Affiliate Program Operating Agreement This Affiliate Program Operating Agreement (the "Agreement") is made and entered into by and between ProjectManager.com ("ProjectManager.com" or "we"), and you, ("you" or "Affiliate") the party submitting an application to become a ProjectManager.com affiliate). The terms and conditions contained in this Agreement apply to your participation with ProjectManager.com ("Affiliate Program"). Each Affiliate Program offer (an "Offer") may be for any offering by ProjectManager.com or a third party (each such third party a "Client") and may link to a specific web site for that particular Offer ("Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
You must submit an Affiliate Program application from our website. You must accurately complete the application to become an affiliate (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program, generally within three (3) business days. We may accept or reject your application at our sole discretion for any reason.
Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement, ProjectManager.com agrees as follows:
We will make available to you via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the "Links") which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, "Media"). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site.
We will pay Affiliate for each Qualified Action (the "Commission"). A "Qualified Action" means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by ProjectManager.com and (v) payment is actually received by ProjectManager.com for the correct amount, (vi) the action is not later determined by ProjectManager.com to be fraudulent, incomplete, unqualified or a duplicate, (vii) and the individual is authorized to enter into an agreement with ProjectManager.com and to use the information required for such action.
We will calculate commissions earned within a calendar month ("Conversion Period") and pay you any Commissions earned within 60 days after the Conversion Period, provided that your account is currently greater than $0. Accounts with a balance of less than $0 will roll over to the next month, and will continue to roll over monthly until $0 is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action, including but not limited to refunds, fraudulent charges, or billing systems errors.
Payment for Commissions is dependent upon Clients providing such funds to ProjectManager.com, and therefore, you agree that ProjectManager.com shall only be liable to you for Commissions to the extent that ProjectManager.com has received such funds from the Clients. You hereby release ProjectManager.com from any claim for Commissions if ProjectManager.com has not received such funds from the Clients or if ProjectManager.com refunds such payment to the Clients.
ProjectManager.com will generate a PayPal payment to the Affiliate for all Commissions payable under this Agreement. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by ProjectManager.com in its sole discretion. In the event that Affiliate disputes any payment, Affiliate must submit that dispute to ProjectManager.com in writing and in sufficient detail within thirty (30) days of the date of payment. If Affiliate does not dispute the payment within that period, then they irrevocably waive any claims based upon that payment. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide ProjectManager.com with Affiliate's reports within three (3) days after 30th day of the calendar month, and if ProjectManager.com's and Affiliate's reported statistics vary by more than 10% and ProjectManager.com reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then ProjectManager.com and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then ProjectManager.com's numbers shall govern.
If Affiliate has an outstanding balance due to ProjectManager.com under this Agreement or any other agreement between the Affiliate and ProjectManager.com, whether or not related to the Affiliate Program, Affiliate agrees that ProjectManager.com may offset any such amounts due to ProjectManager.com from amounts payable to Affiliate under this Agreement.
Affiliate will be paid based on monthly recurring income earned, depending on the commission package chosen. In the rare case that a customer prepays their account for 1-3 years, then a commission is not applicable.
Affiliate also agrees to:
Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), contains profanity or otherwise contains materials that ProjectManager.com informs you that it considers objectionable (collectively, "Objectionable Content").
Not make any representations, warranties or other statements concerning ProjectManager.com or Client or any of their respective products or services, except as expressly authorized herein.
Make sure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by ProjectManager.com or Clients or a part of the Program Web Site, without prior written permission from us. You must also comply with the ProjectManager.com Brand and Style Guide.
Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
Comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by ProjectManager.com or Client, or as required by applicable laws regarding such Offers.
Except as otherwise provided in this Agreement or with the consent of ProjectManager.com, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site.
You may not alter, modify, manipulate or create derivative works of the Links or any ProjectManager.com graphics, creative, copy or other materials owned by, or licensed to, ProjectManager.com in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you email notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of ProjectManager.com's trademarks, service marks, copyrights, patents or trade secrets. You agree that ProjectManager.com may use any suggestion, comment or recommendation you choose to provide to ProjectManager.com without compensation. All rights not expressly granted in this Agreement are reserved by ProjectManager.com.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a email notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all ProjectManager.com or Client intellectual property, and will cease representing yourself as a ProjectManager.com or Client affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
We strongly advise affiliates to stay compliant with the Federal Trade Commission (FTC) guidelines on testimonials and endorsements. All endorsements, reviews, testimonials on ProjectManager.com's products and services, as well as relationships, between other types of content websites (forums, blogs, microblogs and other Social Media channels) and ProjectManager.com must be clearly disclosed in a separate policy of the affiliate sites. The FTC points out that "where there exists a connection between the endorser and the seller of the advertised product" it is imperative that such as connection is "fully disclosed." The FTC deems the relationship in an endorser-sponsor light and believes that the end user has the right to understand that one exists. Click to read full text. We share the undergirding idea of this approach and strongly encourage our affiliates to adhere to the FTC's rules. We also reserve the right to terminate our relationship with any non compliant affiliates.
In addition to any other rights and remedies available to us under this Agreement ProjectManager.com reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) ProjectManager.com determines that you have violated this Agreement, (ii) ProjectManager.com receives any complaints about your participation in the Affiliate Program which ProjectManager.com reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, ProjectManager.com reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You must strictly comply with the federal CAN-SPAM Act of 2003 (the "Act"). All emails sent in connection with the Affiliate Program must include the appropriate party's opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing the Affiliate Program that you submit the final version of your email to ProjectManager.com for approval by sending it to your ProjectManager.com representative and upon receiving written approval from ProjectManager.com of your email the email may be transmitted to third parties.
It is solely your obligation to ensure that the email complies with the Act. You agree not to rely upon ProjectManager.com's approval of your email for compliance with the Act, or assert any claim that you are in compliance with the Act based upon ProjectManager.com's approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. ProjectManager.com shall make all determinations about fraudulent activity in its sole discretion.
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, ProjectManager.com represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to ProjectManager.com's own business operations or ProjectManager.com's proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Affiliate Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, ProjectManager.com may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from ProjectManager.com to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Affiliate Program.
Affiliate hereby agrees to indemnify, defend and hold harmless ProjectManager.com and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Affiliate herein, (ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Links, Offers or ProjectManager.com or Client intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media (except for the Links).
ProjectManager.com hereby agrees to indemnify, defend and hold harmless Affiliate and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that ProjectManager.com is not authorized to provide you with the Links.
THE AFFILIATE PROGRAM AND LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO AFFILIATE "AS IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, ProjectManager.com EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ProjectManager.com DOES NOT WARRANT THAT THE AFFILIATE PROGRAM OR LINKS WILL MEET AFFILIATE'S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE AFFILIATE PROGRAM OR LINKS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. ProjectManager.com EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THEIR PRODUCTS OR SERVICES. ProjectManager.com DOES NOT GUARANTEE THAT AFFILIATE WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
IN NO EVENT SHALL ProjectManager.com BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF ProjectManager.com. IN NO EVENT WILL ProjectManager.com BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ProjectManager.com HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. ProjectManager.com'S CUMULATIVE LIABILITY TO AFFILIATE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE BY ProjectManager.com IN COMMISSIONS DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
Affiliate shall be responsible for the payment of all attorneys fees and expenses incurred by ProjectManager.com to enforce the terms of this Agreement. This Agreement contains the entire agreement between ProjectManager.com and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Affiliate agrees that ProjectManager.com shall not be subject to or bound by any Affiliate insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether ProjectManager.com "clicks through" or otherwise indicates its acceptance thereof. Affiliate may not assign all or any part of this Agreement without ProjectManager.com's prior written consent. ProjectManager.com may assign this Agreement at any time with notice to Affiliate. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the "Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. This affiliate program is intended for use by your customers. You are not to use it for the purpose of gaining a discount to ProjectManager.com for your own internal use.
By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. This Agreement was last revised on 10-10-2010