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AFFILIATE AGREEMENT
This Affiliate Agreement (this “Agreement”) contains the terms and conditions that apply to you (the “Affiliate”) and your participation in the affiliate program (the “Program”) of ePrep, Inc. (“Merchant”), which operates a web-based business with a homepage at http://www.eprep.com (the "Merchant Web Site"). This Agreement is effective as of the date you accept the terms and conditions set forth herein (the "Effective Date"). As used in this Agreement, "we", "our", and "us" refer to Merchant and "you" and "yours" refers to the Affiliate.
GENERAL TERMS AND CONDITIONS
BY RECEIVING AND USING LINKS TO THE MERCHANT WEB SITE, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN, DO NOT JOIN THE PROGRAM BY RECEIVING AND USING LINKS TO THE MERCHANT WEB SITE.
1. True and Complete Information. You represent and warrant that all of the information you provide to Merchant in connection with the Program is true and complete. If Merchant determines in its sole discretion that any of the information provided by you is untrue or incomplete, Merchant may immediately terminate this Agreement, ending your right to participate in the Program. Merchant represents and warrants that all information related to the commissions earned and commissions paid, including but not limited to information regarding taxes, will be supplied to you and ShareASale, as is customary and appropriate.
2. Suitability of Affiliate Web Site(s). You represent and warrant that neither your web site(s) (“Affiliate Web Site” or “Affiliate Web Sites”, as appropriate) nor any of the content or technology related thereto: (a) infringes on any third party's intellectual property, publicity, or privacy rights; (b) violates any law or regulation; (c) is threatening, defamatory, obscene, harmful to minors, or contains nudity or pornography; (d) contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; (e) is materially false, inaccurate, or misleading; (f) promotes violence; (g) promotes discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; (h) promotes the use of bulk email or spam; (i) promotes the use of pyramid schemes; or (j) promotes illegal gambling, sports betting or touting. You represent and warrant that you properly own and/or operate an Affiliate Web Site. You further represent and warrant that you will not promote Merchant exclusively via Google AdWords. Notwithstanding anything contained herein, Merchant reserves the right, for any reason at its sole discretion, (i) to decline your application to the Program and/or (ii) to terminate this Affiliate Agreement.
3. Right to Use Merchant Content. For purposes of this Agreement, the term "Merchant Content" means any and all trademarks, service marks, trade names, logos and other content that Merchant makes available to you in connection with the Program. Such Merchant Content may be, directly or indirectly, owned by Merchant or licensed to Merchant. Subject to the terms and conditions herein, Merchant hereby grants to you, during the term hereof, a non-exclusive, non-transferable, freely revocable, non-sublicensable right to use and display the Merchant Content that Merchant makes available to you from time to time in connection with the Program.
4. Content Usage Restrictions. You represent and warrant that you will not, except as specifically provided for in this Agreement (i) copy or display any Merchant Content; (ii) modify, adapt, translate or create derivative works based on any Merchant Content; (iii) remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the Merchant Content; (iv) sell, market, license, sublicense, distribute, disclose, or otherwise grant to any person any right or interest in the Merchant Content; or (v) take any action which may cause deception, confusion or otherwise dilute the quality of the Merchant Content or the goodwill associated therewith. Upon termination of this Agreement, for any reason, you will immediately cease using, displaying or otherwise maintaining any interest in the Merchant Content.
5. Property Ownership Rights. You agree and acknowledge that Merchant will retain all right, title and interest in and to the Merchant Content and any and all property rights embodied in, or associated with, the Merchant Content. You represent and warrant that you will not take any action, legal or otherwise, that challenges, or is otherwise inconsistent with, Merchant's ownership of the Merchant Content and that any benefits accruing from your use of the Merchant Content will automatically vest in Merchant.
6. Operation and Maintenance of the Merchant Web Site. You acknowledge and agree that Merchant will accept or reject, in its sole discretion, all orders by customers for merchandise placed on or through the Merchant Web Site. You further acknowledge and agree that (i) you do not have any authority to make or accept any offer or commitment on behalf of Merchant, (ii) Merchant cannot, and does not, guarantee the availability of any merchandise offered for sale on the Merchant Web Site, and (iii) Merchant is solely responsible for all pricing, merchandising, order processing, order fulfillment, shipping, returns and all other aspects of the Merchant Web Site and the sale of merchandise thereunder. All personal information obtained from users of the Merchant Web Site will be the exclusive property of Merchant and will be collected, used and maintained in accordance with the privacy policy of Merchant, as such policy is amended from time to time at the sole discretion of Merchant.
7. Revenue Share Payments. Merchant agrees to pay to you a revenue share (the "Revenue Share") equal to 20% of the purchase price for all completed sales arising out of transactions directly linked from your Affiliate Web Site; provided, however, that such end customers purchased test preparation programs during the Cookie Duration Period, as such term is defined in Section 11 of this Agreement. The Revenue Share will not apply to purchases completed outside of the Cookie Duration Period. For purposes of clarity, the term “purchase price” will typically be the listed price of the test preparation program being purchased. However, in transactions that involve discounts, rebates, or other special promotions, the term “purchase price” will be the listed price minus any and all discounts, rebates, and other special promotions.
Notwithstanding any of the foregoing, for the purposes of calculating the Revenue Share, a “completed sale” does not include a sale that is made with a credit card that is declined or a sale that is properly cancelled within the return period set forth in the User Agreement of Merchant.
Subject to the terms and conditions of this Agreement and the ShareASale Affiliate Service Agreement, which is for these purposes incorporated herein by reference, Merchant will pay you the Revenue Share on a monthly basis. Payments will be made by ShareASale on or about the twentieth (20th) day of each month when your account balance is in excess of $50 for the previous month’s transactions. If a Revenue Share payment is made hereunder and relates to merchandise which is later returned by the customer, the applicable Revenue Share will be deducted by Merchant from the next possible monthly payment hereunder. Upon termination of this Agreement, Merchant will send, or cause to be sent, to you, a payment for the total amount of Revenue Share then owed to you as of the termination date. The final Revenue Share payment may be withheld by Merchant for a reasonable period of time to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for returns.
In the event that Merchant selects a currency different from your chosen payment currency, you agree to be paid according to the terms and provisions outlined in the then-current ShareASale Affiliate Service Agreement.
8. Your ePrep Purchases. If you intend to purchase a Merchant test preparation product for your personal use through the link(s) on your Affiliate Web Site, you will be eligible for the Revenue Share of that sale. However, at the time of any purchase for personal use, you agree to inform Merchant’s affiliate manager of such purchase in order to avoid triggering a fraudulent activity notification.
9. Merchant Content Usage and Marketing Restrictions. If you fail to comply with any of the restrictions SET FORTH IN This Section 9, you WILL AUTOMATICALLY forfeit any AND ALL REVENUE SHARE AMOUNTS RELATED TO SALES COMPLETED during THE PERIOD OF YOUR NON-COMPLIANCE.
Communications with Consumers. You may not, without our prior written consent, (i) generate or send any email or other messages or notifications that use or contain (a) Merchant’s name, logo, or any variation thereof, (b) any of Merchant’s trademarks or products, or (c) any of the qualifying links or URLs provided to you as part of the Affiliate Program, (ii) generate or send any email or other messages or notifications that in any way suggests that Merchant was either the sender or sponsor of such email, message, or notification, or the entity that authorized, approved, or otherwise encouraged the sending of such email, message, or notification, (iii) forward, redistribute, or otherwise repurpose any email communications, newsletters or other messages or notifications that we send to customers, potential customers, or members of the ShareASale Network, or (iv) otherwise generate or send any unsolicited email (“spam”) or any email in violation of the CAN-SPAM Act of 2003 or any other applicable laws or regulations.
Obtaining and Using Merchant Content. You may not, except as specifically provided for in this Agreement, (i) copy or display any Merchant Content, (ii) modify, adapt, translate, or create derivative works based on the Merchant Content, (iii) remove, erase, or tamper with any copyright or other proprietary notices in the Merchant Content, (iv) sell, market, license, sublicense, distribute, disclose or otherwise grant to any person or entity any right or interest in the Merchant Content, (v) take any action that may cause deception, confusion or which otherwise dilute the quality of the Merchant Content or the goodwill associated therewith, or (vi) use the Merchant Content in any manner that disparages or portrays us in a false, competitively adverse, or disparaging light.
No ePrep Trademark Keyword Purchasing. You may not purchase, bid for placement, or register the word(s) ePrep, ePrep for the SAT, ePrep for the PSAT, ePrep with an expert, ePrep Analytics, ePrep Learning Cycle, ePrep WordSmith, the stylize ePrep, the stylized " e" logo or any other trademarks on the Merchant Web Site owned by Merchant (collectively, the "ePrep Trademarks") or variations or misspellings thereof, for use in any pay-per-click, ad-word, search engine, portal, advertising, or similar service.
Search Engine and Advertising Restrictions. You will adhere to the following additional search engine advertising rules: (i) all advertisements by you must be directed to your site or a page within your site; (ii) none of your advertisements may link directly to the Merchant Web Site or any page within the Merchant Web Site; (iii) you will not show the Merchant Web Site’s URL as the URL in your ads; (iv) you will not use the words "official site" or words to similar effect in connection with any use of our trademarks, or otherwise suggest or imply that your site is an official merchant site or partner site, and (v) at our request, you will immediately refrain from bidding on any keyword term(s).
Trademark and Look and Feel Restrictions. You acknowledge that Merchant owns all ePrep Trademarks and, accordingly and except as otherwise set forth herein, (i) you will not use any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us in any domain name, URL, or similar identifier used by you, (ii) you will not alter or attempt to alter the look, feel, content, features or functionality of the Merchant Web Site, (iii) you will immediately substitute or remove any Merchant Content from your Affiliate Web Sites, or other web sites, at our request, (iv) your Affiliate Web Sites, or other web sites, will not in any way copy or resemble the look, feel or content of the Merchant Web Site or create any impression that your Affiliate Web Sites, or other web sites, are part of the Merchant Web Site, (v) you will not purchase or contract with any other person or entity to exploit any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us for any purpose, (vi) you will not use any Merchant Content on your Affiliate Web Sites in a manner which links or otherwise directs potential customers to any web site other than the Merchant Web Site, and (vii) you will not attempt to intercept or redirect potential customers from or on the Merchant Website or any other website participating in the Program.
Promotion Codes & Coupons. You may not, without the prior written consent of Merchant’s affiliate manager, use any promotion, promotion code, coupon, or other promotional opportunity that is not specifically authorized by this Agreement for use in the Program.
10. Interference with Links: Potential consumers who click through to the Merchant Web Site through a link from an Affiliate Web Site (a “Qualifying Link”) will experience Merchant’s site exactly as presented by Merchant. Accordingly, you will not "frame,” interfere with, or otherwise alter, users' access to the Merchant Web Site in any manner whatsoever. Furthermore, you will not transmit what are commonly known as "interstitials," "ParasiteWare," "Parasitic Marketing," "Shopping Assistance Application," "Toolbar Installations/Add-ons," "Shopping Wallets" or "deceptive pop ups/unders" to potential consumers from the time such consumers click on a Qualifying Link until such time as they have fully exited the Merchant Web Site.
As used herein: "ParasiteWare" and "Parasitic Marketing" will 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) sets commission tracking cookies through the loading of the Merchant Web Site in IFrames, hidden links, and automatic pop ups that open the Merchant Web Site; (d) targets text on web sites, other than those web sites that are 100% 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 web sites 100% owned by the owner of the application.
11. Sales Tracking. We will track sales made to customers who come to the Merchant Web Site from the Merchant Content displayed on your Affiliate Web Site using ShareASale software. We will continue to track the sales made to such customers, and to pay you Revenue Share amounts as appropriate, until (i) our cookies are deleted or otherwise removed from the customer’s computer or (ii) thirty (30) days from the customer’s initial visit, whichever occurs first (the “Cookie Duration Period”). For purposes of clarity, you will not be credited for sales, and you will not receive Revenue Share amounts, for sales that are completed after the Cookie Duration Period. You will rely on, and refrain from challenging or disputing, the sales tracking and other information that we compile in connection with the Program, which will bind you for all purposes under this Agreement. Furthermore, you hereby acknowledge your understanding that if and when the cookies used to track sales to customers who came to the Merchant Web Site through the Merchant Content displayed on your Affiliate Web Site are deleted, erased, corrupted or become unworkable for whatever reason, we will no longer be able to track sales to such customers and will not be liable for payment of any additional commissions (i.e., Revenue Shares) to you for any additional purchases made by such customers.
12. Independent Contractors and Relationships. You are an independent contractor; you are not an employee of Merchant. As such, you are responsible for calculating and paying your own federal, provincial, state, local or other taxes. Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us. You agree and understand that ShareASale remains an unaffiliated third party to you and us.
13. No Income Guarantees/Change of Policy. Merchant guarantees no specific income from your participation in the Program. Subject to Section 17 below, we may, at our sole discretion, change the terms of this Agreement at any time. Such change in terms may include, but are not limited to, changes to our policies, operating procedures, and/or commission levels. We reserve the right to reject orders that do not comply with all of the requirements that we periodically may establish. For a sale to generate a commission, the customer must follow a special link from a web page located on your Affiliate Web Site to our online test preparation product(s), purchase the product(s) using our ordering system, accept delivery of the item(s) at the shipping destination, if applicable, and remit full payment to us. If an item that generated a commission is returned by the customer, we will deduct the corresponding fee from your next monthly payment.
14. Responsibility for Affiliate URLs and Affiliate Participation. You will be solely responsible for the development, operation, and maintenance of all URLs that are linked to the Merchant Web Site and for all materials that appear on such URLs. You acknowledge and agree that you will be responsible for complying with the terms if this Agreement.
15. Affiliate Indemnification. You, at your own expense, will indemnify, defend and hold harmless, Merchant, its respective parents, subsidiaries, affiliates and partners, and each of their respective directors, officers, employees, agents, affiliates, successors and assigns, against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including reasonable attorney's fees, based upon or in connection with (i) the breach or alleged breach of your representations or warranties hereunder, (ii) your failure to comply with or perform any of your obligations hereunder, (iii) claims related to your Affiliate Web Site(s) and/or any content, technology or other materials displayed or contained thereon, (iv) your failure or alleged failure to comply with any applicable law or regulation, and/or (v) your gross negligence or willful misconduct.
16. Agreement Term. This Agreement will begin on the Effective Date and will terminate on the date on which Merchant no longer maintains the Program. Either party may terminate this Agreement at any time and for any reason by providing notice to the other party. Merchant may terminate this Agreement immediately, without notice, if Merchant determines, in its sole discretion, that you have breached this Agreement or that any of your Affiliate Web Sites are unsuitable to participate in the Program.
17. Modification of Agreement. Merchant reserves the right to modify this Agreement, at any time in its sole discretion, by posting a change of notice or a new agreement on the Merchant Web Site and sending an email notification to you. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE'S SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE MODIFICATION OF THIS AGREEMENT WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH MODIFICATION.
18. WARRANTY DISCLAIMER. MERCHANT MAKES NO WARRANTIES, REPRESENTATIONS, GUARANTEES, OR CONDITIONS WITH REGARD TO THE PRODUCTS SOLD ON THE MERCHANT WEB SITE OR THE OPERATION AND MAINTENANCE OF THE MERCHANT WEB SITE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. IN PARTICULAR, MERCHANT MAKES NO REPRESENTATION THAT THE OPERATION OF THE MERCHANT WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE.
19. LIMITATION OF DAMAGES. MERCHANT WILL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM, EVEN IF MERCHANT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, MERCHANT'S AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM WILL IN NO EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY MERCHANT TO YOU UNDER THIS AGREEMENT DURING THE PROCEEDING 12 MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE.
20. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement.
21. Assignment. You may not assign any of your rights or delegate any of your obligations under this Agreement, by operation of law or otherwise, without Merchant's prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
22. Waiver. Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
23. Governing Law, Language and Venue. This Agreement will be governed by, and interpreted and enforced in accordance with, the laws of the United States of America. Any and all disputes arising under this Agreement shall be adjudicated or settled in the federal courts of the State of New Jersey. Both parties hereby submit to the jurisdiction of such courts.
