Affiliate Program Agreement
PLEASE READ THE ENTIRE AGREEMENT. YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Fund That Flip, Inc.BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR HAVE CONSULTED WITH AN ATTORNEY OR HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THE TERMS AND CONDITIONS CONTAINED HEREIN, AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the FlipperForce Affiliate Program. The purpose of this Agreement is to allow HTML linking between your website and Fund That Flip, Inc websites. Please note that throughout this Agreement, "FlipperForce,” we," "us," and "our" refer to Fund That Flip, Inc and its subsidies, and "you," "your," and "yours" refer to the affiliate.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application with FirstPromoter. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at any time at our sole discretion. We may cancel your application at any time at our sole discretion 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. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights or to violate the law.
2.1.6. Includes "FlipperForce" or variations or misspellings thereof in its domain name.
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable to us in our sole discretion.
2.1.8. Contains coupon codes that potentially enable diversions of commissions from other affiliates in our program.
2.1.9. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
2.1.10. You may not create or design your website or any other website that you operate, explicitly or implied, in a manner that resembles our website or design your website in a manner that leads customers to believe you are FlipperForce or any other affiliated business.
2.2. As a member of the FlipperForce Affiliate Program, you will have access to Affiliate Account Manager. Here you will be able to review our Program’s details and previously-published affiliate newsletters, download HTML code (that provides links to web pages within the FlipperForce's websites) and banner creatives, browse and get tracking codes for our coupons and deals. For us to accurately keep track of all guest visits from your site to ours, you must use the HTML code we provide for each banner, text link, or other affiliate link we provide you.
2.3. FlipperForce reserves the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and updates of your site will be your responsibility. We may monitor your site as necessary to ensure it is up-to-date and notify you of any changes that we feel should enhance your performance.
2.5. It is your responsibility to follow all applicable intellectual property and other laws pertaining to your site. You must have express permission to use any person's copyrighted material, whether it be text, 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’s rights.
3. FlipperForce Rights and Obligations
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to ensure your links to our website are appropriate. If you do not make the changes to your site that we deem are necessary within the stated timeframe or within a reasonable timeframe if a stated timeframe is not provided, we reserve the right to terminate at any time your participation in the FlipperForce Affiliate Program.
3.2. FlipperForce reserves the right to terminate this Agreement and your participation in the FlipperForce Affiliate Program immediately and without notice to you should you commit fraud in your use of the FlipperForce Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, FlipperForce shall not be liable to you for any commissions for such fraudulent sales.
3.3. 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 AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email, or fax and shall be deemed effective on the date the written notice was sent to the other party. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
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 at the email address provided on your approved application. It is your responsibility to ensure that you provide and maintain a current working email address with us. Notices sent to non-working, outdated, or misspelled email addresses, or any other issues that cause undeliverable emails that is not a result of any action or omission by FlipperForce, shall be deemed sufficient notice under this Agreement. Modifications may include but are not limited to, changes in the payment procedures, including changes to the payment amount, payment qualification rules, payment tiers, and FlipperForce Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in the FlipperForce Affiliate Program following the email notification or the posting of the change notice or new Agreement on our site, whichever is earliest, will indicate your agreement to the changes.
FlipperForce uses a third party to handle all of the tracking and payment. The third party is the FirstPromoter affiliate network. Kindly review the network’s payment terms and conditions. Your participation in the FlipperForce Affiliate Program requires that you agree to the use and the terms and conditions of the FirstPromoter affiliate network.
7. Access to Affiliate Account Interface
You will create a password so that you may enter the FirstPromoter secure affiliate account interface. From their site, you will be able to receive your reports that will describe our calculation of the commissions due to you.
8. Promotion Restrictions
8.1. You are free to promote your own websites, but any promotion that mentions FlipperForce could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by FlipperForce.
8.1.1. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our reputation and goodwill. 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. Also, you may post to newsgroups to promote FlipperForce products so long as the news group specifically welcomes commercial messages.
8.1.2. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. At all times, you must clearly represent yourself and your websites independently from FlipperForce products.
8.1.3. You may use mailings to customers to promote FlipperForce so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings.
8.1.4. If it comes to our attention that you are spamming or violating any prohibited forms of advertising, we will consider that cause for immediate termination of this Agreement and your participation in the FlipperForce Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
8.2. Affiliates that bid among other keywords or exclusively bid in their Pay-Per-Click (PPC) campaigns on keywords such as FlipperForce, FlipperForce.com, www.flipperforce.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from FlipperForce. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
8.3. Affiliates are not prohibited from keying in a prospect’s information into the lead form as long as the prospects’ information is real and true, and these are valid leads (i.e. sincerely interested in FlipperForce's service).
8.4. Affiliates shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited FlipperForce’s sites (i.e., no page from our site's content or branding is visible on the end-user’s screen). As used herein a “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop-ups, commission tracking cookies to be put in place, or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of FlipperForce's sites in IFrames, hidden links, and automatic pop-ups that open FlipperForce.com’s site; (d) targets text on websites, other than those websites wholly owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on websites wholly owned by the owner of the application.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the FlipperForce Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of FlipperForce and the goodwill associated therewith will inure to the sole benefit of FlipperForce.
9.2. Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interests to its respective rights, and no right, title, or interest is transferred to the other.
FLIPPER FORCE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING FLIPPER FORCE SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF FLIPPER FORCE'S ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. 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;
11.2. 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;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. 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 FLIPPERFORCE’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 FlipperForce, and its parent company, 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 and costs) (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 our use of the affiliate trademarks infringes 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, including, without limitation, content therein not attributable to us.
You promise and agree to hold any confidential information in strict confidence and trust for the sole benefit of FlipperForce, both during the term of this Agreement and at all times thereafter, and shall not use such confidential information for any purpose, whether or not for consideration, business, or personal, other than as may be reasonably necessary for the performance of your duties according to this Agreement, without our prior written consent.You shall not disclose any confidential information to any person or entity, other than to such of your employees or consultants as may be reasonably necessary for purposes of performing your duties hereunder and have executed agreements of confidentiality no less protective than this Agreement without our prior written consent.Your obligations include taking all actions necessary to ensure that any affiliates, employees, contractors, or agents abide by the terms of this section in its entirety.Confidential information does not include information that: (a) is or become publicly known through lawful means; (b) was rightfully in a provider’s possession or part of your general knowledge before the effective date of this Agreement; or (c) is disclosed to you without confidential restriction by a third party who rightfully possesses the information (without confidential restriction) and did not learn of it, directly or indirectly, from FlipperForce.
15.1. 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 FlipperForce. 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 site or otherwise, that reasonably would contradict anything in this Section.
15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party. The assignor party must provide written notice of such assignment to FlipperForce at least 30 days prior to the effective date of such assignment. If written notice is not properly provided to us, FlipperForce reserves the right to terminate, at any time, with or without cause, this Agreement with any assignee party.
15.3. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.EACH PARTY HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES PERFORMED HEREUNDER. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY CONSENTS TO PROCESS BEING SERVED IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BY THE MAILING OF A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO ITS RESPECTIVE ADDRESS SPECIFIED AT THE TIME FOR NOTICES UNDER THIS AGREEMENT.EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between you and us, and shall supersede all prior agreements and communications of the parties, oral or written. There are no warranties, representations, or other agreements between the parties in connection with the subject matter hereof except as specifically set forth and incorporated herein.
15.6. 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.
15.7. 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.