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Constant Contact Affiliate Program Agreement
BY CLICKING ON THE "I Accept" BUTTON BELOW, YOU INDICATE YOUR UNDERSTANDING AND ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS BEFORE CLICKING THE "I Accept" BUTTON BELOW. IF YOU DO NOT AGREE, CLICK ON THE "I Decline" BUTTON TO DISCONTINUE THE SUBSCRIPTION PROCESS. This Agreement describes the terms and conditions that apply to your participation in the Constant Contact Affiliate Program (the "Affiliate Program"). As used in this Agreement, "you" means the individual or organization completing the Application referred to in Paragraph 1 below, "Constant Contact" means Constant Contact, Inc. d/b/a Constant Contact, and "CJ" means Commission Junction, Inc. "Site" means a World Wide Web site and, depending on the context, refers either to Constant Contact's Site, Commission Junction's Site, or to the Site, as identified in your Application, that you will link to the Constant Contact Site. 1. Application Process. In order to participate in the Affiliate Program, you must complete the Affiliate Program Application available on the CJ Site. We will evaluate the Application and you will automatically be accepted into the Affiliate Program unless we notify you that your Application has been rejected. We may accept or reject your Application in the exercise of our sole discretion for any reason. Constant Contact has entered into an agreement with Commission Junction to perform certain reporting, commission tracking and payment services. As part of the Application Process, you must also read and accept the Commission Junction Affiliate Service Agreement (the "CJ Agreement"). This Agreement provides terms and conditions that are in addition to any terms and conditions that you have agreed to pursuant to the CJ Agreement. 2. Establishment of Links. Once you have been accepted to participate in the Affiliate Program, you will have access to Constant Contact graphic and textual links through the Commission Junction Site (each of these links sometimes being referred to herein as a "Licensed Mark" or "Link") which you will prominently display on your Web Site. The Link will serve to identify you as a participant in the Affiliate Program and will establish a hypertext link from your Site to the Constant Contact Site. To permit accurate tracking, reporting and payment of commissions hereunder, you will have access to special "tagged" Link formats through the Commission Junction Site to be used in all Links between your Site and the Constant Contact Site. You must ensure that each of the Links between your Site and the Constant Contact Site properly use such special link formats ("Special Links"). You will only earn commissions with respect to activity on the Constant Contact Site occurring directly through use of Special Links. You are responsible for the accuracy and appropriateness of all materials posted on your Web Site, and for ensuring that materials posted on your Web Site do not include materials that are unlawful, harmful, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable, or include or promote sexually explicit or "adult" materials, violence or discrimination. 3. Limited License Subject to the terms and conditions of this Agreement, Constant Contact hereby grants to you, for the term of this Agreement, a non-exclusive, non-transferable, revocable license to display the Licensed Marks solely in connection with providing a link from your Site to the Constant Contact Site. You may not modify the Licensed Marks or Links in any way, and must follow any Constant Contact instructions regarding their use, appearance and display. Constant Contact shall have the right to demand the withdrawal of the Licensed Marks from your Web Site if, in Constant Contact's sole opinion, your Site conflicts with, interferes with, or is detrimental to Constant Contact's interests, reputation, business, practices, procedures or policies, or which might subject Constant Contact to unfavorable regulatory action, violate any law, infringe the rights of any person, or subject Constant Contact to liability for any reason. Upon written notice from Constant Contact to withdraw the Licensed Marks, you shall cease using the Licensed Marks on your Site as soon as possible, but in any event within three (3) days of the date of receipt of Constant Contact's written notice. 4. Account Processing Constant Contact will process all orders placed by customers who follow Special Links from your Site to the Constant Contact Site. All such customers will subsequently be customers of Constant Contact ("Customers"). Constant Contact reserves the right to reject orders that do not comply with any requirements that Constant Contact may establish from time to time. Constant Contact will be responsible for all aspects of order processing and fulfillment. You acknowledge that you shall not be a party to any transaction between any Customer and Constant Contact and all aspects of such orders including, but not limited to, purchase terms, payment terms, warranties, and guarantees shall be solely between the Customer and Constant Contact. 5. Commissions Only products and services: (i) sold by Constant Contact; (ii) purchased or licensed by Customers linking to the Constant Contact Site from your Web Site using a Special Link; and (iii) for which Constant Contact has received full payment ("Qualifying Purchase"), will qualify you for a commission. You understand and agree that Constant Contact products and services may be available without charge for a trial period of up to 90 days and that no Commission will be paid to you until the completion of such trial period and receipt by Constant Contact of full payment by a Customer for such Constant Contact products and/or services. Commission payments earned through the date of termination of this Agreement will remain payable only if the purchased products or services are not returned or cancelled by the Customer and will be net of all taxes, credit card processing fees, returns, charge backs, and other similar charges. The commission percentage shall be as set forth on the CJ Program Join Page, which percentage may be changed from time to time by Constant Contact by posting a different percentage on the CJ Program Join Page. You will receive Commission reports and payments pursuant to the terms of the CJ Agreement. You will receive Commission Payments for Qualifying Purchases placed during the term of this Agreement. You expressly understand and agree that no Commission Payments will be due from Constant Contact to you for any orders placed by Customers after this Agreement has been terminated. 6. Term and Termination The term of this Agreement will begin on Constant Contact's acceptance of your Affiliate Program Application and will end immediately upon termination by either party. Either Constant Contact or you may terminate this Agreement at any time, with or without cause and without liability, by giving the other party notice of termination. Notices transmitted via email shall be effective notice hereunder. Upon termination of this Agreement for any reason, you will remove the Licensed Marks, Links, and all other Constant Contact trademarks, trade dress, logos and other material provided to you by Constant Contact from your Site and any and all servers in your possession or control as soon as technically feasible, but in no event shall the Licensed Marks remain on your Site more than three (3) days after such termination. 7. Limitation of Liability Constant Contact will not be liable for any delay in accessing and/or inability to access the Constant Contact Site whether due to an act of God, action by any government entity, strike, network difficulty, electronic malfunction, or any other reason, or any reliability or effectiveness related to the Constant Contact Site. Constant Contact makes no warranty or representation that the operation of the Constant Contact Site will be uninterrupted or error-free, and Constant Contact will in no event be liable for the consequences of any interruptions or errors. CONSTANT CONTACT PROVIDES THE CONSTANT CONTACT SITE AND ALL INFORMATION AND SERVICES AVAILABLE THEREIN "AS IS" AND MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS REGARDING CONSTANT CONTACT OR ANY SERVICES OR INFORMATION PROVIDED BY CONSTANT CONTACT. CONSTANT CONTACT DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT. CONSTANT CONTACT SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING: (i) THE NUMBER OF PERSONS OR ENTITIES THAT WILL ACCESS OR "CLICK THROUGH" TO THE CONSTANT CONTACT SITE FROM YOUR WEB SITE; (ii) ANY BENEFIT THAT YOU MIGHT OBTAIN FROM INCLUDING THE LICENSED MARK(S) ON YOUR WEB SITE; OR (iii) THE AMOUNT OR VOLUME OF COMMISSIONS THAT YOU MIGHT EXPECT TO RECEIVE OR ACTUALLY RECEIVE PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL CONSTANT CONTACT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR COMMERCIAL LOSSES, LOST PROFITS, OR REVENUES FROM ANY CAUSE, WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT CONSTANT CONTACT HAS BEEN ADVISED OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES OR LOSSES. YOU AGREE THAT THE TOTAL LIABILITY OF CONSTANT CONTACT HEREUNDER WITH RESPECT TO ANY CLAIM SHALL NOT EXCEED THE COMMISSIONS PAID BY CONSTANT CONTACT TO YOU HEREUNDER. You represent and warrant that you will make no promises, representations or warranties, whether written or oral, with regard to Constant Contact or the services provided by Constant Contact, beyond those provided by Constant Contact in writing. You will indemnify and hold Constant Contact harmless from all damages, claims and liabilities (including attorneys' fees and costs) resulting from a breach of the foregoing representation and warranty or your breach of any other provision of this Agreement. 8. Modifications Constant Contact may modify in its sole discretion any of the terms and conditions contained in this Agreement at any time at its sole discretion by posting a change notice or a new Agreement on the Constant Contact Site or the Commission Junction Site. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following the posting of a change notice on the Constant Contact Site will constitute binding acceptance of the change. 9. General Provisions No claim or other action arising out of this Agreement, regardless of the form of action, may be brought by either party more than one (1) year after the cause of action accrued. You agree to indemnify, defend and hold Constant Contact harmless from and against any and all liability, claims, losses, damages, injuries or expenses (including attorneys' fees and costs) relating to the development, operation, maintenance and contents of your Site. Neither party shall be responsible for delay or failure in performance resulting from acts beyond its control. Such acts shall include, but not be limited to: an act of God; an act of war; riot; an epidemic, fire, flood or other disaster; an act of government; or a strike or lockout. You may not assign this Agreement or any of the rights or liabilities hereunder, without the written consent of Constant Contact. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to provisions governing choice-of-law. Exclusive jurisdiction and venue for all actions hereunder shall be the Commonwealth of Massachusetts, and the parties hereto consent to such exclusive jurisdiction and venue. This Agreement and the CJ Agreement contain the entire agreement between the parties and there are no understandings or agreements relative hereto other than those which are expressed herein. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party shall have the power or authority to bind the other or incur obligations on the other's behalf without the other's prior written consent. Upon termination of this Agreement, Sections 6 to 9 shall continue to survive.
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