This Affiliate Agreement (hereinafter the "Agreement") is made by and agreed to between Genealogy Today, LLC ("GTM"), a New Jersey limited liability corporation, and you ("You") for the purpose of utilizing "Marketing Programs" managed through Genealogy Today Web site features ("Affiliate Console") via the Internet. A " Marketing Program" (or "Program") is where a person, entity or its agent operating one or more "Web site(s)" and/or subscription e-mail list(s) ("Affiliate") may earn financial compensation ("Payouts") or reciprocal clicks ("Traffic") for "Transactions" (sales, "Leads", and/or clicks) through a click made by a "Visitor" (generally any person or entity that is not the Affiliate). GTM compensates the Affiliate based on the Payout provided by a Merchant, in accordance with this Agreement and the Program specifications.
You acknowledge and agree that by participating in any GTM Affiliate Program You will be bound by all the terms and conditions in this Agreement. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "or" means "and/or."
1 Relationship. In the context of this Agreement, You are referred to herein as an Affiliate. You agree not to:
(a) operate a Web site or transmit e-mail that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, bigoted, hate-oriented, hacking or warez, or offer any illegal good or service; and/or
(b) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail.
If You engage in any of the foregoing, You shall be subject to termination and/or deactivation as set forth in Section 6.2. You shall remain solely responsible for Your Web site content and e-mail content. GTM is, under no circumstances, responsible for the practices of any Affiliate or Merchant or their respective Web site(s), and/or e-mails.
2.1 Affiliates. Affiliates that have been accepted as affiliate channels by GTM, who has sole discretion on such approval, will earn Referral Payouts when sales transactions are completed and only if the Affiliate complies with the terms specified in this Agreement.
All web sites owned and/or operated by Genealogy Today, LLC, including but not limited to, Genealogy Today and its member sites, and D'Addezio.com and its network of sites, will be considered Affiliates and are not subject to termination or any other Affiliate restrictions stated in this agreement.
In addition, GTM may, at its own discretion, act as a Merchant making additional Products that it maintains in inventory available to its affiliates, and will be subject to any Merchant restrictions stated in this agreement and the GTM Merchant agreement.
2.1 Linking to Products. During the Term You may link to Product pages for the opportunity to earn Payouts if results are produced. Upon approval by GTM for acceptance into a Marketing Program, You may post (and remove) Links from Your Web site or subscription e-mails at Your discretion in accordance with this Agreement. We encourage you to provide a link to our home page at "http://www.genealogytoday.com" and acknowledge that you are a Genealogy Today affiliate.
You must notify GTM of all sites that will include the Genealogy Today affiliate links prior to placement of the link. Visitors to your site must clearly understand that clicking on the approved product links will take the visitor to GenealogyToday.com.
2.2 Use of Links to Products. You may not place Links to products or product-related content in newsgroups, message boards, unsolicited e-mail and other types of spam, guestbooks, or similar Internet resources where restricted by the owner's usage policy. You must place Links such that it is unlikely that the Links will mislead the Visitor, and such that it is reasonably likely that the Links will deliver bona fide Transactions by the Visitor to Product page from the Link.
2.3 Termination from Program/Campaign. After You have been approved, GTM may terminate You at any time, for any reason, and immediately after which You will not be credited for any future Transactions originating from Your Web sites and/or e-mails. You will receive an e-mail message whenever this occurs; however, GTM is not required to provide an explanation.
3.1 Applicable Codes and Code Maintenance. In order for GTM to record the tracking of Visitors' Transactions resulting from clicks on Product Links on Your Web sites and/or subscription e-mailings, code must be included in and maintained within the Product Links. You are responsible for serving all advertisements ("Ad Content").
3.2 Services. Subject to Section 3.1, GTM shall provide You with access to tracking, reporting and support services. Critical information shall be tracked through the Tracking Code regarding Transactions that result directly from Links placed by You. Tracking details regarding Visitor Transactions for all Products is not available on a real-time basis and there may be reporting delays regarding Transactions for some Merchants.
3.3 Payout Rate. GTM shall establish a Payout rate for a qualifying Transaction for each Product. All Payouts and Payout Rates will be calculated in US Dollars. Your Account will be credited with each Payout in accordance with the Payout rate for each unique Visitor action resulting directly from Links from each of Your Web sites and/or subscription e-mail.
GTM may discontinue Products, or decrease any Payout rate at any time, for any reason and immediately after which (in the case of discontinuation) You will not be credited for any future Transactions originating from Your Web sites and/or e-mails. GTM will send You a notice regarding each change in Payout rate(s) or Product discontinuation.
3.4 Payment. If on the 25th day of the month Your Account exceeds GTM's "Minimum Balance Amount" (currently US$25) for Transactions reported for the previous earnings period, GTM will issue to You any positive balance in Your Account. GTM shall have no obligation to make payment of any Payouts for which GTM has not received payment from the relevant Customer. Your recourse for any earned Payouts not received by GTM and not paid to You shall be to make a claim against the relevant Customer(s) and GTM disclaims any and all liability for such payment. GTM may apply amounts earned by You as a Affiliate towards amounts owed by You as an Customer. The number or amount of Transactions and clicks, credits for Payouts, and debits for "Chargebacks" (as defined in Section 3.6), as calculated by GTM shall be final and binding on You.
You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Chargebacks. If You have a negative balance, You must remit, upon request by GTM, a payment to GTM in an amount sufficient to bring Your Account to a zero balance. You may make payments hereunder via check, wire transfer, or certain credit cards over the Web (via PayPal). When payment is made by check, Your Account will not reflect payment until the check has cleared and cash has been transferred to GTM's bank account.
3.5 Chargebacks. A Customer may request that GTM, or GTM may on its own initiative, debit Your Account with an amount equal to a Payout previously credited to Your Account in circumstances of a: product return; duplicate entry or other clear error; or, with respect to a sale, non-receipt of payment from, or refund of payment to, the Visitor ("Chargeback"). Chargebacks requested by a Customer may be applied up to and including the 90th day after which the Payout was earned.
3.6 Policies and Pricing. Customers who buy products through the Genealogy Today web site are considered customers of the respective Merchants. Merchants are responsible for all Sales Taxes and Credit Card processing fees.
Do not include price information in Product links, as prices may change without notice.
4.1 Proprietary Rights and Licenses. For each Product you choose to promote, GTM grants to You a revocable, non-transferable, royalty free, international sublicense to display and Link to the Product page or product-related content, and all trademarks, service marks, tradenames, and/or copyrighted material ("Content"), from each of Your Web Sites and/or subscription e-mail for the limited purposes of Promoting the Product and subject to the terms and conditions of this Agreement.
You shall not otherwise copy nor modify, in any way, any icons, buttons, banners, graphics files, or Content that has been made available through the Affiliate Console pursuant to the foregoing sublicense. Nor may You remove or alter any copyright or trademark notices. GTM may not be held responsible for Your actions with respect to these sublicenses.
5.1 Privacy and Confidentiality. You or GTM may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality in order to protect any proprietary interests of the disclosing party. "Confidential Information" shall not include (even if designated by a party) information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.
The information that You supply to establish and maintain Your Account shall be Your Confidential Information, and You agree that GTM may provide Your e-mail address(es) and basic Affiliate Account detail (including but not limited to Web site name (if applicable), date Web site or subscription e-mail first entered into operation, and visitor demographics) to Merchants. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through GTM's grossly negligent or willful conduct or omission). You shall provide GTM with prompt written notification to legal@GTM.com of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
5.2 Collection and Use of Data. GTM may, at the request of Merchants, collect information about their Visitor's Transactions, in addition to what it receives through the installed tracking code. GTM reserves the right to be able to utilize this data, which may include information about performance statistics, to analyze trends, maintain the integrity of the tracking code, and promote any of GTM's capabilities.
GTM promises not to disclose detailed sales and/or customer information to any of its Publishers. Publishers will only be able to view summaries for transactions initiated from their Web sites and/or e-mail lists.
GTM also promises not to disclose publicly, other than under compulsion of law, including subpoena, any personal or business information that can be linked specifically to any Visitors to Your Web site that result directly from Links on Publishers' Web sites and subscription e-mail mailings to the extent GTM collects any such information, including, but not limited to, the Visitor's name, e-mail address, phone number, or any other personal information.
6.1 Term and Notices. The parties acknowledge and agree that submission of application and acceptance of that application will be completed either online or by electronic mail. Parties hereby waive their rights to a written and signed copy of this Agreement. This Agreement shall commence upon Your indication that You have accepted this Agreement by 'clicking through' the acceptance button in the Affiliate Console, and, subject to Section 6.2, shall be in effect through one year.
You can give written notice by mail to GTM as follows: Attn: Affiliate Services, Genealogy Today, 74 Forest Road, New Providence, NJ 07974.
6.2 Temporary Deactivation and Termination. Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 30 days of receipt of written notice from the non-breaching party of the existence and nature of the breach. After the initial Term, either party may terminate this Agreement during a renewal Term without cause upon 90 days prior written notice to the other party. If this Agreement is terminated for Your breach, You shall not be eligible to enter into a new click-on GTM Affiliate Agreement, and any attempt to do so shall be null and void.
Upon termination of this Agreement, an outstanding debit balance shall be paid by You to GTM within 10 business days of the date of termination, and an outstanding credit balance shall be paid by GTM to You within 20 business days of termination of this Agreement.
6.3 Changes. This Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. GTM shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by notifying You of such Change, by email, at least fourteen (14) days prior to the Effective Date of such Change; provided, however, that either party shall have the right to terminate this Agreement pursuant to Section 6.2 in event that You do not agree to such Change.
GTM will make a reasonable attempt to notify Affiliate of such modification(s), but cannot guarantee success of any notification. Modifications may include, but are not be limited to, changes in the scope of applicable Fees, payment schedules, payment procedures, and Program rules.
6.4 Survival. The provisions of this Section and Sections 5, 6.1, 6.2, 7.3, 7.4, 8, 9.2, 9.4, and 9.5 shall survive the termination of this Agreement.
7.1 Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree it is normal to have a certain amount of system downtime and agree not to hold each other or Publishers liable for any of the consequences of such interruptions.
7.2 Authority and Compliance with Laws. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. Each party is responsible for compliance with the applicable local laws in the jurisdiction from which it operates and represents and warrants such compliance.
7.3 Limitation of Liabilities. IN NO EVENT WILL GTM, ITS SUPPLIERS, OR OTHER THIRD PARTIES MENTIONED AT THE GENEALOGY TODAY WEB SITE ("THE SITE") BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SITE, ANY WEB SITES LINKED TO THE SITE, OR THE MATERIALS OR INFORMATION CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE MATERIALS OR INFORMATION FROM THE SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
7.4 Disclaimer of Warranties. THE SERVICES AND MATERIALS PROVIDED BY THE GENEALOGY TODAY SITE ("THE SITE") ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. GTM further does not warrant the accuracy and completeness of the materials at the site. GTM may make changes to the materials at the site, or to the products and prices described in them, at any time without notice. The materials at the site may be out of date, and GTM makes no commitment to update it. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
8 Indemnification. You agree to indemnify and hold GTM and its suppliers harmless from and against any and all claims, suits, costs, damages and judgments (including but not limited to attorneys' fees) incurred, claimed or sustained by third parties, including but not limited to Publishers, for your breach of this Agreement and for claims of product liability and/or malpractice or misfeasance in the performance of services ("Claims"), or any third-party's rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights). These obligations will survive any termination of your relationship with GTM.
9.1 Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor.
9.2 Choice of Law/Attorneys Fees. This Agreement is governed by the laws of the State of New Jersey (USA), except for its conflict of law provisions. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. GTM controls and operates its Web site from its offices in the U.S.A. and access or use where illegal is prohibited.
9.3 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9.4 Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
9.5 Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Your use of the Affiliate Console is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement.