A Creative Medley LLC Affiliate Agreement
This Affiliate Agreement (the “Agreement”) is made by and between A Creative Medley LLC (“A Creative Medley LLC” or “Company” or “we” or “us”), and you (“Affiliate”), regarding your application to participate as an affiliate of Company, and the establishment of links from your website to our website, https://www.acreativemedley.com.
BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN OUR AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
- Affiliate wishes to promote and sell the items made available on our website (“Product”) in exchange for affiliate commission; and
- Company wishes to compensate Affiliate for any sales of the Product.
- In consideration of the mutual promises, covenants, warranties, and other good and valuable consideration, Company and Affiliate agree as follows:
- Enrollment. To enroll, you must submit a completed Affiliate Program Signup Form, which is available at https://www.acreativemedley.com/affiliate-area-2.We will notify you of your acceptance or rejection in a timely manner. We may, in our sole discretion, determine that you and/or your website are unsuitable for our Affiliate Program and reject your application for any reason. We reserve the right to reject prospective affiliates and will provide such notification by email.
- Product. For purposes of this Agreement, “Product” means digital products made available through our website.
- Qualified Customer. For the purposes of this Agreement, a “Qualified Customer” will mean any customerof the Company. This may include any customer who has made a prior purchase from the Company.
- Promotional Materials. We may make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use by the Affiliate, including on the Affiliate’s website or social media pages (the “Promotional Materials”). The Promotional Materials we make available will be in our sole discretion. Affiliate will display the Promotional Materials on Affiliate’s website or social media pages prominently and as Affiliate sees fit, provided that the manner of display will be subject to the terms and conditions of this Agreement. Affiliate will also include a link from the Promotional Materials to Company’s website, as specified by us.
- Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site or in marketing materials will conform to the following terms, conditions and specifications:
- Affiliate may not use any graphic, textual or
other materials to promote our website, products or services other than the
Promotional Materials, unless we agree to such other materials in writing prior
to their display.
- Affiliate may only use the Promotional Materials for the purpose of promoting our website (and the products and services), and for linking to our website.
- Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as we prepare them. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from us for any alteration of modification.
- The Promotional Materials will be used to link only to our website, to the specific page and address as specified by us. Affiliate must obtain approval from our Company before using Promotional Materials in a manner not authorized under this Agreement.
- License. We grant to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License will expire upon the expiration or termination of this Agreement.
- Intellectual Property. We retain all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement will be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License as set forth in this Agreement.
- Relationship of Parties. This Agreement will not be construed to create any employment relationship, agency relationship, or partnership between Affiliate and us. Affiliate will have no authority to bind us into any agreement, nor will Affiliate be considered to be our agent in any respect.
- Company Customers. Our customers are not, by virtue of your participation in the Affiliate Program, your customers. As between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on our websites will apply to those customers and may be changed at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with one of our websites, you will state that those customers must follow contact directions on the Company’s website(s) to address customer service issues.
- Affiliate Account. We may also provide Affiliate with an Account that contains login credentials so Affiliate can access Promotional Material and commission reports. Affiliate is responsible for safeguarding Affiliate’s account information. We will not be liable for unauthorized access to Affiliate’s Account by third parties.
- Sales Tracking and Attribution. The tracking and attribution of sales to Affiliates based upon their tracking links is done automatically by the Company’s marketing automation system. Affiliates will be paid only for sales that are tracked through the Company’s marketing automation system and indicate the Affiliate Link as the source of the sale. The Company intends to use a 7-day cookie as part of its affiliate tracking. When a potential customer clicks on Affiliate’s referral link, a cookie is stored in their browser to track Affiliate’s referral. The cookie is then stored for 7 days to give your referred customers time to decide if they wish to purchase or ask us any pre-sale questions they may have. A referral won’t be awarded if the customer uses a different browser to purchase than the one they originally used to visit our site (because the cookie does not exist in that browser). Nor will a referral be awarded if the customer purchases after 7 days (because the cookie will expire) or if the customer cleans their cache or removes the cookie in any way (because the cookie will no longer exist).
- Commissions. In exchange for Affiliate’s display of the Promotional Materials and/or promotion of the Product, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, we will pay Affiliate a commission (the “Commission”) in the amount of 13% of the subtotal cost (before taxes) for each Product sold to a Qualified Customer who selects Affiliate on their order form as the Affiliate who recommend the Product. Under special circumstances (such as a special event, anniversary, etc.) Affiliate may request a coupon for Affiliate’s customers, but we do not guarantee that such a request will be granted. These amounts are subject to change by us at any time. Notification to Affiliate of any change in commission rate will be given by us at the email address on file for the Affiliate. Commission will be based on purchases made by a user for any new purchases for the duration of the cookie. The Affiliate also agrees to the following regarding commissions:
- Commissions will only be paid if Affiliate’s link
is used during the online purchase and for the duration of the cookie.
- Commissions will only be paid for sales of digital downloads. Commissions cannot be earned on sales of other Company items.
- We will keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate will be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods will be rectified by us within 14 days of discovering the discrepancy.
- Commissions are held for a period of 45 days from any purchase to protect us in the event of any return or chargeback that may occur. We will pay all Commissions accrued and payable to Affiliate within 7 days of the first day of each month (the “Commission Payment Date”) for all commissions earned at least 45 days prior to the Commission Payment Date. If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $10.00, then such accrued and payable balance will be held over to the following month, and paid together with the Commissions due for that month. If at any time, the balance of accrued and payable Commissions is held over for 2 consecutive months, then we will pay all accrued and payable Commissions to Affiliate in the third month, regardless of the total amount owed.
- Payment is made via the Affiliate’s Paypal account.
- In the event that Affiliate materially breaches this Agreement and we terminate this Agreement within 30 days of the breach, then any accrued and payable Commissions owing to Affiliate’s will be forfeited, and we will not be obligated to pay such Commissions to Affiliate.
- Right To Chargeback, Offset, and Holdback. Affiliate expressly agrees to the following:
- Affiliate agrees
that the Company will have the right to charge back the Affiliate’s account or
otherwise adjust for any previously paid Commissions that ultimately are not
commissionable under this Affiliate Agreement. Specifically, in the event that
a sale attributed to an Affiliate is charged back, refunded for any reason, or
otherwise challenged after the Commission has been paid, the Company will have
the right to charge back the Commission paid to the Affiliate.
- Affiliate further agrees that the Company will have the right to offset any Commissions due and payable to the Affiliate to account for any charge backs the Company experiences on sales for which Affiliate has already received a Commission.
- Affiliate further agrees that the Company will have the right to hold back up to 20% of the Commissions due (“the Holdback”) for a period of 90 days to ensure an ability to offset any chargebacks. In the event that the Affiliate’s chargeback percentage exceeds the Holdback for a period of two consecutive months, the Company will have the right to increase the percentage of commissions held back from Affiliate. The Company will provide written notice of any such increased holdback percentage that will apply to Affiliate.
- Company’s Representations and Warranties. Company represents and warrants the following:
- It will not knowingly and intentionally violate any law, regulation, or rule
applicable to its business operations.
- The products and/or services offered in connection with the Affiliate Program are legal products and services within the Company’s jurisdiction.
- It intends to be bound by the mutual promises, terms, and conditions of this Agreement.
- It has the necessary intellectual property and other rights to offer the products that are available for promotion under the Affiliate Program.
- Affiliate’s Representations and Warranties. Affiliate represents and warrants the following:
- Affiliate has the legal authority to enter into
this Agreement and to be bound to the promises, covenants, and other duties set
forth in this Agreement.
- Affiliate’s website does not contain any
materials that are:
- Sexually explicit, obscene, or pornographic;
- Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
- Graphically violent, including any violent video game images; or
- Solicitous of any unlawful behavior.
- Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
- Affiliate will not use the Promotional Materials in any manner other than those set forth in this Agreement.
- Affiliate will not use the Promotional Materials in any manner or otherwise make any statements that are disparaging or that otherwise portray us, or any of our employees or representatives, in a negative light.
- Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property.
- Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference us or our website unless we give prior written consent to the distribution of such materials. Affiliate will not use our name (or any name that is confusingly similar to our name) for any purpose on its website, in its promotional materials, or in any other context except to promote our website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to our name.
- Affiliate will not engage in the distribution of spam, unsolicited bulk emails, unsolicited commercial email, or any form of illegal means of communication in any way mentioning or referencing us or our website.
- Affiliate’s answers to the questions in the Application were truthful and accurate to the best of Affiliate’s knowledge.
- Affiliate will comply with CAN-SPAM, GDPR, and CA-SL requirements in connection with email marketing.
- Affiliate will comply with all applicable Federal Trade Commission rules, regulations, and guidelines related to affiliate marketing.
- Affiliate will not make use of the Company’s name, trademark, or service mark in any manner other than expressly allowed under the Affiliate Program.
- Affiliate will not engage in any behavior that violates the terms of this Agreement or that constitutes an attempt to fraudulently or deceptively increase the earnings of Affiliate under this Affiliate Program.
- Affiliate’s website does not contain any materials that are:
- Acceptable and Non-Acceptable Marketing Practices. Company and Affiliate agree to the following:
- Affiliate will post
with all applicable federal, state, and local laws and requirements. The
personally identifiable information, and shall clearly disclose all information
collection, use, and sharing practices, including any collection of information
in connection with the Affiliate Program.
- Affiliates are not prohibited from keying in prospect’s information into the lead form as long as the prospects’ information is real and true, and these are valid leads (i.e. sincerely interested in the Company’s service).
- Affiliate will not promote Company’s products: (1) in conjunction with any illegal activity, (2) on any illegal website, (3) in a manner that a reasonable person would consider threatening, harmful, defamatory, obscene, sexually explicit, harassing, or promoting violence; (4) in a manner that promotes discrimination, (5) in any manner the Company expressly deems as objectionable, or (6) in a manner that infringes upon the intellectual property or related rights held by any third party (7) inside of any Facebook groups managed by the Company.
- Links in advertisements from Affiliate must point to Affiliate’s landing pages, not the Company’s, as direct linked ads from affiliates will compete with the Company’s advertisements for placement and advertisement serving frequency. If Affiliate is advertising in an entirely different place than the Company, than Affiliate may request for an exemption from this requirement.
- Competitive brand bidding, where affiliates bid on the Company’s competitors’ trademarked terms, is strictly prohibited.
- Affiliate is prohibited from directly competing with the Company on specific media properties and keywords.
- Affiliate may not register domains that contain the Company’s brand and/or typos of the Company’s brand.
- Affiliate will not use evasion tactics to hide affiliate links when the visits are from either the Company or from search engine editorial bots checking on paid ads.
- Affiliate will not use of the Company brand in ad copy text or in the display URL if the Affiliate is prohibited from brand use under this Agreement or otherwise agreed to by the parties.
- Affiliate will not engage in any false advertising or claim that shows the Company or our competitors in a false or misleading light.
- Affiliate will not old invalid offers that have expired.
- Affiliate will not copy the Company’s landing pages. At the Company’s discretion, the Company may supply the Affiliate with advertisement copy or landing page language.
- “Parasiteware™” and “Parasitic Marketing. Affiliate will not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited the site (i.e., no page from our site or any Company website content or branding is visible on the end-user’s screen). “Parasiteware™” and “Parasitic Marketing” mean an application that:
- through accidental or direct intent
causes the overwriting of affiliate and non affiliate commission tracking
cookies through any other means than a customer initiated click on a qualifying
link on a web page or email;
- intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines);
- set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open the Company’s site;
- targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; or
- removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
- Indemnification. Affiliate will indemnify us and hold us harmless from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in this Agreement. Affiliate will also indemnify us and hold us harmless for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
- Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with us under this Agreement, which information is not available to the general public, will be considered to be “Confidential Company Information.” Affiliate may not disclose any of Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from us.
- Term. This Agreement will take effect immediately, and will remain in full force and effect indefinitely, or until terminated pursuant to this Agreement. Either Party will have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination. Affiliate will be paid for all commissions owed up to the date of termination in accordance with this Agreement. Company may terminate this Agreement for cause if Affiliate is found to be in violation of this Agreement. Affiliate will forfeit any commission due if this Agreement is terminated for cause.
- Taxes. We will not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with us as set forth in this Agreement. We will not withhold any taxes from the Commissions paid to Affiliate. You are responsible for providing us with accurate tax and payment information that is necessary to issue you a commission fee. If we do not receive the necessary tax or payment information within 90 days of a qualified purchase which would otherwise trigger commission fees, the applicable commissions shall not accrue and no commission fees will be owed with respect to such qualified purchase.
- Required Tax Information. You are required to submit a W8/W9 tax form, and you are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, we will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold. You agree to inform us about changes to postal and e-mail addresses, as well as any changes to your name, email address, contact information, tax identification number, or other personal information that will impact our ability to issue a valid commission payment. Any address changes must be made at least 15 business days prior to the end of the calendar month in order for commission fees for that month to be sent to the revised address.
- Third Party Services. We may, in our sole discretion, make use of Third Party Services to administer our Affiliate Program. We will not be responsible for any delays of payment, downtime, or errors that occur as a result of any third-party administration of our program. We will make every effort to rectify errors but Affiliate agrees to release Company from any errors or delays caused by a third party.
- Limitation of Liability. We will not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether we were or should have been aware or advised of the possibility of damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
- FTC Disclosure Policy. It is our intent to treat our customers fairly and to comply fully with all applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides (See the FTC Endorsement Guide for more information). This means that all Affiliate websites (including directories, review/rating sites, blogs and other websites), and any email or collateral that provides an endorsement or assessment of us, must prominently disclose the fact that Affiliate may receive compensation for referring customers to us. For more information and suggestions about how to comply with these guidelines, please visit the FTC Endorsement Guide Affiliate is advised to seek and obtain its own legal advice on how these rules apply to Affiliate’s website or other promotional activities for which Affiliate receives compensation. We reserve the right to withhold commission fees and cancel the affiliate relationship with Affiliate should we determine, in our sole discretion, that Affiliate is not in compliance with the previously mentioned guide or other FTC regulations/guides that we deem relevant.
- Governing Law. The laws of the United States and the State of Wisconsin will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the state courts located in Waukesha, Wisconsin, or the Federal District Court for the District of Waukesha and Affiliate irrevocably consents to the jurisdiction of such courts.
- Assignment. Affiliate may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
- Waiver. Our failure to enforce Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.’
- Modification. We may, at any time and in its sole discretion, modify any of the terms and conditions contained in this Agreement. Unless otherwise provided, such modifications will take effect when posted on our website and apply to all referral fees that have not yet accrued. If we make any significant changes to this Affiliate Agreement, we will post a notice on this page for at least 30 days after the changes are posted and will indicate at the bottom of this Affiliate Agreement the date of the last revision. In addition, we will use reasonable efforts to provide Affiliate with 7 days advance notice of any changes that materially impact Affiliate’s participation in the Affiliate Program. Unless otherwise provided, Affiliate’s continued participation in the Affiliate Program following our posting of any modification on our website will constitute Affiliate’s acceptance of all changes. If Affiliate does not agree to any such changes, Affiliate’s sole and exclusive remedy is to deactivate Affiliate’s account as described above.
- Severability. If any part or parts of this Agreement will be held unenforceable for any reason, the remainder of this Agreement will continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision will be deemed to be construed as so limited.
- Headings. The section headings are for convenience only and will not affect the meaning of the provisions of this Agreement.
- Entire Agreement. This Agreement constitutes the entire agreement between us and Affiliate, and it supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
I INDICATE MY APPROVAL OF THIS AGREEMENT AND DESIRE TO BECOME AN AFFILIATE UNDER THESE TERMS AND CONDITIONS BY COMPLETING AND SUBMITTING THE AFFILIATE PROGRAM SIGNUP FORM, BY SUBMITTING PROPOSED REFERRED CUSTOMERS OR QUALIFYING PURCHASES TO US UNDER OUR AFFILIATE PROGRAM AND/OR BY COLLECTING ANY COMMISSION FEES FROM US.