To be an authorized affiliate of Rough Pixels, (“Company” or “we” or “our”), you (“Affiliate”) agree to abide by the terms and conditions contained in this agreement. Please read this agreement carefully before registering and signing on as an affiliate. By signing up for the Rough Pixels Affiliate Program, you are agreeing to accept this Affiliate Program Agreement and its terms and conditions. If you sign up on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
This Affiliate Program Agreement (Agreement”) is subject to change at any time, without prior notice. You are responsible for reviewing this Agreement on a regular basis. Any changes that are made to this Agreement will not apply retroactively and will not apply to disputes or events occurring before the change is published.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Affiliate Tracking and Commissions.
a. All sales are tracked using visitor IP and/or cookies. While this is the best method available, it is not perfect. We can only guarantee that sales will be tracked if the user’s IP does not change or their cookies are not cleared. This is also applied to any renewals, which are tracked independently of the initial purchase. Affiliate will include all Site integration tags, tracking pixels and other tracking code (“Code”) that we request, including any Code incorporated into the Links and/or Creatives. Affiliate may not alter the Code under any circumstances. If you alter, remove or disable any Code, you will not be paid for any net revenue that was or could have been attributed to that Code. In the event of a discrepancy in reporting, the tracking statistics and reports of Company shall control.
b. The first affiliate to refer a visitor gets credit for the sale. Multiple affiliates will not be paid for the same sale. Affiliates agree that in the event of a dispute regarding credit or payment, the sole determination of Company shall be final and binding. If payment is refunded, then the commission for this payment will be removed from your account.
c. Only intentional clicks are allowed in the system. Forcing visitors to click a link, or using fake tracking pixels (also known as “cookie stuffing”), or any other means to register unsuspecting visitors in the system is strictly prohibited. Accounts using such methods will be terminated without warning and all revenues will be forfeited. This includes, but is not limited to, the use of Auto-Hit or Auto-Surf programs, displaying affiliate tracking URL within an iframe or image src, automatic pop-ups or automatic redirects to affiliate URL’s without action by the visitor, or any other method meant to automatically track a visitor in the affiliate system without an intentional click from an interested buyer. If the Company believes that Affiliate has fraudulently added registrations by non-approved methods (as solely determined by Company in its judgment), Affiliate agrees the payout for all such fraudulent leads will be forfeited.
d. Visitors referred by Affiliates are tracked for a maximum of 60 days. Visitors who are referred and make a purchase 60 days after clicking an Affiliate’s link will not be tracked, and a sale will not be awarded or compensated.
e. The first affiliate who refers a customer who completes a purchase will be awarded commissions on that customer’s purchases. An affiliate who refers a customer’s initial subscription payment will also be awarded commissions on that customer’s renewal payments paid towards the subscription for which the affiliate was the initial referrer. Customers who purchase a subscription without an affiliate referral will not generate commissions on any subsequent subscription renewal payment since this subscription and all related renewal payments were not generated from an affiliate referral. Additional purchases are still subject to commissions.
a. Payments are sent out automatically at the first of each calendar month to Affiliates with a balance of $100.00 and above. No payments will be due or payable until an Affiliate has earned at least U.S. $100.00 hereunder. Payments are only made through PayPal. Therefore, you must have a valid PayPal email address assigned to your account to receive any payment.
b. Company shall pay Affiliate the agreed-upon percentage of Net Revenue from customers. Company shall have the right at any time in its sole discretion to alter the percentage of Net Revenue paid to Affiliates (including the payment of commissions upon renewal) upon the provision of ten days’ prior notice. Net Revenue means the gross revenues actually received by Company due to Affiliate’s actions minus taxes, refunds, rebates and any discounts that are given. Payment shall be made within thirty (30) days after the first day of the month in which the Customer paid Company. Example: If your commissions reach $100 (eg. payments for January will be sent on or after March 1st). Commissions that do not reach $100 are carried over from month to month.
c. If you disagree with any compensation paid in connection with any month, you agree to notify Company within sixty days of payment for such month. Otherwise, you agree that any and all claims for underpayment for such month shall be waived. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
a. If we suspect that you are engaged in fraud of any kind, your account may be terminated without notice. Affiliates who have had their accounts terminated are not eligible to become affiliates thereafter. Accounts which refer customers using misleading or falsified information will be terminated. Lying to a potential customer in order to persuade them to purchase our products is strictly forbidden. Using illegal means of promotion, including (but not limited to) eMail SPAM is strictly prohibited. Accounts found to be promoting our products using methods that break the CAN-SPAM Act of 2003 and/or CASL of 2014 will be immediately terminated and removed from the system.
b. Only one person may use an account, and each person may only create one account for themselves. Creating multiple accounts is not allowed. Affiliates with multiple accounts will be terminated.
c. Company reserves the right in its sole discretion, and without any prior notice, to terminate your access to the Service for any or no reason, including your breach of this Agreement or a violation of the rights of another or the law.
Affiliate warrants and covenants on an ongoing basis that its web site(s) and marketing practices:
1. Do not violate any law or regulation governing (i) false or deceptive advertising, (ii) sweepstakes, or (iii) gambling;
2. Do not contain any trade disparagement or libelous, defamatory or infringing content; and (i) do not contain any machine-readable code that could be unintentionally downloaded onto a recipient’s computer (such as a worm, virus, Trojan Horse or other self-executing programs) and damage or takeover recipient’s computer;
3. Do not offer incentives to users to click on ads or complete offers that award them cash, points, prizes or automatically enter them into contests, drawings or sweepstakes;
4. Will only be marketed to people who are eighteen (18) or older that are eligible to use the Company’s product.
5. Comply with all local, state and federal laws regarding email marketing (CAN-SPAM ACT, effective January 1, 2004) and/or (CASL act, effective July 2014). If Company notifies Affiliate of its receipt of any complaint regarding Affiliate’s email practices, or alleged violations of email practices, Affiliate must respond to Company within forty-eight (48) hours of such notification and provide source information, including, but not limited to: (i) time, (ii) date, (iii), IP address, (iv) opt-in source, and (v) content of email message.
6. As a condition to your participation in the Affiliate Program, you agree that while you are an Affiliate, you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are an Affiliate. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (national, federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and/or CASL act of 2014 and all other anti-spam laws.
7. The affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
8. Affiliate’s websites do not contain any materials that are:
i. Obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent; or
iv. Solicitous of any unlawful behavior
9. The affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s websites. Nothing on Affiliate’s websites infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
10. Affiliate will not use the Promotional Materials in any manner other than those set forth above.
11. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
12. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s websites that reference Company or Company’s website unless the Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its websites, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates the Company’s name, or that is confusingly similar to the Company’s name.
13. Affiliate shall not during the Term compete directly or indirectly with Company in the sale of third party products or merchandise without the prior written consent of Company, provided that it shall not be a violation of this section for Affiliate to sell Affiliate-branded products or merchandise or products or merchandise previously marketed by Affiliate.
14. Affiliates shall not bid on search terms that include Rough Pixels trademarks when promoting their affiliate links on search engines including, but not limited to, Google, Yahoo, and Bing. This includes any search term including the words and phrases “Rough Pixels”.
Affiliate shall indemnify Company and hold harmless and defend Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth herein. Affiliate shall also indemnify, defend and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with the Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
Limitation of Liability.
Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement. COMPANY’S LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS AND AFFILIATES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, SHALL NOT EXCEED THE TOTAL SUM OF $100.00. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE CONTRACT BETWEEN US AND YOU. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
This Agreement constitutes the entire agreement between Company and Affiliate and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be amended or modified only in writing agreed to and signed by authorized representatives of both parties.
Updated: February 20, 2019