid once a month by a company check that will be sent via USPS. The Company may, in its discretion, withhold payments until such time as it’s clients have paid the Company for the Program. In addition to any other remedies that may be available to Company, in the event of any breaches by you of this Agreement, you shall forfeit your rights to any amounts owed by Company to you. All payments are made in U.S. dollars only.
5.3 International Affiliates will be paid in products based on the commissions earned. Please see your welcome letter for more information.
5.4 Company shall compile, calculate and electronically deliver data required to determine your billing and compensation. Any questions or disputes regarding the data or payout provided by Company needs to be submitted to the company in writing or email within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by you.
5.5 ProMera Sports™ will only pay Affiliates for commissions that are earned and tracked through their termination as an Affiliate. Any Affiliate that is removed from the program because of non-compliant behavior will not receive commissions from any referred customers.
5.6 As required by U.S. Law, U.S. Residents will be required to submit a W-9 form (as required by the Internal Revenue Service).
6. Promotion Restrictions
6.1. You are free to promote your own websites, but any promotion mentioning ProMera Sports™ shall be deemed to be a joint effort. To avoid confusion, the following promotional restrictions are to be followed by all participating affiliates:
• Certain forms of advertising are always prohibited by ProMera Sports™ . For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once.
• You may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote ProMera Sports™ so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings.
• You may post to newsgroups to promote ProMera Sports™ so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from ProMera Sports™ and its clients. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the ProMera Sports™ Affiliate Program.
• Any pending balances owed to you will not be paid and your account may be forfeited in cases of unacceptable advertising.
6.2. Affiliates are prohibited from keying in prospect’s information into the lead form with the intent of misrepresenting or falsifying leads.
6.3. We strongly advise affiliates to stay compliant with the Federal Trade Commission (FTC) guidelines on testimonials and endorsements. For example, all endorsements, reviews, testimonials on ProMera Sports™ products and services, as well as relationships between other types of content websites (forums, blogs, microblogs and other Social Media channels) and ProMera Sports™ must be clearly disclosed in a separate policy on the affiliate sites. The FTC has noted that “when there exists a connection between the endorser and the seller of the advertised product” it is imperative that such connection is “fully disclosed”. We share the concept and concern of the FTC’s approach, and will not tolerate any affiliates that fail to adhere to the FTC’s guidance. We reserve the right to terminate our relationship with any non-compliant affiliates.
7. Representations and Warranties
You represent and warrant that:
7.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
7.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
7.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
8. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL COMPANY’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless ProMera Sports™ and their subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that your infringed on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site. You will immediately notify the Company of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.
10.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and ProMera Sports™. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or any other of site or otherwise, that reasonably would contradict anything in this section.
10.2. Neither party may assign its rights or obligations under this Agreement to any party, except, that the assignment to a third party who obtains all or substantially all of the business or assets of a party shall be permitted subject to the reasonable consent of the other party (i.e. the non-assigning party).
10.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Massachusetts without regard to the conflicts of laws and principles thereof. Further, the parties hereby consent to the general jurisdiction of the federal and state courts located in Boston Massachusetts and agree that any action or proceeding concerning this Agreement shall be brought exclusively in such courts.
10.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
10.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
10.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
10.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.