We do our best to treat you with the fairness and respect you deserve. We simply ask the same consideration of you. We have written the following affiliate agreement with you in mind, as well as to protect DaySpring's brand.
PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND DAYSPRING.
BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT 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 DaySpring's Card Club Partner Program. The purpose of this Agreement is to allow HTML linking between your web site and the DaySpring.com web site. Please note that throughout this Agreement, "we," "us," and "our" refer to DaySpring.com, and "you," "your," and "yours" refer to the affiliate partner.
2. Partner/Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application. We will evaluate your application at our earliest convenience (usually, all applications are reviewed within one business day of submission). We may reject your application for any reason at our sole discretion. We may also cancel your application if we determine that your site is unsuitable for our Program, including but not limited to, 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 "DaySpring" 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 software downloads that potentially enable diversions of commission from other affiliate partners in our program.
2.1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are DaySpring.com or any other affiliated business.
2.2. As a member of DaySpring's Card Club Partner Program, you will have access to review our Program’s details and currently active offers and available products, download HTML code for text links and banner creatives (that provide for links to landing pages within the DaySpring.com web site). In order for us to accurately keep track of all guest visits from your site to ours, you must use the URL found in the code that we provide for each banner, text link, or other affiliate link we provide you with.
2.3. DaySpring.com 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 the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an 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 rights.
2.6. We strongly advise affiliate partners to stay compliant with the Federal Trade Commission (FTC) guidelines on testimonials and endorsements. All endorsements, reviews, testimonials on DaySpring’s products and services, as well as relationships between other types of content websites (forums, blogs, microblogs and other Social Media channels) and DaySpring must be clearly disclosed in a separate policy on the affiliate sites. FTC points out that “when there exists a connection between the endorser and the seller of the advertised product” it is imperative that such connection is “fully disclosed”. FTC deems the relationship in an endorser-sponsor light, and believes that the end user has the right to understand that one exists. We share the undergirding idea of this approach, and strongly encourage our affiliate partners to adhere to the FTC’s rules. We also reserve the right to terminate relationship with any non-compliant affiliates.
3. DaySpring's 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 make sure that your links to our web site are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the DaySpring Card Club Partner Program.
3.2. DaySpring reserves the right to terminate this Agreement and your participation in the DaySpring Card Club Partner Program immediately and without notice to you should you commit fraud in your use of the DaySpring Card Club Partner Program or should you abuse this program in any way. If such fraud or abuse is detected, DaySpring 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, without giving the other party any written notice. In addition, this Agreement will self-terminate immediately upon any breach of this Agreement by you. Upon termination of this Agreement all licenses granted herein shall terminate and you will immediately cease any use of the Licensed Materials (as defined herein).
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 the DaySpring Card Club Partner Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. However, we are unlikely to make any changes to our program that will not be in your best interest and benefit. Your continued participation in the DaySpring Card Club Partner Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
6. Commissions & Payment
6.1. DaySpring's Card Club Partner Program is a PPL (pay-per-lead) program. Per-lead payouts are described on our ShareaSale program information page.
6.2. All payment for the DaySpring.com affiliate campaigns are handled by a third-party affiliate network, ShareaSale. Affiliates are paid by a ShareaSale check or other method that both you and ShareaSale have agreed to (ACH, wire transfer, etc).
7. Access to Affiliate Account Interface
Unless you already have an affiliate account with ShareaSale, you will create it prior to joining the DaySpring program, and will be able to access our program’s tool through it, once you have been approved and accepted. If you already have a ShareaSale account, the DaySpring program will be added to the list of the advertisers you promote.
8. Promotion Restrictions
8.1. You are free to promote your own web sites, but naturally any unauthorized froms of promotion that mention DaySpring could be perceived by the public or the press as a joint effort and is therefore prohibited without DaySpring's prior consent. You should know that certain forms of advertising are always prohibited by DaySpring. 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 DaySpring 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 DaySpring 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 DaySpring and its clients. 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 DaySpring 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. Affiliate partners that among other keywords or exclusively bid in their pay-per-click campaigns on keywords such as DaySpring.com, DaySpring, Day Spring, www.DaySpring, and/or any misspellings or similar alterations of these or any of the trademarks listed in 8.3– be it separately or in combination with other keywords – will be considered trademark violators, and will be banned from DaySpring's Program. We will do everything possible to contact the affiliate partner prior to the ban. However, we reserve the right to expel any trademark violator from our program without prior notice, and on the first occurrence of such PPC bidding behavior. Unless otherwise noted in the individual campaign's description, affiliate partners are also forbidden from using trademarks of other parties participating in the DaySpring.com's campaigns.
8.3. Affiliate partners shall not use keywords or trademarks –or misspellings or similar alterations of trademarks- either online in the form of PPC advertising or offline via direct mail or other offline advertising. Any affiliate that violates these trademarks may be banned from DaySpring’s Program. We will do everything possible to contact the affiliate partner 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 behavior. Prohibited trademarks include but are not limited to DaySpring, DaySpring Cards, Hallmark, Connections, Joyfully Yours, Really Woolly, Little Inspirations, and Blessings Unlimited.
8.4. Affiliate partners are not prohibited from self-referral orders.
8.5. Affiliate partners 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 DaySpring’s site (i.e., no page from our site or any DaySpring’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 DaySpring’s site in IFrames, hidden links and automatic pop ups that open DaySpring’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.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, non-sublicensable, 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 DaySpring's Program. All materials (including mailings, postings and/or display advertising) (collectively “Creative”) that contains any Licensed Materials shall require DaySpring’s prior written approval. Please submit Creative to DaySpring for approval at email@example.com prior to any use of such Creative. You agree that all uses of the Licensed Materials will be on behalf of DaySpring and the good will associated therewith will inure to the sole benefit of DaySpring.
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 interest to its respective rights and no right, title, or interest is transferred to the other.
EXCEPT AS EXPRESSLY STATED HEREIN, DAYSPRING MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, TO ANY PERSON OR ENTITY, REGARDING ANY ASPECT OF THIS AGREEMENT, AND DAYSPRING EXPRESSLY DISCLAIMS ALL WARRANTIES, IMPLIED IN LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, WITHOUT LIMITING THE FOREGOING, DAYSPRING MAKES NO REPRESENTATION THAT THE PROVISION OF ANY MATERIALS (INCLUDING WITHOUT LIMITATION THE LICENSED MATERIALS) OR SERVICES OR THE OPERATION OF ITS WEB SITE, INCLUDING WITHOUT LIMITATION THE DAYSPRING SITE, WILL BE UNINTERRUPTED OR ERROR-FREE, AND IT IS AGREED THAT DAYSPRING DOES NOT PROVIDES ANY WARRANTY OR REPRESENTATION AS TO THE ACTUAL AMOUNT OF REVENUES OR ANY OTHER RESULTS THAT WILL BE GENERATED OR ACHIEVED BY OR PAID PURSUANT TO THIS AGREEMENT.
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
UNDER NO CIRCUMSTANCES SHALL DAYSPRING BE LIABLE TO YOU IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR DATA (EVEN IF DAYSPRING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). DAYSPRING’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE LICENSED MATERIAL WILL NOT EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless DaySpring, AM Navigator (our affiliate program management company), and their 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) your use of the Licensed Materials (other than Loses that result solely from claims that the Licensed Materials (used in accordance with the Section 9 license) infringe upon a third party intellectual property right), (iii) any claim that your website and your postings, mailings, promotions, advertisements or any other works created by you under this agreement is indecent, obscene, slanderous, libelous, defamatory, pornographic or infringes upon any trademark, trade name, service mark, copyright, license, intellectual property, or any other right of any third party, (iv) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (v) 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.
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 DaySpring. 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.
15.2. You may not assign your rights or obligations under this Agreement to any party.
15.3. This Agreement will be governed by and construed in accordance with applicable U.S. federal law and the laws of the State of Missouri, without regard to conflict of laws principles. Each Party irrevocably consents to the exclusive jurisdiction and venue of the United States federal and Missouri state courts located in and serving the Kansas City, Missouri in connection with any dispute or claim arising under this Agreement. Each Party waives any right that it may have to assert that such forum is not convenient.
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 us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
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.
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