Terms and Conditions
SPARK NETWORKS AFFILIATE PROGRAM AGREEMENT
This legal Agreement is made between You and Us. This Agreement applies to all of Our sites that are offering the Affiliate Program for the Service(s) and governs your participation in it.
In these terms and conditions the following words have the following meanings unless the context requires otherwise:
"Affiliate" means a person or entity, and any of its sub-publishers or affiliates, that owns and/or operates a website which has applied to Our Affiliate Program under this Agreement and received notification from Us accepting its participation.
"Affiliate-referred User" is defined as a user who is cookied while on the Service, carries Your designated and assigned Promotion ID and, while cookied, becomes a registered Member of the Service(s) or otherwise purchases a Subscription during the term of the agreement.
"Agreement" means this Agreement between You and Us;
"Affiliate Program" means the Affiliate Program operated by Us whereby Affiliates link their websites to the Service(s) to earn commissions as compensation for distributing the Service(s) and generating online subscriptions to the Service(s).
"Database" means databases owned by Us containing the Member and Subscriber Profiles.
"Intellectual Property" of a specified party means all right, title, interest in and to such party’s software, copyrights, patents, trademarks, service marks, rights of publicity, author’s rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights exist under the laws of the United States, the United Kingdom, or any other state, country or jurisdiction.
"Minimum Profile Information" means (1) a valid e-mail address, (2) date of birth, (3) country and zip code (or city if outside the United States), (4) gender, (5) gender searching for, (6) user name, (7) password (8) acceptance of Our Terms and Conditions of Service and (9) has not suspended himself or been suspended by Us.
"Net Revenue" means the total revenue from Subscription fees collected by Us from Subscribers, less any adjustments for bad debt, including, without limitation, credit card chargebacks, credit card processing charges, and refunds.
"Member" means a person (who is not necessarily a Subscriber) who has filled out the Minimum Profile Information to post a Profile in Our Database.
"Profiles" means the personal information of Our Members stored in Our Database.
"Promotion ID" means a unique identifier link created and assigned by Us for each Affiliate to implement and maintain on its respective Affiliate website to track and count its Affiliate-referred Users.
"Service(s)" means the online personals websites that You have applied for, which may include but not limited to JDate®.com, Spark®.com, AdventistSinglesConnection™.com, AsianSinglesConnection™.com, BBWPersonalsPlus®.com, BlackSingles.com®, CanadianPersonals.net™, CatholicMingle®.com, ChristianMingle®.com, DeafSinglesConnection™.com, GreekSinglesConnection™.com, InterracialSingles™.net, ItalianSinglesConnection™.com, JewishMingle®.com, LatinSinglesConnection™.com, LDSMingle®.com, MilitarySinglesConnection®.com, SilverSingles®.com, SingleParentsMingle®.com, and UKSinglesConnection™.com.
"Subscriber" means a Member who has paid a Subscription fee to Us in return for the ability to, among other things, e-mail other Members.
"Subscription" means the subscription fee paid by a Subscriber.
"Trademarks" shall mean the registered and/or unregistered trademarks that We own absolutely which include, but are not limited to JDate, Spark.com, JMag®, JDater®, JDating®, AdventistSinglesConnection.com, AsianSinglesConnection.com, BBWPersonalsPlus.com, BlackSingles.com, CanadianPersonals.net, CatholicMingle.com, ChristianMingle.com, DeafSinglesConnection.com, GreekSinglesConnection.com, InterracialSingles.net, ItalianSinglesConnection.com, JewishMingle.com, LatinSinglesConnection.com, LDSMingle.com, MilitarySinglesConnection.com, SilverSingles.com, SingleParentsMingle.com, UKSinglesConnection.com, and Spark Networks®, and the inter-connected heart-shaped logo ®, which We may update from time to time and, upon each such update, will be deemed to be included in this definition.
"We, Us, Our" means Spark Networks USA, LLC.
"You, Your, Yourself" means the Affiliate party to this Agreement as well any Affiliate sub-publisher or affiliate involved in Our Affiliate Program.
1. About Our Affiliate Program
To join Our Affiliate Program, You must login to the url: https://affiliates.spark.net and review and accept these Terms and Conditions. Once You become an Affiliate, you will receive access to links, banner ads, and other creative that link to the Service ("Creative Material"). Affiliates shall include any or all such Creative Material on the Affiliate website(s). Affiliate shall not alter any such Creative Material or use its own marketing and/or creative material in connection with Our Service(s) without Our express written consent. You may not plagiarize copyrighted content or images from any of our websites. If You desire to use such copyrighted material, a formal request must be submitted in writing and approval must be given by Us. In order to implement the relevant Service, We will supply each Affiliate with a unique Promotion ID for implementation to track Affiliate-referred Users to the Service. When Affiliate-referred Users become Our Members and/or purchase Subscriptions to the Service during the term of this Agreement, and provided Affiliate has not edited, modified, truncated, filtered or changed the Promotion ID, Affiliate shall be eligible for a Commission Fee (as described in more detail in Section 3).
2. About Affiliate Account
2.1 To join Our Affiliate Program and be eligible to receive commission payments, You must provide Us with (i) Your social security number or taxpayer ID number for payment and record keeping purposes and (ii) an executed IRS Form W-9.
2.2 You are responsible for maintaining the confidentiality of the email address and password that You designate as Your login combination, and You are fully responsible for all activities that occur under Your email address and password. You agree to immediately notify Us of any unauthorized use of Your email address or password or any other breach of security. You are liable for any loss or damage, and We will not be liable for any loss or damage, arising from your failure to comply with this provision.
3. Commission Fees
3.1 During the term of this Agreement, calculated and paid on a monthly basis and for as long as You maintain the Promotion ID and fulfill all other terms and conditions of this Agreement, We will pay You the commission fees ("Commission Fees") set out in an acceptance letter (the "Acceptance Letter"). The Acceptance Letter will note which of Your website(s) We have approved under our Affiliate Program. Each Acceptance Letter is subject to the terms and conditions of this Agreement. Furthermore, we may, at any time and in our sole discretion, change such Commission Fees upon providing notice to You.
3.2 Subscription prices are subject to change at any time without notice and in Our sole discretion. In addition, We may offer special pricing and discounts in Our sole discretion. We have no obligation to revise this Agreement when We change Our Subscription fees and/or offer special pricing or discounts.
3.3 No Commission Fee will be paid on re-subscriptions or auto-renewals of existing Subscriptions. If a Subscription for which a Commission Fee is paid to an Affiliate is later refunded or charged back, the relevant Commission Fee will be deducted from the next payment sent to You following such event; provided, however, that if that no further Commission Fee is sent to you, you shall refund to Us within 30 days of Us providing You notification the amount of any such Commission Fee which is due back to Us under this Agreement.
3.4 We reserve the right to change any of the terms and conditions in this Agreement, including the payment terms described in this Section 3, by posting an updated agreement on any of Our websites (as described in more detail in Section 15 (Modifications)).
4. Commission Fee Payments
4.1 As long as you are in compliance with this Agreement, We will remit any Commission Fees due to You pursuant to this Agreement, in accordance with the payment instructions received from You, within forty-five (45) days following the end of the calendar month in which You earned the applicable fees.
4.2 Your Commission Fees for a month will be based on the report published by Us on the 15 day of the following month.
4.3 We will make available to You a monthly report, in a format to be determined by Us, specifying, at a minimum (a) the number of new Affiliate-referred Users for such month and (b) the calculation of the Commission Fees owed to You pursuant to this Agreement, if any.
4.4 For the avoidance of doubt, if you are not in compliance with any term(s) of this Agreement, you shall not be entitled to receive Commission Fees during the period of such non-compliance, nor shall you be entitled to Commission Fees attributable to such period of non-compliance.
5. Subscription Payment Processing
We will be solely responsible for processing every Subscription payment, renewal payment, cancellation and refund, and related customer service. All of Our rules, operating procedures and policies regarding customers, Members and Subscribers will apply to all orders We receive. We reserve the right to reject any user, Member or Subscriber that does not comply with Our rules, operating procedures and/or policies. You are not permitted to make any exceptions to Our rules, operating procedures or policies or otherwise communicate with Members and/or Subscribers about these rules except with Our prior written authorization, which may be withheld in Our sole discretion.
6. Tracking of Subscription Sales
We will be solely responsible for tracking Subscription sales. Statements of Subscription sales activity will be provided to You as described in Section 4 (Commission Fee Payments) above. To protect the privacy of Our users, the names of and other personally identifying information about users will not be provided to You. All information about Members, Subscribers and users collected by Us shall be owned solely and exclusively by Us.
7. Search Engine Marketing and Related Activities
7.1 You may not bid on any of the trade names or trademarks owned and operated by Spark Networks in search engine advertising campaigns. Additionally, You may not link keywords promoting the Service with any search engine in order to drive traffic directly to Our website and/or Service (Direct Linking). You may, however, continue to link keywords promoting the Service to drive traffic to Your own unique landing page or to other specific land page(s) pre-approved by Spark Networks in writing that promote the Service and thereafter link to the Service's website/URL, provided that such landing page(s) are promoting Spark Networks' pre-approved creative material. The keyword traffic you display within search engines shall display the URL matching the URL of such landing page(s), and from there, users would be able to link directly to the Service by clicking on a link containing Our Creative Material and Your unique Promotion ID.
7.2 Prohibition against the use of spyware: You agree, while engaged in marketing and promotional activities of any of Our Services, on any media whatsoever, to obtain inventory in compliance with all applicable laws, regulations and relevant industry codes; including but not limited to: (a) to not unfairly or deceptively induce disclosure of personally identifiable information, consent for information collection programs, or software installation, (b) safeguard personally identifiable information from disclosure to unintended parties, (c) allow users to remove, "opt out" of or close information collection programs, software or advertisements without undue effort, (d) not modify or divert Internet browser settings and (e) not remove or disable security, anti-spyware or anti-virus technology installed on the user's computer. Should We be put on notice that You have violated any such laws, regulations or relevant industry codes, We reserve the right to terminate this Agreement in addition to seeking monetary compensation for any inconvenience and/or expenses incurred in connection with rectifying this matter.
7.3 As part of Our mission to engage in fair marketing promotion, We reserve the right to inspect, from time to time, the list of Your advertisement inventory that You placed with third parties to promote the Service. Should You refuse to do so, We reserve the right to terminate this Agreement.
7.5 Unless otherwise notified by Us, you may not advertise for any of our sites on PlentyOfFish.com.
8. Intellectual Property Rights
8.1 Subject to the license granted to You in this Section 8, You agree not to contest, interfere with or otherwise impair Our Trademark rights and/or submit, register, sponsor or purchase and/or attempt to submit, register, sponsor or purchase or Your behalf or on behalf of another entity, any name or phrase which is identical or similar to Our Trademarks.
8.2 Subject to the license granted to You under this Section 8 and except as provided otherwise in this Agreement, each Affiliate (including You) agrees not to insert or use any reference to Our Trademarks in any source code (including, any and all meta-tags or HTML code), web addresses, links, and any other traffic-directing mechanisms on its website(s) without Our prior written consent.
8.3 You acknowledge that We own all the Intellectual Property rights, whether registered or unregistered, in the Trademarks and the Service, absolutely, including, without limitation, Database, copyrights, design rights and other similar rights, wherever existing in the world, together with the right to apply for protection of the same.
8.4 Subject to the license granted to You under this Section 8, We reserve all of Our rights, titles and interest in and to Our intellectual Property and to the Services (e.g., patents, copyrights, trade secrets, database, trademarks and other Intellectual Property rights).
8.5 During the Term of this Agreement and any extensions or renewals thereof, We hereby grant You a non-exclusive, non-transferable, royalty-free, revocable license to establish hypertext links between Your approved website(s) and the respective Service(s) and to use the Service(s) trade names, logos, trademarks and service marks (the "Service Marks") on Your website(s) as is reasonably necessary to establish and promote such hypertext links and to otherwise perform Your obligations under this Agreement; provided, however, that any promotional materials or usages containing any of the Service Marks or any of our other Intellectual Property are subject to Our prior written approval, which may be withheld in our sole discretion.
8.6 You hereby grant Us, during the Term of this Agreement and any extensions or renewals thereof, a non-exclusive, non-transferable, royalty-free license to establish hypertext links between the Your website(s) and the respective Service(s) and to use any of Your trade names, logos, trademarks and service marks (the "Affiliate Marks") as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform Our obligations.
8.7 You shall not modify, alter or obfuscate the Trademarks or use the Trademarks in a manner that disparages Our products or services, or portrays Our products or services in a false, competitively adverse or poor light. You shall comply with Our requests as to the form of use of Trademarks and will avoid any action that diminishes the value of such Trademarks. Unauthorized use of Trademarks is strictly prohibited.
8.8 Use of Profiles. We shall own all data of Members in Our Database. You may not use any Profile information or other information regarding users (including, without limitation, Members and Subscribers) for any reason whatsoever. Doing so may result in immediate termination of this Agreement, suspension of Your participation in the Affiliate Program and Your liability for any damages resulting from such action.
9. Our Policies Apply on All Orders
Every Affiliate-referred User who becomes our Member and/or buys a Subscription through this Affiliate Program is deemed to be Our Member. You do not have the authority to make or accept any offer on Our behalf. All of Our policies regarding customer orders, including pricing and problem resolution, will apply to those users. We are not responsible for any representations made by You that contradicts Our policies and you shall be liable to Us and indemnify Us against and all claims and actions resulting from any such representations made by You.
10. Prices and Availability
The price charged for Subscriptions sold under this program will be determined by Us according to Our own pricing policies. Prices may vary from time to time as determined in Our sole discretion.
11. Prohibited Content
You shall not display any of the following content or engage in any of the following activities:
*Sexually explicit material (pornography);
* Violent images or messages that promote violence;
* Promotion of discrimination based on race, sex, religion, national origin, physical disability, sexual orientation or age;
* Promotion of illegal activities;
* Promotion or display of defamatory, libelous or harmful material or material that otherwise infringes upon the rights of any third parties;
* Content that is inconsistent with Our policies and/or practices;
* Spamming of Your users who have registered for the Service(s);
* Violating Ours or any third party's Intellectual Property rights; or
* Any other content or activity that We find objectionable in Our sole discretion.
12. Web Site Service(s) Interruption
We will use commercially reasonable efforts to keep the Service(s) operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. You agree not to hold Us liable for any of the consequences of such interruptions.
You shall not send out on Our behalf or in Our name any email containing Our name, branding or any other Intellectual Property or containing any links to Us. Furthermore, You expressly undertake to comply with the provisions of the CAN-SPAM Act of 2003 and are liable for any and all damages resulting from Your failure to do so.
14. Term of the Agreement
This Agreement shall commence on the day it is entered into by You and shall continue until terminated by Us or You as provided herein (the "Term").
We reserve the right to change any of the terms and conditions in this Agreement, at any time, in Our sole discretion. We will not be required to provide notice to You of changes to this Agreement other than by posting the revised Agreement on the applicable website(s). You may not change or modify this Agreement.
16. Termination of this Agreement; Survival
16.1 Either party, acting in its sole discretion, may choose to cancel this Agreement, at any time, by written notice of cancellation to the other. Such cancellation will be effective two (2) days after such notice. If we provide notice of cancelation and your traffic increases by any more than 10% of the past month’s average traffic, we are under no obligation to remit payment for the excess amount of traffic.
16.2 Notwithstanding anything to the contrary set forth herein, We may terminate this Agreement, immediately, in the event that You breach any provision of this Agreement.
16.3 Any provision of this Agreement that expressly states that it shall survive or which, by its nature, must survive the completion, expiration, termination or cancellation of this Agreement, shall survive the completion, expiration, termination or cancellation of this Agreement.