Mallcom Affiliate Program Terms and Conditions
This Agreement contains the complete terms and conditions which apply to your participation as a member of the Mallcom Affiliate Program (hereinafter called the "Affiliate Program"). As used in this Agreement, "you" or "your" means the applicant/participating member.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND THE AFFILIATE PROGRAM. BY SUBMITTING AN APPLICATION FOR ENROLLMENT IN THE AFFILIATE PROGRAM YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AFFILIATE PROGRAM AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS HEREOF. YOU CANNOT BECOME A MEMBER OF THE AFFILIATE PROGRAM UNLESS YOU HAVE ACCEPTED EACH AND EVERY TERM HEREOF.
1) Enrollment in this Program.
To begin the enrollment process, you must submit a completed application through our website: http://www.Mallcom.com.
In order to enroll and participate in the Affiliate Program, you must be over the age of eighteen (18) years, or over the age of majority if you reside and/or conduct business in states, provinces or countries where the age of majority is greater than eighteen (18) years. You may not participate in the Affiliate Program in any way if you are not of the age of majority in the state, province or country where you reside and/or conduct business.
We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if, in our sole and unfettered discretion, we determine that your site(s) are unsuitable for the Affiliate Program for any reason.
2) Commissions.
As a participating member in the Affiliate Program you will receive a monthly payment for the commission of sales that we receive from your affiliateID# (assuming that your store has been setup properly as provided by our wizard). Your percentage will be decided by us when we receive your information and depending on the number of sales that we receive from you. Your commission percentage may be subject to change at any moment if our terms are not followed and your commission check will be forfeited.
Commission rates are subject to change from time to time, upon email notice to you and/or notice posted on our site. Note that a commission will only be paid if the visitor to an Affiliate Program approved site can be tracked by the system from the time of the click on your link to the time of the sale. No commission will be paid if the visitor's payment to the Affiliate Program cannot be tracked directly to your site by our system or if full payment for services is not made to us by the customer.
3) Commission Payment.
Commissions due and owing to you under the Affiliate Program will be paid to you directly by the Affiliate Program. Checks are sent out on the 15th of every month for sales from the prior month, as long as your account has accrued the minimum payout amount of $75. If the amount is less it is carried over from month to month until you have accrued the minimum payout amount.
Payments will be sent via regular mail to the address on file. You have the option of being paid by wire or cable transfer pending special approval. Please contact the Affiliate Program administrator via webmasters@mallcom.com to ask for this service.. If the payment is due to be made on a non-business day (Sat., Sun., or US observed holiday), the payment will be made on the next business day.
Our log files will prevail in determining amount of commission sales.
4) Responsibility for Your Site.
While we will review your site(s) for suitability in the Affiliate Program, you will be solely responsible for the development, operation and maintenance of your site(s) and for all materials that appear on your site(s). We shall have no responsibility for the development, operation and maintenance of your site(s) and for any materials that appear on your site(s). You shall also be responsible for ensuring that materials posted on your site(s) do not violate or infringe upon any laws including, but not limited to the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and ensuring that materials posted on your site(s) are not libelous or otherwise illegal (including depictions of actual, implied or simulated bestiality, rape, incest, child pornography, or any other content deemed inappropriate or illegal). You must have express permission to use another party's copyrighted or otherwise proprietary material. We will not be responsible if you use another party's copyrighted or otherwise proprietary material in violation of the law.
5) Forms of Promotion.
As the owner/operator of a website, you may use any form of promotion you choose, consistent with the terms of this Agreement. You may use banner advertisements, button links and/or text to Affiliate Program approved websites, however, you CANNOT use UCE (Unsolicited Commercial Email or SPAM). Any activity by you or on your behalf that we determine or reasonably suspect to be the result of an unsolicited email program will result in your immediate termination from the Affiliate Program and your forfeiting of earned commission otherwise due to you hereunder. Allowable promotional links may contain the Affiliate Program's or affiliated website's trade names, service marks, and/or logos for display on your website(s). Subject to the terms and conditions hereof, you are granted a limited, non-exclusive, non-transferable license to access and download such links and other designated promotional materials for placement on your website(s) for the sole and exclusive purpose of promoting Affiliate Program approved websites. In utilizing the links, you agree that you will cooperate fully with us in order to establish and maintain such link or links. A link may only be visually modified with our consent.
We maintain a zero tolerance policy towards anything related to child pornography.
If we determine that you have violated the Company's zero tolerance policy against child pornography, your membership in the Affiliate Program will be terminated and your site(s) will be removed from the Affiliate Program without warning. You further agree that you will forfeit all monies otherwise due you.
In addition to the foregoing, we may immediately terminate your participation in the Affiliate Program if we believe you have engaged in any of the following:
a) Any form of spamming including, but not limited to unsolicited email, IRC postings, newsgroups, and/or instant messaging clients;
b) Publishing, transferring, reassigning, disclosing, distributing, or permitting any other person to use your Affiliate Program account;
c) Providing inaccurate or incomplete information to the Affiliate Program concerning your identity, bank account, address or other required information;
d) Attempts to cheat, defraud or mislead us or the public in any way;
e) Misrepresenting to the public, or anyone concerned, the terms and conditions of the Affiliate Program approved websites or your site(s);
f) Promotion of Affiliate Program websites on password sites, MP3 sites or warez sites;
g) Owning or operating a website in connection with a person who is under eighteen (18) years of age; and/or under the age of majority in states, provinces or countries where the age of majority is greater than eighteen (18) years;
h) Inclusion of illegal or unauthorized content on your site(s); and
i) Operating from a country where such a site violates the law or from which the Affiliate Program will not accept accounts.
6) Term of the Agreement.
The term of this Agreement will begin upon our written acceptance by email of your application and will end immediately when terminated by either party in writing (by email). Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Notice by email, to your email address in our records, is considered sufficient notice for us to terminate this Agreement. If this Agreement is terminated because you have violated the terms of this Agreement you waive any right to receive any payments due and unpaid to you, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to payments on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related subscriptions are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
7) Modification.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by email, to your address in our records, or notice posted on our site, is considered sufficient notice to you of a change to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Program rules. All such modifications shall take effect 48 hours after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program, following our posting of modifications or a new agreement on our site, will constitute your binding acceptance of the change in terms and conditions.
8) Relationship of Parties.
You and Affiliate Program are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site(s) or otherwise, that reasonably would contradict anything in this Section. You are not an agent of the Affiliate Program and the Affiliate Program expressly disclaims responsibility for any conduct by you in violation of the terms of this Agreement.
9) 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 Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total commissions paid or payable to you under this Agreement.
10) Representations and Warranties
You hereby represent and warrant to us that this Agreement has been duly and validly accepted by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms. You further represent and warrant that the execution, delivery and performance by you of this Agreement are within your legal capacity and power, have been duly authorized by all requisite action on your part, require the approval or consent of no other persons, and neither violate nor constitute a default under (i) the provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you.
Should any law enforcement agency, internet service provider or other person or entity provide the Affiliate Program with notice that you have engaged in transmission of unsolicited emails or have engaged in otherwise unlawful conduct or conduct in violation of internet service provider's terms of service, we reserve the right to cooperate in any investigation relating to your activities including disclosure of your account information.
11) Confidentiality.
We may disclose to you certain information as a result of your participation in the Affiliate Program which we consider to be confidential (herein referred to as "Confidential Information"). For purpose of this Agreement, the term "Confidential Information" shall include, but not be limited to:
a) any modifications to the terms and provisions of this Agreement made specifically for you or your site(s) and not generally available to other members of the Affiliate Program,
b) website, business, and financial information relating to the Affiliate Program, and
c) customer and vendor lists relating to the Affiliate Program and any members of the Affiliate Program other than you.
Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose, except to the extent that any such information is generally known or available to the public or if disclosure is required by law or legal process.
12) Indemnification
You hereby agree personally and on behalf of any corporation to indemnify, defend and hold harmless the Company, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expense (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "losses"), insofar as the losses (or actions in respect thereof) arise out of or are based on
a) any claim or threatened claim that our use of your trademark(s) infringes on the rights of any third party;
b) the breach of any promise, covenant, representation or warranty made by you herein; or
c) or any claim related to your site(s).
13) Disclaimers.
WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM, ANY COMPANY SERVICES, OR ITEMS SOLD THROUGH THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, 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 OUR SITE(S) WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
IN ADDITION, WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY INFORMATION DELIVERED HEREUNDER, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENTS, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION AND WE SHALL NOT HAVE ANY LIABILITY TO YOU OR TO ANY OTHER PERSON RESULTING FROM YOUR USE OR SUCH THIRD PERSON'S USE OF THE INFORMATION.
14) Miscellaneous.
Terminated accounts, except as expressly provided in Section 16 herein, cannot later apply to the Affiliate Program without our express written consent. This Agreement will be governed by the laws of the United States without giving effect to any principles of conflict of laws as if all parties were residents of such jurisdiction. The sole and exclusive venue for any action arising under this Agreement will be the provincial and federal courts sitting in the United States and you hereby submit to the jurisdiction and venue of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement shall be binding on, inure to the benefit of, and shall be enforceable against the parties and their 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. In respect of issues of privacy of users and the use of user information, the parties agree to comply with the relevant laws of the jurisdictions governing the individual users, and the respective parties hereto. The parties hereby waive any constitutional, statutory or common law right to trial by Jury.
15) Single Application.
We only allow two applications per 24-hour period. If your application was rejected because you submitted erroneous information, please resubmit an application with correct information the following day.
16) Supervening Events.
Neither party shall be liable for delay or failure in performance resulting from acts beyond the control of that party or those for whom it is responsible in law, including but not limited to acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike, lock-out, communication line or power failures, failure, inoperability or destruction of the Site or its components unless by reason of the negligence of a party to this Agreement, its employees, agents, contractors, subcontractors, or others for whom it is responsible in law.
17) Entire Agreement.
This Agreement constitutes the complete and entire expression of the Agreement between the parties with respect to the subject matter hereof, and shall supersede any and all other Agreements, whether written or oral, between the parties and all waivers hereunder must be in writing and may be amended only by a written Agreement executed by an authorized representative of each party.
18) Termination of Use
Mallcom, in its sole discretion, may terminate Your password, Your account, Your use of any of the on-line resources available on the Websites, and remove and discard any Content on the Websites, for any reason, including, without limitation, for lack of use or if Mallcom believes that You have violated or acted inconsistently with the letter or spirit of the Terms. Any termination of Your access to the Websites under any provision of the Terms may be effected without prior notice, and Mallcom may immediately de-activate or delete Your account and all related information and files in Your account and/or bar any further access to such files or to the Websites. Further, Mallcom will not be liable to You or any third-party for any termination or suspension of Your Account or Your access to the Websites.
You may terminate your account at anytime by advising us by email at:
webmasters@mallcom.com
We reserve the right to terminate any agreement at our sole discretion.
Any questions regarding this agreement should be directed to:
webmasters@mallcom.com
