Zoomget Affiliate Program Agreement
This Affiliate Program Agreement (“Agreement”) describes the terms and conditions applicable to membership in the Zoomget’s affiliate marketing program (“Program”). The program is operated through Zoomget LLC (“Zoomget”) and is intended to facilitate visitors to Zoomget’s website.
The Program is professionally managed by ShareASale.com Inc. (“ShareASale”) as an affiliate network provider. Zoomget is a merchant (“Merchant”) in the Program who desires to have affiliates (“Affiliates”) in the Program market, advertise, and promote the products of Zoomget. Additionally, the Program is intended to direct visitors of the Affiliates website, to Zoomget’s website.
As stated previously, the Merchant has the sole discretionary right to refuse any Affiliate at any time, from participating in the Program. Affiliates and their websites that will not qualify for the Program include Affiliates and their sites that:
- Disparages the Merchant, Zoomget, or their clients, competitors, or any respective products or services.
- Violates or infringes upon the intellectual property, or other rights of a third party including but not limited to third party trademarks, logos, and/or brand names.
- Is hateful, tortious, defamatory, slanderous or libelous.
- Promotes discrimination, bigotry, racism, sexism, hatred, or harm against any group or individual, or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, gender identity, or age.
- Promotes violence, illegal activities, illegal drugs, firearms/weapons, or the use of any foregoing.
- Promotes any activates that may appear to be unsafe, dangerous, or unlawful.
- Contains any nudity or any sexually explicit, lewd, offensive, disparaging, or other inappropriate content..
- Communicates messages or images inconsistent with the positive images and goodwill with which the Merchant, and Zoomget and their clients wish to be associated with.
- Lists coupons, discounts, or links that were not provided by the Merchant or through ShareASale directly.
- Infringe or violate intellectual property rights including copyright, and trademarks of the Merchant, Zoomget, and their clients.
Creatives, Content and Intellectual Property
Limited License to Use Merchant’s and Zoomget’s Creatives, Content and Intellectual Property
After meeting all of the requirements for membership into the Program, Affiliate shall be granted a limited, revocable, non-transferable, non-exclusive license to use in the United States and Canada those creatives, content, and intellectual property that Merchant and Zoomget specifically provide to the Affiliate under this Agreement. Affiliates use of the aforementioned shall at all times be subject to the Merchant and Zoomget approval for continued use during the Program as described in this Agreement. The Merchant and/or Zoomget shall provide reasonable guidelines for the usage of intangible property provided to the Affiliate. As described below Zoomget’s Intellectual Property and Branding Guidelines must be adhered to by the Affiliate at all times. The Merchant and Zoomget may at any time, at their sole discretion give notice to an Affiliate to cease using the aforementioned intangible property, and with such notice this limited license shall be terminated.
Affiliate Marketing Activities and Permitted Usage
Payment to Affiliates
Representations and Warranties of an Affiliate
- Affiliate has established and implemented practices and procedures to insure full compliance with all federal, state and local laws, and regulations pertaining to the CAN-SPAM Act of 2003 and with all federal telemarketing regulations. Affiliate will immediately contact the Merchant if Affiliate receives any complaints or notices from visitors, or legal authority to their website, or by way of any other forms of communication. Affiliate will indemnify and hold harmless the Merchant and/or Zoomget, from any and all third party and governmental claims resulting from Affiliate’s acts or omissions that allegedly violate any federal, state, or local law.
- Affiliate has all requisite power and authority to execute and deliver this Agreement and has all necessary power and authority to perform the obligations of Affiliate as set out herein;
- By entering into this Agreement, Affiliate will not result in the violation of any of the terms and provisions of any agreement, written or oral, to which Affiliate may be a party;
- The performance by Affiliate of all its obligations hereunder, will be conducted in compliance with all applicable laws of the jurisdiction noted in this Agreement.
Affiliate acknowledges that in its relationship with Merchant and Zoomget and/or by virtue of the performance of this Agreement, it and/or its employees, shareholders, officers, directors, principals, agents and contractors (collectively, “Representatives”) will be and shall hereafter continue to be entrusted with confidential information (as defined below) hereinafter referred to as “Confidential Information”, the disclosure of any of which to competitors of the Merchant and Zoomget or to the general public would be highly detrimental to the best interests of the Merchant and Zoomget Affiliate further acknowledges that the right to maintain confidential such Confidential Information constitutes a proprietary right of the Merchant and Zoomget, which the Merchant and Zoomget is entitled to protect. Accordingly, and notwithstanding anything to the contrary herein expressed, Affiliate covenants and agrees with Merchant and Zoomget:
- that Affiliate shall not use or copy, or permit the use or copy of any of the Confidential Information, directly or indirectly, for any purpose other than the discharge of its duties and obligations arising from its qualification as an Affiliate hereunder and only in the best interests of the Merchant and Zoomget;
- that it will maintain the absolute confidentiality of the Confidential Information and that it will not (without the prior written consent of the Merchant or Zoomget, as applicable) either individually, or in partnership or jointly, or in conjunction with any other party, as principal, agent, shareholder, or in any manner whatsoever, disclose, reveal, release, utilize, sell, assign, supply, or transfer to any person at any time, any of the Confidential Information, except to the extent necessary to discharge Affiliates duties and obligations relating to its qualification hereunder and only in the best interests of the Merchant and Zoomget;
- that it will take all necessary action and will do all that is reasonably within its power to prevent the disclosure, release or supply of any of the Confidential Information to any Person, including by any of its representatives, except to the extent necessary to discharge its duties and obligations hereunder and only in the best interests of the Merchant and Zoomget;
- in furtherance of the above, Affiliate will advise its representatives, and any other parties who are given access to the Confidential Information, of the confidential and proprietary nature of the Confidential Information and of the restrictions imposed by this Agreement and, if appropriate, shall require each of them to signify in writing their agreement to abide by the terms of this Agreement and maintain the confidentiality of the Confidential Information. Notwithstanding any such agreement, by any of such representatives, Affiliate acknowledges that it shall be fully responsible and liable to the Merchant and Zoomget for any and all damages and costs (including legal fees) suffered or incurred by it as a consequence of any breach by any of Affiliate’s representatives, and/or any other parties given access to the Confidential Information, of the restrictive covenants contained herein.We have implemented the following:We, along with third-party vendors such as Google use first-party cookies (such as the Google Analytics cookies) and third-party cookies (such as the DoubleClick cookie) or other third-party identifiers together to compile data regarding user interactions with ad impressions and other ad service functions as they relate to our website.
Limitation of Liability and Indemnities
We, Affiliate acknowledges that the restrictions contained in this Agreement are reasonable and valid and necessary for the protection of the business and operations of the Merchant and Zoomget and that any breach of the provisions will cause the Merchant and Zoomget substantial and irreparable harm which may not be adequately compensated for by monetary award of damages to the Merchant and Zoomget. Accordingly, it is expressly agreed by Affiliate that in the event of any such breach, in addition to any other remedies which may be available to it, the Merchant or Zoomget shall be entitled to and may seek an order for specific performance and other injunctive and equitable relief as may be considered necessary or appropriate to restrain or enjoin Affiliate from any further breach of the terms hereof and Affiliate hereby waives all defences to the strict enforcement by the Merchant and Zoomget of the restrictions herein.
“Confidential Information” means any and all information, documentation or knowledge in any form, relating to the business and assets of the Merchant or Zoomget, not generally known to the public, disclosed to, or which may be obtained directly or indirectly by, the Affiliate, or which may be derived in any way by it as a consequence of the performance of its obligations hereunder, including, without limitation, information relating to the Merchant’s or Zoomget’s present and contemplated products and services; product designs; inventions, improvements; standards, specifications, systems, methods and operating procedures; techniques and modes of manufacturing, compounding or preparing products, formulations and recipes; merchandising, marketing plans and strategies; tests and reports; profits, costs, pricing, product sourcing and sales policies and strategies; buying habits and preferences of present customers of the Merchant or Zoomget as well as prospective and potential customers, their names and addresses; trade secrets, know-how, data, research and development; patent, trade-mark, copyright, industrial design and all other intellectual property and proprietary rights and shall also include terms of this Agreement.
Disclaimer of Warranties and Additional Limitation of Liability
Zoomget’s website www.zoomget.com if provided on an “as-is” basis Zoomget makes no warranties either express or implied, concerning the accuracy, security, performance or functionality of the website, including whether the website is error or virus free. And expressly disclaims all implied warranties, including warranties of merchantability and fitness for a particular use of purpose, and non-infringement. The website is subject to revision at any time.
Under no circumstances shall Zoomget be liable to Affiliate, Affiliate’s visitors, users or subscribers, or any other party claiming through the Affiliate for any loss, liabilities, injury, or damage, of whatever kind or nature, resulting from or arising out of any mistakes, errors, omissions, delays, or interruptions in the receipt, transmission, or storage of any messages or information arising out of or in connection with the Zoomget’s website. And without limiting the foregoing, Zoomget shall in no event be liable for any indirect, incidental, punitive, exemplary damages, or special damages, lost profits, lost opportunities, lost savings, lost data, or any other form of consequential damages, regardless of the form of the action.
Any notice, request, demand, consent or other communication required or permitted under this Agreement of the Affiliate shall be sent to the Merchant at the following address:
Tel: (888) 821-3371 ext. 105
Affiliate shall provide the Merchant and ShareASale their notice address upon setting up the Program as proscribed by ShareASale.
Either party may change its address for notices and other communications upon notice to the other party by way of electronic means, however upon such change the non-changing party has to confirm the address change.
This Agreement, constitutes the entire agreement and understanding between the parties with respect to all matters herein and supersedes all prior oral or written agreements and understandings between the parties with respect to the subject matter of this Agreement.
The words “hereof”, “herein”, “hereunder” and similar expressions used in any section of this Agreement relate to the whole of this Agreement and not to that section only, unless otherwise expressly provided for or the context clearly indicates to the contrary. Words importing the singular number only will include the plural and vice versa and words importing the masculine gender will include the feminine and neuter genders and vice versa. The word “including” will mean “including without limitation”.
The Merchant may sell, transfer and assign any or all of its rights and obligations arising from this Agreement to any party, upon notice to Affiliate, provided that the assignee shall agree in writing to be bound by the covenants and agreements contained herein and so assigned by the Merchant. Upon such assignment and assumption, the Merchant shall be under no further obligation hereunder with respect to any of the rights and obligations so assigned. Affiliate shall not assign or transfer its rights or obligations under this Agreement or any document relating to this Agreement to any party without the prior written consent of the Merchant. This Agreement shall be binding upon and ensure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted assignment in violation of this section shall be void and of not effect.
The status of Affiliate shall be that of an independent contractor. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties or constitute or be deemed to constitute Affiliate as the agent of the Merchant or Zoomget for any purpose whatsoever and Affiliate shall have no authority or power to bind Merchant or Zoomget in any manner whatsoever or to assume or incur any obligation or responsibility, express or implied, for or on behalf of, or in the name of the Merchant or Zoomget, except as specifically provided for herein. Affiliate shall not list, print or display the Merchant’s or Zoomget’s name in any manner so as to indicate or imply that there is an employer-employee or a principal-agent relationship between the Merchant or Zoomget and Affiliate.
The failure by either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect its right to require performance at any time thereafter, and no term or provision of this Agreement is deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party to have so waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach by such other party of the same or any other provision.
Time shall be of the essence of this Agreement.
If any provision of this Agreement shall, to any extent, be held to be invalid or unenforceable, it shall be deemed to be separate and severable from the remaining provisions of this Agreement, which shall remain in full force and effect and be binding as though the invalid or unenforceable provision had not been included.
Each of the parties hereto covenant and agree to execute and deliver such further and other agreements, assurances, undertakings or documents, as may be necessary or desirable in order to give full effect to this Agreement.
Unless otherwise specifically provided for in other communications or documentation, all monetary amounts referred to herein shall be in lawful U.S. dollars.
The division of this Agreement into articles and sections is for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
The language of all communications between the parties pursuant to this Agreement, including notices and reports, will be the English language.
The Merchant and/or Zoomget may modify this Program or the terms and conditions within this Agreement at any time and at our sole discretion. These modifications may include, but are not limited to the expansion of the Merchant’s and/or Zoomget’s scope of business and therefore will be added to the Program and Agreement, payment and commission structure changes, payment procedures, and any added or modified Program rules. If Affiliate does not agree with any changes, Affiliates only course of action is to terminate this Agreement. If after any modifications, Affiliate continues to participate in this program, it will be considered as Affiliate’s acceptance of all said modifications.
This Agreement shall be governed by the laws of the State of Washington, with King County, Washington being venue for any disputes or litigation pertaining to this Agreement.
The Merchant and Zoomget strictly prohibit affiliates from using spam e-mail and other forms of Internet abuse (including but not limited to spamming forums, blogs, social media platforms including Twitter and Facebook, chat rooms) to seek sales. Certain off-line activities that, while may not be considered Spam, are similar in nature are also prohibited. Such activities include distributing flyers or leaflets on private property or where prohibited by applicable rules, regulations, or laws.