FLYBY VENTURES LLC
AFFILIATE PROGRAM AGREEMENT
A. FLYBY VENTURES LLC ("Company”), operates the h
In connection with the Website, the Company offers the Company Affiliate Program ("Program"), through which approved publishers providing marketing services through owned or third party websites,subscription services, promotional services (including, without limitation,newsletters and e-mail campaigns), and/or syndicated services (“Publishers”)are granted a limited, non-exclusive, revocable right:
(i) to advertise and to promote the Company's products and the Website in compliance with this Agreement;
(ii) to circulate and to post an approved graphical or textual internet hyper-link (“Link”) to the Website;
(iii) to direct visitors to the Website (the specific URL(s)) designated by the Company from time to time (“Destination Site”).
B. This Agreement provides terms and conditions applicable to your membership, as an approved Publisher, in the Program that are in addition to, or that modify, the terms and the conditions to which you have agreed in your Publisher Service Agreement.
Any capitalized term used herein and not otherwise defined herein shall have the same respective meaning as in the PublisherService Agreement.
2. Approval as an Approved Publisher.
A. Your participation in the Program is subject to the approval of the Company. You must first submit an application to the Company through https://flyby.co/affiliates
in order to become an approved Publisher. After the application has been submitted, the Company may accept or reject you application, for any reason or no reason.
B. If the Company approves you as an approved publisher, you will have already acknowledged your acceptance of this agreement, and the terms and the conditions herein, by having clicked through the “Affiliate Sign Up” button, having checked the box stating “Yes, I agree to the terms and conditions” the terms and the conditions and having clicked the button “Sign Up.”
C. This Agreement applies only to approvedPublishers that accept this Agreement, and the terms and the conditions herein,and only Publishers who accept this Agreement, and the terms and the conditions herein, may participate in the Program.
D. Your participation in the Program creates only a contractual relationship between the Company and you. It does not constitute an agency, broker or employer relationship between the Company and you nor does it create any franchise, joint venture, partnership, sales representative or other relationship between the Company and you.
E. The Company and its service providers may share with each other the contact information provided by you during your registration. This information includes, without limitation, your name,address, phone number and email. The Company will take commercially-reasonable steps to maintain the confidentiality of such information.
A. You are solely responsible for the development,the maintenance and the operation of your website or other content (including,without limitation, newsletters and e-mail campaigns), including, without limitation, assuring that the accuracy and the appropriateness of the contentof your website, assuring that your website does not contain any viruses or other harmful properties, assuring that the content of your website is notdefamatory or obscene or otherwise violates applicable laws, regulations, rulesand orders and assuring that your website does not infringe on the intellectualproperty, including, without limitation, the copyrights, the patents, thetrademarks and the trade secrets, of any other person. The Company is notresponsible for your website or other content, or the content or thedevelopment, the maintenance or the operation thereof.
You may post any number of Links to theDestination Site on your website. The location, the nature, the position andthe prominence of such Link on your website shall comply with this Agreement,but shall otherwise be at your discretion.
Your website and any other communications shallnot copy or resemble the look and the feel of the Website and your website andany other communications shall not create the impression that your website ispart of the Website.
You acknowledge that the Company may monitor yourwebsite and your other communications for the purpose of determining yourcompliance with this Agreement.
You are responsible for the proper formatting ofthe links between the Destination Website and your website and any othercommunication containing a link to the Destination Website. The Company is notliable or responsible for your failure to format properly such links.
B. You shall not make any representation, warrantyor other statement concerning the Company, the Destination Site or the productssold by the Company, except as expressly authorized by this Agreement. Youshall not represent, warrant or otherwise state that you are authorized to bindthe Company.
C. You shall not advertise or promoteadvertisements that are misleading and/or that claim inflated discounts, or areotherwise in violation of any applicable law. You may only advertise or promoteadvertisements that state the actual discount, if any, that a visitor mayderive by clicking on a Link.
You shall not use discounts or promotional codes,without the prior written consent of the Company.
D. You shall not send any email or other form ofelectronic message that implies or suggests that the Company was the sender ordirected or requested you to send the message. You shall identify yourself asthe sender of any such email or other form of electronic message.
You shall not send any email or other form ofelectronic message or advertisement containing the name, the product, thewebsite address or the metatag of the Company or any other type of identifierto any recipient unless the recipient has directly consented to receive suchcommunication from you or unless you have a pre-existing business relationshipwith the recipient.
In addition, you shall provide all recipients ofany such communication with the ability to “opt out” of further communicationsfrom you by permitting the recipient to call a toll free number or permittingthe recipient to send an “unsubscribe” email to you. You agree that the Companymay, upon reasonable prior written notice, audit you to ensure compliance withthis Section 3(D).
You shall comply with all federal, state and locallaws, regulations, rules and orders, including, without limitation, the“CAN-SPAM Act,” in connection with your provision of services hereunder.
E. In the process of performing serviceshereunder, you shall not install or cause to be installed spyware on anyperson's computer. In the process of performing services hereunder, you shallnot install or cause any device, mechanism or program to display anadvertisement that partially or wholly covers or obscures the content of anywebsite or any part of a potential customer's display.
F. You shall not use the trademarks or otherintellectual property including, without limitation, copyrights, patents ortrade secrets, of the Company without our prior written permission. You shallnot modify our trademarks in any manner and you shall not display thetrademarks in any manner that implies or suggests the endorsement by theCompany of your business or your website. You shall not use the trademarks in amanner that disparages the Company or its products or that, in the reasonablejudgment of the Company, damages or diminishes the trademarks and the goodwillassociated therewith.
You are not acquiring any ownership of, or anyright to use, any of the intellectual property of the Company, including,without limitation, the copyrights, the patents, the trademarks or the tradesecrets, except to the limited extent expressly permitted by this Agreement,all of which rights are reserved by, and remain with, the Company.
You shall not use “w
ww.flyby.co” or anyvariation thereof as the domain name or URL in any search engine or likemarketing campaign without the prior written consent of the Company.
G. You shall not infringe on the intellectualproperty of any person, including, without limitation, any copyright, patent,trademark or trade secret.
You shall not bid on any keyword, term or word inPay-Per-Click Search Engines (PPCSE's) that contains (i) any trademark, whetheror not registered, of the Company or (ii) any keyword, term or word that is avariation of any such trademark or any other keyword, term or word that islikely to cause confusion regarding your affiliation with the Company.
H. You may bid on keyword strings.
I. You shall not bid on any of the trademark ofany competitor of the Company in conjunction with the Program.
J. You shall not use any “fat-finger” or“typosquatter” domain name to redirect Internet traffic to the Destination Siteor your website without prior written approval of the Company. A fat-finger ortyposquatter domain name is a domain name that amounts to a misspelling of anyregistered or unregistered trademark of the Company.
K. You shall not place the word “Flyby”or any variation of or similar spelling of the words “Flyby” in yourtop-level domain name. The words “Flyby” may be included in your URLprovided it is substantially as follows: “mydomain.com/Flyby
L. You shall not employ any automated or automatedapplication, device, robot, software or any other technology that attempts tointercept or redirect referrals or traffic to or from any website without theprior written consent of the Company.
M. You shall not “frame” the Destination Site sothat it appears to viewers of your website that such viewer is viewing theDestination Site. You shall not do anything to your website or any website youcontrol that makes such website appear as though it is the Destination Site.
N. You shall not use any device, application,robot, software or technology that forces your URL into a visitor's bookmarkwhen such visitor attempts to bookmark the Destination Site.
O.You shall not represent to visitors thatproducts of the Company may be purchased by or from you or through yourwebsite. You shall not sell the products of the Company. You shall not acceptany order from a visitor, purchase the product ordered by the visitor from theCompany and direct the Company to fulfill or drop-ship such product directly tothe visitor. The Company shall have the sole right and responsibility forprocessing all orders made by visitors and all agreements relating to sales tovisitors shall be exclusively between Company and the visitor.
P. You shall use the product copy, descriptions,images and text as provided by the Company. You may alter the size, but not thecontent, of product copy as provided by the Company, descriptions and images
Q. You shall not redistribute the product feeds orthe intellectual property of the Company to a website that the Companydetermines in its sole and absolute discretion to be competitors of the Company.
Q. Affiliates are prohibited from using PRESSRELEASE marketing from any news or press vendor for promotion of Flyby products. This content distribution is help exclusively for Flyby Ventures LLC.
S. You shall refer all inquiries from thirdparties about participation in the Program directly to the Company.
T.You shall not issue any press release thatdiscusses or references the Company except with the prior written consent ofthe Company.
T1. You shall not use the logos, product copy,descriptions, images and text, trade names, trademarks or other designations ofthe Company on any website other than your registered website, without theprior written consent of Company.
U. You acknowledge that the privacy of thecustomers of the Company is an important aspect of our business. You are notentitled to access to any of the personal information that the Company collectsfrom its customers.
V. You shall not take any action the Companyreasonably determines, in its sole discretion, is inconsistent with itsbusiness, marketing, policies, practice and preferences. You shall promptlycomply with all of Company's requests, including, without limitation, withrespect to the content or the related content of your website.
You acknowledge that the Company may change itspolicies, practices and preferences at any time. In particular and withoutlimitation, the Company will determine the prices to be charged for productsand you acknowledge that product availability and prices may vary from time totime. While the Company will use commercially reasonable efforts to presentaccurate and complete information, the Company cannot guaranty the availabilityor the price of any particular product.
A. Subject to your compliance with this Agreement,you shall earn and be paid a commission as set forth in the separate feeschedule established, and sent to you, by the Company (which fee schedule maybe sent via e-mail and is hereby incorporated by reference). You will be onlybe entitled to a commission if a visitor completes a purchase subject to theterms and conditions on the Destination Site after having last arrived at theDestination Site through a Link that you posted.
Any monthly commission of less than $100 will notbe invoiced and paid. Payments will begin once a full months commission hasexceeded the $100 minimum commission amount. We will in good faith usereasonably-commercial efforts to pay you all amounts due however if you don'taccept or process a certain payment within ninety (90) days (including, withoutlimitation, if you do not bank a check that has been sent to you) then suchpayment will be void and you agree that it will no longer be owed to you.Unless otherwise agreed by us in writing, any customer refunds will becalculated in the month that such refunds occur and will be deducted from anycurrent or future amount otherwise due or payable to you. With respect tocustomers who provide recurring revenue to the Company in connection with anyrecurring billing program or otherwise, you shall no longer receive anycommissions with respect to such recurring-revenue customers upon terminationof this Agreement (except with respect to commissions from such customersearned through the date of termination of this Agreement).
You are entitled to a commission only if (a) thecustomer is not known to the Company and (b) the system tracks the customerfrom the time the customer clicks on a Link to the Destination Site to the timeof sale. The Company is not liable or responsible for failures for any reasonto track customers, including, without limitation, a customer's deletion of arequired cookie or failures in tracking technology. You will receive a referralfee only if the customer purchases product from the Website within a ninety(90) days after clicking a Link.
The persons that visit the Website, regardless ofwhether or not such persons place orders, are the exclusive customers of theCompany, regardless of the manner in which such person arrived at the Website,and the policies, procedures and preferences of the Company apply to thosepersons.
B. The Company reserves the right to refuse,delete or ignore any transaction, or correct or to reverse any amount owed toyou, as the case may be, if, in the Company's reasonable judgment, (i) you oryour customer have acted in a fraudulent, dishonest or misleading manner; (ii)the Company has overpaid you; or (iii) you are obligated to indemnify Companyfor actual or anticipated losses.
C. Other than the payment of the commission, youare not entitled to any additional business, commission or compensation derivedby or through a Destination Site.
You are not entitled to any reimbursement for anycosts or expenses that you may incur in connection with this Agreement.
5. Term and Termination.
A. The term of this Agreement shall be continuous,unless and until either the Company or you properly terminate this Agreement,in accordance with the following:
(i) the Company shall provide you with written noticeof termination via e-mail or any other means;
(ii) You shall use provide the Company withwritten notice of termination via e-mail or any other means.
B. Upon any termination of this Agreement, theCompany and you are released from all liabilities and obligations to the otherparty from and after the date of such termination or the transactionscontemplated hereby, other than those obligations that are stated to survivetermination as provided herein, including, without limitation, Section 6 andSection 7; provided that no such termination will relieve you from anyliability or obligation arising from any breach of this Agreement occurringprior to termination.
C. Upon the termination of this Agreement, (i) theacceptance by the Company of additional referrals obtained through you shallnot constitute a continuation or renewal of this Agreement or a waiver of suchtermination, (ii) you shall be entitled only to those unpaid commissions, ifvalid, earned by you on or prior to the date of termination (for the sake ofclarity, upon termination of the Agreement by you or by the Company, you shallno longer receive any commissions (except commission earned through the date oftermination of the Agreement) with respect to customers who provide recurringrevenue to the Company in connection with any recurring billing program orotherwise); (iii) you shall not be entitled to commissions with respect to anyreferrals delivered after the date of termination; (iv) all licenses and otherrights that you have hereunder shall immediately terminate; and (v) you shallcease all uses of any logos, trade names, trademarks, intellectual property,and other designations of the Company and/or the Program.
A. In the performance of, or otherwise inconnection with, this Agreement, the Company may disclose to you certainConfidential Information. “Confidential Information” shall mean all informationregarding the Company that is not generally known to the public and that theCompany deems confidential in its sole and absolute discretion.
You will treat such Confidential Information asconfidential and proprietary both during the Term and after the Term for thegreater of a period of three (3) years or the maximum period permitted by law.
You shall (a) not use the Confidential Informationfor any purpose other than in performing your obligations hereunder, (b) takesuitable measures and precautions to maintain the confidentiality of theConfidential Information (such measures and precautions shall not be less thanthe manner in which you protect your own confidential information, and in anyevent shall not be less than commercially-reasonable measures and precautions asthen existing in the Company's industry) and (c) not disclose or otherwisefurnish the Confidential Information to any third party other than youremployees who need to know the Confidential Information to perform yourobligations hereunder.
All Confidential Information is supplied “as is”without express or implied warranties of any kind. The Company furtherdisclaims the accuracy and the completeness of the Confidential Information.
Upon the termination of this Agreement, you shalldestroy or return all Confidential Information in your possession. You shallcertify to the destruction or the return of the Confidential Property to theCompany.
B. You shall not make to any other person orentity any statement, oral or written, that directly or indirectly impugns theintegrity or quality of the Company or any manager, officer, employee, agent,member, other affiliate or representative thereof (collectively, “CompanyParties”), or any of them, or any of the business or other practices of theCompany and/or the Company Parties, or any of them, or any other derogatory ordisparaging remarks about the Company and/or the Company Parties, or any ofthem .
C. You shall not initiate any proceeding,investigation, or inquiry, or any other action of any kind with any governmentalagency, with respect to the Company and/or the Company Parties, or any of them(“Inquiry”). Except as required by applicable law, you shall not assist,cooperate with, or supply information of any kind to, any person or any entityin any Inquiry.
A. You shall defend, indemnify and hold theCompany harmless against all actions, allegations, causes of action, claims,costs, damages, expenses, lawsuits, liabilities and obligations, including,without limitation, attorneys' fees (collectively “Losses”), arising out of, orrelated to, to (i) the development, the maintenance or the operation of yourwebsite and other communications (electronic or otherwise), (ii) your breach ofthis Agreement, (iii) your violation of applicable law, rule, regulation ororder, (iv) your images, information, methodology, technology, service or textprovided or supplied pursuant to this Agreement, (v) your violation of a thirdparty's or the Company's intellectual property (including, without limitation, copyrights,patents, trademarks and trade secrets) and (vi) your violation of yourconfidentiality obligations.
B. THE COMPANY SHALL NOT BE LIABLE TO YOU FORCONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, SUCH AS,WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS OR REVENUE. THIS LIMITATION SHALLREMAIN IRRESPECTIVE OF WHETHER SUCH ACTION IS BASED IN CONTRACT, TORT, EQUITYOR ANY OTHER LEGAL THEORY. THIS LIMITATION SHALL REMAIN WHETHER OR NOT THECOMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
NOTHWITHSTANDING ANYTHING TO THE CONTRARY HEREIN,THE MAXIMUM LIABILITY THAT THE COMPANY SHALL HAVE TO YOU IN CONNECTION WITHTHIS AGREEMENT IS THE TOTAL AMOUNT PAID TO YOU DURING THE SIXTY (60) DAY PERIODPRECEDING SUCH CLAIM.
C. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY MAKES NOREPRESENTATIONS OR WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALLREPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUTLIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE AND WARRANTIES AS TO THE INFORMATION, PERFORMANCE, QUALITY, RESULTS,SERVICES AND TECHNOLOGY IN ANY WAY RELATED TO THIS AGREEMENT, INCLUDING,WITHOUT LIMITATION, WITH RESPECT TO THE UNDERLYING PRODUCTS SOLD BY OR THROUGH FLYBY VENTURES LLC, WWW.FLYBY.CO
, OR ANY AFFILIATED ENTITY OR WEBSITE.
D. You shall not assign, transfer or delegate yourobligations hereunder, either in whole or in part, without the prior writtenconsent of the Company, including, without limitation, transferring youraffiliate interest, affiliate number and/or affiliate identification. Anyattempted assignment, transfer or delegation in violation of the provisions ofthis provision will be void. The Company may assign this Agreement at anytimewith or without notice.
E. The provisions of this Agreement are severable.If any provision of this Agreement, or the application thereof to anycircumstance or person, is deemed invalid, illegal or unenforceable under anyapplicable law, such illegality, invalidity or unenforceability shall notaffect the other provisions of this Agreement and such provision shall beenforced to the broadest extent that it would be enforceable, legal and validunder applicable law.
F. No delay or failure by the Company inexercising any right hereunder and no partial or single exercise of that rightshall constitute a waiver of any right.
G. The rights and the remedies of the Company arenot mutually exclusive and the exercise of one or more of the provisions hereofshall not preclude the exercise of any other provision hereof.
H. This Agreement shall be deemed a mutualagreement and shall not be construed and/or interpreted in favor or againsteither party on the basis of preparation of the Agreement.
I. By applying to the Program,using the automatic facility located at flyby.co/affiliates
and by clicking–through the “Create Account” button and clicking on "Iagree to terms and submit application'' acknowledgingyour agreement to the Terms and Conditions (including this Agreement), you,accept, and enter into and become party to this Agreement, effective on thedate of such acceptance to this Agreement.
J. The Company reserves the right to modify theterms and the conditions of this Agreement in its sole discretion upon ten (10)days written notice with effect from such 10th day (or such later date asspecified by Company) to you.
If any modification is unacceptable to you, yoursole recourse is to terminate this Agreement by expiring the relationshipand/or rejecting the new terms offered. Your continued participation in theProgram by accepting the newly offered terms and conditions for this Agreementconstitutes your binding acceptance to the change.
K. This Agreement shall be governed by the laws ofthe State of Nevada, without application of conflicts of law principles. Theexclusive forum for any actions or disputes related to or arising out of thisAgreement shall be in the state courts in Nevada and, to the extent thatfederal courts have jurisdiction, in the federal courts in Nevada. You consentto such personal jurisdiction and venue.
L Nothing in this Agreement is intended; nor shallany provision be construed to benefit a third party. There are no third partybeneficiaries to this Agreement.
M. Official notices to the Company should be sentto:
Flyby Ventures LLC
Attn: Affiliate Program
BY APPLYING FOR THE PROGRAM AND CLICKING ON THE “SIGN UP” ICON BUTTONYOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY (i) THE TERMS OFTHIS AGREEMENT, AND (II) THE TERMS AND CONDITIONS, TO THE SAME EXTENT AS IF YOUHAD PERSONALLY SIGNED THIS AGREEMENT.