Alawar Entertainment Inc. Affiliate Program Terms of Service
This Terms of Service (the "Agreement") is a legal agreement between you and Alawar Entertainment Inc. that contains the terms and conditions that apply to an individual's or entity's participation in the Alawar Entertainment Inc. Affiliate Program (the "Program"), and governs our and yours respective rights and obligations.
As used in this Agreement, "we", "us", or "our" means Alawar Entertainment Inc. or any of our affiliated companies, and "you" means the applicant. The "Alawar Site" means the http://alawar.com , which has its primary home page identified by the URL www.alawar.com . "Your Site" means any site that you will link to the Alawar Site (and which you identify in your Program application).
Upon acceptance of this Agreement, you agree that you have read this Agreement, understand it, and agree to be bound by it as you participate in the Program. If you do not agree to the terms of this agreement , do not register for or participate in the Program.
1) Participation in the Program.
a) To enroll in the Program you need to register through http://affiliate.alawar.com (the "Program Site") by submitting a completed application (the “Application”), including by reading and agreeing to this Agreement. .
b) We will evaluate your Application for the Program and notify you of your and the sites you have listed in the Application acceptance status, in which case we create a Program account for you that would offer you a view into the data associated with your activity under the Program and serve as a main mechanisms of our two-way communications under the Program. At the same time Your Site will be assigned a unique Alawar tracking ID number (the “PID”). We may reject the Application if we determine (in our sole discretion) that you and/or any of your Sites, in Alawar’s sole judgment:
i) promote (including links to) sexually explicit materials, violence, or illegal activities;
ii) promote any illegal activities or include any illegal content;
iii) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
iv) include any trademark or other brand identifier, or any copyrighted materials, of Alawar or any of its affiliated companies (other than as allowed pursuant to this Agreement once a Program application is accepted);
v) are "under construction";
vi) violate any of our or any third party's intellectual property or other proprietary rights; and
vii) are otherwise considered offensive or inappropriate at Alawar's discretion.
By participating in the Program, you agree that you do not and will not engage in any such activities during your participation in the Program.
c) If you are accepted to the Program and thereafter we establish you in our sole discretion to be unsuitable for the Program, we may suspend or terminate your Program account.
d) The information we request and collect from you when you enroll in the Program or later, whether mandatory or optional ("Applicant Information"), must be valid and complete at all times. You are obligated to update your Applicant Information if it changes in any manner.
2) Use of Alawar Materials.
a) Upon approval of your Application, we hereby grant you a revocable, non-exclusive, non-transferable, worldwide, royalty-free right and license to the following program assets during the term of this Agreement, solely for purposes of facilitating referrals from Your Site to the Alawar Site (such materials being referred to herein as the "Alawar Materials"):
i) XML feeds for the purpose of merchandizing any downloadable game in our catalog for which we have sufficient rights to offer you hereunder (collectively, all "Games"), including, without limitation, Game ids, images, videos, descriptions, rankings, release dates, genre ids, file sizes, system requirements, inline frames to enable Game sales and tracking, inline frames to enable online and downloadable Games to be displayed on Your Site, Game URLs, and Game purchase URLs;
ii) subject to the restrictions contained herein, the proprietary trademarks, trade names, drawings, logos and other symbols which are available for your use on the Program Site, and which are owned by us and associated with the Alawar Site and Games (collectively, the "Alawar Trademarks"). You may use the Alawar Trademarks solely for the purpose of marketing, identifying and promoting the Alawar Site in connection with this Agreement and your participation in the Program. You acknowledge and agree that nothing in this Agreement grants you any rights in and to the Alawar Trademarks, and all goodwill generated by your use of the Alawar Trademarks shall inure to our benefit.
b) Limitation. You may not
i) purchase, or register, any keywords, search terms or other identifiers that include any of the Alawar Trademarks for use in connection with any search engine, portal, or sponsored advertising service, or other search or referral service;
ii) use any of the content contained in the Alawar Materials to create goods for physical distribution, including, without limitation, CDs, cards or any other physical media;
iii) reverse engineer, decompile or otherwise attempt to discover any source code or underlying ideas or algorithms of any Games;
iv) modify, break the integrity of or otherwise create derivative works of any Games;
v) allow the removal, alteration, covering or obscuring of any notice, term or Alawar Trademarks in Games;
vi) alter or obstruct any of the content contained in the Alawar Materials in a manner that lead or might lead to misleading and/or misrepresentation of Alawar Site, products distributed therefrom, Alawar Materials or Alawar Trademarks;
vii) generate, create, transmit, provide and otherwise make available by yourself or via third parties to end users any forms of Games activation, unlocking, including keys, certificates, or attempt to perform such actions.
3) Generating Referrals & Referral Fees
a) Upon your acceptance to the Program you agree to begin referring users to us.
b) In order for you to be eligible for Referral Fee (as defined below), a user must have made any purchase transaction greater than US$5 for the Game from Alawar Site with your PID , any user that meets these requirements will be deemed your "Referral" hereunder.
Alawar shall pay you a referral fee on click-through from your Site to Alawar Site that results in sale of Game(s) (the “Referral Fee”). You Referral Fee depending on the Games you select for referral from our catalogue will be posted to your Program account and used for calculation of your Referral Fee. "Net Revenue" means the actual amounts paid for any Game by your Referrals and collected by Alawar, less applicable taxes, transaction processing costs, expenses for billing frauds, returns or chargebacks.
c) Referral Fees which accrue on your behalf in any calendar week are payable to you within fifteen (15) calendar days after the end of such week or at your choice later upon your request for payment. As the payment of the Referral Fee takes place before actual collection, we reserve the right to make adjustments with respect to the Referral Fees already paid to you in the previous periods relating to returns, refunds, chargebacks and other similar adjustments as a result of actual collections of the amount paid for the Game.
d) In case of overpayment, the amount of overpayment will be withheld by us from any future amounts due to you under this Agreement.
e) You confirm that you are not U.S. citizens, U.S. residents or U.S. corporations and/or do not have business(es) taxable in the U.S. We are obligated by U.S. federal law to obtain tax information from Program participants who are U.S. citizens, U.S. residents or U.S. corporations, and from Program participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. If you are U.S. citizens, U.S. residents or U.S. corporations, or if you are not U.S. citizens or residents but your business is taxable in the U.S you must provide us with relevant information. If we believe you are a Program participant from whom we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your Referral Fee payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
f) You are required to provide up to date, complete and accurate payment information in your Program account. We are not responsible for any failure or delay in remitting payments to you if you have not provided us with complete and accurate information.
g) You shall keep in confidence and not disclose to any third party the financial terms of this Agreement, including without limitation the amount of Net Revenue and your Referral Fee.
4) Legal Compliance Standards
a) Compliance with Applicable Laws. As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you (collectively, all "Applicable Laws"), whether those Applicable Laws are now in effect or later come into effect during the time you are a Program participant; and that you have all requisite right, power and authority necessary to execute and deliver the Agreement and/or to perform your obligations thereunder and/or to consummate the transactions contemplated hereby.
5) Program Policies & Obligations
a) You will be solely responsible for the development, operation, and maintenance of Your Site and for all materials that appear on Your Site and its technical operation of Your Site. We disclaim any and all liability for these matters.
b) Alawar and its licensors exclusively own any intellectual property rights in any Alawar Materials, Alawar Trademarks, Alawar Site and Program Site.
6) Suspension of Accounts
a) If we suspend your Program account for any reason, you will be notified by us upon your next attempt to log in to such account.
b) If you have not logged into your Program account for any consecutive twelve (12) month period or if there is no Referral Fee on your account for any consecutive twelve (12) month period, your account may be deemed inactive ("Inactive") and suspended at our sole discretion. If your Program account is Inactive and suspended, and you attempt to log in to your account at any time in the three (3) month period following the suspension date (the "Pendency Period"), you may contact us at firstname.lastname@example.org to resume activity and have your account reinstated. If you do not attempt to log in to your Program account prior to the expiration of Pendency Period, your account may be closed and any accrued Referral Fees remaining in your account at such time will be unconditionally and irrevocably forfeited.
7) Termination of Accounts
a) Either you or we may terminate your Program account and this Agreement at any time, with or without cause, by giving the other party written notice of termination. Without limiting the generality and inclusiveness of these rights, we may terminate this Agreement with you and your participation in the Program if: (i) this Agreement is violated in any way by you, as determined by us in our sole discretion, (ii) there is any actual or suspected fraudulent or suspicious activity on your part, or any activity not in keeping with our brand and customer standards or the integrity of the Program or (iii) your Program account is deemed Inactive, and you have not attempted to log in to your account prior to the expiration of the applicable Pendency Period.
b) If you voluntarily and legitimately elect to terminate your participation in the Program, you are eligible to earn Referral Fees that occur prior to the effective date of any such termination.
c) Upon any termination of this Agreement by you or us for any reason, you will immediately cease use of any and all materials provided by or on behalf of us to you pursuant to this Agreement or in connection with the Program, including, without limitation, all Alawar Materials. Without limiting the foregoing, upon termination of this Agreement, you will remove from Your Site all links to the Alawar Site and/or any Games, and any and all uses of the Alawar Materials.
d) If you violate or breach this Agreement in any manner, we may in our sole discretion terminate your participation in the Program and your Program account after a two-week suspension period for such violation or breach investigation, in which case any accrued Referral Fees remaining in your account at such time will be unconditionally and irrevocably forfeited, regardless of whether those amounts were accrued before or during the suspension period.
8) Program Modification
a) We may modify the Program, including, without limitation, any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a notice of the changes or a new agreement on the Alawar Site and/or Program Site. It is your responsibility to regularly check the applicable pages of the Alawar Site and Program Site to determine if there have been changes to this Agreement and to review such changes. In the event you elect to not accept our amendments to this Agreement, you may terminate this Agreement and your participation in the Program in accordance with Section 7 (b) of this Agreement. If any change to this Agreement is found to be invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity or the enforceability of any other change to this Agreement.
b) IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM AFTER WE CHANGE THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES, YOU MUST TERMINATE YOUR PARTICIPATION IN THE PROGRAM.
9) Treatment of Pre-Existing Affiliate Program Members
a) If you were a member of any customer referral program operated by us prior to 01.06.2012 (a "Pre-Existing Alawar Affiliate Program"), the provisions contained in this Section 9 govern your rights and responsibilities should you elect to join the Program.
b) As of the date that the Program launches, any and all Pre-Existing Alawar Affiliate Programs will automatically and irrevocably terminate. Subject to the terms of service relating to your participation in any Pre-Existing Alawar Affiliate Program, any account balances due and owing to you under such program will be available to you as of and following the date which is fifteen (15) calendar days following the launch date of the Program (regardless of whether you choose to join the Program).
10) RESPONSIBILITIES AND INDEMNIFICATION.
a) You are responsible for all matters pertaining to Your Sites including their development, maintenance, operation and placing links on Your Sites in compliance with the terms of the Program and this Agreement. You are fully responsible for all items that appear on Your Sites and for assuring that such items do not infringe upon or violate the rights of any other party, including Alawar. Alawar is not responsible for any matter pertaining to Your Sites or the content thereof. You represent and warrant to Alawar that Your Sites do not and will not contain any materials that are illegal and that Your Sites are not operated for an illegal purpose or in an illegal manner.
b) You hereby indemnify and hold Alawar, and all of Alawar stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that Alawar may incur and which are based in whole or in part upon you participation in the Program, any claims that any of your trademarks and other your materials infringe upon the rights of any other party, your breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Program, or any claim related directly or indirectly to your use, operation or the content of Your Sites or any claim related in any way to Your Sites and business.
c) If Alawar determines that you may be in breach of this Agreement, or if Alawar have other claims against you, Alawar is entitled to withhold all or any part of the Referral Fees due to you under this Agreement and/or all other agreements concluded between the Parties hereto pending resolution of such issue. Alawar may also withhold and offset any sums you owes to Alawar against amounts that are payable to you.
11) Miscellaneous Provisions
a) Relationship of Parties. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Site or otherwise, that reasonably would contradict anything in this Section.
b) Each party is responsible for complying with the collection, payment, and reporting of all taxes imposed by any governmental authority applicable to its activities in connection with this Agreement.
c) Limitation of Liability. We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program. In addition, our aggregate liability to you arising out of this Agreement and the Program will not exceed the total Referral Fees paid or validly due and payable to you under this Agreement.
d) No Warranties; Disclaimers. Your use of the Alawar Site, Program Site and / or participation in the Program and any materials, services available on or accessible through the Alawar Site, Program Site and /or participation in the Program are at your sole responsibility and risk. Alawar Site, Program Site and Program are available on an “AS IS” basis and “AS AVAILABLE” basis, without warranty of any kind, express or implied. We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing or trade usage). In addition, we make no representation that the operation of the Alawar Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors. Further, we makes no warranty that the Alawar Site, Program Site and Program or any materials, services available on or accessible through the Alawar Site, Program Site and / or participation in the Program will (i) meet your requirements, (ii) be uninterrupted, timely, secure, or error-free or (iii) have any errors corrected.
e) Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given on the delivery date if delivered by electronic mail. Any notices sent by you to us shall be sent to the following address: e-mail: email@example.com .
f) Independent Evaluation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR THAT COMPETE WITH YOUR SITE. YOU HAVE INDEPENDENTLY EVALUATED YOUR POTENTIAL PARTICIPATION IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
g) Applicable law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
h) Dispute Resolution. In the event of any dispute, claim, question, action or disagreement (the “Dispute”) based on, arising out of, under, or in connection with this Agreement, the Parties hereto shall use their best good faith efforts to settle such Dispute by normal business discussions. If the Parties do not reach a settlement within a period of thirty (30) days, then, upon notice by either Party to the other, all Disputes (including issues relating to the formation of this Agreement and validity of this arbitration clause) shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”), as well as the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The decision and award of the arbitrator shall be final and valid, non-appealable, binding upon the Parties involved in such arbitration, and enforceable by any Party in any court of competent jurisdiction. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules. The place of arbitration shall be New York, NY. The arbitration shall be conducted and the award shall be rendered in English. The Parties agree to hold all proceedings, including knowledge of the existence of any dispute or controversy, completely confidential except for such disclosures as may be required by law. This Agreement does not limit or affect the right of either Party to seek from any court of competent jurisdiction any interim, interlocutory, or provisional relief that is necessary to protect the rights or property of that Party. Alternately, either Party may apply to the AAA pursuant to the AAA Optional Rules for Emergency Measures seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. FOR THE AVOIDANCE OF DOUBT, ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT IS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVED BY BOTH PARTIES.
i) Assignment and Successors; No Waiver. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time with or without notice to you. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against you and us, and our respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.