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Affiliate Program
Terms and Conditions
INTRODUCTION
You ("Publisher") and JKAhosting.com
(a JKA Microwave, Inc. company), a Florida corporation, ("Advertiser"
or "JKAhosting") have each entered into separate service agreements
with ShareaSale, Inc. ("ShareaSale.com"). Publisher has entered into a
"Publisher Service Agreement" with ShareaSale.com for its
participation in ShareaSale.com's Network Service. This Affiliate Agreement
("Affiliate Agreement") is applicable to Publisher's membership in
Advertiser's JKAhosting.com (a JKA Microwave, Inc. company) Affiliate Program.
Publisher acknowledges that it may participate in Advertiser's Program only
under the terms and conditions set forth below, and that subsequent to Publisher
accepting this Affiliate Agreement, Advertiser will, in its sole discretion,
determine whether or not to accept Publisher into Advertiser's Program. If
Advertiser rejects Publisher's application, Publisher may reapply to the Program
at any time. Any Advertiser content, trademarks, logos, service marks, trade
dress, slogans, copyrighted or other proprietary material, or links contained
therein, that are authorized by Advertiser to be provided to Publisher through
the Network Service is considered "Advertiser Content."
AGREEMENT
For value received, Publisher covenants to
ShareaSale.com and Advertiser as follows:
1. INCORPORATION
The introductory paragraph above is
incorporated herein, and any capitalized term herein that is not defined will
have the meaning set forth in the Publisher Service Agreement.
2. ORDER OF PRECEDENCE
In the event of an inconsistency between the
Publisher Service Agreement and this Affiliate Agreement, this Affiliate
Agreement will control.
3. ONGOING COMPLIANCE
Publisher's continuing compliance with this
Affiliate Agreement is a condition of continuing participation in the Program.
Advertiser reserves the right to review and audit Publisher's Web site from time
to time to determine if Publisher is in continued compliance with this Affiliate
Agreement. Publisher's Web site must be and remain fully functional. Advertiser
may reject or terminate Publisher if its Web site is not live or under
construction, or if Publisher's Web site is a personal homepage or personal web
site.
4. COMMISSION
The applicable commission payable to Publisher
is set forth on the detail page within the ShareaSale.com members' area of the
Network Service, subject to decrease upon 7 days prior written notice to
Publisher and increases take immediate effect. Publisher is not paid commissions
on (a) renewing subscriptions, (b) duplicate subscriptions, including but not
limited to subscriptions by on a Visitor who discontinues a subscription and
re-subscribes under the same or a new user name within 3 months of dropping
their old subscription, or (c) any other new subscribers who are the result of
unreasonable re-subscription activity by Visitors clicking from the applicable
Publisher. Publisher acknowledges that notwithstanding anything to the contrary
in the Publisher Service Agreement, there may be up to 14 days of delay in
between the reporting of the subscription and the reporting of Publisher's
commission through Publisher's Account page in the Network Service, and
adjustments for chargebacks may be made up to 40 days after the reporting of the
subscription.
5. ADULT CONTENT AND OTHER UNACCEPTABLE
CONTENT
Publisher may not post adult-oriented content
on any page on which the Advertiser Content appears. Advertiser considers
content to be "adult" if it contains nudity, is sexually explicit,
pornographic, lewd material, obscenity, primarily intended for sexual
gratification or is otherwise inappropriate for minors, as determined in
Advertiser's sole discretion. Publisher may not post any offensive or
incorporate images or content that is in any way harmful, threatening, obscene,
harassing or racially, ethnically or otherwise objectionable, or promote
discrimination based on race, sex, religion, nationality, disability, sexual
orientation, or age, as determined in Advertiser's sole discretion.
6. USE OF ADVERTISER CONTENT
Notwithstanding Section 4.1 of the Publisher
Service Agreement entitled, "Proprietary Rights and Licenses",
Publisher agrees that it is sublicensed only the exact Advertiser Content
provided by Advertiser through the Network Service and only in the form and
manner available from and as specified in the Network Service. Advertiser shall
have complete discretion to evaluate Publisher's use to decide whether that use
violates any applicable terms and conditions.
(a) Publisher may not distribute, transfer,
sublicense or otherwise use Advertiser Content in a manner inconsistent with
this Affiliate Agreement.
(b) Publisher acknowledges that Advertiser owns
and will retain all right, title, and interest in the Advertiser Content,
including, without limitation, any proprietary rights which may be developed in
the future.
(c) Publisher will ensure that the presentation
of the Advertiser Content is consistent with Advertiser's own use of the
Advertiser Content in comparable media.
(d) Publisher will not remove or modify any
trademark, service mark, or privacy policy notices from the Advertiser Content
(e) Publisher will not present or use
Advertiser Content: (i) in a manner that could be reasonably interpreted to
suggest editorial content has been authored by, or represents the views or
opinions of Advertiser, or Advertiser's representatives; (ii) in a manner that
is misleading, defamatory, libelous, obscene, or other wise objectionable, in
Advertiser's reasonable opinion; (iii) in a way that infringes, derogates,
dilutes, or impairs the rights of Advertiser Content; or (iv) as part of a name
of a product or service of a company other than Advertiser.
(f) Publisher may bid on search terms available
from web sites, search engines or other directory or referral services (e.g.,
Overture, Google) provided that (i) Publisher clearly identifies itself as an
Affiliate, denoted at least by Aff., Affil., etc. in the listing title,
description and/or text of the ad; (ii) Publisher's search terms, listing titles
and descriptions, and the content of their web sites do not violate the
trademark or other rights of Advertiser or any third party; and (iii) Publisher
complies with the following guidelines, as determined by JKAhosting.com (a JKA
Microwave, Inc. company) in its sole discretion:
• if Publisher bids on other permitted
keywords (i.e small business, hosting, etc.) not in combination with
Advertiser's trademarks, then all such advertising placements must link directly
either to Advertiser's page or to Publisher's page which is primarily devoted to
promoting Advertiser's service
• if Publisher bids on a keyword that may be
the trademark of a third party, then Publisher must present content on its web
site that (a) refers to the trademark or its owner or related product in a
permissible nominative manner without creating a likelihood of consumer
confusion (for example, comparative advertising, or commentary about the
trademark owner or its product) or (b) uses the term in a generic or merely
descriptive manner. In addition, the Publisher's listing shall disclose the
nature of the relevant content.
(g) Publisher will not publish any prices,
special offers or discounts in connection with the Advertiser Content on its Web
site, unless such prices, special offers or discounts were included by
Advertiser in the unmodified Advertiser Content.
(h) ALTERING OR ANY UNAUTHORIZED USE OF THE
ADVERTISER CONTENT IS STRICTLY PROHIBITED AND WILL RESULT IN TERMINATION FROM
THE PROGRAM WITHOUT PAY. ALL RIGHTS NOT EXPRESSLY GRANTED BY ADVERTISER ARE
RESERVED.
7. RESTRICTIONS ON PUBLISHER EMAIL
ACTIVITIES & REWARDS/INCENTIVE PROMOTION
With respect to any advertising delivered via
e-mail, Publisher agrees that it will not distribute any e-mails or newsletters
containing Advertiser Content or promoting Advertiser without the prior written
permission of Advertiser. If Publisher desires to conduct an e-mail or
e-newsletter campaign containing Advertiser Content or promoting Advertiser,
Publisher must contact Advertiser and complete a Publisher E-Mail Campaign
Application, and if approved by Advertiser, Publisher will be required to enter
into a supplemental agreement that will be appended to and incorporated into
this Affiliate Agreement. Similarly, any Publisher that seeks to reward or
compensate Visitors through any means or method (e.g "incentive site")
must contact Advertiser for prior written approval, and provide Advertiser with
a full description of the Publisher's business model, promotional methods and
any other pertinent information to enable Advertiser to decide whether to permit
Publisher to promote Advertiser using such means or method. If Advertiser
provides written approval, Publisher will comply with Advertiser's guidelines
for such "incentive site" Programs. Advertiser reserves the right to
refuse to permit Publisher to reward or compensate Visitors in relation to
promoting Advertiser, and Advertiser may reject immediately or terminate its
relationship with Publisher with immediate effect based upon Publisher's
activities, reward or incentive business model and/or methods. Publisher
forfeits any monies resulting from any breach of this Section 7, and is subject
to termination, pursuant to Section 10 below.
8. LIMITED TO U.S. TARGETED USERS
Publisher will be allowed to participate in the
Program so long as Publisher's Web site substantially services or targets U.S.
residents. Publisher acknowledges that Advertiser's service under the Program is
for U.S. residents only, and that Visitors who subscribe to our service must pay
in U.S. dollars.
9. PRIVACY POLICY
Publisher will not collect personally
identifiable or aggregated data from Visitors, except by way of the Visitor's
explicit permission for Publisher to collect such data solely in connection with
"incentive site" Programs which have been approved in writing by
Yahoo. Any such Visitor data permitted to be collected will be in compliance
with Advertiser's guidelines for "incentive site" Programs.
Notwithstanding the foregoing, any Visitor data generated by Publisher's
promotion of Advertiser through the Program will be the sole property of
Advertiser.
10. MATERIAL BREACH
Publisher agrees that Advertiser may terminate
Publisher from its Program and that Publisher forfeits all monies resulting
therefrom, if:
(a) Publisher has become or is likely to become
a litigant in an action which will materially and adversely affect Advertiser's
business; or
(b) Publisher (as determined by Advertiser in
its sole discretion): spams to Advertiser's users, hijacks, provides false
account information, falsely increases the number of Transactions and/or acts;
or
(c) Non-compliance with this Affiliate
Agreement or the Publisher Service Agreement.
11. NO REPRESENTATIONS
Publisher agrees that it shall not, without the
express written consent of Advertiser, make statements that it is doing business
with any Advertiser entity or to use any brand features of Advertiser with any
such permitted statement, and Publisher agrees to not make any representations,
warranties or other statements concerning Advertiser, Advertiser's Web site,
product or services (including but not limited to pricing information, special
offers, discounts, and testimonial text), Advertiser Content, or Advertiser's
policies.
12. TERM AND TERMINATION
The term of this Affiliate Agreement shall be
continuous, unless and until either party properly terminates this Affiliate
Agreement, in accordance with the following: (i) Advertiser shall provide
Publisher with seven (7) days notice, except as provided for in 12(iii) below;
(ii) Publisher uses the automated system within the Network Service to drop the
Program; and (iii) Publisher agrees and acknowledges that if Publisher breaches
any provision of this Affiliate Agreement Advertiser may immediately terminate
Publisher from Advertiser's Program. Upon termination of this Affiliate
Agreement, Publisher must immediately remove from Publisher's Website(s) and
cease using any Program Links. Advertiser intends to terminate this Affiliate
Agreement with any Publisher that generates commissions during any consecutive
120 day period. Following termination of this Affiliate Agreement, Publisher
agrees to refund any amounts that were earned from Advertiser in breach of this
Agreement or the Publisher Service Agreement.
13. RESPONSIBLITY FOR
SITE/INDEMNIFICATION
Publisher will be solely responsible for the
development, operation, and maintenance of its Website(s) and for all content
that appears on Publisher's Website(s). For example, Publisher will be solely
responsible for:
* technical operation of Publisher's Website(s)
and all related equipment;
* placement of Links to Advertiser as described
above;
* accuracy, timeliness and appropriateness of
content posted on Publisher's Website(s) (including, among other things, all of
Advertiser's offers);
* ensuring that materials posted on Publisher's
Website(s) do not violate or infringe upon the rights of any third party
(including, for example, copyrights, trademarks, privacy, or other personal or
proprietary rights); and
* ensuring that content posted on Publisher's
Website(s) is in compliance with this Affiliate Agreement, and not libelous or
otherwise illegal.
Advertiser disclaims all liability for these
matters. Further, Publisher agrees to indemnify and hold Advertiser, and its
subsidiaries, affiliates, officers, agents, co-branders or other partners, and
employees, harmless from all claims, damages, demands, and expenses (including,
without limitation, attorneys' fees) relating to the development, operation,
maintenance, and contents of Publisher's site, use of the Advertiser Content,
violation of this Affiliate Agreement, or violation of any right of another
party. Publisher will permit Advertiser, at its election, to assume and control
the defense of any such claim.
14. MODIFICATIONS
Advertiser may modify any provision(s) of this
Affiliate Agreement upon seven (7) days notice by notifying Publisher in
writing, which may be through the ShareaSale.com Network Service. Modifications
may include, for example, changes in the scope of available referral fees, fee
schedules, payment procedures, and Program rules. If any modification is
unacceptable to Publisher, the only recourse for Publisher is to terminate this
Affiliate Agreement. Publisher's continued participation in the Program and
compliance with such change(s) following Advertiser's notification will
constitute binding acceptance of such change.
15. GENERAL
The Publisher Service Agreement, the
Advertiser's detail page on ShareaSale.com's Network Service and this Affiliate
Agreement constitute the entire agreement between Publisher and Advertiser and
govern participation in the Program, superceding any prior agreements between
Publisher and Advertiser. This Affiliate Agreement and the relationship between
Publisher and Advertiser shall be governed by the laws of the State of Florida
without regard to its conflict of law provisions. Notwithstanding the choice of
venue in the Publisher Service Agreement, Publisher and Advertiser agree to
submit to the personal jurisdiction of the courts located within the county of
Pasco county, Florida. The failure of Advertiser to exercise or enforce any
right or provision of this Affiliate Agreement shall not constitute a waiver of
such right or provision. If any provision of this Affiliate Agreement is found
by a court of competent jurisdiction to be invalid, the parties nevertheless
agree that the court should endeavor to give effect to the parties' intentions
as reflected in the provision, and the other provisions of this Affiliate
Agreement remain in full force and effect. Publisher will not assign, transfer,
sublicense, or otherwise delegate its rights under this Affiliate Agreement
without the prior written consent of Advertiser. Any such assignment, transfer,
sublicense or delegation in derogation of this provision shall be null and void.
BY APPLYING FOR THE JKAhosting.com (a JKA
Microwave, Inc. company) AFFILIATE PROGRAM AND CLICKING ON THE "CLICK HERE
TO JOIN" LINK YOU, PUBLISHER, ARE SIGNIFYING YOUR AGREEMENT TO BE BOUND BY
THIS AFFILIATE AGREEMENT TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS
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