A. Zulu Labs Australia Pty Ltd trading as Zulu eDM, an Australian, (“Company”), operates the https://zuluedm.com origination Web site. As part of its Web site(s), Zulu Labs offers the Zulu eDM Affiliate Partner Program (“Program“), through which approved Publishers providing marketing services through owned or third party websites, subscription services, promotional services, and/or syndicated services are granted a limited, non-exclusive right to: (i) advertise and promote Zulu eDM subscription software services and the Zulu eDM web site in a manner in compliance with this Agreement and the Publisher Service Agreement between Publisher and Commission Junction, Inc. (“CJ”), (ii) post or circulate an approved graphical or textual internet hyper-link (“Link”) to the Zulu eDM web site, and (iii) direct visitors to the web site (the specific URL) designated by Zulu eDM (“Destination Site”). Each of Zulu eDM and Publishers are parties to agreements with CJ and are participants in the CJ Network (the “CJ Program”). This Agreement provides terms and conditions applicable to your membership in the Program that are in addition to or modify any terms and conditions that you have agreed to pursuant to your Publisher Service Agreement with CJ (“Publisher Service Agreement”). Any capitalized term herein that is not defined shall have the same meaning as in the Publisher Service Agreement
B. Publishers are offered the opportunity to earn a commission for referring visitors to the Zulu eDM web site who completes the Transaction required under the Program on the Zulu eDM’s Destination Site. The commission rate will be set forth within the CJ Program Term for Zulu eDM and may be changed from time to time by Zulu eDM with 7 days written notice through the Network Service (via the “Replace” option) with effect from the 8th day (or such later date as specified by Zulu eDM). Payment of commissions earned by Publisher for valid Zulu eDM transactions shall be made by Zulu eDM through CJ in accordance with the terms of the CJ Program. No long-term commitment is required.
A. Participation in the Program is subject to Zulu eDM’s approval. Prospective Publishers must first submit an application to Zulu eDM through CJ in order to become an “approved” Publisher eligible to post Links to the Zulu eDM Web site and earn commissions. After the application has been submitted, Zulu eDM will have the option of approving or declining the application for any reason or no reason.
B. If approved, the Publisher will have already acknowledged its acceptance of the these Terms and Conditions by having clicked through the “Apply To Program” button, having checked the box stating “Yes, I have read and accepted” the terms and conditions and having clicked the button to “Continue”, thereby assenting to the Special Terms and Conditions of the Program between Zulu eDM and Publisher (also referred to as this “Agreement”). This Agreement shall apply only to approved Publishers who accept the Special Terms and Conditions of the Program and only Publishers who accept this Agreement may participate in the Program.
C. Other than the payment of the commission, Publisher shall have no claims to any additional compensation, commissions or business derived by or through a Destination Site.
D. Participation in Program does not constitute an employment, broker or agency relationship between Publisher and Zulu eDM nor does it create any partnership, joint venture, franchise, or sales representative relationship between the parties.
3. Forbidden Actions.
This Agreement will be terminated without notice if, in its sole discretion, qrstuff.com determines that the Affiliate has breached any or all of the following explicitly prohibited actions. THE AFFILIATE WILL FORFEIT ANY ACCUMULATED EARNINGS IF THE AGREEMENT IS TERMINATED UNDER THIS PROVISION. Click Fraud: Affiliate shall not, either directly or indirectly, act, encourage or require users to click on links to qrstuff.com and/or generate clicks or orders through any means that could be reasonably interpreted as coerceive, incentivized, misleading, malicious, or otherwise fraudulent. Inappropriate Content: No Link will be placed on any page or screen that contains content that: incites, encourages, advocates or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; incites, encourages, advocates or promotes illegal activities including, but not limited to, violence against persons or property, terrorism, armed insurrection, piracy or treason; incites, encourages, advocates or promotes the sexual abuse or exploitation of children and minors; violates the intellectual property rights of third parties; or contains or promotes deceptive information. Own Purchases: Affiliate shall not use their own affiliate link in order to receive commissions on their own purchases. 5. Referral Fees qrstuff.com will pay you a Referral Fee equal to 15% of the aggregate Net Proceeds received from Qualifying Purchases made at qrstuff.com. Referral Fees will also be payable on subsequent subscription renewals made to customers during the Term of the agreement who previously made a Qualifying Purchase through a hypertext link from you under this Affiliate Marketing Program. qrstuff.com shall track users who access qrstuff.com from the Affiliate’s website via an affiliate link with a cookie containing the Affiliate’s identification, and that expires in thirty 30 days following said visit. The cookie containing the Affiliate identification will be replaced with the cookie of another affiliate if the user subsequently accesses qrstuff.com from the link of the other affiliate. A Qualifying Purchase made prior to the expiration of the cookie will be attributed to the Affiliate link provider whose Affiliate identification is recorded in the cookie associated with that website user. You are only eligible to earn a Referral Fee on sales occurring during the Term, and commissions earned through the date of termination will remain payable only if the product orders are not canceled. 6. Reporting Payments hereunder will be in accordance with reports made available on the qrstuff.com website of Qualifying Purchase for which Referral Fees are payable.
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. 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. Modifications may include, but are not limited to, changes in the payment procedures and Zulu eDM’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Zulu eDM’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
6. Referral Fee.
During the Term and with respect to Qualified Subscriptions, the Company will pay you a fee (“Referral Fee”) for each new Subscriber. The Company reserves the right to adjust the Referral Fee payable to you for any Qualified Subscriptions deemed invalid, including, but not limited to, the extent of any reporting errors, Charge-backs, fraudulent Subscriptions or intentional manipulations of the registration process, all as determined in our reasonable, good faith discretion. For the purposes of this Agreement, a “Charge-back” of a Referral Fee may occur in the following events: (i) a Subscriber receives a cash refund for the Services; (ii) a sale that is eligible for a Referral Fee is later determined to be fraudulent, duplicate, false or otherwise unqualified by the Company; or (iii) the Company, in its sole discretion, determines that a Subscriber was acquired by a Partner in breach of the terms of this Agreement. We are under no obligation to provide a mechanism of appeal to a Partner for any Charge-backs.
In addition to all other remedies available to us, we reserve the right to refuse to make any payment to you with respect to any Subscriber that the Company determines was obtained as a result of promotional efforts that were in breach of this Agreement. Unless otherwise expressly stated in writing by the Company, Referral Fees shall be in accordance with the pricing schedule set forth in the Partner Resource Center. The Company reserves the right to change the Referral Fees at any time by providing at least seven (7) days’ notice to you by a posting in the Partner Resource Center.
Referral Fees are paid on a monthly basis. Following the end of each calendar month, we will send you a check for the Referral Fees properly earned in accordance with this Agreement, less any taxes that we are required by law to withhold. However, if the Referral Fees payable to you for any calendar month are less than fifty dollars and one cent (US$50.01), we will hold those fees until the total amount due is at least $50.01 or (if earlier) until this Agreement is terminated. If there is any Charge-back, we will deduct the corresponding fee from your next monthly payment.
We reserve the right to deactivate an Affiliate that drives less than five (5) clicks in a ninety (90) day period after seven (7) days’ notice.
7. Promotion Restrictions
7.1. You are free to promote your own web sites, but naturally any promotion that mentions Zulu eDM 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 Zulu eDM. 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. In addition, 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 Zulu eDM 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. Also, you may post to newsgroups to promote Zulu eDM 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 Zulu eDM. 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 Zulu eDM Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
7.2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as Zulu eDM, zuluedm.com, www.zuluedm.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 Merchant’s Affiliate Program. 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.
7.3. Affiliates are not prohibited from keying in 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 Merchant’s service).
7.4. Affiliate 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 Merchant’s site (i.e., no page from our site or any Zulu eDM’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 Merchant site in IFrames, hidden links and automatic pop ups that open Zulu eDM’s site; (d) targets text on web sites, other than those web sites 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.
8. Grant of Licenses
8.1. 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 Zulu eDM’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Zulu eDM and the good will associated therewith will inure to the sole benefit of Zulu eDM.
8.2. 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 interest to its respective rights and no right, title, or interest is transferred to the other.
Zulu eDM MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING Zulu eDM SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF Zulu eDM 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.
10.Representations and Warranties
You represent and warrant that:
10.1. 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;
10.2. 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;
10.3 You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
11. 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 Zulu eDM’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 Zulu eDM, and its 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 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.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
14.1. 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 Zulu eDM. 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 Your Site or otherwise, that reasonably would contradict anything in this Section.
14.2. 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.
14.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws and principles thereof.
14.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
14.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
14.6. 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.
14.7. 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.