MAXICLIMBER AFFILIATE PROGRAM TERMS AND CONDITIONS
These MaxiClimber Terms and Conditions (these “Terms”) shall govern the relationship between MaxiClimber (“MaxiClimber,” “We”, “us”, or “our”) and Affiliate (“Affiliate,” “you” or “your”) as identified herein, whose signatures appear below. “Our Website” refers to the maxiclimber.com properties located at https://maxiclimber.com/. “Your Website” refers to any Websites that you will link to our Website; “Program” refers to the MaxiClimber Affiliate Program.
- Welcome. Please read these Terms to join our program. These terms and conditions are written to ensure the success of our MaxiClimber Affiliate Program and our valued affiliate partners. At all times you are required to abide by these Terms, and all applicable laws, in order to participate in the program. You wish to participate in the program and benefit from its services we have agreed to offer you, subject to your agreement to be bound by these Terms. It is your responsibility to ensure compliance at all times with these Terms and applicable law. Thank you for your interest in our program. We look forward to working with you under these Terms as follows:
- Definitions. When used in these Terms in the singular or plural, the following defined terms shall have the meanings set forth below:
- “Ad, “Ad Content,” “Advertisement,” “Creatives,” or “Advertising Content” means any and all creative and substantive materials or content, which may include, but is not limited to, text, images, websites, landing pages, checkout pages, SMS or marketing text messages, marketing email messages, and product and service information and descriptions.
- “Agreement” or “Terms” means these MaxiClimber Affiliate Terms and Conditions.
- “Commission” or “Payout” means the amount due to you as an affiliate for your services by MaxiClimber, or amount that will be paid to you for generating traffic, leads, actions, or conversions for MaxiClimber products and services.
- “E-mail” means a form of digital advertising that involves sending offers to prospective online users and/or consumers via electronic mail or message (such as short message service (SMS) or text messaging), whether in HTML or text format, that will direct prospective online users or consumers to our Website.
- “Incentivized” means a form of digital advertising or marketing by which an online user or consumer is offered something of value, such as a monetary or value reward, cash, gift card, online or virtual currency, or tangible gift, in exchange for completing an online offer, or registering or purchasing a product or services.
- “Messaging” means any form of marketing that involves placing or sending any form of communication, telephone call (including robocalls), email and/or SMS/text messages to consumers to advertise MaxiClimber’s goods or services.
- “Offer” or “Campaign” means MaxiClimber’s advertising offer, campaign or program aimed at selling, marketing or promoting its own products or services, which serves as the basis to drive prospective online users and/or consumers to its landing page, website(s) or applications.
- “Parties” means, collectively each of the parties to this Agreement, that is, MaxiClimber and Affiliate, as defined herein. The parties may also be individually referred to as a “party.”
i “Pay Per Click” or “PPC” means a type of billing program for a Campaign involving a type of internet search marketing which involves advertisers paying a fee each time one of their ads is clicked in a search.
- “Person” means any individual, company, body corporate, association, partnership, firm, joint venture, trust, or other entity.
- “Affiliate,” “You,” or “Your” means each individual or company that has entered into these Terms, and serves as an internet advertising affiliate, which maintains a proprietary relationship with MaxiClimber, and owns and/or uses internet advertising space, links, newsletters, websites, and/or opt-in email or telephone number lists for the purpose of completing digital advertising or affiliate marketing campaigns for the benefit of MaxiClimber using its Ad Content.
- “Affiliate’s Materials” means any marketing materials, content, SMS/text/email messages, post, advertisement, display, banner, messaging, telephone calls or any other means utilized by Affiliate to carry out any services under these Terms in the Campaign and/or for MaxiClimber.
- “Search” means buying traffic on a pay per click basis from a search engine by bidding on keywords relevant to a given Offer. Traffic can be driven either directly to the Offer landing page, or through a landing page controlled by the Affiliate (which then links to MaxiClimber’s Offer’s landing page).
- “Social Media” means any advertisement or display banner on a social networking website or application, such as Facebook.
- “Traffic” means online data sent, transmitted, or received by users or visitors to a landing page or website, whether derived from computers, mobile devices or any other physical or electronic device or application.
- Approval of Affiliate. Upon approval by MaxiClimber and subject to the terms and conditions of these Terms, Affiliate agrees to promote MaxiClimber’s products or services in accordance with applicable law, as set forth herein, and the applicable terms of the Campaign in exchange for earning a commission. Affiliate agrees and acknowledges that Affiliate must apply and obtain official approval from MaxiClimber before Affiliate may become authorized to participate in the program and before it is entitled to receive commissions. To do so, Affiliate must submit an online application and undergo an evaluation and vetting process. Please allow up to 48 hours (Mon-Fri) for your application to be approved. Affiliate acknowledges that MaxiClimber may reject an application in its sole discretion. However, we encourage you to contact us if you feel we have made an incorrect decision. Please include all websites that you use in your profile as that will help us make a better decision. Upon approval by MaxiClimber and subject to the Terms, Affiliate also acknowledges that even if Affiliate’s application is approved, MaxiClimber reserves the right to reevaluate Affiliate and/or reject Affiliate at any time in its sole discretion. In order to be eligible to become an approved Affiliate, and in order to maintain an active Affiliate status, Affiliate makes the following representations:
- Affiliate must be qualified and licensed to do business and is in good standing in every jurisdiction where such qualification and/or licensing is required for purposes of these Terms.
- Affiliate must have full right, power and authority to enter into these Terms and to perform its obligations under these Terms.
iii. Affiliate must have taken all necessary corporate action to authorize the approval of these Terms by its representative who has approved or executed these Terms, and who is authorized to bind Affiliate to all terms of these Terms; and when approved electronically, these Terms will constitute the legal, valid and binding obligation of Affiliate enforceable against it in accordance with its terms.
- Affiliate must provide truthful and complete disclosures to MaxiClimber, including, but not limited to, with respect to Affiliate’s application and enrollment in the program.
- Affiliate agrees to the approval of these Terms by electronic means, which includes, by approving these Terms upon enrolling on our Website to participate in the program.
- Affiliate further agrees and understands that from time to time, these Terms are subject to change and although Affiliate will receive notice that the Terms have been updated, Affiliate agrees and understands that Affiliate’s use of the program shall be considered Affiliate’s express consent to MaxiClimber’s updated Terms.
Upon acceptance into the program, links will be made available to you through the Affiliate Window interface. You agree that you will only use linking code obtained from Affiliate Window without manipulation. Also, please ensure that all domains where you use our link are listed in your affiliate network profile.
You hereby agree that your Website will not in any way copy, resemble, or mirror the look and feel of our Website. You will also not use any means to create the impression that your Website is our Website or any part of our Website including, without limitation, framing of our Website in any manner. Cookie stuffing, pop-ups, and false or misleading links are strictly prohibited. In addition, wherever possible, you will not attempt to mask the referring URL n information (i.e. the page from where the click is originating). Using redirects to bounce a click off of a domain where the click did not originate in order to give the appearance that it came from that domain is expressly prohibited and is a direct violation of the program. This does not include using “out” redirects from the same domain where the affiliate link is placed
- Affiliate Obligations and Requirements. In order to remain an authorized Affiliate within the program, Affiliate and Affiliate’s Materials must comply with the following requirements at all times while participating in any Campaign through the program:
- Affiliate shall comply with all applicable laws, statutes, ordinances, regulations, and legal guidelines (collectively, “Laws”) including, without limitation, those Laws governing false or deceptive advertising, cybersquatting, intellectual property, privacy, and publicity rights, the Federal Trade Commission Act (“FTC Act”), Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act, Restore Online Shopper’s Confidence Act (ROSCA), all state and local counterparts to the FTC Act and associated regulations in every jurisdiction in which Affiliate conducts business, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the FTC’s Telemarketing Sales Rule, the Federal Reserve Board’s Regulation E, Federal Communications Commission regulations and guidelines, including Mobile Marketing Association guidelines, and FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, all as amended from time to time.
- Affiliate’s Materials shall contain legitimate content, substance and material, not simply a list of links or advertisements.
iii. Affiliate’s Materials shall contain the appropriate and approved language content in accordance with the terms of the Campaign.
- Affiliate’s Materials shall be represented by a legitimate second-level domain name. A shared server is not acceptable.
- Affiliate’s Materials shall not be offered as a part of a community-based website, personal entry or personal page.
- Affiliate’s Materials may not incentivize users to click on ads. Incentives include, but are not limited to, awarding users cash, points, prizes, contest entries, etc.
vii. Affiliate’s Materials shall be entirely functional at all levels; no “under construction” sites or sections are permissible.
viii. Affiliate’s Materials shall not contain spawning process pop-ups and exit pop-ups.
- Affiliate’s Materials shall not promote or contain any racial, ethnic, political, hate-mongering, investment, money-making opportunities, deceptive, misleading, fraudulent, advice or content not permitted by law, violence, profanity, or otherwise objectionable content, as determined by MaxiClimber; obscene or sexually explicit content; defamatory, tortious, or threatening content; private or confidential information of another person, materials that impersonate any person or entity, unauthorized or misleading endorsements, promotions of illegal activities, substances, drugs, terrorism, crimes, software piracy, hacking, or explosives; any material that contains spyware, adware, spamware, mail bomb, software viruses, computer code, files or Campaigns designed to interrupt, destroy or limit the functionality of any network, computer software or hardware or telecommunications equipment; software or processes that harvest and/or collect personal identifiable or confidential information of another person or entity without consent; material that otherwise infringes upon the rights of any third parties including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti-discriminatory law or regulation, or any other right of any person or entity; material that violates the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”); material or automated marketing text or call messages to consumers that violates the Telephone Consumer Protection Act (TCPA), or contain material or content related to any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, or the laws of any other jurisdiction in which Affiliate operates).
- When engaging in any form of marketing using SMS/text messaging or telephone calls in a Campaign (“Messaging”), Affiliate may only contact consumers (“Consenting Users”) who have provided “prior express written consent” (“TCPA Consent”) as that term is defined in the Telephone Consumer Protection Act (47 USC § 227) and its implementing regulations, 47 CFR §64.1200, or in “mini-TCPA” state laws and regulations, as amended from time-to-time (“TCPA”). The language to be used by Affiliate to obtain TCPA Consent from Consenting Users (“Consent Language”) must include the Affiliate, as well as all language and other elements required under the TCPA, the most recent version of the Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices for Messaging, the most recent version of the Cellular Telecommunications Industry Association (“CTIA”) SMS Interoperability Guidelines and CTIA Short Code Monitoring Handbook, the rules, terms, conditions and policies of all participating mobile telephone carriers, as well as any other rules applicable to Messaging (“Applicable Messaging Rules”). Sample Consent Language from Affiliate’s own sites as well as any other data sources of Affiliate shall, upon written request, be provided to MaxiClimber Network.
- Affiliate shall maintain or cause to be maintained records (“TCPA Records”) of the TCPA Consents obtained from each Consenting User, including date and time stamp of when the TCPA Consent was obtained, the IP address/device ID of the Consenting User, the Consent Language associated with each such TCPA Consent and such other information, and/or documentation, that is reasonably necessary to prove in a regulatory or judicial proceeding, or in discussions that could reasonably be expected to predate such a proceeding, that the Affiliate secured legally sufficient TCPA Consent from the Consenting User to be contacted via Messaging by the Affiliate for MaxiClimber. Affiliate shall maintain the TCPA Records at its expense for at least 7 years, and shall provide such TCPA Records to MaxiClimber within five (5) days of any written request.
xii. Affiliate shall evaluate and vet all Messaging service providers and only use those entities/persons (“Approved Providers”) who have the technical capabilities and appropriate training and management that enables such Approved Providers to send SMS/text messages (“Messages”) in compliance with all Applicable Laws, Rules and Regulations and in accordance with these Terms including, but not limited to: (a) sending Messages in accordance with the FTC Telemarketing Sales Rule time of day restrictions based on where the recipient resides; (b) maintaining an operable opt-out system which suppresses users who opt-out from receiving future Messages; and (c) maintaining a system which records the date/time stamp and Message content for each Message sent to recipients. Affiliate shall be solely responsible for the acts and omissions of its Approved Providers.
xiii. Affiliate shall ensure that all Messages sent in connection with a Messaging Campaign comply with all Applicable Laws, Rules and Regulations, Applicable Messaging Rules and the other terms, conditions and restrictions contained in these Terms. The content of all Messages to be sent for a Campaign (“Message Content”) shall be provided to MaxiClimber for its prior written approval before such Message Content is used for a Campaign. No copy, images, links, buttons or text other than the Message Content that was pre-approved by MaxiClimber, in writing (including any links provided by MaxiClimber), may be used by MaxiClimber in connection with its Messaging activities. Affiliate will not make any changes to the Message Content without MaxiClimber’s prior written approval in each instance. If receiving phone data for the purpose of SMS/text messaging or telephone calls from a third-party, Affiliate will ensure that there is appropriate TCPA Consent.
xiv. MaxiClimber reserves the right to monitor Affiliate’s activity using a combination of its own seeding and proprietary software and/or third-party monitoring services including Lashback, to confirm that Affiliate’s Messaging activities comply with these Terms. Leads generated from Messaging activities that do not comply with these Terms shall be deemed invalid leads or conversions. If Affiliate is unable to reasonably prove that Affiliate’s Messaging activities are compliant, Affiliate will forfeit all commissions related to those leads or commissions, and all pending commissions may be rightfully withheld by MaxiClimber pending its investigation and determination of MaxiClimber’s financial obligations for its noncompliant activities.
- If Affiliate uses any non-compliant Consent Language or Message Content, or, in the reasonable discretion of MaxiClimber, otherwise violates these Terms, any Business Rules, Applicable Laws, Rules and Regulations or Applicable Messaging Rules, MaxiClimber may: (a) disable any links contained in the Messages; (b) immediately terminate the Agreement; (c) withhold all payments otherwise due and owing to Affiliate; and/or (d) suspend Affiliate from the Campaign and/or from providing services to MaxiClimber; (e) terminate Affiliate from the program, and/or (f) seek indemnity and/or hold Affiliate liable for any and all damages and/or claims attributable to same in accordance with these Terms.
xvi. Affiliate shall not contact any consumers who are registered on any state or federal Do-Not-Call registry (e.g., National Do-Not-Call Registry and any state or local equivalent), any consumers that are on any suppression, “do-not-call” or “opt-out” lists, or any consumers that express that they do not wish to be contacted at any time.
xvii. MaxiClimber reserves the right to request a copy of Affiliate’s suppression file (also known as the “opt -out” list) to ensure it is up to date according to compliance guidelines. Failure to comply with guidelines will result in termination of Affiliate’s approved status in the program, and/or forfeiture of any pending commissions.
xviii. Each Affiliate shall utilize opt-in language specifically asking for consent to receive the applicable Affiliate’s Messaging. Affiliate shall utilize independent Opt-in verification, video capture/replay of consumer opting-in on the source website, and long-term lead certification storage. Sensitive data flagging and real-time page scanning are recommended by MaxiClimber but not required. For any SMS text message-based opt-ins, Affiliate shall send a confirmation text message in reply that contains the company name, fulfillment of the offer that compelled the opt-in, a mention as to the frequency of messages, disclosure of possible carrier costs and fees, and an option to ask for help and opt-out of future SMS text messages. Upon MaxiClimber’ s request, consumer opt-in data shall be provided within 48 hours of written notice.
xix. Affiliate shall not send more than two (2) SMS text messages to a single recipient within any 24-hour period. Affiliate shall only send SMS text messages between 8 A.M. and 9 P.M. in the recipient’s time zone.
- Each commercial SMS text message shall display conspicuously a clear notice which details how, whether through a return SMS text message or another Internet based tool, recipients can request not to receive further messages from the sender. The opt-out mechanism described in each commercial SMS text message shall be effective for at least thirty (30) days following the original date the SMS text message is transmitted. If a recipient requests not to receive commercial SMS text message, the sender or any person acting on behalf of the sender will not, more than ten (10) business days after receipt of the opt-out request, send or assist another in sending to that recipient, any SMS text message that falls within the scope of the opt-out request. Once an opt-out request is received from a recipient of a commercial SMS text message, sender shall not disclose to any third party such recipient’s phone number or e-mail address and shall send confirmation of opt-out to recipient. Affiliate shall maintain written procedures for checking the Do Not Call registry list and maintain a company-specific do-not-call list for consumers who have requested not to be contacted. Affiliate shall scrub audience lists against both lists weekly at a minimum.
xxi. Affiliate shall not send any Messaging with information (e.g., sender name and e-mail address, domain name, and subject line) that is materially false or misleading, i.e., altered or concealed in a manner that impairs the ability of others to identify, respond to, or locate the sender or to investigate the alleged violation. This shall include sending Messaging information that is technically accurate, but which was obtained by false pretenses. Affiliate shall not send any Messaging if the message is likely to mislead recipients as to the contents or subject matter of the message.
xxii. Affiliate must ensure all above user data collection, management, and suppression processes are in place. Affiliate must receive written approval by MaxiClimber to send SMS text messages to 3rd party audience lists.
xxiii. Affiliate must maintain their own opt-out or suppression list and scrub against federal and state Do-Not-Call registries and all internal suppression lists at least once per week. All opt-outs from receiving Affiliate’s Emails must be promptly added to its internal do-not-call and do-not-email lists.
xxiv. Affiliate may not imply that any form of compensation is guaranteed/available/waiting/owed/etc. and must qualify any statement about compensation.
xxv. Affiliate must avoid false or misleading claims. All representations contained in copy must be truthful and accurate. Affiliate must not imply that the recipient is qualified for, entitled to or has been pre-approved for any compensation. Instead, copy should make clear that by clicking a link or call to action button, the consumer will see if they qualify. Affiliate’s Materials must avoid language suggesting a prior relationship/transaction with the recipient unless the recipient has subscribed specifically in that manner.
xxvi. Affiliate may not use the following terms/symbols/emojis/list specific monetary amounts, such as those for cash, restitution, dollar symbols/emojis ($), list specific monetary amounts, mention that any compensation is available or how much the company has been legally ordered to pay.
xxvii. Affiliate must send all messages on its behalf and must not imply that they are being sent on behalf of maxiclimber.com.
xxviii. Affiliate is not allowed to use Pop Ups, Pop Unders or any other format that is deemed intrusive or use any other cookie stuffing techniques that may force the cookie in the user’s browser.
xxviv. Affiliate is not allowed to supplant by any means MaxiClimber’s identity in social media. Affiliate must be easily identified by users in any promotion in social media.
- 6. Ad Content and Creatives. Ad Content and Creatives are the sole responsibility of and generated by MaxiClimber, and in some instances by Affiliate so long as the Ad Content and Creatives that are generated by Affiliate comply with these Terms, all applicable laws, rules and regulations, and/or the Campaign terms. Upon approval of the Affiliate by MaxiClimber to participate in the program and Campaign, Affiliate shall be permitted to download Creatives from the program: (i) for appropriate publication by Affiliate on all approved marketing channels. Affiliate shall include the specific links provided by MaxiClimber directing traffic to our landing page(s), Website and/or applications in all Creatives for each specific Campaign in which Affiliate participates. Affiliate’s use of all Creatives, whether created by MaxiClimber, Affiliate or any other party, may be rejected at any time by MaxiClimber if they fail to comply with these Terms. MaxiClimber may, at its sole and absolute discretion, request Affiliate remove or stop using Creatives or other Campaign related material, and Affiliate shall remove Creatives or other Campaign related material within 24 hours of MaxiClimber’s request. Failure by Affiliate to do so may, in MaxiClimber’s sole discretion, result in MaxiClimber terminating Affiliate’s active status, removing Affiliate from any or all Campaigns, and or terminating you as an affiliate of MaxiClimber, as MaxiClimber deems appropriate at its sole and absolute discretion.
- PPC GUIDELINES
If you participate in PPC advertising, you must adhere to our PPC Guidelines as follows:
- You may not bid on any of our trademarked or copyrighted terms (including, without limitation, the terms MaxiClimber, maxiclimber.com, www.maxiclimber.com), including any variations or misspellings thereof for search or content-based campaigns on Google, Yahoo, Bing, Ask or any other network.
- You may not use our trademark terms in sequence with any other keyword (i.e. MaxiClimber Coupons).
iii. You may not use our trademarked terms in your ad title, ad copy, display name or as the display URL.
- If you automate your PPC campaigns, the responsibility is on you to exclude our trademark terms from your program and we strongly suggest you add our trademarked terms as negative keywords. We have a strict no tolerance policy on PPC trademark bidding. We will not enter a discussion about when the violation started and when it stopped; you will forfeit all commissions for a minimum of the past 30 days.
- COUPON GUIDELINES
If your Website or other Affiliate’s Materials promote coupon codes, you must adhere to our Coupon Guidelines as follows:
- Affiliate may ONLY advertise coupon codes that are distributed by MaxiClimber. Any sales registered through other coupon codes will not be considered as valid and will be canceled.
- Affiliate is not allowed to promote coupon codes that have not been issued via the affiliate channel.
iii. On click through, Affiliate must link directly to our Website. Framing of our Website is strictly prohibited.
Cookie Stuffing: You must not mislead customers into clicking on an offer/coupon that does not exist or practice similarly deceptive tactics which are generally accepted as “cookie stuffing.” These include, but are not limited to, using knowingly expired offers, presenting offers that do not exist, presenting a button that claims to show all offers which sets the affiliate cookie, and technology which generates a click/sets the cookie from the action of copying a coupon code.
Unless you have been given express written permission, if you are found to be engaging in any of the aforementioned practices, we reserve the right to reverse any/all sales generated. Only discount codes approved for the affiliate channel will be approved at the full 20% commission. Please note that all transactions including a ‘refer a friend’ code (RAF) will be declined. If your Website participates in forums where active users of your Website can submit coupon codes, it is your responsibility to ensure that the coupon codes submitted do not violate our Coupon Guidelines.
Transactions including non-affiliate approved discount codes, excluding RAF codes, will still be honored at a lower commission rate of 20% ONLY for Content Affiliates. Please note that all transactions including a ‘refer a friend’ code (RAF) will be declined. Please note that all transactions including non-affiliate approved discount codes from Incentive sites (voucher/cashback) will be declined.
- DOMAIN NAMES
Use of any of our copyrighted & trademarked terms as part of the domain or sub-domain for your website is strictly prohibited (i.e. maxiclimbersale.com or www.maxiclimber-coupons.com.) Affiliate MUST NOT register, buy or use domains or subdomains that users may believe are part of MaxiClimber.
- Use of Sub-Contractors or Sub-Affiliates. Subject to the terms of these Terms, Affiliate may use a third-party vendor, contractor, or business partner to fulfill its obligations or perform under the Campaign (“Sub-Affiliate”), so long as the Sub-Affiliate(s) are first disclosed in writing by Affiliate to MaxiClimber, the Sub-Affiliate(s) meet the same criteria for approval as set forth in these Terms and the Sub-Affiliate(s) comply with all the terms and conditions that are applicable to Affiliate under these Terms and Campaign terms. MaxiClimber reserves the right to approve or reject any Sub-Affiliates and may revoke a prior approval of any Sub-Affiliate at any time and for any reason. As a result, Affiliate shall be responsible for and shall fully and unconditionally indemnify, defend and hold MaxiClimber harmless for any and all actions of any of its Sub-Affiliates, including the payment of legal fees and costs if necessary. If MaxiClimber grants approval to an Affiliate’s Sub-Affiliate, notices to the Affiliate shall be deemed adequate notice to that Affiliate’s approved Sub-Affiliate(s). Affiliate agrees that MaxiClimber shall never have any obligation to make any payment to Sub-Affiliate, including, but not limited to the payment of any fees or commissions. MaxiClimber reserves the right to withhold or refuse payment to Affiliate in the event that any of its Sub-Affiliates breach the terms of the Campaign or these Terms. Affiliate may only use a Sub-Affiliate if (i) Affiliate provides MaxiClimber the name and/or sub-ID for the Sub-Affiliate, and (ii) MaxiClimber provides its prior written approval for the proposed Sub-Affiliate (once approved, an “Approved Sub-Affiliate”). In that event, MaxiClimber shall be responsible for the actions of the Sub-Affiliate and Affiliate shall maintain and provide to MaxiClimber, upon request: (a) any and all names under which its Sub-Affiliate do business; (b) the state of incorporation/formation of each of Sub-Affiliate; (c) the registered agent of each of its Sub-Affiliate; (d) the first and last name, physical address, country, telephone number, and email address for at least one natural person who owns, manages or controls each Sub-Affiliate, as the case may be; and (e) the complete bank account information associated with the payments that are to be made to the Sub-Affiliate.
- Payment of Commissions. MaxiClimber will specify within its program the amount and terms under which Affiliate will earn payment of a Commission for a particular Campaign. Payments to Affiliate are generated from a specified Action as defined by MaxiClimber for each particular Campaign. MaxiClimber shall pay Affiliate the specified and applicable rate. The applicable Action associated with each Campaign shall be set forth in the applicable Campaign terms and, unless otherwise specified, such definition shall only apply with respect to that Campaign. Affiliate shall only be entitled to payment for Actions MaxiClimber deems valid based upon MaxiClimbers’s tracking of such Actions pursuant to Section 12 of these Terms. A Commission is paid on the final transaction amount after all discounts have been applied. No Commission is paid on goods returned within the allowed return period. A Commission will only be awarded for promotional offers on Affiliate Window. Manually entered promotional codes, or offers promoted elsewhere, will not be awarded commission. If Affiliate agrees to participate in a Campaign, Affiliate agrees to place the applicable Campaign’s Creatives on the Affiliate Materials, in accordance with these Terms and the accepted Campaign terms. MaxiClimber may, at its sole discretion, change a Campaign at any time, upon prior notice to Affiliate, unless otherwise specified in the Campaign terms. In the event Affiliate violates, or if MaxiClimber in good faith believes that Affiliate has violated, any of the terms in these Terms or the Campaign, MaxiClimber shall not be obligated to pay Affiliate any Commissions owed to Affiliate and MaxiClimber, in its sole and final discretion, may offset and withhold Commissions due to Affiliate to satisfy any losses, damages, legal fees, consulting fees, or penalties incurred by MaxiClimber due to Affiliate’s violations. Affiliate acknowledges and agrees that payment of Commissions may be delayed where the Affiliate has not complied with these Terms and that in no case shall MaxiClimber be liable to the Affiliate for any loss, costs, or expenses directly or indirectly incurred by the Affiliate as a result of such delay or that arises from Affiliate’s violations of these Terms.
- Tracking. MaxiClimber shall track all Actions for each Campaign in real time. Campaign data compiled by MaxiClimber including, but not limited to, data, numbers and calculations regarding Actions (“Campaign Data”), will be calculated by MaxiClimber through the use of industry standard tracking technology and shall be final and binding on Affiliate. Affiliate shall not modify or otherwise interfere with MaxiClimber’s tracking devices in any way. Any questions, objections, or complaints regarding the Campaign Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Campaign Data will be deemed to be accurate and approved by Affiliate.
- Timing of Payments. Affiliate agrees to be paid and accept the amount for each Action specified in the applicable Campaign terms and in accordance with these Term. Unless otherwise stated in the Campaign terms and excluding circumstances that would result in a delay in payment of Commissions to Affiliate by MaxiClimber as described in more detail in Section 11 above, MaxiClimber will issue payment to Affiliate on a monthly net 15 basis, i.e., by the 15th of each month, for each preceding month.
- Fraud, Claims and Disputes. MaxiClimber actively monitors Campaigns for fraudulent activity. In the event that MaxiClimber suspects that Affiliate’s account or the Campaign has been used in a fraudulent manner, Affiliate’s account may be deactivated by MaxiClimber without notice effective immediately pending MaxiClimber’s further investigation. If Affiliate inflates Actions, through the use of fraudulent means of traffic generation, Affiliate will forfeit all of the amounts owed to Affiliate by MaxiClimber related to that Campaign, and Affiliate’s account may be either suspended or terminated effective immediately without notice. MaxiClimber reserves sole judgment in determining fraud. Affiliate agrees to cooperate in good faith with MaxiClimber during its investigation of any fraud, and Affiliate agrees to be bound by any and all of MaxiClimber’s determinations. It is Affiliate’s obligation to prove to MaxiClimber that Affiliate has not engaged in fraud. MaxiClimber will hold Affiliate’s payments in ‘Pending Status’ until Affiliate has satisfactorily provided evidence that demonstrates to MaxiClimber that Affiliate has not engaged in fraud. If Affiliate is unable to provide MaxiClimber with satisfactory evidence that Affiliate has not engaged in fraud within seven (7) days of Affiliate’s account being placed on hold pending an investigation of fraud, then MaxiClimber reserves the right to terminate Affiliate’s account and cancel payment on the applicable Actions, at its sole discretion and without any further obligations to Affiliate.
- Termination. Unless otherwise set forth in these Terms, either party may terminate these Terms at any time by delivering to the other forty-eight (48) hours advance written notice of such party’s intent to terminate. No termination shall be effective, and this agreement shall remain in full force and effect, until forty-eight (48) hours after the other party receives the terminating party’s notice of termination. In the event MaxiClimber discovers that Affiliate has violated these Terms or engaged in any questionable or fraudulent marketing practices, MaxiClimber may in its discretion suspend, terminate, or permanently ban Affiliate from the Network. Upon termination or expiration of these Terms, for any reason, Affiliate shall continue to perform its obligations under Sections 17 and 18 below, and any other provisions of these Terms which are to expressly survive, or that may reasonably be expected to survive, termination or expiration of these Terms.
- Non-Disclosure and Confidentiality.
- Non-Disclosure. As an Affiliate of MaxiClimber, it is anticipated that MaxiClimber may disclose or deliver to Affiliate certain trade secrets, and/or Confidential Information, as defined herein, belonging to MaxiClimber and/or its other affiliates. “Confidential Information” includes, but is not limited to, all proprietary or business-sensitive information, whether oral, written, graphic, machine-readable or tangible form, and whether or not registered, and including all notes, plans, records, documents, computer Campaigns and software and other evidence thereof, including without limitation all: methods, know-how, strategies, patents, patent applications, copyrights, trademarks, trade names, service marks, customer or client lists, pricing policies, operational methods, marketing plans or strategies, procurement and sales activities or methods, promotion and pricing techniques, credit and financial data, and other information, data and documents now existing or to be created by MaxiClimber, regardless of whether any of such information, data or documents qualify as a “trade secret” under applicable federal or state law. MaxiClimber wishes to ensure that the information so exchanged is treated by all parties as strictly confidential, and Affiliate agrees to treat all information Affiliate receives from MaxiClimber in the strictest confidence. Affiliate shall hold the Confidential Information in the strictest confidence and shall not disclose the Confidential Information to any third party without MaxiClimber’s written consent. Affiliate agrees not to disclose any Confidential Information to any unauthorized person and promises not to use any Confidential Information for any purpose other than in connection with the subject matter contained in these Terms. Upon termination or expiration of these Terms for any reason, with or without cause, Affiliate shall immediately surrender and turn over to MaxiClimber all proprietary and Confidential Information in Affiliate’s possession.
- Procedure. If Affiliate becomes legally compelled to disclose any Confidential Information, Affiliate shall provide to MaxiClimber: (1) prompt written notice of such requirement so that MaxiClimber may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at MaxiClimber’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, MaxiClimber remains required by law to disclose any Confidential Information, MaxiClimber shall disclose no more than that portion of the Confidential Information which, on the advice of Affiliate’s legal counsel, Affiliate is legally required to disclose, and, upon MaxiClimber’s request, Affiliate shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
- Injunctive Relief. The Parties recognize that each Party has legitimate business interests to protect and as a consequence, each Party, and its principals, agree to the restrictions contained in this Agreement because they further each Party’s legitimate business interests. The Parties acknowledge and agree that damages in the event of a breach or threatened breach of the covenants contained above in this Agreement will be difficult to determine and the non-breaching Party will not have an adequate remedy at law, and therefore the Parties agree that they may, in addition to seeking actual damages, seek specific enforcement of the covenants set forth in this Agreement by way of the issuance of a temporary or permanent injunction, without notice and without the necessity of a bond. The Parties agree that the covenants in this Agreement are reasonable, including without limitation the period of time, scope, and geographical area. However, should it be determined that any provision is unreasonable, the Parties agree that the covenants should be interpreted and enforced to the maximum extent deemed reasonable under applicable law. The Parties’ obligations contained in this Section 16 shall survive the termination of these Terms for any reason.
- Indemnification. Affiliate agrees to defend, indemnity and hold harmless MaxiClimber and its respective directors, officers, employees, and agents from any and all losses, damages, demands, claims, assessments, actions, deficiencies, penalties, interest, expert witness fees, reasonable pre-litigation, litigation and appellate attorneys’ fees (including without limitation those incurred to enforce this indemnity), and other costs and expenses (collectively “Losses”) related to or incurred as a result of Affiliate’s or Affiliate’s Sub-Affiliate’s actions, inactions, negligence, Affiliate Website, Advertisements, Ad Content, Messages, Offer, Campaign, and/or Affiliate’s or Affiliate’s Sub-Affiliate’s breach of any portion of these Terms or applicable Campaign terms. If any action is brought against MaxiClimber with respect to any allegation for which indemnity may be sought from Affiliate or Affiliate’s Sub-Affiliate(s), MaxiClimber will promptly notify Affiliate of any such claim of which it becomes aware and will (i) provide reasonable cooperation to Affiliate at Affiliate’s expense in connection with the defense or settlement of any such claim and (ii) be entitled to participate at its own expense in the defense of any such claim. Affiliate or Affiliate’s Sub-Affiliate shall not acquiesce to any judgment or enter into any stipulation or settlement that adversely affects MaxiClimber’s rights or interests without the prior written consent of MaxiClimber.
- Insurance Requirements. Prior to entering into these Terms, Affiliate shall secure proper insurance coverage for its own respective businesses and maintain such insurance through the duration of this Agreement, which includes, Commercial General & Contractual Liability Insurance, Professional Liability Insurance, Workers Compensation Insurance, Cyber Insurance, Advertising Insurance, Business Interruption Insurance, and Commercial Automobile Liability Insurance coverage. MaxiClimber shall be identified as an additional named insured in each policy of insurance. All insurance shall be adequate to protect MaxiClimber from any claims or damages for any accident, incident, personal injury or death which may arise from Affiliate’s services and activities being provided under these Terms. Upon request by MaxiClimber, Affiliate shall provide MaxiClimber with proof of securing all such required insurance.
- DISCLAIMER OF WARRANTIES. MAXICLIMBER PROVIDES ITS SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY OF THE SERVICES. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY OF MAXICLIMBER’S SERVICES, MAXICLIMBER’S SOLE OBLIGATION WILL BE TO RESTORE THE SERVICES AS SOON AS PRACTICABLE. MAXICLIMBER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL MAXICLIMBER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTION OF BUSINESS, LOSS OF USE, LOST BUSINESS, LOST PROFITS, LOSS OF INFORMATION OR DATA, OR THE LIKE (EVEN IF MAXICLIMBERWAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, CAMPAIGN, OR AFFILIATE’S USE OF OR ASSOCIATION WITH MAXICLIMBER’S SERVICES. UNDER NO CIRCUMSTANCES SHALL MAXICLIMBER BE LIABLE TO AFFILIATE OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID TO AFFILIATE UNDER THESE TERMS IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO ANY ALLEGED LIABILITY. MAXICLIMBER SHALL NOT BE RESPONSIBLE FOR ANY CONDUCT OR FRAUD OF ONLINE USERS, AFFILIATES, OR THIRD PARTIES.
- Notices. All notices shall be sent to the addresses submitted by Affiliate when enrolling with MaxiClimber, and/or when participating in the program, by certified mail, facsimile, electronic mail (e-mail) or courier. MaxiClimber’s services are conducted and provided electronically. Therefore, Affiliate agrees that MaxiClimber may communicate electronically with Affiliate with respect to any and all matters in the program. Affiliate further agrees that any notice or other communication that is sent electronically to Affiliate’s most up-to-date contact information will satisfy and constitute valid notice under these Terms and any proceeding under Section 22.
- Survival. Each provision of these Terms reasonably intended by its terms to survive termination or expiration of these Terms shall so survive.
- Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association (AAA) in Miami, Florida, in accordance with the AAA’s Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All claims shall be heard by a single arbitrator and the arbitration shall be governed by the laws of the State of Florida. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The prevailing party in any such arbitration shall be entitled to an award of its reasonable attorney’s fees and costs. The award of the arbitrators shall be accompanied by a reasoned opinion. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness(es). In such event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award.
- Governing Law, Jurisdiction and Venue. This Agreement will be governed and construed in accordance with the laws of the state of Florida without giving effect to conflict of laws principles, and all federal law. The parties expressly agree to be subject to the personal jurisdiction of the state and federal courts located within the State of Florida regarding any issue, matter or dispute arising from or relating to this Agreement, and to Miami-Dade County, State of Florida, as venue for any legal proceeding conducted under this Agreement
- Attorneys’ Fees. The prevailing party in any action to enforce or interpret any provision or provisions of this Agreement shall be entitled to its/his/her reasonable attorneys’ fees in addition to all other costs associated with the action or appeal whether or not the action advances to judgment, including any and all costs for expert witnesses, in addition to any other relief to which that party may be entitled.
- WAIVER OF JURY TRIAL. EACH PARTY TO THESE TERMS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THESE TERMS OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THESE TERMS, THE INSERTION ORDER(S), OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
- Miscellaneous. If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Affiliate may not assign these Terms without the prior written consent of MaxiClimber. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and assigns. The parties to these Terms are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. These Terms sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Except as otherwise set forth herein, only a writing signed by both parties may change these Terms. In the event the terms of any Campaign and these Terms conflict, the Campaign terms will govern only with respect to the duration of the services, fees, invoicing and payment terms, otherwise these Terms shall govern and control. MaxiClimber’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision.
By participating in the Affiliates Program, you have affirmatively reviewed, accepted, and agreed to all of the Terms and Conditions.