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PARTICIPATION IN THE PROGRAM
To participate in the Magazines USA Affiliate Program, you must
complete a registration form and then read and agree to this Agreement. We will evaluate your registration form and notify you
regarding the status of your website (“Site”) in the Magazines USA Affiliate Program
(“Program”). We may reject your application after initial approval if we
determine (in our sole discretion) that your Site is unsuitable for the
Program.
Unsuitable sites include, but are not limited to, those
that:
- Infringe trademark rights of yours or any third party or otherwise violate
the rights of any third party
- Contain sexually explicit materials
- Contain hate/violent/offensive content
- Promote discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age
- Promote illegal activities or otherwise violate any applicable laws,
including those targeting “spyware,” “adware” or SPAM
- Violate any intellectual property rights, including, without limitation,
scraping text or images from Magazines USA's Website
- Do not clearly state an online privacy policy to its visitors
- Otherwise are considered offensive or inappropriate at Magazines USA's sole
discretion
This agreement governs participation in the Magazines USA Affiliate Program
only.
Once you are accepted into the Program, you will be able to participate in
the Program subject to the terms and conditions of this Agreement. You should
also note that if you are accepted to participate in the Program and your Site
is thereafter determined (in our sole discretion) to be unsuitable based on the
criteria above for the Program, we may terminate this Agreement.
MASTER AGREEMENT
This Master Agreement (”Agreement”) is made between Magazines USA
(”Magazines USA”) and you (”Affiliate”).
BACKGROUND
Affiliate and Magazines USA are each enrolled in The LinkShare Network™.
Affiliate and Magazines USA each desire to establish the general terms and conditions
which shall govern advertising and commission arrangements between Affiliate and
Magazines USA which result from their participation in The LinkShare Network.
TERMS AND CONDITIONS
In consideration of the promises set forth below, we agree as follows:
1. Modification
We may modify any of the terms and conditions contained in this Agreement, at
any time and in our sole discretion, by posting a change notice or a new
agreement on this site. 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 YOU, YOUR ONLY RECOURSE IS TO
TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING
OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE
BINDING ACCEPTANCE OF THE CHANGE.
2. Affiliate’s Responsibilities.
2.1. Affiliate will link its site to areas within Magazines USA’s website using special URLs specified in the Engagement (the “Required
URLs”). Affiliate may post as many links to the Required URLs and the rest of
Magazines USA as it likes on Affiliate’s site. The position, prominence and nature of
links on the Affiliate’s site shall comply with any requirements specified in
the Engagement and this Agreement, but otherwise will be in the discretion of
Affiliate.
2.2. Affiliate agrees not to make any representations, warranties or other
statements concerning Magazines USA, Magazines USA’s site, any of Magazines USA’s products or services,
or Magazines USA’s site policies, except as expressly authorized by the Engagement.
2.3. Affiliate is responsible for notifying Magazines USA
of any malfunctioning of the Required URLs or other problems with Affiliate’s
participation in the Engagement. Magazines USA will respond within reasonable time to
all concerns upon written notification by Affiliate.
3. Commissions.
3.1. Magazines USA agrees to pay Affiliate the commission specified in the Engagement
if Magazines USA sells to a visitor to MagazinesUSA.com (a “Customer”) a product that
is the subject of the Engagement and if that Customer has accessed MagazinesUSA.com and
purchased the product or service via a Qualifying Link.
3.2. A “Qualifying Link” is a link from Affiliate’s site to MagazinesUSA.com using one
of the Required URLs or any other URL provided by Magazines USA if it is the last link to MagazinesUSA.com that the Customer uses during a Session
where a sale of a product to Customer occurs. A “Session” is either
(a) a period of 24 hours from the time of a Customer’s initial contact with
MagazinesUSA.com via a link from the Affiliate’s site or the Engagement expires or is
terminated or (b) if a Customer links to MagazinesUSA.com from more than one affiliate
site within a 24-hour period, then the period of time beginning from a
Customer’s initial contact with MagazinesUSA.com via a link from the Affiliate’s site and
terminating when the Customer either returns to MagazinesUSA.com via a link from a site
other than Affiliate’s site or the Engagement expires or is terminated.
3.3. Magazines USA shall have the sole right and responsibility for processing all
orders made by Customers. Affiliate acknowledges that all agreements relating to
sales to Customers shall be between Magazines USA and the Customer.
3.4. All determinations of Qualifying Links and whether a commission is
payable will be made Magazines USA and will be final and binding on
both Magazines USA and Affiliate. Prices for the products will be set solely by Magazines USA in
its discretion.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title and interest in its
names, logos, trademarks, service marks, trade dress, copyrights and proprietary
technology, including, without limitation, those names, logos, trademarks,
service marks, trade dress, copyrights and proprietary technology currently used
or which may be developed and/or used by it in the future.
4.2. Magazines USA grants Affiliate a revocable, non-exclusive license to
use, reproduce and transmit the name, logos, trademarks, service marks, trade
dress and proprietary technology provided by Magazines USA solely for the purpose of creating links from Affiliate’s site
to MagazinesUSA.com during Engagements. Except as expressly set forth in this Agreement or
permitted by applicable law, Affiliate may not copy, distribute, modify, reverse
engineer, or create derivative works from the same. Any good will resulting from
Affiliate’s use of Magazines USA’s name, logos, trademarks, service marks and trade
dress will inure solely to the benefit of Magazines USA and will not create any right,
title or interest for Affiliate. Affiliate may not sublicense, assign or
transfer any such licenses for the use of the same, and any attempt at such
sublicense, assignment or transfer is void.
4.3. Affiliate may use only the logos, trademarks, service marks, trade
dress, banners, text links, coupon codes, etc. (“Creative”) that is provided by
Magazines USA. Affiliate shall not use the
Creative in connection with any activity that disparages Magazines USA, or its products
or services, or that damages the reputation for quality inherent in the same.
The use of Creative that is posted on other sites, found in other emails or
other sources, manipulated in any way or derived from any means besides the
MagazinesUSA.com interface is not permitted. If Affiliate does not fully comply with
this provision Magazines USA may withhold commissions, immediately terminate this
Agreement and/or permanently remove Affiliate from the program.
4.4. Affiliate’s use of Magazines USA’s name, logos, trademarks, service marks, and
trade dress pursuant to Section 4.2 and 4.3 must be in a manner that is clearly
less prominent than that of Affiliate’s name, logos, trademarks, service marks,
trade dress, products and/or site name. Affiliate is prohibited from creating an
impression that there is an association or affiliation between Magazines USA and
Affiliate beyond the arrangement outlined in this Agreement.
4.5. Affiliate shall always maintain the quality of its services at a level
satisfactory to Magazines USA. Magazines USA shall at times have the right to review Affiliate’s
activities related to this Agreement.
4.6. Affiliate shall immediately cease using Magazines USA’s name, logos, trademarks,
service marks, trade dress, proprietary technology and any Creative upon the
termination or expiration of this Agreement.
4.7. Affiliate grants Magazines USA a non-exclusive, royalty-free license
to use, reproduce and transmit any graphic or banner ad submitted by Affiliate
solely for co-branding purposes or as a return link from Magazines USA’s site to
Affiliate’s site. Magazines USA will remove such graphic or banner ad upon Affiliate’s
request.
5. Confidentiality.
5.1 Except as otherwise provided in this Agreement or with our prior written
consent, Affiliate agrees that all information including, without limitation,
the terms of this Agreement, Magazines USA’s business and financial information, its
customer lists, and its pricing and sales information, shall remain strictly
confidential and shall not be utilized, directly or indirectly, by Affiliate 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 Affiliate. Notwithstanding the foregoing,
Affiliate may deliver a copy of any such information (a) 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.
5.2 Magazines USA shall own and retain all right, title and interest in all names,
addresses and other identifying information of customers visiting Magazines USA’s sites
(”Customer Data”) which is collected by Magazines USA, including without limitation,
customers who access Magazines USA’s sites through Qualifying Links, and Affiliate shall
have no right to use any such Customer Data.
6. Privacy.
6.1. Affiliate shall not send out any emails, directly or indirectly, that
advertise or promote Magazines USA, its products, services, web sites or Offers without
Magazines USA’s prior express written consent.
6.2. Affiliate agrees not to send any email or other form of electronic
message or advertisement containing Magazines USA’s name, product or service, web site
address, metatag or any other type of identifier to any recipient unless the
recipient has directly consented to receive such communication from Affiliate or
Affiliate has a pre-existing business relationship with the recipient. In
addition, Affiliate agrees to provide a recipient of such communication with the
ability to “opt out” of further communications from Affiliate either by calling
a toll free number or by sending an “unsubscribe” email to Affiliate.
7. Termination.
7.1. Either party may terminate any Engagement at any time by deleting their
acceptance of the Engagement. Termination of an
Engagement shall not terminate this Agreement or any other Engagement.
7.2. Either party may terminate this Agreement at any time, for any reason,
provided that they provide at least five day’s prior written notice of such
termination to the other party. In addition, Magazines USA
shall be entitled to terminate this Agreement immediately if Affiliate
materially breaches or violates any terms or conditions of this Agreement, or if
Magazines USA determines, in its sole discretion, that there are technical or
operational issues (e.g. interruptions caused by or shifts in online/Internet
technology) that adversely affect compliance with this Agreement, or the
orders/referrals were obtained fraudulently or through misrepresentation, in
which case Magazines USA reserves the right to withhold payment of commissions pending
an investigation of the suspected fraud or misrepresentation. Termination of
this Agreement shall also terminate any outstanding Engagements. However, all
rights to payment, causes of action and any provisions, which by their terms are
intended to survive termination, shall survive termination of this
Agreement.
7.3. This Agreement shall commence as of the date last executed below and
shall terminate as per the terms of sections 4.3 and 7.2 above.
8. Representations.
8.1. Each party represents to the other that it has the authority to enter
into this Agreement and sufficient rights to grant any licenses granted
hereby.
8.2. Affiliate represents that: (a) the contents of its website do not (i)
infringe on any third party’s copyright, patent, trademark, trade secret or
other proprietary rights or right of publicity or privacy; (ii) violate any
applicable law, statute, ordinance or regulation; (iii) contain defamatory or
libelous material; (iv) contain lewd, pornographic or obscene material; (v)
violate any laws regarding unfair competition, antidiscrimination or false
advertising; (vi) promote violence or contain hate speech; or (vii) contain
viruses, trojan horses, worms, time bombs, or other similar harmful or
deleterious programming routines; and (b) that Affiliate has and complies with a
privacy policy consistent with federal and state laws and regulations, which is
prominently displayed on its website.
8.3. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
9. Indemnification.
9.1. Affiliate agrees to indemnify, defend and hold harmless Magazines USA and its
affiliates, directors, officers, employees and agents, from and against any and
all liability, claims, losses, damages, injuries or expenses (including
reasonable attorneys’ fees) brought by a third party, arising out of a breach,
or alleged breach, of any of its representations or obligations herein.
10. Limitation of Liability.
10.1. Except for Section 9.1 (“Indemnification”), in no event shall either
party be liable to the other party for any direct, indirect, special, exemplary,
consequential or incidental damages, even if informed of the possibility of such
damages.
11. General.
11.1. Each party shall act as an independent contractor and shall have no
authority to obligate or bind the other in any respect.
11.2. Magazines USA may modify any of the terms and conditions contained in this
Agreement, at any time and in its sole discretion, by posting a change notice or
a new agreement on the Magazines USA Site and giving you notice of the modification
through a subsequent written agreement between
the parties. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, ITS ONLY RECOURSE
IS TO TERMINATE THIS AGREEMENT. AFFILIATE’S CONTINUED COMPLIANCE WITH THIS
AGREEMENT FOLLOWING Magazines USA’S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ITS
SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
11.3. This Agreement may be agreed to in more than one counterpart, each of
which together shall form one and the same instrument. The parties agree that
execution may be achieved in any format convenient to the parties.
11.4. The provisions of this Agreement are independent of and separable from
each other, and no provision shall be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part.
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