• Advertiser Terms
• Publisher Terms
• Affiliate Agreement
• Privacy Policy
• Content Policy
• Product Policy

AFFILIATE AGREEMENT TERMS AND CONDITIONS

THIS AFFILIATE AGREEMENT (“AGREEMENT”) APPLIES TO EACH AFFILIATE MARKETING OPPORTUNITY (“AFFILIATE OPPORTUNITY”) THAT IS OFFERED ON THE WEBSITE (“NETPARTNER WEBSITE”) OPERATED BY NETPARTNER LIMITED (“NETPARTNER”).

WITH RESPECT TO EACH AFFILIATE OPPORTUNITY, THE PARTIES TO THIS AGREEMENT ARE THE NETPARTNER AFFLIATE NETWORK MEMBER OFFERING SUCH AFFILIATE OPPORTUNITY (“ADVERTISER”) AND THE NETWORK AFFILIATE NETWORK MEMBER REQUESTING TO PARTICIPATE IN SUCH AFFILIATE OPPORTUNITY (“PUBLISHER”). ADVERTISER AND PUBLISHER HEREBY AGREE AS FOLLOWS:

1. PARTICIPATION REQUIREMENTS

1. Requirements for Individuals. If either Advertiser or Publisher (each, a “Party”) is an individual, such Party represents that he or she is (a) at least eighteen (18) years of age and (b) of legal age to agree to this Agreement.

2. Profile Information. Each Party will ensure that all information that it has provided in its user profile on the Netpartner Website (“Profile Information”) will be accurate and complete at all times. Each Party will immediately update its user profile on the Netpartner Website to reflect any changes to its Profile Information. Each Party acknowledges and agrees that the other Party may use and rely on all of the other Party’s Profile Information.

2. AFFILIATE OPPORTUNITY DESCRIPTION

1. Contents. Advertiser represents and warrants that the description of the Affiliate Opportunity posted on the Netpartner Website (“Affiliate Opportunity Description”) accurately describes all of the following:

1. the websites operated by Advertiser to which the Advertiser Materials are linked (“Advertiser Websites”);

2. the types of properties (e.g., web pages, email messages and/or software applications) controlled by Publisher on which Publisher will be permitted to display the Advertiser Materials; and

3. the type of action that individuals who view the Advertiser Materials (“Viewers”) must take (e.g., clicking on such Advertiser Materials, purchasing goods or services from Advertiser, or registering on Advertiser’s websites) to trigger Advertiser’s obligation to compensate Publisher for the Affiliate Opportunity (each such action, a “Compensable Transaction”), and the nature and amount of such compensation.

2. Modifications. Publisher acknowledges and agrees that the Affiliate Opportunity Description may be modified by Advertiser from time to time, and that such modifications will be effective when displayed on the Netpartner Website.

3. ADVERTISER MATERIALS

1. License to Publisher. Subject to the terms and conditions of this Agreement, Advertiser hereby grants to Publisher a limited, non-exclusive, non-transferable, non-sublicensable license to (a) download the Advertising Materials and (b) display and distribute the Advertiser Materials on the web pages, email messages, software applications and other items that are controlled by Publisher and identified in Publisher’s Profile Information at the time of Advertiser’s approval of Publisher for the Affiliate Opportunity (collectively, “Publisher Properties”).

2. Display Restrictions. Publisher will not display any Advertiser Materials on:

1. any website, email message, software application or other item that is not a Publisher Property;

2. any Publisher Property that (i) promotes any products or services that are designated as prohibited on Netpartner’s Products Policy viewable at www.netpartner/productpolicy.com, which may be revised by Netpartner from time to time, (ii) contains any content that violates Netpartner’s Content Policy viewable at www.netpartner.com/contentpolicy, which may be revised by Netpartner from time to time, or (iii) links to any website that promotes any such products or services or contains any such content;

3. any Publisher Property that is not of the types of properties (e.g., websites, email messages or software applications) on which Advertiser expressly permits Advertiser Materials to be displayed, as set forth in the Affiliate Opportunity Description (as may be modified from time to time as described in Section 2.2);

4. any unsolicited commercial e-mail messages; or

5. any pop-up or pop-under windows that are not launched directly from a Publisher Property.

3. Other Restrictions. Publisher will not, and will have no right to: (a) remove or alter any copyright or trademark notices contained in any Advertiser Materials, or otherwise modify or create derivative works of any Advertiser Materials; (b) sublicense, assign, sell or otherwise transfer to any third party any of the rights granted to Publisher under Section 3.1; or (c) reproduce, display, distribute or otherwise use or exploit any Advertiser Materials except as expressly permitted in this Agreement. All Advertiser Materials (and all copyright and other intellectual property rights therein) will remain the property of Advertiser.

4. OTHER PROVISIONS

1. Advertiser Websites. Advertiser will link Advertiser Materials to the Advertiser Websites identified in the Affiliate Opportunity Description (as may be modified as described in Section 2.2), and not to any other websites. Advertiser will ensure that no Advertiser Websites will (a) promote any products or services that are designated as prohibited on Netpartner’s Products Policy viewable at www.netpartner.com/productpolicy, which may be revised by Netpartner from time to time, (ii) contain any content that violates Netpartner’s Content Policy viewable at www.netpartner.com/contentpolicy, which may be revised by Netpartner from time to time, or (iii) link to any website that promotes any such products or services or contains any such content.

2. Potential Claims. If either Party becomes aware of any potential claim in connection with any Advertiser Materials or Advertiser Website, such Party will provide prompt written notice of such potential claim to the other Party.

3. Keywords. Without the prior written approval of Advertiser, Company will not purchase keywords from search engine service providers that include any trademarks, service marks or brand names of Advertiser, or any derivatives of any such trademarks, service marks or brand names.

5. PAYMENTS

1. Advertiser Payments and Reports. Within thirty (30) days of the end of each calendar month, Advertiser will:

1. pay to Netpartner, for each Compensable Transaction occurring during such month, the amount set forth in the Affiliate Opportunity Description as of the date of such Compensable Transaction, together with any applicable taxes (“Advertiser Payment”); and

2. provide Netpartner with an accurate and complete report containing all of the following information: (i) the number of Viewers who clicked on Advertiser Materials (“Referred Viewers”) during such month; (ii) the number of Referred Viewers who engaged in Compensable Transactions during such month; (iii) the number of Referred Viewers who did not engage in Compensable Transactions during such month; and (iv) with respect to each Compensable Transaction during such month, the date of such Compensable Transaction, the Publisher ID number associated with such Compensable Transaction, and all information applicable to the calculation of the Advertiser Payment for such Compensable Transaction.

All Advertiser Payments will be calculated based upon tracking and reporting provided by Netpartner.

2. Links and Tracking Codes. Publisher acknowledges that Advertiser Materials will contain hyperlinks to Advertiser Websites (“Links”) and transaction tracking codes and/or other mechanisms used to identify transactions resulting from clicks on Advertiser Materials displayed by Publisher (“Tracking Codes”). Publisher acknowledges and agrees that Advertiser will have no payment obligations in connection with (a) any click on any Advertiser Materials that does not contain a Link or does not otherwise result in the Viewer being linked to an Advertiser Website, or (b) any Compensable Transaction that is not tracked using a Tracking Code or is otherwise not identified by Netpartner as resulting from a click on Advertiser Materials displayed by Publisher.

3. Records; Audits. During the period in which this Agreement remains in effect and for a period three (3) years thereafter, Advertiser will keep and maintain complete and accurate books and records of all amounts paid and payable by Advertiser under this Agreement. Advertiser will allow Publisher and its representatives to audit Advertiser’s books and records in order to verify the accuracy of Advertiser’s payments under this Agreement. Publisher will provide Advertiser with at least ten (10) days’ prior written notice of any audit. Each audit will be conducted during Advertiser’s regular office hours. Advertiser will promptly pay to Netpartner the amount of any deficiency in Advertiser’s payments to Netpartner under this Agreement. If any audit reveals any underpayment by Advertiser of five percent (5%) or more, Advertiser will reimburse Publisher for all costs and expenses incurred by Publisher in connection with such audit.

6. GENERAL OBLIGATIONS

1. Standard of Conduct. Each Party will: (a) conduct itself in a professional manner that reflects favorably at all times on the good name, goodwill and reputation of the other Party; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to the other Party; and (c) not publish or otherwise make any false, misleading or deceptive statements or materials relating to the other Party or the Affiliate Opportunity.

2. Compliance with Laws. Each Party will comply with all applicable laws and regulations in connection with the Affiliate Opportunity, including the CAN-SPAM Act of 2003, the Children’s Online Privacy Protection Act, and any other laws governing unsolicited email messages, privacy, data protection, unfair trade practices, or deceptive or misleading advertising.

3. Illegal and Fraudulent Activity. Neither Party will, or will assist, authorize or encourage any third party to, engage in any illegal or fraudulent activity in connection with the Affiliate Opportunity, including the artificial or fraudulent inflation or reduction of the number of Compensable Transactions or the amount of the Advertiser Payments payable by Advertiser. Without limiting the generality of the foregoing, Publisher will not, and will not assist, authorize or encourage any third party to, inflate the number of Compensable Transactions by: placing any Advertiser Materials on pages that reload automatically; offering users any incentives or inducement of any kind (including cash, points, prizes or contest entries) to click on any Advertiser Materials or otherwise engage in any Compensable Transactions, except to the extent expressly permitted in the Affiliate Opportunity Description; framing any Advertiser Websites, except to the extent expressly permitted in the Affiliate Opportunity Description; using blind links (e.g., where Viewers do not know that they are clicking on a link) or other invisible methods to generate impressions, clicks or other Compensation Transactions that are not initiated by the affirmative action of the Viewers; requiring Viewers to click on any Advertiser Materials in order to obtain some other result or perform another function (such as leaving a webpage or closing a window); running “spiders” against Publisher Properties containing any Advertising Materials; or having Publisher’s employees, contractors or agents click on any Advertiser Materials. No transactions resulting from any activities prohibited in this paragraph will qualify as Compensable Transactions.

7. PRIVACY

1. Privacy Policies.

1. Publisher will conspicuously display an easy-to-understand privacy policy on all Publisher Properties that are websites, and will display a conspicuous hyperlink (labeled with the word “Privacy”) from the home pages of such websites. In addition, Publisher will include a hyperlink to such privacy policy on all Publisher Properties that are not websites.

2. Advertiser will conspicuously display an easy-to-understand privacy policy on all Advertiser Websites, and will display a conspicuous hyperlink (labeled with the word “Privacy”) from the home pages of all Advertiser Websites.

3. Each Party will ensure that the privacy policies of such Party described in Section 7.1(a) or 7.1(b) above, as applicable, will comply with all laws and regulations regarding the privacy of Viewer information, will be commercially reasonable, and will fully and accurately disclose such Party’s collection and use of Viewer information, such Party’s disclosure of Viewer information to third parties (including Netpartner and the other Party), and such Party’s use of third party technology, including Tracking Codes and other Netpartner tracking technology.

2. Tracking Codes. Publisher will not alter any Tracking Codes to collect or include any personally identifiable or sensitive information of any Viewers.

3. Recipient Data. Publisher acknowledges and agrees that all personally identifiable information, if any, provided by Viewers through Tracking Codes or in response to any Advertiser Materials, and all reports, results, and other information created, compiled, analyzed or derived by Publisher from such data (collectively, “Viewer Data”), will be the sole and exclusive property of Advertiser and Netpartner. Netpartner and Advertiser, in their sole discretion, will have the right to use, market and re-market any Viewer Data without further obligation to Publisher. Publisher will not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, any Viewer Data to any third party.

8. TERMINATION

1. Termination/Suspension by Netpartner. Each Party acknowledges that the other Party’s participation in the Netpartner Affiliate Network or the Affiliate Opportunity may be terminated or suspended by Netpartner at any time, with or without notice, in which case this Agreement will immediately terminate.

2. Termination of Publisher’s Participation. Either Party may terminate Publisher’s participation in the Affiliate Opportunity at any time, for any or no reason, with or without notice to the other Party, in which case this Agreement will immediately terminate.

3. Effect of Termination. Upon any termination of this Agreement:

1. All licenses of Advertiser Materials granted to Publisher under this Agreement will terminate. Publisher will immediately remove from all Publisher Properties, and will otherwise cease use and display of, all Advertiser Materials. If Publisher fails to do so, then in addition to any other rights and remedies that Advertiser may have, Advertiser may terminate or redirect the Links contained in any Advertiser Materials that Publisher continues to use or display without compensation to Publisher and without incurring any liability or obligation to Publisher.

2. Advertiser will have no obligation to make any payments to Publisher in connection with any Compensable Transactions occurring on or after such termination.

3. Within fifteen (15) days of the end of the calendar month in which such termination occurred, Advertiser will (i) pay to Netpartner all Advertiser Payments corresponding to Compensable Transactions occurring during such month prior to such termination, and (ii) provide Netpartner with a report, as set forth in Section 5.1(b), with respect to such month.

4. Such termination will not affect any rights or liabilities of the Parties that accrued prior to such termination. Neither Party will have any liability to the other Party for terminating this Agreement in accordance with Section 8.2, including any liability for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investment, leases or commitments in connection with the business or goodwill of the other Party.

5. The rights and obligations contained in Sections 5.3, 7.3, 8.3, 9, 10, 11, 12 and 13 of this Agreement will survive any termination of this Agreement.

9. DISCLAIMERS

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EACH PARTY AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AFFILIATE OPPORTUNITY AND ALL OTHER ASPECTS OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

10. INDEMNITY

1. By Publisher. Publisher will indemnify, defend and hold Advertiser and its affiliates harmless from and against any and all claims, suits, proceedings, demands and actions, and all losses, liabilities, costs and expenses of any nature (including reasonable attorneys’ fees), arising out of or relating to (a) any breach by Publisher of any provision of this Agreement, or (b) any Publisher Property.

2. By Advertiser. Advertiser will indemnify, defend and hold Publisher and its affiliates harmless from and against any and all claims, suits, proceedings, demands and actions, and all losses, liabilities, costs and expenses of any nature (including reasonable attorneys’ fees), arising out of or relating to (a) any breach by Advertiser of any provision of this Agreement, or (b) any Advertiser Materials or Advertiser Websites.

11. LIMITATIONS OF LIABILITY

NEITHER PARTY, ITS AFFILIATES, OR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS OR AGENTS, WILL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, OR ANY DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL, LOST PROFITS OR BUSINESS INTERRUPTION, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY WAY TO THE AFFILIATE OPPORTUNITY OR ANY OTHER ASPECT OF THIS AGREEMENT, EVEN IF EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES TO PUBLISHER IN CONNECTION WITH THE AFFILIATE OPPORTUNITY AND ALL OTHER ASPECTS OF THIS AGREEMENT (EXCLUDING SUCH PARTY’S PAYMENT OBLIGATIONS HEREUNDER) WILL NOT EXCEED THE GREATER OF (A) the sum of all ADVERTISER PAYMENTS (if any) ACTUALLY RECEIVED BY ADVERTISER UNDER THIS AGREEMENT during the twelve-month period immediately preceding the first event giving rise to such liability AND (B) ONE THOUSAND U.S. DOLLARS (US$1,000).

Each Party acknowledges that the other Party has agreed to Publisher’s participation in the Affiliate Opportunity in reliance on the limitations of liability, disclaimers of warranties, exclusion of damages and exclusive remedies contained in this Agreement, and that each of the foregoing provisions forms an essential and fundamental part of the basis of the bargain between the Parties, without which the other Party would not have agreed to such participation. Each Party agrees that such provisions will survive and apply notwithstanding any failure of essential purpose of any limited remedy or limitation of liability.

12. DISPUTE RESOLUTION

This Agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement, will be governed by and construed in accordance with the laws of Hong Kong Special Administrative Region of the People’s Republic of China. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

13. MISCELLANEOUS

1. Severability. If any provision of this Agreement will be held illegal or otherwise unenforceable, (a) such provision will be reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable, and (b) the validity or enforceability of the remainder of this Agreement will not be affected.

2. Waiver. The waiver by either Party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have under this Agreement operate as a waiver of any right or remedy.

3. Construction. The various section headings of this Agreement are inserted for convenience of reference only and will not affect the meaning or interpretation of this Agreement or any section thereof. This Agreement will be deemed to have been drafted by both Parties and, in the event of a dispute, neither Party hereto will be entitled to claim that any provision should be construed against the other Party by reason of the fact that it was drafted by one particular Party. In this Agreement, unless otherwise specified, the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation.”

4. Relationship of Parties. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties, and the Parties will at all times be and remain independent contractors. Neither Party will not have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other Party any of its affiliates, or to bind the other Party or any of its affiliates in any respect whatsoever. Each Party will be responsible for all costs and expenses incurred by such Party in connection with the Affiliate Opportunity.

5. Assignment. Neither Party may assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or duties under this Agreement, without the written consent of the other Party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns.

6. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof and supersede any and all prior and contemporaneous written or oral agreements and communications between the Parties with respect to such subject matter.