AFFILIATE
AGREEMENT
Upon you agreeing to the terms and conditions of this Agreement by completing
the on-line registration form, CapeLinks
grants to you (hereinafter "Affiliate") a limited and non-exclusive
and royalty free license during the term of this Agreement to display a
CapeLinks Search Box, Sponsored Listings JavaScript Code and other CapeLinks
proprietary technology (hereinafter referred to individually or in combination
as "Intellectual Property") on Affiliate's web site only, and only in
accordance with this Agreement.
Definitions
"CapeLinks Search Box" is embedded HTML or other source code that
appears on an affiliate's site as an image or graphical box, enabling users to
access technology that displays bided listings in order of the highest bid by
entering a keyword or keyword phrase. These listings or search results may
include a title, description and universal resource locator (URL) of a CapeLinks
advertiser as well as other information and when clicked, link a user seeking
information to a CapeLinks advertiser's Web site.
"Sponsored Listings JavaScript Code" is embedded HTML or other source
code used to access technology that allows a default set of listings or search
results, which may include a site title, description and universal resource
locator (URL) of a CapeLinks advertiser as well as other information, to
appear on an affiliate's site. Search results are displayed based on a keyword
or set of keywords and selected by the highest bid amounts relevant to the
affiliate's site content. When clicked, a user seeking information is sent to a CapeLinks
advertiser's Web site.
"Other CapeLinks proprietary technology" is any and all CapeLinks
proprietary material and information, source code, paper or electronic
documentation, methods of display, methods of operation, trademarks, service
marks, and trade names.
Acceptable Use
Affiliates may use or display the Intellectual Property only in the size, place
and manner CapeLinks may indicate from time to time within Affiliate's web
site and only in a manner that complies in all respects with CapeLinks'
guidelines as described herein or as may be modified in writing, or
electronically, from time to time by CapeLinks in its sole discretion.
Affiliate acknowledges that all right, title and interest in the Intellectual
Property is exclusively owned by CapeLinks and/or its licensors, and is CapeLinks'
proprietary property, and that no right other than the limited display license
granted herein is provided to Affiliate.
CapeLinks does not accept any form of SPAM and detects/discards all traffic
from unsolicited e-mail, newsgroups, ICQ, unauthorized adjustment of default
home page or search features within standard browser settings and all other
methods other than that generated from a human generated search. Spamming by any
of these methods will cause your affiliate account to be terminated. Only one
account is allowed per company or organization unless agreed to in writing by CapeLinks,
however, Affiliate may use this account for multiple domains and/or websites.
All valid clicks must be a result of a user performing a search by entering
keywords into a search box or clicking on a text link. In either case, the
search results displayed must exactly match the keyword phrase being searched.
Affiliate agrees not to incentify a user in any way to click a Paid Listing as
this will result in immediate termination of this Agreement. Affiliate may not
send surfers via any 3rd party banner or exit exchange program without first
being approved by CapeLinks. Any Web page that contains a Paid Link must
only be viewable after a query is made by a User.
Without limitation, Affiliate's account may be terminated, where CapeLinks in its sole discretion, determines: (1) that any content, goods, services, or
links displayed on or made available through or in connection with Affiliate's
Web site(s) are illegal, obscene, indecent, vulgar, offensive, dangerous, or are
otherwise deemed inappropriate; or that Affiliate or Affiliate's web site(s)
violates, has violated, or threatens to violate the terms and conditions of this
Agreement or the spirit behind them.
All Users sent by Affiliate must come from a Web page.
Clicks or Users coming from newsgroup postings, e-mail links, ICQ, Instant
Message, spamming or any other such practice that could reflect negatively on
our program are strictly prohibited. Failure to comply to this request will
result in the immediate cancellation of the account from which the Clicks were
generated and may also result in the forfeiture of any funds owed to that
account. The action of sending any hits from any URLs which contain and/or
promote the following content: p0rn, warez, MP3s, ROMs, EMUs, newsgroup postings, SPAM
e-mails, or any other site which contains content or promotes activities which
are illegal in the United States or any other jurisdiction will result in the immediate cancellation of
the account from which the hits were sent and the forfeiture of any funds owed
to that account.
CapeLinks' Responsibilities
CapeLinks will provide Affiliate Intellectual Property that will enable a
user of Affiliate's web site to type in a search query that will provide search
results generated by CapeLinks and/or enable a user to click on links that
will allow such users of Affiliate's web site to access CapeLinks listings.
THE PROPRIETARY DATA WILL BE DISPLAYED ON AFFILIATE'S SITE IN ACCORDANCE WITH
THE GUIDELINES HEREIN AND INSTRUCTIONS POSTED BY CapeLinks, AS MODIFIED BY CapeLinks, FROM TIME TO TIME.
CapeLinks will provide Affiliate with a user ID and password to access an
on-line tool to view information about the number of clicks that were generated
from an Affiliate's web site and the associated commission earned. Affiliate
understands and agrees that CapeLinks pays commissions based only on clicks,
or advertiser site visits, AND THAT THE NUMBER OF SEARCH REQUESTS GENERATED MAY
NOT BE THE SAME AS THE NUMBER OF ACTUAL CLICKS.
Affiliate's Responsibility
Affiliate shall provide users of Affiliate's web site a way to perform search
queries using the Intellectual Property AS SELECTED BY AFFILIATE DURING
REGISTRATION. Affiliate shall not modify the Intellectual Property, which is
herein licensed to Affiliate. Affiliate is solely responsible for the creation
and maintenance of its own web site and for all contents that appears on
Affiliates web site. AFFILIATE MAY NOT REFERENCE CapeLinks IN ANY WAY
WITHOUT FIRST RECEIVING WRITTEN CONSENT FROM CapeLinks. Affiliate may not
issue any press release or other public statements regarding this Agreement
without CapeLinks' prior written consent.
Compensation
CapeLinks will pay Affiliate a commission of forty percent (40%) of the bid
amount earned by CapeLinks for clicks generated as a result of a link from
an Affiliate's site. CapeLinks shall not pay Affiliate commissions for any
search queries generated from the Intellectual Property or related link that
were not generated by a valid search request. A valid search request involves a
user of an Affiliate's site entering text into Search Box and clicking a button
to submit a search request to CapeLinks that is received and delivered or by
dynamically loading a Web page which contains Sponsored Listings JavaScript Code.
CapeLinks will pay Affiliate upon reaching a level of twenty-five ($25.00)
dollars every (30) days or at the end of each calendar month for all commissions
earned under this Agreement, less any account balance used to advertise
Affiliate's or other web site on the Capelinks Sponsored Listings System using
said Affiliate's account, less any taxes CapeLinks may be required to
withhold, and less any amount CapeLinks determines, in its sole
discretion, was not validly earned from proper use of the Intellectual Property
on Affiliate's site. Commissions earned during any calendar month that are
less than twenty-five ($25.00) dollars may be held at CapeLinks' sole
discretion, until the next month in which the total amount due is at least
twenty-five ($25.00) dollars or until this Agreement is terminated.
Ownership of Intellectual Property
Affiliate agrees that this limited license to display CapeLinks'
Intellectual Property inures to the benefit of CapeLinks. All good will or
reputation generated by display of CapeLinks' Intellectual Property shall
automatically vest in and shall remain the property of CapeLinks. Affiliate
agrees not to contest, in any court or other jurisdiction, the validity of any
of the CapeLinks Intellectual Property, including, but not limited to, CapeLinks'
trademarks, service marks or trade names. During the term of this Agreement,
Affiliate shall not adopt, use, register, or apply for registration of, whether
as a corporate name, trademark, service mark or other indication of origin, any
of the CapeLinks trademarks, service marks or trade names, or any word or
mark confusingly similar to them in any jurisdiction.
Representations and Warranties
A. As to CapeLinks:
CapeLinks represents and warrants that it has the authority to enter into
this Agreement.
B. As to Affiliate:
Affiliate represents and warrants that it has full power and authority to enter
into this Agreement; and Affiliate represents and warrants that the content on
Affiliate's web site, and/or the technology used by Affiliate in connection with
this Agreement are owned or legally licensed for use by Affiliate; and Affiliate
represents and warrants that its web site does not violate applicable law or
regulations and does not infringe or violate any copyright, patent, trademark or
other similar Intellectual Property right, or otherwise violate or breach any
duty toward, or rights of any person or entity.
Non-Liability of CapeLinks
CapeLinks does not warrant or represent that the Intellectual
Property will meet all or any of Affiliate's needs or requirements, or that
performance of CapeLinks' Intellectual Property will be uninterrupted or
error free. CapeLinks is not responsible for any content provided by third
parties, including advertisers, or for any third party sites that can be linked
to/from the Intellectual Property. CapeLinks and its licensors make no other
warranty of any kind, whether expressed or implied, including without
limitation, warranties of merchantability, fitness for a particular use, and
non-infringement.
Confidentiality
During the term of this Agreement, Affiliate may have access to certain
non-public information of CapeLinks, which information a reasonable person
would consider confidential or which is marked as "confidential" or
"proprietary" by CapeLinks, collectively "Confidential
Information". This Confidential Information does not include information
that is generally in the public domain. Affiliate agrees not to disclose any
Confidential Information to any third parties or to use any Confidential
Information for any purposes except to carry out its obligations under this
Agreement. Affiliate shall take every effort to keep such Confidential
Information confidential, using the same degree of care Affiliate uses to
protect its own confidential information, as long as it uses at least reasonable
care. Each party acknowledges and agrees that due to the unique nature of the
Confidential Information, any such breach may allow one party or third parties
to unfairly compete with the other party resulting in great harm to
non-breaching party. This Agreement shall be governed by the laws of the state
of Massachusetts, and in the event of a dispute, Affiliate agrees to submit to
the jurisdiction of the state courts located in Barnstable County, Massachusetts.
This clause shall remain in effect for two years after termination.
Indemnification
Affiliate shall indemnify, defend and hold CapeLinks harmless (including CapeLinks'
legal and expert fees) against any and all damages, claims and awards brought or
assessed against CapeLinks, resulting from a breach of any warranty,
representation or covenant made by Affiliate under this Agreement; or arising
from any action against CapeLinks arising from Affiliate's use or display of CapeLinks's Intellectual Property or arising from any breach by Affiliate of
any of the provisions or requirements of this Agreement, provided that CapeLinks
promptly notifies Affiliate in writing of any such claim and promptly tenders
the control of the defense and settlement of any such claim to Affiliate at
Affiliate's expense and with Affiliate's choice of counsel. CapeLinks shall
cooperate with Affiliate, at Affiliate's expense, in defending or settling such
claim. Affiliate will not enter into any settlement or compromise of any such
claim without CapeLinks' prior consent, which shall not be unreasonably
withheld.
Limitation of CapeLinks' Liability
In no event shall CapeLinks' liability arising out of this Agreement exceed
the net amount payable to Affiliate under this Agreement during the three (3)
months prior to the date of such cause. Under no circumstances shall CapeLinks be held liable for any delay or failure in performance resulting directly or
indirectly from acts of nature, forces, or causes beyond its reasonable control,
including, without limitation, Internet failures, computer equipment failures,
telecommunication equipment failures, other equipment failures, electrical power
failures, strikes, labor disputes, riots, insurrections, civil disturbances,
shortages of labor or materials, fires, floods, storms, explosions, acts of God,
war, governmental actions, orders of domestic or foreign courts or tribunals,
non-performance of third parties, terrorism, infectious disease, chemical and/or
biological warfare, or loss of or fluctuations in heat, light, or air
conditioning.
Term
The term of this Agreement shall commence on the date CapeLinks receives
said Affiliate's registration and shall continue in force thereafter, unless
earlier terminated as provided herein. If Affiliate breaches this Agreement, or
if Affiliate engages in any action that, in CapeLinks' sole discretion,
reflects poorly on CapeLinks or its trademarks, service marks, trade name or
reputation, CapeLinks may terminate the Agreement immediately upon notice to
Affiliate. Either party may terminate this Agreement on thirty (30) days written
notice to the other party for any reason. Upon the termination of this Agreement
for any reason, all license rights granted herein shall terminate immediately,
and Affiliate shall immediately cease use of the Intellectual Property and of
all CapeLinks' trademarks, service marks and trade names incorporated in
the Intellectual Property.
CapeLinks reserves the right to terminate any account if it is inactive for
more than 30 calendar days. CapeLinks reserves the right to terminate the
account of any Affiliate who publicly posts derogatory and/or slanderous
statements about CapeLinks, or any of its subsidiaries or officers. Any
artificial means of generating traffic including, but not limited to, hitbots,
clicking scripts, hidden links, window trapping, and incentives for visitors in
any way or any other similar activity will result in forfeiture of all monies
owed and possible criminal prosecution. Affiliate must have all
referring pages written entirely in English unless otherwise previously approved
by CapeLinks. Non-compliance with these terms and conditions may result in
the forfeiture of all monies owed and permanent locking of Affiliate and/or
advertising account.
Notices
Any notice required for or permitted by this Agreement relating to the Affiliate
shall be in writing and shall be delivered by personal delivery, by overnight
courier, by certified or registered mail; or by email. All notices must be sent
to the addresses first described above, or to such other address that CapeLinks may have provided for the purpose of notification in accordance with this
Agreement.
Changes to Agreement
CapeLinks may change this Agreement at any time upon publishing a notice in
the Sponsored Listings Affiliate Section at CapeLinks. Any use of the
Intellectual Property after such notice shall be deemed to be continued
acceptance of this Agreement including its amendments and modifications.
Assignment
CapeLinks may assign its rights or delegate its obligations under this
Agreement without Affiliate's prior written consent, as long as the assignee
expressly assumes in writing the performance of all of the terms of this
Agreement.
Relationship of Parties
This Agreement shall not be construed to create a joint venture or partnership
between the parties. Neither party shall be deemed to be an employee, agent,
partner or legal representative of the other for any purpose and neither shall
have any right, power or authority to create any obligation or responsibility on
behalf of the other.
Entire Agreement
This Agreement constitutes the entire understanding between the parties with
respect to the subject matter and supersedes all previous agreements, written or
oral, between Affiliate and CapeLinks. If any provision of this Agreement is
held or made invalid or unenforceable for any reason, such invalidity shall not
affect the remainder of this Agreement.
Non-Waiver
The terms or covenants of this Agreement may be waived only by a written
instrument executed by the party waiving compliance. The failure of either party
at any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by either
party of the breach of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in anyone or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach or a waiver of
the breach of any other term or covenant contained in this Agreement.
Section Headings
The section headings contained herein are for reference purposes only and shall
not in any way affect the meaning or interpretation of this Agreement.
Other Information
By using the CapeLinks web site(s) you agree to our privacy
policy and terms of service.
Who can I ask if I have additional questions?
Feel free to contact us any time and we'll answer any additional questions you
may have.
Use our Contact Form
CapeLinks
P.O. Box 403
South Dennis, MA 02660
508.394.1580