CommissionSoup Enrollment Terms & Conditions
CommissionSoup Affiliate Enrollment Agreement
This Affiliate Enrollment Agreement ("Agreement") contains the terms and conditions that apply to your participation in the CommissionSoup Affiliate Network ("Network").
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND BMG SERVICES LLC dba COMMISSIONSOUP ("CommissionSoup"). BY ENROLLING YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Definitions. As used in the Agreement, the below terms shall have the following meanings:
Applicable Law means all federal, state, and local laws, rules, regulations, and ordinances that apply to your participation and activities in the Network including, without limitation:
- All laws, rules, regulations and ordinances that relate to the Internet, false advertising, and/or unfair competition or business practices, and privacy laws (including the right to share lead contact information with third parties).
- The CAN-SPAM Act of 2003, as amended ("CAN-SPAM") and the e-mail marketing laws of the several states that are not pre-empted by CAN-SPAM (including, without limitation, California Business and Professions Code Section 17529).
- The Federal Telemarketing Sales Rules, including the provision relating to the NATIONAL DO NOT CALL REGISTRY (16. C.F.R. Part 310).
- The Dodd-Frank Wall Street Reform and Consumer Protection Act.
- Section 5 of the Federal Trade Commission Act and the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising,
- The Telemarketing and Consumer Fraud and Abuse Prevention Act ("TCPA").
- The Personal Information Protection and Electronic Documents Act.
- The Telephone Consumer Protection Act and the Telemarketing Sales Rule.
- The Consumer Leasing Act.
- The Electronic Fund Transfer Act.
- The Alternative Mortgage Transaction Parity Act.
- The Home Mortgage Disclosure Act.
- The Real Estate Settlement Procedures Act.
- The Secure and Fair Enforcement for Mortgage Licensing (SAFE) Act.
- The Gramm-Leach-Bliley Act("GLBA").
- The Health Insurance Portability and Accountability Act of 1996.
- The Fighting Internet and Wireless Spam Act, Canada's Online Protection Legislation, and the regulations promulgated thereunder.
Applicant means the person or entity applying for enrollment in the CommissionSoup Affiliate Network. The terms " you", " your" and " yours" also mean the Applicant.
CommissionSoup means BMG Services LLC dba CommissionSoup. The terms " we", " us", and " our" also mean CommissionSoup unless the context requires otherwise.
Click means the selection of a Permitted Link by a Visitor.
Data Security Incident means any unauthorized action by a known or unknown person which, if successfully complete, would reasonably be considered an attack, penetration, denial of service, disclosure of Confidential Information or other misuse of the Network and/or Permitted Links including unauthorized access or intrusion, virus intrusion, unauthorized scan of any system, network, or data storage hardware, or any other activity that may adversely affect the Network or the operation of the Permitted Links.
Permitted Link means any CommissionSoup banner, button, graphic, email image or text link used by you on your Site or in other marketing communications such as email or push notifications in accordance with the terms of this Agreement.
Program means a service or product opportunity made available to a Visitor through a Permitted Link.
Site means a World Wide Web site and, depending on the context, refers either to the CommissionSoup Site or to the Site that you own and operate.
Visitor means any natural person who accesses a Permitted Link through the use of a personal computer, tablet, or mobile device.
Network Enrollment. You are not enrolled, and you may not participate, in the CommissionSoup Affiliate Network until your enrollment application is accepted by us and your account is activated. To be accepted, the following conditions must be met:
All information requested on the enrollment form must be completed by you with valid and complete information.
Your Site URL listed on the enrollment must be owned by you and must be live at the time the enrollment is submitted.
You must have complete control to add, change, or remove any content from your Site and other marketing communications.
Your enrollment form must contain a valid physical address. Post office boxes or addresses from mailbox stores will not be accepted as a physical address.
Your Site and other marketing materials must not contain any controversial or unacceptable content or design including, but not limited to, international marketing sites, poorly designed pages, poor quality sites, adult sites that promote hate speech, violence, pornography or sexual material of a lewd or obscene nature.
All enrollment applications may be accepted or rejected by us in our sole and absolute discretion. Any false or invalid information provided by you at the time of enrollment will cause your application to be immediately rejected. If we subsequently discover that any information is invalid or incorrect, we may, at our sole discretion, terminate this Agreement, suspend and inactivate your Permitted Links, deactivate your account and remove you from participation in the Network.
Representations and Covenants. In connection with your enrollment and assent to this Agreement, you further represent and agree that:
You have the full right, power, legal capacity and authority to enter into and perform under this Agreement.
You have read and agree to the terms and conditions of this Agreement and agree to be legally bound by the same. In enrolling and consenting to this Agreement, you have not relied on any other promise or representation, either oral or in writing, except for what is set forth herein.
The information you supplied in your enrollment application is true, complete and correct.
Your participation in and use of the Network will, at all times, be in full compliance with all Applicable Law.
You will not infringe any copyright, patent, trademark or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of CommissionSoup or any third-party.
You will not engage, participate or become involved in any action that could be construed as tarnishing and/or damaging to our reputation or the reputation of any content provided in a Permitted Link.
You will comply with all CommissionSoup and third-party Program providers marketing and advertising restrictions as in effect from time to time including, without limitation, limitations on the purchase, registration, keyword requirements of paid search bidding, email marketing restrictions, and prohibitions on incentivized traffic.
You will not expose the Network to any viruses, hacking, warez or other malware.
You will not load any computer program onto an individual's computer, in connection with the operation of the Network, including without limitation programs commonly referred to as adware, spyware or push notifications, without our prior written approval and the individual's express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded.
You agree to report to us all known or suspected Data Security Incidents and shall provide us with the following information: (i) the nature and impact of the Data Security Incident; (ii) actions already taken by you with respect to the incident; (iii) your assessment of immediate risk; and (iv) corrective measures you plan to take and an evaluation of alternatives and next steps.
Term of Agreement. The term of this Agreement will begin upon our acceptance of your enrollment application and issuance to you of your username and password for your affiliate account. It will end when terminated as permitted by the provisions of this Agreement or by either of us, with or without cause, upon notice to the other. Upon termination of this Agreement you must immediately cease your use of all Permitted Links and stop your access to your account and our Site.
Affiliate Network Operations. The purpose of the Network is to allow you to use Permitted Links to CommissionSoup's Programs and other third-party Programs available to Network affiliates through CommissionSoup. Your participation in the Network is subject to the following provisions:
Program Permissions. In many cases, we must obtain third-party approvals before you may use a Permitted Link to access a Program. You agree to cooperate with us to obtain these approvals, which may require you to complete additional Program application forms. In connection with these applications, you will be required to agree to the Program provider's additional terms and conditions. You are under no obligation to participate in any specific Program. However, if you do choose to participate in any Program and in any way violate the terms and conditions of that Program, we may, in our sole discretion, take one or more of the following actions: suspend and inactivate your Permitted Links to that Program, terminate this Agreement, suspend and inactivate all of your other Permitted Links, deactivate your account and remove you from participation in the Network. We may also withhold any payments due to you.
Permitted Links. Once you are approved to participate in a Program, we will provide you with a selection of Permitted Links to choose from the restricted Client Access portion of our Site, which is accessible to you using your account username and password. You must select from these choices. You may add or delete Permitted Links at any time. However, you may not alter the content of a Permitted Link in any way. ALTERING OR IN ANY OTHER WAY USING UNAUTHORIZED ADVERTISING TECHNIQUES OR CONTENT IS STRICTLY PROHIBITED AND WILL RESULT IN TERMINATION FROM THE PROGRAM WITHOUT COMPENSATION AND MAY RESULT IN YOUR REMOVAL FROM THE NETWORK. If you would like to modify or use other content not created or modified by us, you must obtain our prior written permission. This often requires us to obtain the permission of third parties and can take several weeks. New and revised Permitted Links for existing or new Programs will be posted on our Site from time to time. It is your responsibility to make sure that all changes, required by new Permitted Links, are made on your Site and in your other marketing materials.
Transaction Tracking and Reporting. Clicks, completed application counts, conversions, sales, and/or other transaction information required by a Program shall be tracked by us. You agree that we have the right to place tracking technologies in the Permitted Links as may be required to track and provide estimated live statistics for us and for our third-party Program providers. Unless reasonably disputed, our tracking counts will be used for invoicing and payment purposes under this Agreement. If you remove or manipulate the tracking codes at any time without our prior express written permission, we may suspend the affected Permitted Links. We may also withhold any payments due to you.
Electronic Notices. You agree to receive email announcements of any changes or notifications in the Network for any Program or Permitted Link at the email address you specify in the enrollment form or as you update it in your account on our CommissionSoup Site. You must check this email address regularly (minimum once a day). Failure to keep your email address current and to check for Network messages may, in our discretion, cause us to terminate this Agreement, suspend and inactivate your Permitted Links, deactivate your account and remove you from participation in the Network.
Site Responsibility. We are each solely responsible for developing, operating and maintaining our respective Sites as well as for all materials that appear on those Sites or that otherwise contain Permitted Links.
Customers. A Visitor who clicks on a Permitted Link shall be deemed to be our customer. Each such Visitor shall abide by all applicable Program rules, policies and procedures. All information relating to such Visitors, including, information submitted by the Visitor in connection with any Program, shall be owned exclusively by us and may not be used by you for any other purpose without our express prior written consent.
Idle Accounts. Should your account remain idle for forty-five (45) consecutive days, we may, in our sole discretion, terminate this Agreement, suspend and inactivate your Permitted Links, deactivate your account and remove you from participation in the Network.
Invoicing and Payments. Each Program has different price and payment terms, which will be posted on our Site or in notices sent to you. Each month we will provide you with an email summary of the performance of your Programs and the payments due to you. We will then pay you the amount within 25 days. All payments will be made in U.S. dollars and will be made in the form of a check, a wire transfer (with transfer fees paid by you) or an ACH transfer as we agree. In the event that you dispute any amount in a monthly report, you should contact us within five (5) days of the report date detailing the nature and amount of your dispute. We both agree to work together in good faith to resolve any timely dispute. After five (5) days, our reports shall be considered accurate and final.
Prohibition on Spamming. SPAMMING (which is any form of mass communication that creates complaints from the user receiving the communication) IS NOT ALLOWED. As such, any emails, e-newsletters, etc., MUST be "permission" or "opt-in" based email addresses and include a way to unsubscribe.Should we, in our reasonable discretion, determine that you are guilty of spamming, providing false account information, falsely increasing your number of Clicks and/or acting or attempting to act in any false, misleading or illegal manner, we shall have the right to immediately terminate this Agreement with cause, deactivate your Permitted Links, cancel your account, remove you from the Network, and withhold the payment of all monies due you. Such termination or waiver thereof shall in no way constitute a waiver of any other section of this Agreement.
Without limiting the general obligation to follow all Applicable Law, including the CAN-SPAM Act, and in order to help us ensure that you are in compliance with such laws, we will provide you with emailed suppression notices and will update the suppression files on our Site at least once per week. You agree to NOT perform an email-marketing program without first downloading the suppression list from our Site and removing all suppressed addresses. ou further agree to provide a simple method for subscribers to terminate their subscriptions and provide clear and effective instructions for unsubscribing from your mailing lists. You must immediately terminate mailings to any address on our suppression list and to any email address for which an unsubscribe message is received.
Confidential Information Defined. For the purposes of this Agreement, "Confidential Information" includes, without limitation, the terms of this Agreement (including pricing), information regarding the structure and operation of the Network, the identity of our Program providers, and our existing or contemplated services, products, Programs, Permitted Links, processes, techniques, or know-how, or any information or data developed by you or us in connection with this Agreement. We each may use Confidential Information received from the other only in connection with and to further the purposes of this Agreement (including our sharing of your information with our Program providers) and may only provide such Confidential Information to our respective directors, employees and advisors who have a "need to know" such Confidential Information and who are obligated to honor, the terms of this Agreement. The fact that Confidential Information does not carry a proprietary legend, or is transmitted orally, shall not act as a waiver to deprive such information from protection under this Agreement.
Exceptions. The term "Confidential Information" shall not apply to information which is: (i) already known by the receiving party, (ii) publicly known or becomes publicly known through no unauthorized act of the receiving party, (iii) lawfully received from a third party without restriction on use or disclosure if, to the receiving party's knowledge, such third party had the legal right to disclose such information, or (iv) independently developed by the receiving party without use of the other's Confidential Information. In addition either of us may disclose Confidential Information hereunder if pre-approved in writing by an officer of the other approving such disclosure, or if disclosure is required by law, governmental agency or rule, or court order, so long as the party required to disclose the information provides the other party with timely prior notice of such requirement.
Enforcement. We both agree and understand that a material breach of this provision governing Confidential Information will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, we both agree that in such event, the non-breaching party, in addition to all other remedies, will be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond.
DISCLAIMERS. THE SERVICES, PROGRAMS AND PERMITTED LINKS PROVIDED BY OUR SITE AND THE NETWORK, THEIR USE, AND THE RESULTS OF SUCH USE, ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE MAKE NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE. WE DO NOT WARRANT OR GUARANTEE CLICKS, TRANSACTION TRANSMISSIONS, CONVERSION RATES, PROGRAM RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. WE ARE ALSO NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND OUR CONTROL. The provisions of this section are an essential element of the benefit of the bargain reflected in our Agreement.
LIMITATION OF LIABILITY. EXCEPT FOR ANY THIRD PARTY INDEMNITY CLAIMS, NEITHER OF US SHALL BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY EXCEPT IF SUCH LOSSES ARE
FRAUD. IF WE ARE FOUND LIABLE FOR ANY AMOUNTS, OUR TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO YOU IN THE ONE (1) MONTH PRIOR TO YOU NOTIFYING US OF THE MATTER. The provisions of this section are an essential element of the benefit of the bargain reflected in our Agreement.
Indemnification. Each of us (the "Indemnifying Party") agrees to indemnify, defend and hold harmless the other (the "Indemnified Party"), their Affiliates and their respective directors, officers, members, employees, agents and partners from and against any and all out-of-pocket liabilities, damages, losses and expenses, including reasonable attorneys' fee, arising out of or related to a third-party claim or proceeding to the extent it is based upon an allegation that, if true, would constitute a breach of the Indemnifying Party's representations and warranties in this Agreement. The Indemnifying Party's indemnification obligations are conditioned upon the Indemnified Party: (i) giving prompt notice to the Indemnifying Party of the claim or action; (ii) granting to the Indemnifying Party sole control of the defense or settlement of the claim or action (except that the Indemnified Party's prior written approval will be required for any settlement that reasonably can be expected to impose a material obligation upon, or materially prejudice or detrimentally impact, the Indemnified Party in any way); and (iii) providing reasonable cooperation and, at the Indemnifying Party's request and expense, assistance in the defense or settlement of the claim or action.
Modifications. We reserve the right to modify any or all of the terms and conditions of this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our Site. Modifications may include, but are not limited to, changes in the scope of referral fees, email collectors, fee schedules, payment procedures and/or Program or Network participation rules.
Relationship as Independent Contractors. We agree that we operate in the Network as independent contractors. Any intention to create a joint venture or partnership between us is expressly disclaimed. Except as set forth herein, neither of us is authorized or empowered to obligate the other or to incur any costs on behalf of the other without their prior written consent. Neither of us will make a statement, whether on our respective Sites or otherwise, that would contradict anything in this section.
Noncircumvention. You agree that neither you nor your respective shareholders, directors, officers, employees, affiliates, agents, representatives, successor or assigns, will circumvent or attempt to circumvent the Network with respect to any Program or enter into any business transaction or communicate with any third party Program provider (other than those with whom you have a preexisting relationship) during the term of this Agreement and for a period of at least two (2) years thereafter.
Nonexclusiveness. You acknowledge and agree that we may operate multiple web sites and conduct other electronic marketing campaigns that may or may not be similar to or compete with the Network and its Programs and that we may solicit customer referrals on terms that are different than the terms and conditions contained in this Agreement.
Publicity. You shall not in any way publish or distribute any written material that refers to us without first submitting such material to us for written approval, which we agree shall not be unreasonably withheld. Further, you agree to give us a non-exclusive license to use your names, URLs, titles, logos, etc. to advertise, market, promote and publicize in any manner our rights hereunder; provided, however, that we shall not be required to do so.
Disputes. This Agreement shall be governed by the laws of the United States and the State of South Dakota without respect to choice of law rules. We both consent to have all disputes regarding this agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. We both agree to conduct the arbitration in Lake County, South Dakota, and each of us shall bear our respective costs of such arbitration. We both specifically waive any international treaties or other international law, which may govern the court or location of resolution of any dispute between them. We each waive the personal service of any process and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address of record.
Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given at the time such communication is sent by email or by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following addresses (or at such other address for a party as shall be specified by like notice):
If to us, to the attention of President/CEO, at the physical address posted on our Site or by using the contact form on our Site.
If to you, to the person listed as the contact person and at the physical or email address listed on your enrollment application.
Remedies, Waiver. Except as otherwise specified, the rights and remedies granted to either of us under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which we may each possess at law or in equity. Failure to require strict performance of any provision shall not affect a right to require strict performance thereafter. Waiver by either of us of a breach of any provision shall not waive either the provision itself or any subsequent breach.
Assignment. Neither of us may assign or delegate this Agreement or any of its rights or duties hereunder directly, indirectly, by operation of law or otherwise, without the written consent of the other, and any purported assignment or delegation without such consent shall be void. Notwithstanding the foregoing, this Agreement may be assigned by either of us in connection with the sale or transfer of substantially all of our equity or assets. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of any permitted successors and assigns.
Severability. If any provision contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and such unenforceable provision shall be replaced with a provision most closely effectuating our intent and all other provisions of this Agreement shall remain in full force and effect.
End of Agreement