This Agreement describes the entire terms and conditions for participation in the GermanPod101.com Affiliate Marketing Program.
As used in this Agreement, “we”, “our”, or “ILL” means Innovative Language Learning, USA, LLC, a Delaware limited liability company, and “you”, “your,” “applicant,” or “Affiliate” means the affiliate applying to join the Affiliate Marketing Program.
“Product Site” means GermanPod101.com and all pages on the site.
“Product” means any subscription plan sold on the Product Site.
“Sponsoring Website” individually and collectively means your website and/or e-mail communications and/or software applications from which you will place Referral Links to the Product Site.
“Referral Link(s)” means the specific URLs assigned to a Sponsoring Website under this Affiliate Marketing Program.
“Affiliate Marketing Program” means the program managed by or on behalf of us by which participating entities place links on their Sponsoring Website that connect to the Product Site and for which a referral fee is earned for Qualifying Purchases.
The terms “Qualifying Purchase”, “purchase”, “sale,” or “Affiliate sale,” used in this Agreement mean the purchase of a Product by third parties who navigate from your Sponsoring Website to the Product Site through a Referral Link. Purchases of Products made through any links other than Referral Links are not included.
“Net Proceeds” will mean the gross proceeds received by ILL from Qualifying Purchases, less costs and expenses attributable to taxes, shipping and handling, fraud, bad debts, and duties.
“$”, “dollar” or “dollars” mean US Dollars.
This Agreement shall become effective on the date of our acceptance of your application to enroll the Sponsoring Website in our Affiliate Marketing Program, such application signifying your acceptance of this Agreement. The term of this Agreement shall end when either party gives a thirty (30) days termination notice to the other unless otherwise terminated according to the provisions set herein.
Unless there is an obvious problem, our procedure is typically to accept all applicants in good faith, but we reserve the right to reject applicants later or terminate this Agreement at any time if we determine, in our sole discretion, that you have breached any terms of this Agreement and/or if your website is deemed in our sole discretion not to be a good fit for our brand. You knowledge that if we terminate this Agreement for reasonable cause, you shall forfeit any accumulated earnings in your account as of the date of termination. This does not limit our right to seek other remedies under law or equity.
You are free to promote the Referral Link as you see fit, provided you do not participate in any of the forbidden actions set out in Section 4. The Affiliate center of the Product Site consists of our recommended ways of promotion, including through banners, text links, and letters of recommendation to newsletter subscribers or to your client base. You may add as many links as you wish to the Product Site or to remove such links at any time and without prior approval from ILL.
Examples of acceptable ways to promote the products are: through banners, text links, and letters of recommendation to newsletter subscribers or to your client base. However, if you use SPAM (in any way, shape or form, including email and newsgroup spamming), or offer our Products on any WAREZ, CRACK, or SPAM oriented website, your account will be immediately terminated for breach and you shall forfeit any accumulated earnings in your account as of the date of termination.
As the Affiliate, you are solely responsible for your Sponsoring Site and for ensuring that your reviews, product descriptions and articles (if applicable at your Sponsoring Site) obey all applicable copyright and other laws. You must have express permission to use another party’s copyrighted material. We will not be responsible if you use another party’s copyrighted material in violation of the law.
This Agreement will be terminated without notice if, in our sole discretion, we determine that the Affiliate has breached any or all of the following explicitly prohibited actions. THE AFFILIATE WILL FORFEIT ANY ACCUMULATED UNPAID EARNINGS IF THE AGREEMENT IS TERMINATED UNDER THIS PROVISION.
Click Fraud: Affiliate shall not, either directly or indirectly, act, encourage or require users to click on links to Product Site and/or generate clicks or orders through any means that could be reasonably interpreted as coercive, incentivized, misleading, malicious, or otherwise fraudulent.
Inappropriate Content: No Referral Link should be placed on any page or screen that contains content that:
Own Purchases: Affiliate shall not use their own affiliate link in order to receive commissions on their own purchases.
Upon joining our Affiliate Marketing Program, we will provide Affiliates with a unique Referral Link(s) and a cookie set to never expire so that the Affiliate will be credited for any sale that occurs on a return visit by a referred user. However, the cookie containing your identification may be replaced with the cookie of another participant of this Affiliate Marketing Program if the user subsequently accesses the Product Site from the link of the other participant.
We will exercise reasonable care in tracking the Qualifying Purchases. The Affiliate shall be responsible for ensuring that these special unique Referral Links are formatted properly, which is necessary for the tracking of sales. You will be responsible for integrating the Links into your site to properly enable sales tracking, and we will not be responsible for your failure to do so, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to you under this Agreement. Statements of Qualifying Purchases activity will be provided to the Affiliate via a special URL assigned to your account.
The price charged for every Product will be determined by ILL according to our own pricing policies. In case of any price discrepancies, the price charged to the customer will always be the price listed on the Product Site linked from your Sponsoring Site. Product availability can change at any time at our discretion.
We will exercise reasonable efforts to keep the Product Site operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. The Affiliate agrees not to hold ILL liable for any consequences that may result from such interruptions.
Unless otherwise agreed in writing between the parties, we will pay you a commission equal to 25% of the aggregate Net Proceeds received from Qualifying Sales originating from your Referral Link(s) (“Referral Fee”). Referral Fees will also be payable on subsequent subscription renewals made to customers during the Term of the agreement who previously made a Qualifying Purchase through a Referral Link from you under this Affiliate Marketing Program. Affiliate shall be responsible for all taxes associated with the receipt of any payments.
Payments for the applicable Referral Fee shall be made to the Paypal account in the name and address you provide to us on or about the first Friday of every month. You are solely responsible for ensuring that the account information is accurate and up to date. If, during any calendar month, referral fees do not exceed the payout minimum (currently set at $50.00 but may be changed at our discretion at any time), then you may not receive payments until the following calendar month during which your aggregate referrals fees equal or exceed said amount or until the termination of this agreement, whichever occurs earlier.
You are eligible to earn a Referral Fee only for Qualifying Purchases made during the Term of this Agreement. No payment will be made to Affiliate for sales that result in refunds or returns and, at our own discretion, we may elect to withhold payment for a reasonable time to ensure against cancellations or refunds. If the commission has been paid to the Affiliate for a purchase later returned by the customer, the commission for such purchase will be deducted from the next monthly payment. Referral Fees earned through the date of expiration or cancellation of this agreement will remain payable only if the products are not returned or the orders canceled. Remittance of the final referral fee payment to the Affiliate may be withheld for a reasonable time in order to ensure that the correct amount is paid.
You hereby recognize our right of ownership (or license) of all trademarks, trade names, and other intellectual property rights associated with the Product Site and the Products. You will act consistently with these rights and act to preserve them in the course of marketing and sales of our Products. We hereby grant you a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between your Sponsoring Website and our Product Site and to use our trade names, logos, trademarks and service marks (the “Product Site Marks”) on your Sponsoring Site solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform your obligations under this Agreement; provided, however, that any other usages shall be subject to our prior written approval.
You hereby grant to us, during the Term, a non-exclusive, non-transferable, royalty-free license to use your trade names, logos, trademarks and service marks (the “Affiliate Marks”) solely as is reasonably necessary to make reference to you in our marketing collaterals and Product Site (including related sites owned and/or operated by ILL) and to otherwise perform our obligations under this Agreement; provided, however, that any other usages shall be subject to your prior written approval.
Except as set forth above, you and we each reserve all right, title and interest in respective intellectual property rights and use of the other’s intellectual property is strictly prohibited.
Each party hereby represents and warrants that:
We make no warranties, representations or conditions with regard to this Affiliate Marketing Program, the Product Site, or the Products except as expressly set forth in the Product Site’s then-current product sales policies, including without limitation any implied warranty of merchantability or fitness for a particular purpose or non-infringement or any implied warranty arising out of course of performance, course of dealing, or usage of trade.
ILL shall have no liability for any indirect, incidental, special or consequential damages or any loss of revenue or profits arising under or with respect to this Agreement or the Affiliate Marketing Program, even if we have been advised of the possibility of such damages. Further, in no event shall our aggregate liability arising under or with respect to this Agreement and/or the Affiliate Marketing Program exceed the total referral fees paid or payable by us to Affiliate under this Agreement for the preceding twelve (12) months from the date of claim.
We agree to indemnify, defend and hold harmless you and your affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney’s fees) relating to the operation of our Product Site, a breach of our obligations under this Agreement, or the violation of any third party intellectual property rights by the materials we provide to you for display on your Sponsoring Site.
You agree to indemnify, defend and hold harmless us and our affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney’s fees) relating to the operation of your Sponsoring Site, a breach of your obligations under this Agreement, or the violation of any third party intellectual property rights by your Sponsoring Site or by materials you provide to us for display on our promotional materials and/or websites.
Governing Law: This Agreement shall be construed under the laws of the State of Delaware without regard to principles of conflicts of law. Any action to arising hereunder will be brought in the federal or state courts of Delaware.
Arbitration: If a dispute shall arise between the parties concerning this Agreement, and we are unable to amicably resolve such dispute, we shall submit such dispute to binding arbitration by a single arbitrator, in accordance with the then current commercial arbitration rules promulgated by the American Arbitration Association. Any such arbitration shall be conducted exclusively in New York. The decision of such arbitrator shall be in writing and shall be final and binding.
Independent Contractor: The relationship between you and ILL is one of independent contractor and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate shall not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to the foregoing restriction, this agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and assigns.
Force Majeure: Neither party will be considered to be in breach of, or default under, this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written to the other and will use commercially reasonable efforts to minimize the impact of the event.
Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations and agreements, oral or written, with respect to the subject matter hereof. If one or more provisions of this Agreement shall be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, provided the surviving Agreement materially comports with the original intent of the Parties. Waiver by ILL of any breach of this Agreement shall not constitute a waiver of any subsequent breach of this Agreement.
Notice: Any notices under this Agreement will be given in writing. Notices to ILL may be given by electronic mail to firstname.lastname@example.org and notices to Affiliate may be given by electronic mail used on your application form (and if applicable, as updated), which shall be deemed delivered and given for all purposes on the sent date, but only if the receiving party has confirmed its receipt.
Modification: We reserve the right to change any of the terms and conditions of this Agreement, at any time and at our sole discretion, by posting a new agreement on the Product Site. If you disagree with any of the updated terms, your sole remedy is to terminate within seven (7) days from the date of notice. Your continual participation in the Affiliate Marketing Program indicates your acceptance of the updated terms.
By signing up for our affiliate program, you are in effect, agreeing to the above Affiliate Agreement.