This Subscription Service Agreement (the "Agreement") contains the complete terms of service ("TOS") which govern your subscription to AffiliateFairPlay.com Testing Service (the "Service") provided by AffiliateFairPlay.com, Inc and is a legally binding agreement between yourself and AffiliateFairPlay.com, Inc. As used in this Agreement, "AFP" means AffiliateFairPlay.com, Inc.; "Subscriber", "you", or "your" means the entity, entity representative or individual subscribing to the service; "Network" means an entity whose primary purpose is to act as a third party providing Affiliate Marketing Services between Merchants and Affiliates with such services including by not limited to tracking, reporting, linking and payment; "Merchant" means an entity whose primary function is to sell tangible products, intangible products or services over the Internet and who have a functioning Affiliate Marketing Program; "Out Sourced Program Manage" (OPM) is an individual or entity who is contracted to manage an Affiliate Marketing Program; "Affiliate Manager" is the individual(s) under the direct employment of a Merchant to manage the Affiliate Marketing Program and "Affiliate" means an individual or entity who markets Merchants online on a performance-based compensation plan. Please read this Agreement carefully prior to using the Service. By registering for, using or otherwise accessing the Service, you acknowledge that you have read the Agreement in its entirety, and you are consenting to and agreeing to abide by the terms and conditions herein.
References to the "use" of the Services means any actual or attempted access or use of the Service, including, without limitation, any transmission, exchange of information or communication associated with the Service. These terms of service, together with the other terms of service applicable to other AFP owned or controlled web sites and any other policies, rules and provisions which are described, linked or otherwise referred to and form a part of this Agreement constitute the entire agreement between you and us, superseding any and all prior or inconsistent understandings, representations or agreements regarding the Service.
ENROLLMENT IN THE SERVICE
AFP currently provides the Service which consists of access to the data results collected by AFP when performing testing of specific behaviors utilized to generate traffic and sales through the Affiliate Marketing Channel. The Service consists of multiple subscription plans whereby, for a fee, you are granted access to the information contained within the Service.
In order to use the Service, you must:
1. Maintain the primary status of Network, Affiliate Manager, Merchant, Out-Sourced Program Manager and/or Affiliate.
2. If enrolling on behalf of a corporation or company, you must be authorized by said corporation or company to enroll in the Service.
3. Remain in good standing and adhere to the TOS of AffiliateFairplay.com which you can find at http://www.affiliatefairplay.com/service/tos.html
4. To begin the enrollment process, you must complete the Service registration process located at http://www.affiliatefairplay.com/service/register.php or such other registration process as we may provide from time to time.
6. Maintain current and accurate contact information as provided by you through the registration process for the Service.
7. Certain membership levels of the Service allow for more than one individual to have access to the Service through your Subscription. You must provide information regarding such additional persons who are to have access to the Service as requested during the Registration process. Additionally, such individuals must also have their own unique user account through AffiliateFairPlay.com and are agreeing to the complete terms and conditions of this Agreement.
8. Obtain access to the Internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet.
YOUR MEMBERSHIP OBILGATIONS
You agree to provide true, accurate, current and complete information about yourself as prompted during the Service registration process ("Registration Information"). You further agree that, in providing such Registration Information, you shall not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Information via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Information as required for your use of and access to the Service, as applicable.
Upon completing your registration with AffiliateFairPlay.com, you will receive a unique user name and password (collectively called User ID) which allows you to access the Service. You agree that you will not allow another person to use your User ID to access and use the Services under any circumstances, and that you will securely guard and protect your password. Where more than one individual is provided access to the Service under one Enrollment, each individual must access the Service with their own unique User ID. You are solely and entirely responsible for maintaining the confidentiality of your User ID and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. We are not liable for any harm caused by or related to the theft of your User ID or your disclosure of your User ID. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service is not guaranteed.
You shall notify AFP immediately of any changes in your Subscriber status that would change the Subscription level for which you are eligible and/or would change the fees due for the Service. AFP will make such changes in your Registration and changes in fees will be reflected on the following billing cycle.
TECHNOLOGY AND USE LIMITATIONS
AFP will make reasonable efforts to keep the Service site operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of AFP may, from time to time, result in temporary service interruptions. AFP also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service without notice. You agree that AFP shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service and shall not be deemed to be in breach of this Agreement.
By enrolling in the Service, you acknowledge and agree that you have no right to provide any information or data obtained through the Service to any other party not related directly to your Enrollment by any means. The information or data provided remains the sole property of AFP, and you acknowledge that the dissemination of that information or data irreparably and financially harms AFP. Violating this provision of the agreement results in immediate termination of your Subscription to the Service and AFP may, in our sole discretion, seek all and whatever damages may be due us for such unauthorized use of the information provided by the Service. However, AFP's failure to pursue remedies does not waive its right to do such.
You may not use or allow others to use, your User ID and/or the Service, directly or indirectly, nor download, upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Service, that:
(a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive;
(b) violates any law or regulation or the rights of others;
(c) is likely to deter or discourage others from using the Service;
(d) infringes any intellectual property, proprietary rights or confidentiality obligations of others;
(e) attempt to or actually disrupt, impair or interfere with, alter or modify the Service or any information, data or materials posted and/or displayed by AFP.
You are solely responsible and liable for any such activity, behavior, use and conduct. AFP has no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your User ID.
You are prohibited from violating or attempting to violate the security of the Service, including, without limitation:
(a) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access;
(b) attempting to probe, scan or test the vulnerability of the Service or to breach security or authentication measures, regardless of your motives or intent;
(c) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, including, without limitation, by submitting a virus, worm, Trojan horse or DDoS.
Violations of system or network security or this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and may involve, provide information to and cooperation with, law enforcement authorities in prosecuting users who are involved in such violations.
You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service.
FEES AND PAYMENT
By registering for the Service, you agree to pay the fees designated for the Service level you select during Registration of the Service. You agree to pay the applicable amounts for Service level you select.
Fees for use of the Service will be billed to the credit card, checking account or PayPal account you designated during the Service registration process or subsequently provided to AFP. You agree to pay or have paid all fees and charges incurred in connection with your Subscription for the Service (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges are nonrefundable. If you believe someone has accessed the Service using your payment information without your authorization, you must contact AFP immediately at [email protected] . Charges for the Service will show under the name of AffiliateFairPlay.com.
Payment must be made by any methods of payment which AFP may accept. You will be billed at the time you request Subscription Service. You will have access to the Service from the time that payment is received for 365 days. If AFP does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon demand by AFP. Your card issuer agreement governs your use of your designated card in connection with the Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT AFP, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.
Unless you notify AFP of any discrepancies within sixty (60) days after they first appear on your account statement, your bill shall be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release AFP from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to AFP within sixty (60) days of its first appearance on an invoice or credit card statement.
You agree to pay AFP all reasonable attorney's fees and costs incurred by AFP to collect any past due amounts. Your account may be deactivated without further notice if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your Service account.
The fees, charges and payments hereunder do not include, and you are solely responsible for paying, any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Service.
AFP RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY AFP, EFFECTIVE THIRTY (30) DAYS AFTER NOTIFICATION VIA EMAIL AND/OR POSTING THROUGH THE SERVICE. AFP MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. IF ANY SUCH CHANGE IS UNACCEPTABLE TO YOU, YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICE. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
We may terminate this Agreement, restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, without limiting any other rights or remedies available to us. You may terminate this Agreement by providing us with written notice of your termination and ceasing to use Service. Termination is your sole right and exclusive remedy if you are not satisfied with the Service. Upon the effective date of any such termination, your right to use the Service shall immediately cease.
Termination of this Agreement shall not relieve you of any obligations to pay accrued charges, including any prorated charges accrued for the billing cycle in which this Agreement is terminated.
We may add, delete or modify any of the aspects of our Service and/or any of the terms and conditions contained in this Agreement at any time in our sole discretion. We will notify you of any such changes via email or by posting a change notice through the Service. If any modification is unacceptable to you, you must stop using the Service. Unless otherwise specifically set forth in our notice, all changes will be effective upon the date we notify you of the same ("Effective Date"). Your continued use of the Service following the Effective Date constitutes your binding acceptance of the Agreement and the changes specified therein. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and any updated terms and conditions of this Agreement. If any new products or services become available, they are considered a part of the Service and your use is governed by the terms and conditions of this Agreement, unless we notify you that different terms and conditions apply. You must also comply with any additional terms which apply to third-party content, material, information or other services.
INTELLECTUAL PROPERTY RIGHTS
The content available through the Service is the property of AFP and is protected by copyright and other intellectual property laws. Content received through the Service may be used only directly for your business in the relationship to Affiliate Marketing. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of AFP. You agree to indemnify and hold harmless AFP for your failure to comply with this condition. You acknowledge that AFP retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to copyrights, trade secrets or trademarks with respect to the Service or its contents, and AFP reserves all rights not expressly granted hereunder. You shall promptly notify AFP in writing upon your discovery of any unauthorized use or infringement of the Service (or its contents) or AFP's copyright, trade secret, trademarks or other intellectual property rights. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, THE AFP SITE AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE AFP SITE OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS. OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS AND/OR YOUR ACCESS TO AND USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER AFP, ITS LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT AFP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
LIMITATIONS OF APPLICABILITY, SEVERABILITIY
SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. The provisions of this Agreement are severable without affecting the whole.
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys' fees, experts' fees and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to any claim or action based upon:
(a) your breach of the terms and conditions of this Agreement,
(b) your use of the Service, and/or
(c) the use of the Service by any other person using your User ID and/or User IDs associated with your Subscription.
We may, if necessary, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
This Agreement is governed by the laws of the State of Louisiana, U.S.A., without regard to its conflicts of law provisions; and you hereby consent to the jurisdiction of and venue in the state courts located in Covington, Louisiana, U.S.A. in all disputes arising out of or relating to the Service. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates). Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section. You shall not use the Service in any manner contrary to local, state or federal law. AFP expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s), and reserves the right to terminate your Service immediately without notice for your failure to comply with any such local, state or federal law. Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement. You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void. This Agreement together with any other rules, regulations, procedures and policies which we refer to and which are hereby incorporated herein by this reference, constitutes the entire agreement between you and us with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Service. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). To the extent it may be applicable, you agree with us, to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Last Updated: September 10, 2006