Last Updated: June 2013
Affiliate Terms and Conditions
These terms and conditions (the “Agreement’), together with the schedules attached, and any amendments to those schedules, governs your participation as a member (the “Affiliate”) of the Neverblue Affiliate Network (the “Program”). The Affiliate covenants and agrees to be bound by this Agreement, and the schedules attached, as amended by Neverblue Media Company Limited (“Neverblue”) from time to time.
Table of Contents
1.1 "Client" means a client of Neverblue.
1.2 "Offer" means a promotional offer published by Neverblue on the Program Site, in an electronic mail or both, setting out an advertising offer on behalf of a Client and containing such additional terms and conditions as the Client and Neverblue, in their discretion, consider necessary from time to time.
1.3 "Neverblue Policies" means: (a) the Neverblue Electronic Mail Policy, (b) the Neverblue Downloadable Software Policy, and (c) the Neverblue Acceptable Use Policy as amended or replaced, from time to time, and published on the Program Site.
1.4 "Program Site" means the website for the Program operated by Neverblue and situated at http://www.Neverblue.com.
1.5 "Sub-Affiliate" means an independent third party contracted by the Affiliate.
2.1 Neverblue will permit the Affiliate to participate in the Program, subject to compliance with the terms and conditions in this Agreement and in any policies or additional terms and conditions established by Neverblue, from time to time, and incorporated by reference in this Agreement.
2.2 The Affiliate will be issued a unique username and password to access the Program Site, neither of which may be used by any person other than the Affiliate.
2.3 The Affiliate may engage Sub-Affiliates to distribute Offers in accordance with the Program, provided that:
(a) the Affiliate has written approval from a Neverblue Representative to contract Sub-Affiliates;
(b) a verifiable name, address and telephone number for each Sub-Affiliate is delivered to Neverblue immediately upon request;
(c) the proposed Sub-Affiliate agrees, in form satisfactory to Neverblue, to abide by paragraph 2.8, 3.3, Sections 5.4, 6, 7, 8, 9, 10 and 11 of this Agreement, the Neverblue Policies and any additional terms and conditions (collectively, the "Sub-Affiliate Provisions"), as amended from time to time; and
(d) at no time will the Affiliate engage a Sub-Affiliate who, in the opinion of Neverblue is likely to bring the reputation or standing of Neverblue into disrepute or is otherwise unsuitable.
2.4 Any breach by a Sub-Affiliate of the Sub-Affiliate Provisions will be deemed to be a breach of this Agreement by the Affiliate.
2.5 It is expressly agreed that the parties intend by this Agreement to establish a relationship between Neverblue and the Affiliate, but that it is not the intention of either party to undertake a joint venture or to make the Affiliate in any sense an agent, employee, or partner of Neverblue. The parties expressly agree that they are independent contractors, and that this Agreement does not in any way create a partnership as contemplated by the Partnership Act, R.S.B.C. 1996, c.348, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever.
2.6 It is further agreed that the Affiliate has no authority to create or assume in Neverblue's or Neverblue’s Clients’ name or on its behalf any obligation, express or implied, or to act or purport to act as its agent or representative for any purpose whatsoever and the Affiliate shall not hold itself out as having any such authority.
2.7 Neverblue may, in its sole discretion, confirm or otherwise verify or check, the truth and accuracy of any registration information provided by Affiliate. If at any time Neverblue, in its sole judgment and discretion, determines the Affiliate's registration information to be misleading, inaccurate or untruthful, Neverblue may restrict, deny or terminate Affiliate's account, Affiliate's access and use of, and/or any benefits derived from Affiliate's participation in the Program; Neverblue may also withhold payment of any commissions and/or other fees that may be or become due or payable to Affiliate.
2.8 Affiliate will be solely responsible for the development, operation, and maintenance of the Affiliate website and for all materials that appear on the Affiliate website. Such responsibilities include, but are not limited to, the technical operation of the Affiliate website and all related equipment; creating and posting product reviews, descriptions, and references on the Affiliate website and linking those descriptions to the Program Site; the accuracy and propriety of materials posted on the Affiliate website; and ensuring that materials posted on the Affiliate website do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. Neverblue disclaims all liability and responsibility for such matters.
2.9 Other than as provided in this Section 2, Affiliate may not sublease, rent, lease, sell, resell, outsource or service any Offer, and any attempt to do so shall be null and void.
2.10 Neverblue’s Policies, specifications, and/or recommendations with respect to Affiliate websites, email distribution lists and/or marketing channels used by Affliate should not be construed as legal advice, or as sufficient guidelines to ensure that such websites, email distribution lists, and/or marketing channels comply with applicable law. Neverblue does not represent or warrant that such Neverblue Policies, specifications, and/or recommendations are legally compliant or appropriate. Neverblue assumes no obligation and hereby disclaims any liability for Affiliate’s use of and/or reliance upon any such Neverblue Policies, specifications, and/or recommendations.
3.1 Offers will be posted to the Program Site.
3.2 Neverblue grants the Affiliate a limited, non-exclusive, non-transferable, revocable right to download Offers from the Program Site and to publish the same on the Affiliate's websites and in electronic mail correspondence sent by the Affiliate, all of which must be done in accordance with this Agreement, the Neverblue Policies, as amended from time to time, and the additional terms and conditions affixed to each of the said Offers.
3.3 The Affiliate agrees not to modify, alter, misrepresent or embellish the Offer or any part of the Offer including without limitation any text or images provided by or on behalf of Neverblue or the Client in any way, directly or indirectly, without the express prior written consent of Neverblue.
3.4 It is the Affiliate’s responsibility to check the Program Site often and to ensure the Offer or any part of the Offer that the Affiliate publishes on the Affiliate’s websites and in electronic mail correspondence matches what is posted on the Program Site, even if the Offer or any part of the Offer has been modified in the Program Site since the Affiliate initially downloaded the Offer.
4.1 Neverblue will pay to the Affiliate a commission (the "Commission"), calculated in accordance with the payment terms outlined in each Offer posted by Neverblue on the Program Site.
4.2 Commissions will be paid to the Affiliate only following receipt by Neverblue of payment from the Client in respect of such Offer published in the Program online reporting system. Neverblue may, in its sole discretion and from time to time, elect to advance to the Affiliate part or all of the Commissions prior to receipt of payment from the Client, but in no event will Neverblue be obligated to do so.
4.3 The Affiliate acknowledges and agrees that payment of Commissions may be delayed where the Affiliate has not provided Neverblue with current particulars in accordance with paragraph 6.2(m) of this Agreement and that in no case will Neverblue be liable to the Affiliate for any loss, costs or expenses directly or indirectly incurred by the Affiliate as the result of such delay.
4.4 In no circumstance will Neverblue be obligated to pay Commissions to an Affiliate unless and until the aggregate amount of the Commissions due and payable to that Affiliate exceeds One Hundred ($100.00) US Dollars, or such greater amount established by the Affiliate, from time to time.
4.5 Commissions due and payable by Neverblue to an Affiliate will not accrue interest.
4.6 No payments will be made to an Affiliate unless and until, where Neverblue has determined in its discretion, that such disclosure of information is required, that Affiliate has provided to Neverblue a Goods and Services Tax registration number, if the Affiliate is a Canadian Resident and a registrant for the purposes of a Goods and Services Tax.
4.7 Payments to an Affiliate in accordance with this Section will be based upon the records kept by Neverblue and reported in Neverblue's online reporting system and audited by the Clients, from time to time.
5.1 If Neverblue determines, in its sole discretion, that the Affiliate or Sub-Affiliate has engaged in any activity that Neverblue considers to be fraudulent or which might bring the reputation or standing of Neverblue into disrepute either with the general public or with the Clients or potential Clients of Neverblue, or otherwise that the Affiliate or Sub-Affiliate has engaged in activities which might be considered fraudulent, Neverblue may but will not be obligated to (a) suspend or terminate the Affiliate's membership in the Program, without notice and (b) release to any third party, information relating to the identity and location of the Affiliate if required to do so in order to enforce these terms and conditions.
5.2 In the event of a suspension or termination in accordance with paragraph 5.1 above, any Commission due and payable to the Affiliate in accordance with Section 4 at the time of suspension or termination will be deemed to be forfeited.
5.3 For the purposes of this Agreement, fraudulent activity includes but is in no way limited to:
(a) activity by the Affiliate or anyone for whom in law the Affiliate is responsible which is directly or indirectly intended to inflate the Commissions payable to the Affiliate;
(b) the generation of leads other than by a mechanism approved by Neverblue;
(c) activity by the Affiliate or anyone for whom in law the Affiliate is responsible which is not in accordance with the Program; and
(d) activity which is determined by the Client, in its discretion, to be fraudulent.
5.4 Neverblue may at any time audit Affiliate for compliance purposes. Affiliate agrees to provide Neverblue with any reasonable information necessary to conduct an investigation into Affiliate's compliance with law and this Agreement.
6.1 The Affiliate represents and warrants that:
(a) it has the authority and capacity to enter into and to be bound by this Agreement;
(b) it is at least eighteen (18) years of age;
(c) to the best of its knowledge, there are no existing, pending or threatened claims or actions pending against the Affiliate;
(d) none of the Affiliate's websites contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, work or other self-executing program;
(e) the Affiliate websites are reputable and comply with all laws applicable in the jurisdiction where the Affiliate is situated and also where the Affiliate directly or indirectly conducts its business or markets an Offer;
(f) it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites and in its electronic mail; and
(g) it is not now a party to any agreement or business relationship which may conflict with this Agreement.
6.2 The Affiliate covenants and agrees that:
(a) it will, at all times, comply with all laws applicable in the jurisdiction where the Affiliate is situated and also where the Affiliate directly or indirectly conducts its business or markets an Offer;
(b) it will not enter into any agreement or business relationship or otherwise incur any obligation which might, in the opinion of Neverblue, conflict with this Agreement;
(c) it will, at all times, comply with the terms of this Agreement, and the Neverblue Policies, as updated, amended and replaced by Neverblue, from time to time, in its sole discretion;
(d) it will not, without the express written consent of Neverblue, use or permit any person for who it is in law responsible to use any third-party trade-names or trade-marks;
(e) it will not publish on any website or send in any electronic mail a universal resource locator or other link to any content or otherwise engage in or condone any practice, which, in the opinion of Neverblue is deceitful, defamatory, libelous, abusive, violent, prejudicial, obscene, pornographic, likely to bring the reputation or standing of Neverblue into disrepute, or which otherwise would be illegal;
(f) it will at all times comply with the terms and conditions of any agreement or policy established by an Offer in which the Affiliate elects to participate;
(g) it will at all times comply with the provisions of the CAN-SPAM Act of 2003, as amended or replaced, from time to time;
(h) it will not post any content relating to the Offer to any Usenet newsgroup, chat room, bulletin board or ‘blog' (save and excepting a chat room, bulletin board or blog which is operated or primarily owned by the Affiliate) without the express written consent of Neverblue;
(i) it will be responsible for the development, operation and maintenance of its website or websites and electronic mail, including without limitation the technical operation thereof, the creation, publication and accuracy of any content published on any such website or websites or in any electronic mail;
(j) it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from Neverblue;
(k) it will not "frame" or "mirror" any part of any pages hosted by the Client unless expressly permitted by Neverblue and the Client;
(l) it will not alter any website or electronic mail content provided by Neverblue; and
(m) it will, at all times and from time to time provide Neverblue with written confirmation of a valid address, telephone number, electronic mail address and such other identifying or financial information as Neverblue may reasonably require.
7.1 The Affiliate covenants and agrees to indemnify and save harmless Neverblue, its parent company and their respective shareholders, directors, officers, and employees (collectively, the "Indemnified Group") from and against any and all claims or judgments, including all associated legal fees, expenses and disbursements actually incurred, arising out of any breach of this Agreement by the Affiliate or any Sub-Affiliate or the exercise by the Affiliate of any right under this Agreement or any act or omission of the Affiliate, a Sub-Affiliate or anyone for whom the Affiliate is in law responsible, including without limitation any damages, losses, consequential or otherwise, arising in any manner (including those arising from or incidental to any liability or other lawsuit, claim, demand or other action brought) as a consequence of any act or omission of the Affiliate or any person for whom the Affiliate is in law responsible, whether or not the Indemnified Group or any of them are named as a party defendant in any such proceedings and whether or not the Indemnified Group or any of them are alleged to be negligent or otherwise responsible for any damage or injury to persons or property. The obligation of the Affiliate to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. Neverblue may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by Affiliate. Neverblue may participate in the defense of all claims as to which it does not assume defense and control, and Affiliate shall not settle any such claim without Neverblue's prior written consent.
8.1 Neverblue or its directors, may, from time to time, disclose to the Affiliate certain information relating to Neverblue's business or to Neverblue's customers, affiliates, subsidiaries, Affiliates, agents, or employees; business and marketing plans, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of Neverblue; or any data as found on the Program Site (all collectively referred to as the "Confidential Information"). The Affiliate acknowledges that Confidential Information will be provided at the sole discretion of Neverblue, and nothing in this Agreement obligates Neverblue, its directors, agents or employees to disclose or grant to the Affiliate access to any Confidential Information.
8.2 Unless expressly authorized in writing by Neverblue, the Affiliate covenants and agrees:
(a) to use the Confidential Information only for the purposes expressly contemplated in this Agreement; and
(b) that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, Sub-Affiliate, agent, or employee of the Affiliate without the prior written consent of Neverblue, which may be unreasonably and arbitrarily withheld.
8.3 The Affiliate acknowledges that Neverblue remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The Affiliate agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of Neverblue.
8.4 Upon termination of this Agreement, or otherwise on demand by Neverblue, the Affiliate agrees that it will promptly deliver to Neverblue all notes, data, tapes, reference items, sketches, drawings, memoranda, records, diskettes, electronic communications in any form and any other materials in any way relating to any of the Confidential Information in the possession of the Affiliate or any affiliate, subsidiary, Sub-Affiliate, agent, or employee of the Affiliate.
8.5 The Affiliate acknowledges and agrees that:
(a) the provisions of this Section and the Affiliate's agreement with the same are of the essence and constitute a material inducement to Neverblue to enter into this Agreement;
(b) the provisions of this Section shall be construed independently of any other provision of this Agreement, and the existence of any claim or cause of action the Affiliate may have against Neverblue, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Neverblue of the provisions of this Section;
(c) that any breach of this Section would cause irreparable harm to Neverblue for which damages might not be an adequate remedy, and the Affiliate therefore agrees that in the event of any such breach Neverblue will be entitled to seek, in addition to any other right accruing to Neverblue under this Agreement or otherwise in law or equity, injunctive relief against the Affiliate without the necessity of proving actual damages; and
(d) notwithstanding any other provision of this Agreement, this Section shall survive the termination of this Agreement, however caused.
8.6 The Affiliate agrees to indemnify and save harmless Neverblue against any and all loss, costs or expenses, inclusive of court costs and legal fees on a solicitor and own client basis, which Neverblue may incur as the direct or indirect result of any unauthorized disclosure of the Confidential Information by the Affiliate or any person for whom the Affiliate is responsible, in law.
9.1 During the term of this Agreement and for a period of six (6) months thereafter, the Affiliate will not seek, in any way, to undermine the goodwill of Neverblue, and in particular, the Affiliate will not, directly or indirectly: (1) solicit or entice or attempt to solicit or entice, work away from Neverblue; (2) solicit or entice or attempt to solicit or entice any of the employees of Neverblue to enter into employment service with the Affiliate or a competitor of Neverblue; or (3) directly or indirectly enter into any agreement or contract, written or otherwise, with any Client or otherwise provide services to any third party for the ultimate benefit of a Client which might, in the opinion of Neverblue, compete with any services provided by Neverblue to that Client.
10.1 Neverblue disclaims all warranties, conditions, representations, indemnities and guarantees with respect to any matter, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non-infringement).
10.2 Notwithstanding any other provision of this Agreement, Neverblue additionally disclaims all obligations and liabilities on the part of Neverblue and those for whom it is in law responsible for any damages, including, but not limited to, indirect, special, and consequential damages, attorneys' and experts' fees, and court costs (even if Neverblue has been advised of the possibility of such damages, fees or costs), arising out of or in connection with this Agreement.
10.3 In no circumstance will Neverblue be liable to the Affiliate or any third party (including, without limitation, any customers obtained through Affiliate’s marketing efforts) for any consequential, indirect, special, punitive or incidental damages or lost profits of the Affiliate or the Affiliate's successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. Without limiting the foregoing, Neverblue will not be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of Affiliate or third parties, Affiliate's equipment or software and/or any third party equipment or any other condition affecting production or delivery in any manner beyond the control of Neverblue.
11.1 During the term of this Agreement and for a period of eighteen (18) months thereafter, regardless of the reason for termination, Affiliate agrees that it will not knowingly, directly or indirectly, solicit, engage, contract, license, or work with any client whose offer it or any of its Sub-Affiliates marketed hereunder without the prior written approval by an authorized party at Neverblue. Affiliate agrees and understands that Neverblue has incurred significant expense forming Neverblue's affiliate network and in providing services for the benefit of its Clients, and Affiliate agrees and understands that in the event of a breach by Affiliate of this section, Affiliate SHALL pay Neverblue as liquidated damages an amount equal to Neverblue's profits for the preceding EIGHTEEN (18) months generated by the campaigns for such Client. The liquidated damage remedies provided herein in this section shall not preclude Neverblue from seeking injunctive relief.
12.1 Neverblue may terminate this Agreement, at any time, on six (6) hours Notice to the Affiliate. The Affiliate may terminate this Agreement, at any time, on forty-eight (48) hours Notice to Neverblue.
12.2 Notwithstanding termination of this Agreement for any reason, the Affiliate covenants and agrees that it will continue to be bound by the terms and conditions set out in Sections 5, 7, 8, 10, 11 and 13.1 of this Agreement.
13.1 The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the Province of British Columbia, Canada, excluding its conflict of law rules. The Affiliate agrees to the exclusive jurisdiction of the Supreme Court of British Columbia with respect to any dispute arising as a direct or indirect consequence of this Agreement.
13.2 Neverblue may assign this Agreement without the Affiliate's prior consent. The Affiliate may not assign this Agreement without the express written consent of Neverblue.
13.3 From time to time, Neverblue may amend, supplement or replace this Agreement or the Neverblue Policies in part or in whole, on Notice to the Affiliate of not less than five (5) business days. If within five (5) days following Notice of such amendment, supplement or replacement the Affiliate has not terminated this Agreement, the Affiliate will be deemed to have consented to the same.
13.4 Any notice or other communication ("Notice") permitted or required by this Agreement will be in writing and given by personal delivery or transmitted by facsimile or electronic mail to the receiving party at the address provided to Neverblue by Affiliate in its Neverblue Program account. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile or electronic mail or delivered.
13.5 No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both parties.
13.6 In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction then this Agreement with respect to the remaining terms, covenants or conditions will continue in force.
13.7 This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both Neverblue and the Affiliate.
13.8 This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.