Affiliate Agreement
For Kolimbo the KowaBunga! Technologies Open Network
Introduction
This Affiliate Agreement (hereinafter the "Agreement") is made by and agreed to between KowaBunga! Technologies ("KowaBunga"), and you ("You"). As an application service provider, KowaBunga facilitates "Affiliate Marketing Programs" through “My Affiliate Program” also known as “MyAP” Affiliate Tracking and Management Software via the Internet.
Affiliate Marketing Definitions
Affiliate - a person, company, entity, affiliate or its agent operating one or more web site(s) and/or subscription email list(s) where advertisements, endorsements or other references to a Merchant’s offerings are displayed. For the purpose of the Agreement, You are considered an Affiliate.
Merchant – a person, company or entity operating one or more web site(s) where their products, services or other offerings are displayed and/or sold.
Transactions (“Reward able Actions”)- actions by Visitors as defined by the Merchant made from such Affiliate's Web site or subscription emails through a click made by a Visitor. Transactions may include clicks, leads, downloads, sales or any other action deemed reward able by the merchant, as defined in the merchant’s agreement, or negotiated with merchant.
Visitor - any person or entity that is not the Affiliate or the Affiliate's agent who clicks on a link provided by the Affiliate in order to visit the Merchant’s site.
Commissions – financial compensation paid to You for referred Transactions to a Merchant/Merchant’s site.
Link – a URL, hyperlink, banner or other online advertisement that, when clicked on, directs the clicking visitor to another location.
Affiliate Marketing Program ("Program") - is a business relationship in which an Affiliate may earn Commissions for Transactions made from such Affiliate's Web site or subscription emails through a click made by a Visitor through a link to a Web site or Web site content operated by a Merchant. The Merchant compensates the Affiliate, in accordance with this Agreement and the Merchant’s Affiliate Program Commission specifications as defined in each Merchant’s own Affiliate Agreement.
Administration Area – the pages within Kolimbo that You will access to use the service for which this agreement was created.
Purpose
The purpose of the Agreement shall be to detail the relationship between KowaBunga and You including procedures, practices, limitations and exclusions. The Agreement relates to the use of Kolimbo: the KowaBunga Technologies Open Network website, Program Login applications, Program Signup applications, Program directory, reporting interface and contact forms (“Kolimbo”).
KowaBunga makes Kolimbo available to You as-is and free of charge for the following uses:
a) Login to one or more Programs you belong to that are managed with MyAP
b) View information about programs that are managed with MyAP
c) Sign up for programs that are managed with MyAP
d) Learn more about Affiliate Marketing through the Kolimbo Affiliate Training Center
e) Communicate to KowaBunga your compliments, complaints and comments about the Programs you belong to that are managed with MyAP.
f) Receive via email reports, or information about new Programs and offers or promotions presented by various Merchants
KowaBunga reserves the right to, in the future, (a) charge You a fee for; or (b) if You wish not to pay the fee, refuse to continuing providing any of the above-mentioned items or new services, technologies, tools or products that may be offered through Kolimbo in the future. Any fees that may be charged in the future for existing Kolimbo functionality, or for new features, services, technologies, tools, or products will not be charged to you without prior notice to you and / or without prior request by you for such chargeable items.
The purposes of Kolimbo and the Agreement are NOT to:
a) Automatically apply You to all Programs listed in the directory.
b) Pay you for the commissions earned through the Programs you apply to and manage through Kolimbo
c) Set precedence, judgment or mediation to settle disputes between You and the Merchants whose programs you join.
d) Supercede the Affiliate Agreements set forth by the companies/individuals providing the Programs listed in the directory
Kolimbo Service
KowaBunga shall provide You with access to tracking and reporting tools, and to support services. From time to time KowaBunga may offer optional services for a fee. Fees for such optional services are at KowaBunga’s then-current published rates or as may be quoted by KowaBunga, and are payable in advance.
Tracking details regarding Visitor Transactions for all Merchants may or may not be available on a real-time basis and there may be reporting delays regarding Transactions for some Merchants. KowaBunga may make available to You, for fees that KowaBunga shall publish from time-to-time, enhanced reporting capabilities and other services that are not currently included in Kolimbo.
On-line support service is available through the "Help" link(s) found within the administration area of your Kolimbo account. Phone support is provided during the operating hours of 10am-6pm Eastern Standard Time, except for national and KowaBunga-recognized holidays (local time and local holidays are applicable at all of KowaBunga's business offices).
Merchant/Program Rating System
KowaBunga may make available to You the following rating systems to assist you judging and verifying the validity of a Merchant, a Program or an offer presented through a Program. (a) KB Approved Rating System: Merchants supply KowaBunga with various facts about their Programs. We combine those facts with the opinions of commission-earning, select Affiliates who currently belong to the Merchants’ Programs. In addition, Merchants must meet a series of criteria before gaining a “KB Approved” rating and may increase their rating by meeting an increasing number of criteria, as defined by Kowabunga.
(b) Merchant Rating System by Affiliates: Affiliates of Merchants’ Programs are given the ability to rate their experience with each Merchant with whom they have associated. Each Affiliate may rate each Merchant and change the rating they have assigned at any time; however, only one rating per Affiliate will be considered at any given time.
Once a minimum sampling of Affiliates have rated a Merchant, the Affiliate Rating for that merchant will be compiled by taking an average of all Affiliate-submitted ratings.
The above-mentioned rating systems are not intended to replace Your own research of a given Program or Merchant. KowaBunga does not warrant or guarantee that the ratings will be accurate or all-encompassing. You are ultimately responsible for Your decision to associate or to not associate with a particular Merchant.
KowaBunga reserves the right to change or discontinue the above-mentioned rating systems at any time. KowaBunga also reserves the right to add new rating systems to Kolimbo in the future.
Your Relationship with KowaBunga
Kowabunga is your provider of Kolimbo services. By terms of this agreement, you are an authorized user of the Kolimbo service.
Kowabunga may, at its discretion and option, use your company name and / or logo as a user of Kolimbo, but may not disclose any financial data, specify your associated merchants or disclose any of your confidential information, without your prior written consent.
If you provide a testimonial or case study regarding your experiences with Kolimbo or any Kowabunga software or service, Kowabunga may use such for promotional material as deemed appropriate by Kowabunga.
KowaBunga will use email as the primary medium for contact with You. Email messages will be sent to the email address you supply to us on your sign-up page and maintain through your Kolimbo membership. KowaBunga will not sell or rent your email address to any third party.
KowaBunga will send a variety You a variety of email messages falling into the following types:
(a) Merchant/Program Promotional Mailings: These messages will contain information on new Programs, special offers from or information about specific Programs or information about products and services offered by KowaBunga, our partners and other advertisers. You may opt-out of receiving these types of messages at any time.
(b) Kolimbo Service Mailings: These messages will contain information about the Kolimbo service or Your Kolimbo account. KowaBunga may send these types of messages to all Affiliates, to a select group of Affiliates or specifically to You. Opting-out of these types of messages will result in the termination of this Agreement.
Your Requirements for using Kolimbo:
As an Affiliate, You agree not to:
(a) mislead others;
(b) operate or utilize a Web site or email Link(s) to Web sites that contain or promote, any of these types of content: libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez, or the offer of any illegal good or service, or Link(s) to a Web site(s) that does so; and/or
(c) send spam/unsolicited messages. KowaBunga does not and will not tolerate the sending of unsolicited email messages and will prosecute all offenders to the fullest extent of the law.
(d) create fraudulent activities to occur. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any script, device, program, robot, Iframes, hidden frames, redirects or clicking on Links that You place to the Merchant.
Breach of any of these requirements is cause for termination from Kolimbo and / or merchants’ programs.
Your Relationship with Merchant
Affiliates and Merchants may enter into direct contractual relationships through the “apply to join” process, which may be in the form of a “one click signup” hosted by KowaBunga, or in the form of an offer made to You by Merchant via the Merchant’s site, literature or personal invitation. It is Your obligation to review and accept or decline each Merchant’s Agreement or Offer when it is presented to You. If accepted by You, compliance with the Agreement is solely Your responsibility. The terms and conditions of the Agreement may supercede or conflict with this Agreement and shall apply only with respect to Your relationship with that particular Merchant.
KowaBunga makes no warranties or guarantees that the claims made by the Merchants listed in Kolimbo are valid. It is Your sole responsibility to research the Merchants, their offers and their history before entering into an agreement with each Merchant.
Merchants are ultimately responsible for paying You the commissions you have earned through their programs (even those Merchants using KowaBunga’s affiliate payment services). KowaBunga may assist You in attempting to collect funds You believe You are owed by such Merchants. This includes forwarding Your requests for funds to the Merchant, contacting the Merchant to relay Your request and attempt to identify the reason that the payment has not been made or the reason why you have not received the payment. KowaBunga does NOT guarantee that such attempts will be successful.
Privacy and Confidentiality
You or KowaBunga may provide the other with information that is confidential and proprietary to that party or a third party, as is clearly and obviously designated by the disclosing party ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality in order to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.
The information that You supply to establish and maintain Your Account shall be Your Confidential Information. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password. You shall provide KowaBunga with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
KowaBunga’s Privacy Policy is found here: http://www.KowaBunga.com/privacy.php and may be amended from time to time by way of republication, is incorporated into this Agreement.
Collection and Use of Transaction Data
KowaBunga does not collect information about a Visitor's Transactions, other than what it receives through the installed tracking code. KowaBunga reserves the right to be able to utilize any and all collected data, which may include non-identifying information about Your performance statistics, to analyze Kolimbo trends, monitor Kolimbo efficiencies, maintain the integrity of the tracking code, promote Kolimbo capabilities, progress and efficiencies.
Term and Notices
This Agreement shall commence upon Your indication that You have accepted this Agreement by 'clicking through' the acceptance button on the KowaBunga Web site, or by using the Kolimbo Service. Use of the Kolimbo service requires acceptance of this agreement; such use shall assert your compliance with this agreement.
This agreement shall last until terminated in accordance with the terms of this Agreement.
Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (a) for KowaBunga to KOLIMBO@KOWABUNGA.COM (b) for You, at the email address listed on Your Account, and shall be effective upon sending as long as KowaBunga does not receive an error message regarding the delivery.
Changes to Kolimbo Service
This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent, or use of the Kolimbo service. Notwithstanding the foregoing, KowaBunga shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by notifying You of such Change, by email, at least 14 days prior to the effective date of such Change; provided however that either party shall have the right to terminate this Agreement in the event that You do not agree to such Change.
Remedies
No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
Business Operations
Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Merchants liable for any of the consequences of such interruptions.
Limitation of Liabilities
It is understood and agreed that KowaBunga is a separate legal entity from You, and the relationship established is that of independent contractor. Nothing contained in this Agreement shall be deemed or construed by the parties hereto, nor by any third party, as creating any relationship of partnership or of joint venture between the You and KowaBunga.
Nothing in this Agreement shall constitute or appoint either party an agent, employee or representative of the other or otherwise authorize either of them to execute on behalf of the other any contract, note, commercial paper or any other document, or to bind or to otherwise obligate the other party, without in each case first obtaining the written consent of the other. All transactions between KowaBunga and You shall be subject to all of the conditions and provisions of this Agreement unless the parties specifically agree in writing to the contrary.
Representations and Warranties
Each of the parties represents and warrants that: (i) it is authorized to enter into this Agreement and to perform its respective duties hereunder; (ii) it has all rights and/or licenses necessary to perform its respective duties under this Agreement, and (iii) there are no claims, litigation, judgments or similar matters pending against it that would negatively impact this Agreement.
Each of the parties further represents, warrants and covenants that its content, products, programs, offers, features, trademarks, URLs, and advertising, solely as used in accordance with this Agreement: (i) do not infringe, violate or otherwise conflict with the intellectual property right of any third party, (ii) are not misleading, deceptive, or fraudulent and do not violate the consumer protection laws of any state or jurisdiction (iii) do not provide, promote, offer for sale or carry illegal gambling services or firearms.
Each of the parties warrants and represents that (i) it has secured all necessary approvals, registrations, bonds, and licenses in every jurisdiction in which its products or services are offered and shall comply with any and all applicable laws, rules and regulations, including all applicable federal, state, and local laws, rules and regulations related to its business.
Indemnification
Each party agrees to indemnify, defend and hold harmless the other party, its parent company, or its and their subsidiaries, affiliates, employees, agents and assigns from any and all claims by third parties including, but not limited to, liabilities, judgments, damages, losses, costs and expenses (including reasonable attorneys fees) (“Loss”) arising from or relating to: (a) a breach of such party’s obligations under this Agreement; (b) the violation of any representations and warranties set forth herein; or (c) violation of a third party’s copyright, trademark, patent, trade secret, or other proprietary rights by such party, or such party’s agents, employees, affiliates, or distributors.
Further, each party agrees to indemnify the other for Loss caused by theft, fraud, embezzlement, interception, misuse, hacking, unauthorized interception, or other illegal activities, either by third parties or by agents or employees of KowaBunga.
Notwithstanding the foregoing, neither party shall be required to indemnify the other party for any such claims arising out of or resulting from the acts or omissions of such party.
Force Majeure
Neither party shall be responsible for delays or failures if such delay arising out of causes beyond its control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, and severe weather, and acts or omissions of subcontractors or third parties.
Governing Law
This Agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Michigan, without regard to the conflict of law provisions thereof.
Miscellaneous
This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof, and any and all prior or contemporaneous statements, oral or written, relating to the subject matter of this Agreement are merged herein and superseded hereby and are of no legal force and effect whatsoever. This Agreement may not be amended or modified except by in writing signed by both parties.
Neither party may assign this Agreement without prior written consent of the other party, except that either party may assign or otherwise transfer this Agreement, in whole or in part, to any Affiliate or as may otherwise be expressly provided herein or in connection with any merger, reorganization, restructuring, operation of law, sale of the assets and business relating to the subject matter hereof without the other party’s prior written approval. Except as otherwise provided, this Agreement will be binding upon and inure to the benefit of the parties’ successors and lawful assigns. For purposes of this Agreement, “Affiliate” shall be defined as subsidiary entities of either party and shall not include marketing affiliate relationships.
In the event that any provision of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable according to its terms.
This Agreement may be executed in counterparts, any of which may be transmitted by facsimile, each of which shall be deemed an original and all of which shall constitute one and the same document.
This Agreement shall constitute Client’s proof of license to exercise the rights granted herein and must be retained by Client. Client may not reverse engineer, decompile, or disassemble the Software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
Section headings are inserted for convenience of reference only and shall not affect the meaning of this Agreement.
All notices, requests, demands and other communications between the parties provided for in the Agreement shall be in writing, in all cases addressed as follows:
Contact Information:
KowaBunga! Technologies
962 Newburgh Rd
Westland, MI 48185
734-728-4500
Kolimbo@kowabunga.com