Associates Program Agreement

Associates Program Agreement

 

Welcome to Crave Crush’s program for associates (the “Associates Program”), which governs your affiliate marketing relationship with Crave Crush, LLC or any of its affiliate companies, as the case may be (“Crave Crush” or “us” or similar terms).  Any person or entity that participates or attempts to participate in the Associates Program (such person or entity, “you”, or an “Associate”) must accept this Associates Program Agreement (this “Agreement”) without change. By registering for or using the Associates Program, you agree to this Agreement, including the Program Policies (defined in Section 11), which are incorporated by reference. Please read them carefully.

 

  1. Description of the Associates Program

 

The Associates Program permits you to monetize your website, social media user-generated content, or online software application (referred to here as your “Site”), by placing links to the Cravecrush.com website or any other website which is included in the Program Policies (each a “Crave Crush Site”) on your Site. The links must properly use the special “tagged” link formats we provide and comply with this Agreement (“Special Links”).

 

When our customers click through the Special Links to purchase an item sold on the Crave Crush Site (a “Product”) or take other actions, you can receive program fees for qualifying purchases, as further described in (and subject to the limitations in) the Program Policies.  In order to facilitate your advertisement of Products, we may make available to you data, images, text, link formats, widgets, links, marketing content, and other linking tools, application program interfaces, and other information in connection with the Associates Program (“Content”). Content specifically excludes any data, images, text, or other information or content relating to product offerings on any site other than the Crave Crush Site.

 

Subject to changes as set forth from time to time in our Program Policies, we generally pay our associates 8% of (i) the amount we actually receive from each qualifying purchase, plus (ii) the amount we receive from any repeat Product purchases made during the 12 months after the initial qualifying purchase.  For this purpose, fees paid to you are not reduced by shipping, credit card processing fees or similar expenses.  Payments will be made by crediting your Paypal account approximately 30 days following the end of each month in which fees were earned.

 

  1. Associates Program Compliance Requirements

 

You must comply with this Agreement, including all Program Policies to participate in the Associates Program and receive fees.  You must promptly provide us with any information that we request to verify your compliance with this Agreement.

 

If you violate this Agreement, then, in addition to any other rights or remedies available to us, we reserve the right to withhold (and you agree you will not be eligible to receive) any and all fees otherwise payable to you under this Agreement, whether or not directly related to such violation.

 

  1. Crave Crush Customers

 

Our customers are not, by virtue of your participation in the Associates Program, your customers. 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 Crave Crush Site will apply to those customers, and we may change them at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with the Crave Crush Site, you will state that those customers must follow contact directions on the Crave Crush Site to address customer service issues.

 

  1. Warranties

 

You represent, warrant, and covenant that (a) you will participate in the Associates Program and create, maintain, and operate your Site in accordance with this Agreement, (b) neither your participation in the Program nor your creation, maintenance, or operation of your Site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any applicable governmental authority (including all such rules governing communications and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor) and (d) the information you provide in connection with the Associates Program is accurate and complete at all times. You can update your information by notifying us in writing at associates@cravecrush.com.

 

We do not make any representation, warranty, or covenant regarding the amount of traffic or fees you can expect at any time in connection with the Associates Program, and we will not be liable for any actions you undertake based on your expectations.

 

  1. Identifying Yourself as an Associate

 

You must clearly state the following on your Site or any other location where Crave Crush may authorize your display or other use of Content: “We participate in Crave Crush’s affiliate advertising program and may earn fees by posting links to Cravecrush.com.” Except for this disclosure, you will not make any public communication with respect to our Products, this Agreement or your participation in the Associates Program. You will not misrepresent or embellish our relationship with you (including by expressing or implying that we support, sponsor, or endorse you), or express or imply any affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.

 

  1. Term and Termination

 

The term of this Agreement will begin upon your registration with the Associates Program 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. You can provide termination notice by notifying us in writing at associates@cravecrush.com.

 

We may hold accrued unpaid advertising fees for a reasonable period of time following termination to ensure that the correct amount is paid (for example, to account for any cancelations or returns).

 

Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 3, 4, 5, 6, 7, 8, 9, 10, and 11 of this Agreement, together with any payable but unpaid payment obligations under this Agreement and the associated provisions of the Fee Statement in the Program Policies, will survive the termination of this Agreement. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.

 

  1. Disclaimers

 

THE ASSOCIATES PROGRAM, THE CRAVE CRUSH SITE, ANY PRODUCTS OFFERED ON THE CRAVE CRUSH SITE, ANY SPECIAL LINKS, LINK FORMATS, CONTENT, THE PRODUCT ADVERTISING API, DATA FEED, PRODUCT ADVERTISING CONTENT, OUR DOMAIN NAMES, TRADEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US IN CONNECTION WITH THE ASSOCIATES PROGRAM (COLLECTIVELY THE “PROGRAM CONTENT”) 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 CONTENT. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PROGRAM CONTENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY PROGRAM CONTENT, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY PROGRAM CONTENT, AT ANY TIME AND FROM TIME TO TIME. WE DO NOT WARRANT THAT THE PROGRAM CONTENT WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. WE WILL NOT BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE ASSOCIATES PROGRAM, CONTENT, THE PRODUCT ADVERTISING API, DATA FEED, PRODUCT ADVERTISING CONTENT, PROGRAM POLICIES, THE ASSOCIATES PROGRAM, OR ANY CRAVE CRUSH SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE ASSOCIATES PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE ASSOCIATES PROGRAM.

 

  1. Limitations on Liability

 

WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THE PROGRAM CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE PROGRAM CONTENT WILL NOT EXCEED THE TOTAL 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. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT.

 

  1. Indemnification

 

WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR SITE OR YOUR VIOLATION OF THIS AGREEMENT (INCLUDING ANY PROGRAM POLICY), AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US AND OUR EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) YOUR SITE OR ANY MATERIALS THAT APPEAR ON YOUR SITE, INCLUDING THE COMBINATION OF YOUR SITE OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES, (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR SITE OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR SITE, (C) YOUR USE OF ANY CONTENT, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT, ANY OPERATIONAL DOCUMENTATION, OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT (INCLUDING ANY PROGRAM POLICY), OR (E) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.

 

  1. Disputes

 

Any dispute relating in any way to the Associates Program or this Agreement will be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law and the laws of the state of New York, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and us.

 

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.

 

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, National Corporate Research, Ltd., 850 New Burton Road, Suite 201, Dover, Delaware, 19904. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in New York City, New York or at another mutually agreed location.

 

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.

 

  1. Additional Provisions

 

By accepting this Agreement, you hereby consent to us: (a) sending you emails relating to the Associates Program from time to time, (b) monitoring, recording, using, and disclosing information about your Site and users of your Site that we obtain in connection with your display of Special Links and Content (for example, that a particular Crave Crush customer clicked through a Special Link from your Site before buying a Product on the Crave Crush Site)  (c) reviewing, monitoring, crawling, and otherwise investigating your Site to verify compliance with this Agreement, and (d) using, reproducing, distributing, and displaying your implementation of Content displayed on your Site as examples.

 

You acknowledge and agree that (a) we may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in this Agreement, (b) we may at any time (directly or indirectly) operate sites or applications that are similar to or compete with your Site, (c) our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement, and (d) any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Agreement can be made, taken, or given in our sole discretion and are only effective if provided in writing by our authorized representative.

 

You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

This Agreement incorporates, and you agree to comply with, the most up-to-date version of all policies, appendices, specifications, guidelines, schedules, and other rules referenced in this Agreement or accessible to participants in the Associates Program (“Program Policies”), including any updates of the Program Policies from time to time. In the event of any conflict between this Agreement and any Program Policy, this Agreement will control. This Agreement (including the Program Policies) is the entire agreement between you and us regarding the Associates Program and supersedes all prior agreements and discussions.  Whenever used in this Agreement, the terms “include(s)”, “including”, and “for example” are used and intended without limitation.

 

All non-public information provided by us in connection with this Agreement or the Associates Program is considered confidential information, and you will maintain the same in strict confidence and not disclose the same to any third party or use the same for any purpose other than your performance under this Agreement, which restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties.

 

You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your Site or otherwise, that contradicts or may contradict anything in this paragraph. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you will be deemed to have taken the action yourself.

 

We reserve the right to modify any of the terms and conditions contained in this Agreement (including those in any Program Policy) at any time and in our sole discretion by posting a change notice, revised Agreement, or revised Program Policy on the Associates Program or by sending notice of such modification to you by email to the primary email address then-currently associated with your Associates account (any such change by email will be effective on the date specified in such email but will in no event be less than two business days after the date the email is sent). YOUR CONTINUED PARTICIPATION IN THE ASSOCIATES PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH NOTICE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 6.

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