As used in this Agreement, “we“, “us“, or “our” means EnCirca Inc. or any of our affiliate companies, as the case may be, and “you” means the applicant. “EnCirca Site” means the site that has its primary home page identified by the URL www.EnCirca.com, and “site” means a World Wide Web site. “Your site” means any site that you will link to the EnCirca Site (and which you will identify in your Program application). Save for our obligation to pay referral fees under Section 4, which may be performed solely by us, we may cause any of our obligations under this Agreement to be fulfilled by any of our Affiliate (defined below), on our behalf.
Table of Contents
1. Enrollment in the Program
To begin the enrollment process, you will submit a complete Affiliate application via the EnCirca Site, or our Affiliate service provider. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:
By participating in the Program you agree that you will not engage in any such activities. If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement. Participation in the Program is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to participate in the Program.
2. Links on Your Site
Once you have been notified that your site has been accepted into the Program, we grant you a revocable, non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement, solely for purposes of facilitating referrals from your site to the EnCirca Site, to provide on your site one or more of the following types of links to the EnCirca Site:
Product Links: You may select one or more Products to list on your site. A “Product” is any product listed on the EnCirca Site that is fulfilled by us or on our behalf, or any product sold by a third party seller on the EnCirca Site.For each selected Product, you will display on your site a short description, review, or other reference. You will be responsible for the content, style, and placement of these references. You will provide a Special Link (as defined below) from each Product reference on your site to the corresponding EnCirca Site webpage. You may add or delete Products (and related links) from your site at any time without our approval. Special Links that individually link to specific Products as described above are referred to as “Product Links.” You may not use Special Links to link to the EnCirca Site from references to products on your site that are not “Products” as defined above. Search Box Link: You may provide an EnCirca Site search box on your site that will permit your site visitors to link directly to a page on the EnCirca Site that contains the results of their search queries. We will provide you with technical specifications describing how to include an EnCirca Site search box on your site.
General Link to EnCirca Site Home Page: You may provide a general link on your site to the home page of the EnCirca Site.
Any Page Link: You may provide a link on your site that will link to any particular page on the EnCirca Site, provided that you properly use the special link formats provided on the EnCirca Site as part of the Program to create such link.
We will provide you with guidelines and graphical artwork to use in linking to the EnCirca Site home page. To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special “tagged” link formats to be used in all links between your site and the EnCirca Site (and for purposes of this Agreement, the browser window described above that opens upon a user’s clicking on a link is deemed a part of the EnCirca Site, and any such link is deemed a link between your site and the EnCirca Site). You must ensure that each of the links between your site and the EnCirca Site properly utilizes such special link formats. Links to the EnCirca Site placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as “Special Links.” You will earn referral fees only with respect to activity on the EnCirca Site occurring directly through Special Links; we will not be liable to you with respect to any failure by you to use Special Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.
You acknowledge that, by participating in the Affiliate Program and placing any of the above links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in the Privacy Notice on the EnCirca Site. Except for the license granted under this Section 2, you do not obtain any rights under this Agreement in any intellectual property, including, without limitation, any intellectual property with respect to the Special Links, link formats, technical specifications, guidelines or graphical artwork referenced above, or with respect to the EnCirca domain names.
You also acknowledge that we (or authorized designates) may crawl or otherwise monitor your site for the purpose of ensuring the quality and reliability of Special Links on your site (for example, to detect links that are broken or non-functional, links to products that are out of stock or otherwise unavailable, etc.). Therefore, you agree that we may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring (and that we and our corporate Affiliate may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring). You also acknowledge that as a participant in the Program, we may from time to time send you email updates about the Program. By participating in the Program, you consent to our sending you these email updates. Further, you acknowledge and agree that you will: (a) use any data, images, text, or other information obtained by you from us or the EnCirca Site in connection with this Agreement (“Content“) only in a lawful manner and only in accordance with the terms of this Agreement; (b) not modify or alter any Content that consists of a graphic image, other than to resize it; (c) not edit any Content that consists of text, other than to shorten its length; (d) not sell, redistribute, sublicense or transfer any Content; (e) not use any Content in a manner intended to send sales to any site other than the EnCirca Site; and (f) promptly delete any Content that is no longer displayed on the EnCirca Site or that we notify you is no longer available for your use.
3. Order Processing
We will process Product orders placed by customers who follow Special Links from your site to the EnCirca Site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase Products by using Special Links from your site to the EnCirca Site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion.
4. Referral Fees
We will pay you (in accordance with Sections 5 and 6 below) referral fees on certain Product sales to third parties. For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from your site to the EnCirca Site, and add the Product to his or her shopping cart or purchase the Product during a session. The session ends upon one of the following events: (a) 24 hours elapses from the customer’s initial click-through, (b) the customer orders the Product, or (c) the customer follows a third party’s Special Link. We will only pay referral fees on eligible Products after order, payment and shipping have occurred.
To permit accurate tracking, reporting and fee accrual, you must ensure that the Special Links between your site and the EnCirca Site are properly formatted. We will not be liable for paying referral fees on purchases that are not correctly tracked and reported because the links between your site and the EnCirca Site are not properly formatted.
You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or Affiliate in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees and/or the termination of this Agreement. Products that are eligible to earn referral fees under the rules set forth above are referred to as “Qualifying Products.”
In addition, you may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Special Links on your site to access the EnCirca Site (e.g., by implementing any “rewards” program for persons or entities who use Special Links on your site to access the EnCirca Site); (b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (c) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the EnCirca Site; (d) make any orders or subscription requests, or engage in other transactions of any kind on the EnCirca Site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so; (e) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring; (f) other than providing Special Links on your site in accordance with this Agreement, post or serve any advertisements or promotional content promoting the EnCirca Site or otherwise around or in conjunction with the display of the EnCirca Site (e.g., through any “framing” technique or technology or pop-up or pop-under windows), or assist, authorize, or encourage any third party to take any such action; (g) attempt to circumvent the referral fee schedule or artificially increase your referral fees (e.g. by intentionally featuring, purchasing or requesting or encouraging any third party to purchase low-price items offered on the EnCirca Site (as determined by us) for the purpose of exceeding any referral fee threshold or by causing any page of the EnCirca Site to open in a customer’s browser other than as a result of the customer clicking on a Special Link on your site); (h) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert referral fees from, any web site that participates in the Program; or (i) seek to purchase or register any keywords, search terms or other identifiers that include the word “EnCirca” or variations thereof (“Proprietary Terms“) for use in any search engine, portal, sponsored advertising service or other search or referral service. From time to time we may request that you cause any applicable Web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such Web search engine offers such exclusion capabilities. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities or, as the case may be, refused promptly to comply with a request from us to exclude Proprietary Terms from any keyword as mentioned above, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
5. Referral Fee Schedule
The Referral Fee Schedule is detailed in a separate “EnCirca Affiliate Agreement”, the terms of which incorporate this “Universal Affiliate Agreement” agreement by reference. We will send you a copy of the EnCirca Affiliate Agreement, after you submit, and we accept, your application to become an EnCirca Affiliate (sign up at Affiliate Sign-up).
During each calendar quarter, for Qualifying Products sold during sessions initiated through Special Links on your site, you will earn (subject to the other terms of this Agreement) referral and/or commission fees in accordance with the appropriate EnCirca Affiliate Agreement. Earnings will not accrue until you sign and return the appropriate EnCirca Affiliate Agreement and unless you receive notice from EnCirca that you have been approved as an Affiliate and will begin after the effective date of such notice.
6. Referral Fee Payment
If the Affiliate signed via an Affiliate service provider, then the terms published via the Affiliate service provider, located here apply.The following terms apply only if Affiliate did not sign up via EnCirca’s Affiliate service provider
We will pay you referral fees on a quarterly basis less any cancellations or charge-back costs. Approximately 30 days following the end of each calendar quarter, we will either (a) send you a check for the referral fees earned, (b) send you a gift certificate good for purchase of Products through the EnCirca Site, subject to our standard terms or conditions, or (c) directly deposit the referral fees earned into your bank account (if you want us to use this method of payment, please note that you will have to provide us with the name of your bank, the bank account type, the 9-digit routing number/ABA number, the account number and the primary account holder name as it appears on the bank account). We will accrue and withhold referral fees until the total amount due is at least $300.00. We are obligated by U.S. federal law to obtain tax information from Program participants who are U.S. citizens, U.S. residents or U.S. corporations and from Program participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. If we believe you are a Program participant from whom we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your referral fee payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
7. Policies and Pricing
Customers who buy products or submit applications through this Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect Products that you have listed on your site, your site may only show prices when we serve those prices through our “EnCirca Web Services”.
8. Identifying Yourself as an Associate
You may issue any press release with respect to this Agreement or your participation in the Program with prior notice to EnCirca. We will make available to you a small graphic image that identifies your site as a Program participant. You must display this logo or the phrase “In association with EnCirca” somewhere on your site. We may modify the text or graphic image of this notice from time to time. You may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).
9. Limited License
We grant you a nonexclusive, revocable right to use the graphic image and text described in Section 8 and such other text or images for which we grant express permission, solely for the purpose of identifying your site as a Program participant and to assist in generating Product sales. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.
10. Responsibility for Your Site You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:
We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance, and contents of your site.
11. Compliance with Laws
As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
12. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to the EnCirca Site, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are eligible to earn referral fees only on sales of Qualifying Products that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the EnCirca Site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE ENCIRCA SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
14. Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
15. Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the EnCirca Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
17. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our Affiliate shall be submitted to confidential arbitration in Boston, Massachusetts, US, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of Massachusetts (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
This Agreement will be governed by the laws of the United States and the state of Massachusetts without reference to rules governing choice of laws. You 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. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. Updated: February 18, 2020