Please read this Affiliate Program Agreement (the "Agreement") carefully before submitting your application ("Application") for participation in the Undercover Condoms Affiliate Program (the "Affiliate Program"). This agreement is a binding contract between the individual submitting the Application or the entity on whose behalf the Application is being submitted ("you" and "your") and Undercover Condoms. By submitting the Application, you hereby accept and agree to all of the terms and conditions set forth in this Agreement. The Agreement shall be effective only upon Undercover Condoms acceptance of your Application, and your participation as, an affiliate in the Undercover Condoms Affiliate Program. By submitting an enrollment Application to Undercover Condoms, you certify that you have read and agree to be bound by the terms and conditions of this Agreement.
WHEREAS, Undercover Condoms has established an Affiliate Program for the purpose of (i) allowing affiliates to advertise and promote Undercover Condoms products on their web sites, (ii) establishing links from affiliates' sites to the Undercover Condoms website for the purpose of allowing users of affiliate sites to purchase products from Undercover Condoms; and
WHEREAS, you desire to be accepted by Undercover Condoms as an affiliate in the Affiliate Program, and to advertise and promote Undercover Condoms products on your web site and to allow users of your site to link to the Undercover Condoms site for the purpose of purchasing Undercover Condoms products, among other things;
NOW, THEREFORE, in consideration of the covenants and premises contained herein, the parties agree as follows:
Incorporation of Preamble and Recitals. The above preamble and recitals are incorporated by reference in, and made part of, this Agreement.
To enroll in the Affiliate Program, you must submit a complete Affiliate Program Application, which is found on the Undercover Condoms web site at "www.UndercoverCondoms.com/affiliates.asp." Undercover Condoms will evaluate your application and will notify you via the e-mail address listed in your Application of its acceptance or rejection of you as an affiliate. Undercover Condoms may reject your application for any reason or for no reason in its sole discretion. Undercover Condoms will reject your application if it determines, in its sole discretion, that your site includes anything that is unlawful, harmful, threatening, defamatory, obscene, harassing, discriminatory, or otherwise objectionable. If Undercover Condoms rejects your application, you may reapply for participation in the Affiliate Program at any time.
Search Guidelines / Trademark Usage
Rules and regulations controlling the use of search advertising and Undercover Condoms trademarks may be found at the Pay Per Click (PPC) Policy page here: www.UndercoverCondoms.com/ppc.asp. Acceptance of this agreement implies your acceptance of all rules and regulations regarding paid search at said URL. In addition to the PPC Policy, affiliates may not use Undercover Condoms related domain names including typos, misspellings, or variations thereof.
Spyware / Defined Click
a. Undercover Condoms strictly forbids all forms of traffic methods and promotional techniques in this section. Applications from affiliates using these types of methods will be declined immediately. Additionally, any affiliate who has been accepted into the affiliate program, who is later found in violation of this policy, will be immediately terminated from the program and will forfeit all commissions.
b. Undercover Condoms does not permit the use of spyware, adware or parasiteware techniques for driving traffic. We reserve the right to research and investigate affiliates and their activities and, at our own discretion, determine whether or not these practices are in place.
c. Cookie overwriting including intercepting or re-directing traffic from, or diverting commissions from, any web site that participates in the program.
d. Forced clicks and forced cookies are not permitted; a customer must take an affirmative action, by clicking on your affiliate tracking link, for you to earn commission on a transaction.
a. Undercover Condoms sells adult related products including condoms, lubricants, and vibrating rings for the promotion of enjoyable safe sex. Affiliates may, from time to time, promote Undercover Condoms on "adult" themed sites including pornographic (XXX) sites, adult forums and social networking sites, adult dating sites, and other such websites. Affiliates agree not to promote Undercover Condoms on any sites or forums that may feature illegal or "morally questionable" materials, in Undercover Condoms sole judgment, including but not limited to child pornography, bestiality, promotion of products illegal in some regions such as vibrating condom rings in Texas, and similar websites and forums.
b. Affiliates may not state or otherwise imply that Undercover Condoms endorses or agrees with any opinion, images, or other content associated with any adult themed site without the expressed written consent of Undercover Condoms.
The Undercover Condoms affiliate program also includes links and tracking for our sister site, PinkApple.com. Sales via Pink Apple links are paid a flat rate of 15% per sale. Affiliates may choose to promote UndercoverCondoms.com, PinkApple.com, or both with no obligations to either site upon joining the affiliate program.
As an affiliate, Undercover Condoms will make available to you, via the ShareaSale site, a variety of graphic and textual images (the "Images") that serve to identify your site as a member of the Affiliate Program and will establish links from your site to UndercoverCondoms.com (the "Links"). You may, subject to the terms and conditions of this Agreement, display Links as often and in as many areas on your site as you desire. You shall cooperate fully with Undercover Condoms in establishing and maintaining Links. You may display in your site only those Images provided to you by Undercover Condoms. Undercover Condoms may discontinue use of or replace Images at any time and from time to time in its sole discretion. Upon request, you shall remove any Image from your site and replace it with a new Image provided by Undercover Condoms. All Links must be displayed prominently in relevant sections of your site. Links may be modified or expanded from time to time upon agreement between you and Undercover Condoms, however, the banner link code cannot at any time be modified by the affiliate, doing so will not allow proper reporting of traffic sent through such banner link code. Each Link connecting users of your site to an area of UndercoverCondoms.com will in no way alter the look, feel, or functionality of UndercoverCondoms.com. Undercover Condoms may monitor your site at any time and from time to time to determine if you are in compliance with the terms and conditions of this Agreement.
Undercover Condoms Obligations
Undercover Condoms shall be responsible for providing all information necessary to allow you to make appropriate Links from your site to UndercoverCondoms.com. Undercover Condoms shall (i) process all orders (which includes order entry, payment processing, shipping, handling cancellations and returns, and related customer service) from users who link from your site, (ii) track the volume and amount of sales generated by Links from your site, and (iii) provide information to affiliates regarding sales statistics.
a. You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site, including, without limitation: the technical operation of your site and all related equipment; the accuracy and appropriateness of materials posted on your site; ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights); ensuring that materials posted on your site are not libelous, defamatory, misleading, false or deceptive or otherwise illegal; ensuring that your site and your business practices do not include any of the activities of unsuitable sites listed in Section 2 above.
b. You agree to keep your Application updated with current and accurate information.
c. You agree to pay and be responsible for all costs and expenses you may incur in connection with the Affiliate Program or your performance under this Agreement.
d. Undercover Condoms is not obligated to make any representations, warranties or other statements concerning you, your site, any of your products or services, or your site policies.
Contests and Promotions
a. As an affiliate, provided you perform in accordance with this Agreement, you shall be entitled to participate in and promote on your site special promotions Undercover Condoms may offer, and, in connection therewith, such promotions shall be available to users of your site.
b. You agree to use only the coupons and promotions provided directly from Undercover Condoms via the affiliate newsletter or provided directly from the Undercover Condoms Affiliate Manager.
c. You agree not to publish or make public in your advertising of Undercover Condoms, any coupons or promotions which Undercover Condoms may offer in other channels including communication from Undercover Condoms to previous customers, offline offers including television, radio, and print advertising, and non-affiliate related online advertisements.
d. You agree to monitor and remove unauthorized coupons or promotions on any public communication outlets under your control including but not limited to message boards, weblog comments, and social networking forums.
e. Misuse of custom coupon codes and promotions, using another publisher's custom coupon code, or the posting and publication of unauthorized coupons, discounts, and promotions may lead to immediate removal from the UndercoverCondoms.com affiliate program. Offenders can be reported to affiliates@UndercoverCondoms.com.
Undercover Condoms shall pay you 25% commission for purchases made by users of your site who link to Undercover Condoms. No commissions shall be paid for product that is returned for any reason or for which Undercover Condoms is unable to collect the purchase price of the product. Commissions will be paid only on orders received during the term of this Agreement.
ShareaSale.com handles all commission payments. Please visit www.shareasale.com for more information regarding minimum payouts and timing of payments.
Reports of Sales
You will be given a password and shall have the ability to enter a password-protected site to receive your sales statistics.
You agree to abide by the CAN-SPAM Act of 2003, which includes the following:
1. Don't use false or misleading header information.
2. Don't use deceptive subject lines.
3. Identify the message as an ad.
4. Tell recipients where you're located.
5. Tell recipients how to opt-out of receiving future email from you.
6. Honor opt-out requests promptly.
7. Monitor what others are doing on your behalf.
Undercover Condoms publishers must indicate clearly that they are a third party company advertising on behalf of Undercover Condoms. Publishers must clearly post publisher name, address, and contact information including physical address, phone, and email in all communication with the general public that includes Undercover Condoms in the email. Reference the FTC's CAN-SPAM Act Guide for more information.
Any publisher caught "spamming" via email, messenger, forum, or via other online communication agrees that they will forfeit all payable commissions and be subject to immediate removal from the program. Offenders can be reported to affiliates@UndercoverCondoms.com.
Social Media and Blog Marketing
a. Social Media Marketing is defined as a promotional technique using social medium to disseminate advertisements on networks and websites with social interaction.
b. Social Media Networks include Facebook, Youtube, MySpace, Twitter, Flickr, Windows Live Spaces, and other websites that allow interaction between a marketer and the general public.
c. You agree to not present yourself or your communications via Social Media Networks as official Undercover Condoms sponsored advertisements, promotions, or communication.
d. You agree not to "spam" Social Media Networks with offers, coupons, or other deals offered by Undercover Condoms.
e. Blog Marketing is the use of web blogs to promote, advertise, or discuss products and services.
f. When Blog Marketing, you agree to disclose the placement of Undercover Condoms affiliate links in web blogs as advertising.
g. You agree to disclose receipt of free product samples, gifts, coupons, and discounts provided by Undercover Condoms for use in Blog Marketing.
h. Abuse of the Undercover Condoms Social Media and Blog Marketing guidelines may lead to immediate removal from the Undercover Condoms affiliate program. Offenders can be reported to affiliates@UndercoverCondoms.com.
a. Mobile Marketing is defined as a promotional technique using SMS, MMS, and other types of communication via mobile phones, smart phones, and other wireless communication devices.
b. You agree not to present yourself or any mobile promotion as an official Undercover Condoms communication in any Mobile Marketing message.
c. You agree not to "spam" offers, coupons, or deals from Undercover Condoms in Mobile Marketing campaigns.
d. You agree to monitor and remove users from Mobile Marketing text lists when they choose to opt-out of Mobile Marketing communications.
Policies and Pricing
a. Users who buy Undercover Condoms products through the Affiliate Program are customers of Undercover Condoms. Accordingly, all of Undercover Condoms policies (including prices and pricing policies), and operating procedures concerning customer orders, customer service, and product sales shall apply. Undercover Condoms may change its policies and operating procedures at any time. Undercover Condoms reserves the right to change prices of products at any time and from time to time.
b. You understand and agree that Undercover Condoms shall be the sole owner of any and all data and information Undercover Condoms (or its representatives) obtains or gathers from, or in connection with, end users visiting or transacting business on the Undercover Condoms site or otherwise transacting business with Undercover Condoms, including without limitation, all transaction, usage and preference data.
You shall not create, publish, distribute, or permit any written material that makes reference to Undercover Condoms or the Affiliate Program without first submitting such material to Undercover Condoms and receiving its written consent.
Licenses and Use of the UndercoverCondoms.com Logos and Trademarks
a. Undercover Condoms grants you a limited, non-exclusive, non-transferable, revocable right to (i) access UndercoverCondoms.com through the Links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such Links, to use the UndercoverCondoms.com trademark and logo and similar identifying material relating to Undercover Condoms (but only in the form(s) that they appear on Undercover Condoms / ShareaSale pages) (collectively, the "Licensed Materials"), for the sole purpose of promoting Undercover Condoms products on your site. You may not copy, except as expressly set forth in this Agreement, distribute, alter, modify, reverse engineer, or create derivative works from the Licensed Materials. b. Undercover Condoms may revoke your license at any time by giving you written notice. Any goodwill arising out of your use of the Licensed Materials shall inure to the benefit of Undercover Condoms only.
b. You shall not make any specific use of any Licensed Materials for purposes other than promoting Undercover Condoms products on your site. You agree not to use the Licensed Materials in a manner that is misleading or deceptive or disparages Undercover Condoms, its site, the Affiliate Program or Undercover Condoms products or services or that otherwise portrays Undercover Condoms, in its discretion, in a negative light. Undercover Condoms reserves all rights in the Licensed Materials. At no time during the Term or thereafter will you challenge, or assist others in challenging, the validity of the Undercover Condoms Licensed Materials or the registration thereof or attempt to register any confusingly similar trademarks, service marks, logos, trade names or domain names. Except for the limited license set forth above in Subsection (a) of this Section 12, no license or other rights to the Undercover Condoms Licensed Materials will be deemed granted to you hereunder or in connection with the Affiliate Program, by implication, estoppel or otherwise.
c. You grant to Undercover Condoms a non-exclusive license to use your names, titles, logos, and trademarks (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner your participation in the Affiliate Program, and/or Undercover Condoms rights hereunder. Notwithstanding the foregoing, Undercover Condoms is not obligated to advertise, market, promote, or publicize your participation in the Affiliate Program, the existence of the Affiliate Program, or any other aspect of the Affiliate Program.
d. The licenses granted hereunder shall run concurrently with the term of this Agreement.
State Specific Exclusions and Terms
a. California - Effective August 26, 2012, California Regulation 1684 governing the collection of use and sales tax by retailers located outside the state claim affiliates as a "nexus" for tax collection when the affiliate promotes a retailer within the state of California. Affiliates doing business in or living in the state of California agree not to promote Undercover Condoms via TV, print, radio, handouts, word of mouth, or any other form of promotional efforts to individuals living in the state of California.
b. Pennsylvania - Effective September 1, 2012, Pennsylvania Bill 676 governing the collection of use and sales tax by retailers located outside the state claims affiliates as a "nexus" for tax collection under all circumstances. Undercover Condoms will not accept Pennsylvania affiliates in the program.
c. Affiliates violating any state specific terms will be removed from the Undercover Condoms affiliate program immediately and will forfeit all earned commissions. Violators can be reported to affiliates@UndercoverCondoms.com.
Obligations Regarding Your Site
You, at your sole cost and expense, shall develop, operate, and maintain your site and all materials that appear on your site, which development, operation and maintenance shall include, without limitation, technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to UndercoverCondoms.com; assuring the accuracy and propriety of all materials and information posted on your site; ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal, and all other actions necessary to operate and maintain your site.
Term and Termination
The term of this Agreement will begin as of the date Undercover Condoms notifies you that Undercover Condoms has accepted you as an affiliate and will end when terminated by either party. Either you or Undercover Condoms may terminate this Agreement at any time, with or without cause.
Undercover Condoms may modify any of the terms and conditions contained in this Agreement at any time in its discretion. You will be notified of any changes via email by a change notice. If you do not agree to be bound by the terms and conditions of any modification to this Agreement, you may terminate this Agreement by giving written notice to Undercover Condoms. Your continued participation in the Affiliate Program following any notice of a modification of this Agreement shall constitute your binding acceptance of the Agreement as modified.
Relationship of Parties
You and Undercover Condoms are independent contractors, and nothing in this Agreement shall be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You have no authority to make or accept any offers or representations on behalf of Undercover Condoms. You may not make any statement, whether on your site or otherwise, that contradicts anything contained in this Section.
Undercover Condoms makes no express or implied warranties or representations with respect to the Affiliate Program, UndercoverCondoms.com, or any Undercover Condoms products sold through the Affiliate Program, including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage. Undercover Condoms makes no representation that the operation of UndercoverCondoms.com will be uninterrupted or error free, and Undercover Condoms shall not be liable for the consequences of any interruptions or errors.
Representations and Warranties
You hereby represent and warrant that:
a. 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.
b. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
c. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant licenses to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to the Affiliate Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
f. Your acceptance of this agreement also implies the acceptance of the ShareASale Affiliate Service Agreement.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning Undercover Condoms or you, respectively, or any other affiliate, provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Limitation of Liability
UNDERCOVER CONDOMS SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF ITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY AVAILABLE WITH RESPECT TO THIS AGREEMENT OR ANY BREACH BY UNDERCOVER CONDOMS HEREOF SHALL BE TO TERMINATE THIS AGREEMENT.
You shall indemnify and hold harmless Undercover Condoms 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 Undercover Condoms use of the Affiliate Trademarks infringes 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 Undercover Condoms.
Undercover Condoms shall indemnify you against Losses that arise out of any claim that your use of the Images provided to you by Undercover Condoms infringes any rights of a third party; provided that the Images have not been modified by anyone other than Undercover Condoms.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT Undercover Condoms MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT POTENTIAL AFFILIATES ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTY, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
This Agreement will be governed by the laws of the United States and the State of Ohio, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in The State of Ohio, and you irrevocably consent to the exclusive jurisdiction of such courts.
You may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Undercover Condoms. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. This Agreement contains the complete understanding between the parties pertaining to the subject matter hereof. Undercover Condoms failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such a provision or any other provision of this Agreement. Should any one or more provisions of this Agreement be determined illegal or unenforceable by any court of competent jurisdiction, all other provisions shall remain effective.
All notices required under this Agreement shall be sent via United States mail, postage prepaid, addressed to the parties at the following addresses:
If to Undercover Condoms:
Attn: Legal Services
4261 Diplomacy Dr
Columbus, Ohio 43228
If to Affiliate: The address as set forth in the Affiliate Program Application.
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