Last updated on December 18, 2023

 

Affiliate Agreement

 

THIS AFFILIATE AGREEMENT (THE "AGREEMENT") IS BY AND BETWEEN CONSTANT CONTACT, INC., A DELAWARE CORPORATION ("CONSTANT CONTACT", "WE", "US" OR "OUR"), AND YOU OR YOUR COMPANY, ORGANIZATION OR OTHER LEGAL ENTITY FOR WHOM YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ("AFFILIATE"). BY SUBMITTING AN APPLICATION TO JOIN THE CONSTANT CONTACT AFFILIATE PROGRAM (THE “AFFILIATE PROGRAM”), YOU ARE REPRESENTING THAT YOU (I) HAVE READ THIS AGREEMENT, OUR TERMS OF SERVICE AND ACCEPTABLE USE POLICY (COLLECTIVELY, THE “TERMS ”) AND THAT YOU AGREE TO BE BOUND BY THE TERMS, (II) HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF AFFILIATE, AND (III) YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE. THIS AGREEMENT SHALL BE EFFECTIVE ON THE DATE THAT WE ACCEPT YOU INTO THE AFFILIATE PROGRAM (THE "EFFECTIVE DATE"). CONSTANT CONTACT AND AFFILIATE ARE EACH HEREINAFTER SOMETIMES REFERRED TO AS THE "PARTY" AND COLLECTIVELY AS THE "PARTIES."


Constant Contact may change this Agreement by posting a revised Agreement at any time and the revised Agreement will be effective immediately upon posting or the effective date indicated in the new Agreement, as applicable. If you do not agree with the revised Agreement, you must immediately discontinue use of the Services and cease participation in the Affiliate Program. 

  1. Definitions

    "Affiliate” means the business, individual, or entity applying to or participating in the Affiliate Program, or that displays Services and/or promotions on its website, or other means, using an affiliate tracking code in exchange for receiving Commission Fees for sales and referrals directly resulting from such display.

    “Affiliate Platform” means the third party entity tracking the performance of the Affiliate Program on your behalf, including Impact Radius, Inc.

    “Affiliate Site” means your website which displays Services and/or promotions.

    “Commission Fees” means the fees that you will be paid for each Qualified Action by a Referred Customer subject to the Commission Threshold and to this Agreement.

    “Commission Threshold” means the amount of Commission Fees an Affiliate must accrue prior to receiving payment of Commission Fees.

    “Constant Contact IP” means our trademarks, name, logos, or any of our other intellectual property, including the Links (as defined below).

    “Qualified Action” means a Qualified Purchase and/or Qualified Referral.

    "Qualified Purchase” means a purchase of Services by a paying Referred Customer that is not excluded under Section 10.

    “Qualified Referral” means a trial sign-up or other free promotional offer for Services to a Referred Customer that is not excluded under Section 10.

    “Referred Customer” means each new and unique customer referred by Affiliate through a Link that provides valid account information and, in the case of a Referred Customer that makes a Qualified Purchase, billing information.

    “Services” means Constant Contact’s mail marketing services and related products and services.


  2. Enrollment in the Affiliate Program.  To begin the enrollment process, you must submit a completed Affiliate Program Signup Form.  We will evaluate your application and will notify you of your acceptance or rejection in a timely manner. We may reject your application for any reason, including if we determine that your website or promotional method is not suitable for the Affiliate Program.  We reserve the right to notify or to not notify any prospective Affiliate of their rejection or removal from the Affiliate Program.


  3. Promotion of Our Affiliate Relationshi

    1.  Use of Links.  Constant Contact will make graphic and textual links available to you to identify your website as a member of the Affiliate Program and to establish a link from your website or e-mail to our website ("Link(s)"). You shall not distribute the Links to third parties to be posted on websites that you do not own. You agree to fully cooperate with Constant Contact to establish and maintain such Links. You further agree that your use of the Links must be in compliance with the Terms at all times. You will not use graphic or textual images (indicating a Link) or text messages to promote Constant Contact that are not approved by us. All Affiliate Sites shall display the Links prominently in the relevant sections. Any information with respect to Constant Contact to be displayed on the Affiliate Site must be pre approved by us.

    2. Disclaimer. EXCEPT AS PERMITTED HEREIN, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE CONSTANT CONTACT IP WITHOUT OUR EXPRESS WRITTEN PERMISSION; (ii) USE CONSTANT CONTACT IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, OR OTHERWISE; OR (iii) ACT IN ANY WAY THAT CAUSES OR CREATES ANY "INITIAL INTEREST CONFUSION" OVER THE USE OF CONSTANT CONTACT IP. YOUR USE OF CONSTANT CONTACT IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF CONSTANT CONTACT’S INTELLECTUAL PROPERTY RIGHTS

    3. Discounts and Coupons. You are not allowed to post any refunds, credits or discounts on the Services, or other content concerning Constant Contact without our written consent. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program. Each Link connecting users of the Affiliate Site to our website will in no way alter the look, feel, or functionality of our website.


  4. Obligations Regarding Your Affiliate Site

    1. You are responsible for the development, operation, and maintenance of the Affiliate Site and all materials that appear on your Affiliate Site, including (i) the operation of your Affiliate Site; (ii) the creation and posting of product reviews, descriptions, and references; (iii) the accuracy of all materials, including materials related to the Services; and (iv) the compliance of materials with third party rights and the Terms.  We disclaim all liability and responsibility for such matters.

    2. We have the right to monitor signups through your Affiliate Site to determine if you are in compliance with the Terms.  If you are not in compliance with the Terms, we may terminate your participation in the Affiliate Program effective immediately.


  5. Licenses and Use of Constant Contact IP.

    1. Constant Contact hereby grants you a non-exclusive, non-transferable, revocable license to (i) access our website through the Links, and (ii) use the Constant Contact IP and any materials provided by Constant Contact to sell our Services on your Affiliate Site (collectively, the “Licensed Materials”). You may not alter, modify, or change the Licensed Materials in any way.

    2. You shall not use the Licensed Materials in any manner that is disparaging or that negatively portrays Constant Contact . We reserve all of our rights in the Licensed Materials. Constant Contact may revoke your license to the Licensed Materials at any time, by giving you written notice.

    3. You grant us a non-exclusive license to use your name, title, trademarks, and logos (the "Affiliate Trademarks") in any advertisement or other materials used to promote Constant Contact and the Affiliate Program.


  6. Policies and Pricing. Referred Customers are deemed to be Constant Contact Customers. Our Terms, policies, pricing and operating procedures will apply to such Referred Customers. Constant Contact may change the Terms, policies, pricing, and operating procedures at any time.


  7. FTC Endorsement Compliance.  You must comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed, as well as all requirements issued by us. All Affiliate Sites and any email or collateral that endorse or assess the Services must disclose the fact that you receive compensation for Referred Customers.   For more information and suggestions about how to comply with these guidelines see Affiliate Disclosure Requirements and Examples. This page does not purport to provide legal advice and it does not guarantee that you will be in compliance with FTC regulations. You are advised to seek and obtain legal advice on how applicable laws and regulations apply to your website or other promotional activities for which you receive compensation.


  8. Compliance with Laws.

    1. You must comply with all applicable laws and regulations of the relevant jurisdictions that apply to your performance of obligations and exercise of rights under this Agreement, including the Regulation (EU) 2016/679 of 27 April 2016, General Data Protection Regulation (the “GDPR”), the California Consumer Privacy Act (the “CCPA”), as amended by the California Privacy Rights Act (the “CPRA”), Brazil’s Lei Geral de Proteção de Dados Pessoais (“LGPD”), and other U.S. federal or state data privacy and data protection laws, and related implementing regulations.

    2. Your  communications, including by emails and texts, shall comply with the Terms, including our Acceptable Use Policy, and all applicable laws and regulations, including the CAN-SPAM Act of 2003, Canada’s Anti-Spam Legislation, S.C. 2010, c.23.


  9. Order Processing. Constant Contact will process orders placed by Referred Customers that follow the Links from an Affiliate Site or other promotion run by Affiliate. We reserve the right to reject orders that do not comply with our requirements. We will track Qualified Actions generated by your Affiliate Site and will make this information available to you through the Affiliate Platforms. To permit accurate tracking, reporting  and commission accrual, you must ensure that the Links between your website and our website are properly formatted.


  10. Commission Fee Determination; Qualified Actions

    1. Commission Fees will be calculated based on the commission rates provided on the Constant Contact website for each Qualified Action. A “Qualified Action” does NOT include a purchase or trial by a Referred Customer that:

      (a) has transferred from any Constant Contact partner or entity that is owned by, owns, or is under common ownership with Constant Contact;

      (b) is associated with any Constant Contact reseller, referral, or other partner program; provided that a “Qualified Action” includes Referred Customers that have previously been (but are not currently) associated with any Constant Contact reseller, referral, or other program;

      (c) is not up to date on its payments or is subject to a refund;

      (d) completed the purchase or started the Trial prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Affiliate Link; 

      (e) has not been in good standing for a period of at least thirty (30) days or is in violation of the Terms, including this Agreement;

      (f) is suspected by Constant Contact to be the result of fraud by the Referred Customer or the Affiliate, which may include the use of software that generates real and fictitious information, multiple accounts; or

      (g) was offered or received coupons, refunds, credits or discounts from the Affiliate not approved in writing by Constant Contact.

    2. Constant Contact reserves the right to suspend the payment of Commission Fees at any time, if it suspects fraud or other improper activity or a potential breach of any of the Terms by the Affiliate or a Referred Customer. Constant Contact reserves the right to deduct from Affiliate's current and future Commission Fees any and all Commission Fees related to any fraudulent, questionable or canceled purchases. If no subsequent Commission Fee is due and owing, we will send the Affiliate an invoice for the balance of any refunded purchase upon termination of Affiliate’s participation in the Affiliate Program or termination of the Referred Customer’s subscription to the Services.

    3. In the event an Affiliate has excessive cancellation rates, as determined by Constant Contact, Constant Contact reserves the right to withhold or decline pending and future Commission Fees to such Affiliate.


  11. Commission Fees Payment 

    1. Commission Fees will be calculated based on the percentage or dollar amount set forth in the Commission Fees report that is provided in the Affiliate Platform.  Commission Fees will be paid approximately forty (40) to forty-five (45) days after the end of the period in which they accrue.  You are responsible for the payment of all taxes related to Commissions Fees. 

    2. You are required to notify your Affiliate Platform of your desired form of payment and of any change in your payment information by updating your information in the Affiliate Platform. If your Affiliate Platform does not receive the necessary tax or payment information, including a W8/W9 tax form, within ninety (90) days of a Qualified Action, then no Commission Fees will be owed with respect to such Qualified Action.

    3. Constant Contact and your Affiliate Platform reserve the right to modify the methods of payment and schedule of payment of Commission Fees at any time. Such changes shall take effect when posted.

    4. Affiliate is responsible for monitoring the payment, denial, and withholding of Commission Fees. Constant Contact is not obligated to notify Affiliates of the status of Commission Fees. You agree to file any disputes, including relating to any Commission Fees that have been canceled or withheld, within one month and ten days after the end of the month in which the sale or event that is disputed occurred. Disputes filed thereafter will not be accepted by Constant Contact and Affiliate forfeits forever any rights to a potential claim.  Any decisions with respect to a dispute, including Commission Fees, are strictly made in Constant Contact’s sole discretion.


  12. Term and Termination

    1. The term of this Agreement will begin on the Effective Date and remain in effect for a period of one year (the "Initial Term"). The Agreement will automatically renew for successive one year periods (each a "Renewal Term"; together with the Initial Term, the "Term"), unless either Party sends written notice of non-renewal at least thirty (30) days prior to expiration of the Initial Term or Renewal Term, as applicable.

    2. Notwithstanding any other provision hereof, this Agreement may be terminated as follows: (a) by either Party with fifteen (15) days’ advance written notice; (b) in the event either Party materially breaches any of the provisions hereof, and such breach is not curable, this Agreement shall be immediately terminable by the non-breaching Party upon written notice to the other Party (any violation of the confidentiality provisions hereof shall constitute a non-curable breach); or (c) immediately by either Party in the event that the other Party becomes insolvent, files or is forced to file any petition in bankruptcy, or makes an assignment for the benefit of its creditors.

    3. Upon termination of this Agreement, all rights granted to you herein shall immediately cease, and you shall cease all marketing and promotion of the Services. You shall immediately delete, destroy or return all originals and copies of the Licensed Materials and any of our Confidential Information, including all documentation, manuals, instructions and other information associated with the products and services, and upon request, provide Constant Contact with certification thereof. 

    4. You are only eligible to earn Commission Fees on Qualified Actions occurring during the Term. Constant Contact may withhold your final payment of Commission Fees for a reasonable time to ensure that all Qualified Actions are valid and payment from Referred Customers are legitimate as determined by Constant Contact.


  13. Representations and Warranties. You hereby represent and warrant to us as follows:

    1. You are the sole and exclusive owner of the Affiliate Trademarks and have the power to grant to Constant Contact the license to use such marks in the manner contemplated herein, and such grant will not (a) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (b) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any third person or entity; and

    2. Each Referred Customer is valid and unique and meets the criteria of a Qualified Action for generating a Commission Fee as provided in this Agreement.


  14. Disclaimers. Constant Contact makes no express or implied warranties or representations with respect to the Affiliate Program or any Services 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). In addition, we make no representation that the operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors, including the tracking of information concerning Referred Customers during any period of interruption.


  15. Limitation of Liability. CONSTANT CONTACT WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, CONTACT CONTACT’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.


  16. Indemnification. You hereby agree to indemnify and hold harmless Constant Contact and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders and partners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) ("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 Affiliate Site, including, without limitation, its development, operation, maintenance and content.


  17. Confidentiality.

    1. A Party's "Confidential Information" means any information of the disclosing Party, which (i) if disclosed in a tangible form is marked using a legend such as "Confidential" or "Proprietary" or if not so marked, should be reasonably understood by the receiving Party from the context of disclosure or from the information itself, to be confidential, or (ii) if disclosed orally or visually is declared to be confidential or, if not so declared, should be reasonably understood by the receiving Party from the context of disclosure or from the information itself to be confidential. 

    2. Each Party shall (i) hold the other Party's Confidential Information in confidence, (ii) not disclose such Confidential Information to third parties nor use the other Party's Confidential Information for any purpose other than as required to perform its obligations under this Agreement or as expressly permitted hereby and (iii) use the same degree of care to protect the confidentiality of the other Party's Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). Such restrictions shall not apply to Confidential Information that (A) is already known by the recipient, (B) becomes publicly known through no act or fault of the recipient, (C) is received by recipient from a third party without a restriction on disclosure or use, or (D) is independently developed by recipient without reference to the other Party’s Confidential Information. Where Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, the Party subject to such requirement shall immediately notify the disclosing Party upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Confidential Information.  The Parties' respective obligations to maintain the confidentiality of information disclosed hereunder shall survive the expiration or early termination of this Agreement or until such time as such information becomes public information through no fault of the receiving Party.


  18. Miscellaneous

    1. Relationship of the Parties. The Parties are independent contractors and have no power or authority to assume or create any obligation or responsibility on behalf of the other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.

    2. Non-exclusive. Nothing contained in this Agreement shall be construed as creating an exclusive relationship between Partner and Constant Contact.

    3. Expenses. Except as otherwise specified herein or as otherwise mutually agreed upon by the Parties, each Party will bear its own costs of performing under this Agreement (including with respect to any marketing activities).

    4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A., except for its conflicts of laws principles. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts in Boston, Massachusetts. THE PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT.

    5. Public Announcements. All media releases, public announcements or public disclosures (including promotional or marketing material) by either Party relating to this Agreement are prohibited without the prior written consent of both Parties.

    6. Assignment; No Waiver. This Agreement binds and is for the benefit of the successors and permitted assigns of each Party. Partner may not assign this Agreement or any rights under it, in whole or in part, without Constant Contact's prior written consent. Any attempt to assign this Agreement other than as permitted above will be null and void.

    7. Force Majeure. Neither Party shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure.

    8. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior oral, written or online agreements. Each Party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. Except as set forth herein, this Agreement does not govern Partner’s use of the Services.  The use of the Services shall be governed by the Terms of Service.

    9. Severability. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

    10. Notices. Partner agrees that we may provide notice to Partner by emailing such notice to the email address listed by Partner during Partner's registration or mailing it to the street address designated by Partner during Partner's registration. Such notice shall be considered to be received by Partner within 24 hours of the time it is emailed to Partner unless we receive notice that the email was not delivered. If the notice is sent by mail, Constant Contact will consider it to have been received by Partner three (3) business days after such notice has been sent. Any notice to Constant Contact must be sent by postal mail or overnight courier to: Constant Contact, Inc., Attention: General Counsel, 1601 Trapelo Road, Waltham, MA 02451.

    11. Survival. The Sections of this Agreement relating to Compliance with Law, Confidential Information,  Indemnification, Limitation of Liability, Disclaimer and this Section (Miscellaneous) shall survive any termination of this Agreement.