Affiliate Sales Program Agreement
Updated: October 5, 2015
Welcome to the BookShout Affiliate Sales Program (the “Program”) brought to you by RethinkBooks Inc. (“RethinkBooks,” “we,” “us,” or “our”). This Affiliate Sales Program Agreement (“Agreement”) contains the terms and conditions that govern your participation in the Program.
A “site” means a website. “BookShout Site” means the site located at bookshout.com. “Your site” means any site(s) that you own or operate and link to the BookShout Site.
BY CLICKING THE “ACCEPT AND CONTINUE” BUTTON YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT; ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT; AND HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS AGREEMENT. IN ADDITION, IF THIS AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT.
RethinkBooks reserves the right to change or modify any of the terms and conditions contained in this Agreement (or any policy, fee schedule or guideline of RethinkBooks) at any time and in its sole discretion by providing notice that this Agreement has been modified. Such notice may be provided by sending an email, posting a notice on the BookShout Site, posting the revised Agreement on the BookShout Site and revising the date at the top of this Agreement, or such other form of notice as determined by RethinkBooks. Any changes or modifications will be effective 30 days after providing notice that this Agreement has been modified (the “Notice Period”). Your continued use of the Program and any software, link, application or other technology provided to you by RethinkBooks following the Notice Period will constitute your acceptance of such changes or modifications. You are advised to review this Agreement at least every 30 days to make sure that you understand the terms and conditions that will apply to your use of the Program.
Description of the Program
The purpose of the Program is to permit you to advertise Products on your site and to earn fees for Qualifying Purchases (defined below) made by your end users. A “Product” is any electronic book or digital content sold on the BookShout Site. In order to facilitate your advertisement of and the sale of Products, we may make available to you data, APIs, widgets, links, and other linking tools, and other information in connection with the Program (“Linked Content”). For information on fees and benefits associated with the Premium BookShout Affiliate Program, please email email@example.com.
To begin the enrollment process, you must submit a complete and accurate Program application. You must identify your site in your application. We will evaluate your application and notify you of its acceptance or rejection. We may reject your application if we determine that your site is unsuitable. Unsuitable sites include those that:
- promote or contain sexually explicit materials;
- promote violence or contain violent materials;
- promote or contain libelous or defamatory materials;
- promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
- promote or undertake illegal activities;
- are directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder;
- include any trademark of RethinkBooks that you do not have permission to use; or
- otherwise violate intellectual property rights.
If we reject your application, you are welcome to reapply at any time. However, if we accept your application and later determine that your site is unsuitable, we may terminate this Agreement.
You will ensure that the information in your Program application and otherwise associated with your account, including your email address and other contact information and identification of your site, is at all times complete, accurate, and up-to-date. We may send any notices, approvals, and other communications relating to the Program and this Agreement to the email address then-currently associated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current, and such notices, approvals, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify us a firstname.lastname@example.org.
In addition, if at any time following your enrollment in the Program you become a resident of Arkansas, Colorado, Maine, Missouri, Rhode Island, or Vermont, you will become ineligible to participate in the Program, and this Agreement will automatically terminate on the date you establish residency in that state. In addition, you must promptly notify us in writing of your Arkansas, Colorado, Maine, Missouri, Rhode Island, or Vermont residency.
Your Responsibilities in the Program
By participating in the Program, you agree that you will comply with all policies, guidelines, specifications, and other materials and information that we make available to you, including the documents and materials referenced in this Agreement (collectively, “Documentation”). In addition, in connection with your participation in the Program you will comply with all applicable laws, regulations, and other requirements of any governmental authority.
You will provide us with any information that we request to verify your compliance with this Agreement or any Documentation. In addition to any other rights or remedies available to us, we may terminate this Agreement, withhold (and you agree you are not eligible for) any fees payable to you under this Agreement, or both, if we determine that you or other persons that we determine are affiliated with you or acting in concert with you (whether in respect to any existing or previously terminated Affiliate account) have not complied with any requirement or restriction described in this Agreement or any Documentation or have otherwise violated this Agreement.
In addition, you hereby consent to us:
- sending you emails relating to the Program from time to time;
- monitoring, crawling, and otherwise investigating your site to verify compliance with this Agreement and the Documentation.
Responsibility for Your Site
You will be solely responsible for your site, including its development, operation, and maintenance and all materials that appear on or within it. For example, you will be solely responsible for:
- the technical operation of your site and all related equipment;
- displaying Linked Content on your site in compliance with this Agreement and the Documentation;
- creating and posting, and ensuring the accuracy, completeness, and appropriateness of, materials posted on your site (including all Product descriptions and other Product-related materials and any information you include within or associate with Linked Content);
- using the Linked Content and the materials on or within your site in a manner that does not infringe, violate, or misappropriate any of our rights or those of any other person or entity (including copyrights, trademarks, privacy, publicity or other intellectual property or proprietary rights);
- any use that you make of the Linked Content and the RethinkBooks Marks, whether or not permitted under this Agreement.
We will have no liability for these matters or for any of your end users’ claims relating to these matters. Order Processing
We will process Product orders placed by customers who follow Linked Content from your site to the BookShout Site. We reserve the right to reject orders that do not comply with any requirements on the BookShout Site, as they may be updated from time to time. We will track Qualifying Purchases (defined below) for reporting and advertising fee accrual purposes and will make available to you reports summarizing those Qualifying Purchases.
We will pay you advertising fees on Qualifying Purchases as set forth below. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when (a) a customer clicks through Linked Content on your site to the BookShout Site; (b) during a single Session that customer either (i) adds a Product to his or her shopping cart and places the order for that Product no later than 89 days following the customer’s initial click-through, or (ii) streams or downloads a Product from the BookShout Site; and (c) the Product is streamed or downloaded by, and paid for by, the customer. For each Qualifying Purchase, you are eligible to receive an amount equal to 4% of the purchase price paid by the applicable customer for the Product (net of any taxes, streaming fees, rebates, and returns) (the “Product Fee”).
A “Session” begins when a customer clicks through Linked Content on your site to the BookShout Site and ends upon the first to occur of the following: (x) 24 hours elapses from that click; or (y) the customer places an order for a Product.
Qualifying Purchases exclude, and we will not pay fees on any of, the following:
- any Product that, after expiration of the applicable Session, is streamed or downloaded by a customer, even if the customer previously followed a link from Linked Content from your site to the BookShout Site;
- any Product purchase that is not correctly tracked or reported because the links from your site to the BookShout Site are not properly formatted;
- any Product purchased through Linked Content by you or on your behalf, including Products you purchase through Linked Content for yourself, friends, relatives, or associates;
- any Product purchased through Linked Content that violates the terms of this Agreement;
- any Product purchased for resale or commercial use of any kind;
- any Product purchased after termination of this Agreement; and
- any Product order that is canceled or returned.
Advertising Fee Payment
We will pay you the applicable Product Fees approximately 60 days following the end of each calendar month for Qualifying Purchases streamed or downloaded (as applicable) in such calendar month, subject to any applicable withholding or deduction described below using the payment method you choose from the following available options. If you have not selected one of the payment methods below, we will withhold any unpaid accrued Product Fees until you have done so.
(a) Payment by Direct Deposit. If you select payment by direct deposit, we will directly deposit the Product Fees you earn into the bank account you designate, but may accrue and withhold Product Fees until the total amount due to you is at least $10. If you select this method of payment, you must provide us with the name of your bank, the bank account type, the 9-digit routing number/ABA number, the account number, and the name of the primary account holder as it appears on the account. If you have chosen payment by direct deposit and you do not provide this information, or it is not valid (e.g., the account has been closed or changed) or the payment is otherwise rejected by your bank, you may instead receive payment by check and be subject to the processing fees described below until you provide valid account information.
(b) Payment by Check. If you select payment by check, we will send you a check in the amount of the Product Fees you earn, but we may accrue and withhold Product Fees until the total amount due to you is at least $100. We will deduct a processing fee in the amount of $15 from the Product Fees payable to you for each check we send to you.
Any unpaid accrued Product Fees in your account may be subject to escheatment under state law. We may be obligated by law to obtain tax information from you if you are a U.S. citizen, U.S. resident, or U.S. corporation, or if your business is otherwise taxable in the U.S. If we request tax information from you and you do not provide it to us, we may (in addition to any other rights or remedies available to us) withhold your Product Fees until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
Policies and Pricing
Customers who buy products through this Program are our customers with respect to all activities they undertake in connection with the BookShout Site. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the BookShout Site will apply to those customers, and we may change them at any time.
Identifying Yourself as an Affiliate
You will not issue any press release or make any other public communication with respect to this Agreement or your participation in the Program. You will not misrepresent or embellish the relationship between you and RethinkBooks (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
Subject to the terms of this Agreement and solely for the limited purposes of advertising Products on, and directing end users to, the BookShout Site in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to copy and display the Linked Content solely on your site, including our trademarks and logos that may be contained in such Linked Content (the “RethinkBooks Marks”), solely on your site and in the same form and format as we provide them to you, and in accordance with any guidelines we may provide to you from time to time.
Reservation of Rights
Other than the limited licenses expressly set forth above, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, Linked Content, the BookShout Site, Documentation, the RethinkBooks Marks, and any other intellectual property and technology that we provide or use in connection with the Program.
Any suggestions, comments, or other feedback provided by you to RethinkBooks with respect to the Program or RethinkBooks (collectively, “Feedback”) will constitute confidential information of RethinkBooks. RethinkBooks will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of intellectual property rights or otherwise.
Term and Termination
The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. 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 any termination of this Agreement, any and all licenses you have with respect to Linked Content will automatically terminate and you will immediately stop using the Linked Content and RethinkBooks Marks and promptly remove from your site and delete or otherwise destroy all links to the BookShout Site, all RethinkBooks Marks, all other Linked Content, and any other materials provided or made available by or on behalf of us to you under this Agreement or otherwise in connection with the Program. We may withhold accrued unpaid fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections entitled Responsibility for Your Site, Reservations of Rights, Feedback, Relationship of Parties, Limitation of Liability, Disclaimers, Indemnification, Disputes, and Miscellaneous, together with any accrued but unpaid payment obligations of us under this Agreement, will survive the termination of this Agreement.
Limitation of Liability
WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM, DOCUMENTATION, OR THE BOOKSHOUT SITE, , EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM, DOCUMENTATION, AND THE BOOKSHOUT SITE, WILL NOT EXCEED THE TOTAL PRODUCT FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
THE PROGRAM, THE BOOKSHOUT SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE BOOKSHOUT SITE, ANY LINKED CONTENT, DOCUMENTATION, THE RETHINKBOOKS MARKS, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE PROGRAM (INCLUDING THE BOOKSHOUT SITE, PRODUCTS, LINKED CONTENT, DOCUMENTATION AND THE RETHINKBOOKS MARKS). EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PROGRAM (INCLUDING THE BOOKSHOUT SITE, PRODUCTS, LINKED CONTENT, DOCUMENTATION AND THE RETHINKBOOKS MARKS), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE DO NOT WARRANT THAT THE PROGRAM (INCLUDING THE BOOKSHOUT SITE, PRODUCTS, LINKED CONTENT, DOCUMENTATION AND THE RETHINKBOOKS MARKS) WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS.
You agree, at your sole expense, to defend RethinkBooks (and its directors, officers, employees, consultants and agents) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), and claims, and indemnify RethinkBooks (and its directors, officers, employees, consultants and agents) for any and all damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) for any property or other damage caused by, arising out of, resulting from, attributable to or in any way incidental to any of your conduct or any actual or alleged breach of any of your obligations under this Agreement (including, but not limited to, any actual or alleged breach of any of your representations or warranties as set forth in this Agreement).
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH RETHINKBOOKS AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM RETHINKBOOKS.
In the event of any controversy or claim arising out of or relating in any way to this Agreement, you and RethinkBooks agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If we do not reach settlement within a period of 60 days, then either of us may, by notice to the other demand mediation under the mediation rules of the American Arbitration Association in Plano, Texas. We both give up our right to litigate our disputes and may not proceed to arbitration without first trying mediation, but you and RethinkBooks are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Except as otherwise required under applicable law, you and RethinkBooks intend and agree: (a) not to assert class action or representative action procedures and agree that they will not apply in any arbitration involving the other; (b) not to assert class action or representative action claims against the other in arbitration or otherwise; and (c) will only submit individual claims in arbitration and will not seek to represent the interests of any other person or entity.
If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Plano, Texas. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys' fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner, or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
You may not assign, delegate, or transfer (by sale, merger, operation of law, or otherwise) this Agreement or any right, title, interest, or obligation hereunder without the prior written consent of RethinkBooks. Any attempted or purported assignment, delegation, or transfer in violation of the foregoing will be null and void and without effect. RethinkBooks may assign this Agreement without your prior written consent. This Agreement will be binding and inure to the benefit of such assignees, transferees, and other successors in the interest of the parties in the event of an assignment or other transfer made consistent with the provisions of this Agreement.
Notwithstanding any terms to the contrary in this Agreement, you acknowledge and agree that RethinkBooks uses a third party hosting infrastructure in connection with the Program and the Site (“Third-Party Infrastructure”), and the provider(s) of the Third-Party Infrastructure disclaim and make no representation or warranty with respect to such Third-Party Infrastructure, and RethinkBooks assumes no liability for any claim that may arise with respect to such Third-Party Infrastructure.
If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
RethinkBooks is not responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of services provided by any service providers used by RethinkBooks, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.