AFFILIATE PROGRAM AGREEMENT
This Agreement governs your participation in the Ashley Madison Affiliate Program.
The Ashley Madison Affiliate Program (the "Affiliate Program") is operated by Avid Dating Life Inc. ("Ashley Madison" or "we"). In this agreement (the "Agreement"), the terms "Participant", "you" and "your" refer to you (the applicant), and the "Sponsoring Website" refers to the website from which users will link to Ashley Madison pursuant to the Affiliate Program.
1. Description of Affiliate Program
The Affiliate Program provides participants the ability to earn commissions as compensation for distributing the Ashley Madison online dating service (the "Service") available at Ashley Madison's Website located at www.ashleymadison.com (the "Ashley Madison Site") and generating online subscriptions to the Service. To accomplish this, participants in the Affiliate Program (each, a "participant") utilize a Web application to access Ashley Madison links, banner ads, and other integration elements that link to the Ashley Madison Site (collectively, the "Integrations"). Participants may include any or all such Integrations on their sponsoring Websites, subject to the limitations set forth herein. Users who link to the Ashley Madison Site via an Integration and create a unique registration to the Service in the same session are attributed to the participant that operates the relevant Sponsoring Website. Subject to the terms of this Agreement, when such users purchase subscriptions to the Service using such registration, the participant is eligible for a commission for such subscription as described in Section 3 (Commission Fees) below.
2. Required Information; Affiliate Account
In order to join the Affiliate Program, you must provide us with all information required by our application process (including, without limitation, a Form W-9, if applicable) and agree to the terms of this Agreement. Upon successful receipt of your application, we will promptly evaluate your application and you will be notified by email whether or not you have been accepted into the Affiliate Program. We reserve the right to reject your application for any reason, including, without limitation if your application does not reflect our business principles or if the Sponsoring Website contains any content listed in Section 10 of this Agreement.
3. Commission Fees
Subject to compliance with the terms of this Agreement, we will pay you a commission fee (the "Commission Fee") on each Qualifying Subscription (as defined below) to the Service purchased during the Term. For purposes of this Agreement, "Qualifying Subscription" means a first-time subscription purchased by a customer using a registration to Ashley Madison that such user created after linking to the Ashley Madison Site from the Sponsoring Website via an Integration. The amount of the Commission Fee will be determined in accordance with the then-current applicable commission structure (the "Commission Structure").
No Commission Fee will be paid on re-subscriptions or auto-renewals of existing Qualifying Subscriptions. If a Qualifying Subscription for which a Commission Fee is paid to you is later refunded or charged back, the relevant Commission Fee will be deducted from the next payment sent to you following such event.
We reserve the right to modify the terms of this Agreement and/or the Commission Structure at any time and for any reason in our discretion. Please see Section 14 for more details. If at any time you disagree or do not wish to abide by the terms of this Agreement or the Commission Structure, your only recourse is to end your participation in the Affiliate Program.
4. Commission Fee Payments
Payment of Commission Fees is made by bank transfer (ACH), PayPal™ or cheque. Payments made by PayPal™ and bank transfer (ACH) are made twice monthly (approximately on or about the 1st and 15th of every month, or the next business day if the payment date falls on a weekend or holiday) and are two weeks in arrears. Payments made by cheque are paid once monthly (on or about the 15th of every month) and are one month in arrears.
You must reach a minimum of $200.00 in at least one currency to request payment in connection with your account. Payment of the Commission Fees may be less any taxes required to be withheld under applicable law. Payments are made according to the Ashley Madison's internal affiliate reporting and may not be unreasonably disputed. We reserve the right to withhold payment in cases of suspected fraudulent activity or breach of the terms of this Agreement.
5. Subscription Payment Processing
Ashley Madison or its designees or licensees will be solely responsible for processing every Qualifying Subscription. Payment processing, renewal payment processing, cancellations and refund processing, and related customer service are the responsibility of Ashley Madison. All of the rules, operating procedures and policies of Ashley Madison regarding customer subscriptions will apply to all subscription orders Ashley Madison receives. We reserve the right to reject any subscription order that does not comply with our rules, operating procedures and/or policies. You are not permitted to make any exceptions to Ashley Madison's rules, operating procedures or policies or otherwise communicate with subscribers about these rules except with our prior written authorization, which may be withheld in our sole discretion.
6. Tracking of Subscription Sales
Ashley Madison or its designee or licensee will be solely responsible for tracking subscription sales. To protect the privacy of Ashley Madison's customers, the names of and other personally identifying information about customers will not be provided to you. All information about customers and users collected by Ashley Madison shall be owned solely and exclusively by Ashley Madison.
7. Copyrighted Material; Prohibited Uses of Integrations and Ashley Madison and Third-party Materials
Sponsoring Website. You shall ensure that none of the materials utilized or displayed on the Sponsoring Website, including your logo, preamble text or photographs or images, infringe upon the rights, including the intellectual property rights and personality rights, of any third parties. Ashley Madison will not be responsible if you use another party's material in violation of the law.
Use of Ashley Madison Intellectual Property Contained in the Integrations. As between the parties, you acknowledge and agree that Ashley Madison owns all right, title and interest in and to all patents, copyright, trademarks, trade secrets, service marks, trade names and other intellectual property in the Ashley Madison Site, the Affiliate Program, the Integrations and the Service and any software or other intellectual property provided by Ashley Madison in connection with this Agreement (the "Ashley Madison Intellectual Property"). You shall not take any action inconsistent with such ownership by Ashley Madison, nor attempt to register any Ashley Madison Intellectual Property in any jurisdiction.
Subject to approval of your application to the Affiliate Program and any limitations herein, Ashley Madison hereby grants to you, for the Term of this Agreement, a revocable, non-exclusive, non-transferable license to use the Ashley Madison Intellectual Property contained in the Integrations for the express limited purpose of performing under this Agreement. You, by virtue of this Agreement, shall not obtain or claim any right, title or interest in or to the Ashley Madison Intellectual Property, except the right of use as specified herein, and you acknowledge and agree that all such use shall inure to the benefit of Ashley Madison.
You may only use the Ashley Madison Intellectual Property as provided by Ashley Madison, and shall not alter the Ashley Madison Intellectual Property in any way. We have the right, but not the obligation, to monitor the quality of your use of the Ashley Madison Intellectual Property. Any references to the Ashley Madison Intellectual Property shall contain the appropriate trademark, copyright or other legal notice provided from time to time by Ashley Madison. Upon a request from Ashley Madison, you will immediately cease use of any and all Ashley Madison Intellectual Property on the Sponsoring Website and elsewhere.
Prohibited Activities. The following activity is strictly prohibited. If you engage in any such activity, we may immediately terminate this Agreement with no further obligation to you:
In addition: (i) all traffic from search engines must link to the Sponsoring Website; (ii) the Sponsoring Website must be owned and/or operated by you; and (iii) the Sponsoring Website cannot consist merely of links to the Ashley Madison Site, rather, it must provide a user-experience distinct from that available on the Ashley Madison Site (for example, it must include unique content or services).
Finally, we may impose additional restrictions on use of the Integrations and Ashley Madison Intellectual Property and on any other activities pursuant to the Affiliate Program that we determine in our sole discretion to be in our best interest. Such additional restrictions shall be effective immediately upon notice from Ashley Madison to you.
Use of Ashley Madison Profiles. You may not use any profiles or other information regarding Ashley Madison users on the Sponsoring Website or anywhere else for any reason whatsoever. Doing so will result in immediate termination of this Agreement or suspension of your participation in the Affiliate Program.
8. Ashley Madison Policies Apply to All Orders
Every customer who buys a subscription through the Affiliate Program is deemed to be a customer of Ashley Madison. You do not have the authority to make or accept any offer on behalf of Ashley Madison. All Ashley Madison policies regarding customer orders, including pricing and problem resolution, will apply to these customers. We are not responsible for any representations made by you that contradict Ashley Madison's policies.
9. Prices and Availability
The price charged for subscriptions sold under the Affiliate Program will be determined by Ashley Madison according to its own pricing policies. Prices may vary from time to time as determined in our sole discretion. Ashley Madison policies will always determine the price paid by the customer.
10. Prohibited Content
The Sponsoring Website may not display any of the following content or engage in any of the following activity:
11. Website Service Interruption
Ashley Madison will use commercially reasonable efforts to keep the Ashley Madison Site, the Affiliate Program and the Service operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. You agree not to hold liable, and hereby waive and release any claims that you may have against, Ashley Madison for such interruptions and any consequences thereof.
12. Email
You may not send out any email containing Ashley Madison's name or branding or any other Ashley Madison Intellectual Property without our express written consent, which may be withheld in our discretion.
13. Term of the Agreement
This Agreement shall commence on the day it is entered into by you and shall continue until terminated by you or by Ashley Madison as provided for herein (the "Term").
14. Modifications
We reserve the right to change any of the terms and conditions in this Agreement, at any time and in our sole discretion, by posting a new agreement reflecting such changes on the Affiliate Program site, such changes to be effective upon posting. Ashley Madison will not be required to provide notice to you of changes to the Agreement other than by posting the revised Agreement as described above. You may not change or modify this Agreement.
15. Termination of this Agreement; Survival
We reserve the right to terminate this Agreement at any time. Termination will be deemed to be effective upon email delivery to you of such termination notice, which will deemed to be received immediately upon delivery, regardless of whether you successfully receive such notice or not. If we terminate the Agreement in connection with a breach by you of any of the terms herein, any commissions payable or owing to you will be forfeited by you and will have no claim, right title or interest to any such monies.
Any provision of this Agreement that expressly states that it shall survive or which, by its nature, must survive the completion, expiration, termination or cancellation of this Agreement, shall survive the completion, expiration, termination or cancellation of this Agreement.
16. Warranty Disclaimer
Ashley Madison makes no warranties, representations or conditions with regard to the Service, the Ashley Madison Site, the Affiliate Program, the Affiliate Program site and/or the Ashley Madison Intellectual Property, whether express or implied, arising by law or otherwise, including without limitation any implied warranty of merchantability or fitness for a particular purpose or non-infringement or any implied warranty arising out of course of performance, course of dealing or usage of trade. Further, Ashley Madison expressly disavows any obligation to indemnify you or any of your representatives or owners in connection with any lawsuit or other proceeding arising out of any of your use, or any user's use, of the Services, the Ashley Madison Site, the Affiliate Program, the Affiliate Program site and/or the Ashley Madison Intellectual Property.
17. Limitation of Damages
Ashley Madison shall have no liability for any indirect, incidental, special or consequential damages or any loss of revenue or profits arising under or with respect to this Agreement, the Ashley Madison Site, the Service, the Affiliate Program, the Affiliate Program site and/or the Ashley Madison Intellectual Property even if Ashley Madison has been advised of the possibility of such damages. Further, Ashley Madison's aggregate liability arising under or with respect to this Agreement or the Affiliate Program shall in no event exceed the total Commission Fees paid or payable to you under this Agreement.
18. Notice
Except as provided for in Section 7, Section 14 and Section 15 hereof, all notices and requests in connection with this Agreement will be given in writing and will be deemed given as of (1) the day they are received if sent either by messenger, delivery service, or Canada Post or (2) the date sent if delivered by email or fax, and addressed as follows:
If to Ashley Madison:
Ashley Madison Affiliate Program
20 Eglinton Avenue West
Suite 1200, Box 2055
Toronto, Ontario
M4R 1K8
Or by email to: affiliate@ashleymadison.com
If to Participant:
To the postal address, email address and/or fax number provided by you to us on the Affiliate Program site.
19. Representations and Warranties
You represent and warrant that you have the necessary and full rights, power, authority and capabilities to enter into this Agreement and to perform your obligations hereunder and that the execution of and performance of your obligations under this Agreement will not violate the rights of any third party, nor any applicable federal, state, provincial and local law or regulation. You further represent and warrant that the Sponsoring Website shall not include any content or material that violates the rights of any third party.
20. Indemnification
You shall defend, indemnify and hold harmless Ashley Madison, its parent, subsidiary and affiliated companies and its and their directors, officers, employees, affiliates and agents, against any claim, demand, cause of action, debt or liability, including reasonable attorney's fees, to the extent that (i) it is based upon a breach of your representations, warranties or obligations hereunder; (ii) it arises in connection with the Sponsoring Website or your negligence or wilful misconduct; or (iii) it is based on violation by you of any applicable federal, provincial, state or local law or regulation in providing products or services hereunder.
21. Miscellaneous
You and Ashley Madison are independent contractors and nothing in this agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Ashley Madison; we may assign this Agreement at any time without notice to you. Subject to the foregoing restriction, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns. "Month" or "Monthly" shall refer to a full calendar month. "Dollar" or "$" shall refer to Canadian dollars for revenue generated in Canada and American dollars for revenue generated in the United States.
22. Governing Law; Jurisdiction
This Agreement shall be governed by the laws of the Province of Ontario without reference to conflict of laws principles. Any legal action, suit or proceeding arising out of or relating to this Agreement will be instituted exclusively in a court of competent jurisdiction, provincial or federal, located in Toronto, Ontario, and in no other jurisdiction. The parties hereby irrevocably consent to personal jurisdiction and venue in, and agree to service of process authorized by, such courts.
23. Acceptance of Agreement Electronic Signature.
This Agreement is an electronic contract that sets out the legally binding terms of your use of the Integrations and your participation in the Affiliate Program. This Agreement may be modified by Ashley Madison from time to time, such modifications to be effective upon posting by Ashley Madison on the Affiliate Program site. You indicate your acceptance to the terms and conditions contained or referenced herein by clicking on the "I Accept" button at the end of this Agreement. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. By clicking on the "I Accept" button, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.