1. General
1.1 These Terms of Service, together with the Affiliate.com Privacy Policy set out the terms and conditions on which Prophetably, Inc. d/b/a/ Affiliate.com (“Affiliate.com”, “we” or “us”) provides the Service to Publishers and Merchants.
1.2 To participate as a Publisher or a Merchant , you must be either a legal entity or an individual 18 years or older.
1.3 By submitting your application to Affiliate.com and or your continued use of the Service you are confirming that either:
1.3.1 you are a Publisher or Merchant intending to enter into the Agreement with Affiliate.com in a personal capacity, and that you agree to comply with the Terms of Service; or
1.3.2 you are an employee, agent or subcontractor of a Publisher who has been given the necessary authorisations by Publisher to login to the Publisher Hub, to agree to comply with the Terms of Service and to enter into the Agreement with Affiliate.com, in each case on behalf of Publisher.
If you are unable to provide one of the above confirmations, you must not submit the application, or otherwise use or access the Services.
2. Definitions
2.1 In these Terms of Service, the following expressions have the following meanings:
“Advertiser” an entity purchasing advertising or marketing services from Affiliate.com directly or through an agent.
“Affiliate Network” an entity providing an affiliate marketing service on behalf of multiple Merchants.
“Agreement” the agreement between Affiliate.com and Publisher which (i) is created on acceptance by Affiliate.com of Publisher’s application in accordance with clause 3.1 and (ii) incorporates the Terms of Service.
“Applicable Laws” all applicable statutes, common law, statutory instruments, orders, regulatory policies, binding codes of practice and guidance notes, by-laws, rules of court and regulations, directives, notices or requirements of any local, statutory, governing or public or regulatory authority or body, and all subordinate or delegated legislation made under such legislation, as amended or superseded,
“Chargeback” as defined in clause 9.
“Content” the proprietary content (which may, at Affiliate.com’s discretion, comprise text, images, audio, video and/or other material) that Affiliate.com makes available to Publisher.
“Content Tools”the Core Tools when used on Content.
“Control” the legal power to control (directly or indirectly) the management of an entity (and “ Controlled” should be construed accordingly).
“Controller” an entity that determines the purposes and means of processing Personal Data.
“Core Tools” Affiliate.com’s standard affiliation technologies which Publishers can use to affiliate Merchant links, through Affiliate Networks, with the purpose of earning revenue.
“Data Subject Request”any request by a User to a party to exercise his or her rights under Applicable Privacy Laws.
“Merchant”a supplier of goods and/or services which is included in the list of Merchants on the Publisher Hub at the time of the relevant Sale.
“Optional Tools” all Tools except for Core Tools, and including such additional or alternative proprietary or third party software tools that Affiliate.com may from time to time make available to Publisher.
“Personal Data”any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, economic, cultural or social identity of that natural person.
“Privacy Policy”Affiliate.com’s privacy policy, the current version of which may be accessed here.
“Program Policies” a group of policies which set limits on the use of the Service, which are incorporated below as Exhibit A.
“Property” or “Properties any and all internet websites, mobile websites, email, social media, mobile applications and other properities as we determine.
“Publisher” a person or other entity who is entitled to access and use the Service.
“Publisher Hub” Affiliate.com’s proprietary, login-protected web portal that may be accessed by Publishers at www.affiliate.com to access and configure Tools, view performance and billing reports, and search for participating Affiliate Networks and Merchants.
“Publisher Revenue” Publisher’s share of the Total Revenue, which may be viewed in the Publisher Hub.
“Sale” following a referral of a User from a Property to a Merchant’s website, a supply of goods and/or services by such Merchant. Our Affiliate.com technology will redirect to a Merchant’s website.
“Service” access and use of (i) the Publisher Hub and (ii) the Tools.
“Tools”the Core Tools and the Optional Tools or, as the context requires, any of them, including any additional tool launched by Affiliate.com.
“Total Revenue” a payment made by a Merchant, Affiliate Network, or Advertiser to Affiliate.com resulting from the use of the Tools (less any Chargebacks).
“Usage Data” information collected or created by the use of the Service.
“User” a user of a Property that is referred to a Merchant via the Service and/or interacts with the Merchant by purchasing goods and/or services or providing the Merchants with some other benefit (including, but not limited to, registering with the Merchant’s website or subscribing to a newsletter).
3. The Service
3.1 Affiliate.com may approve or reject an application to register for the Service at its entire discretion, without obligation to provide reasoning. Publisher’s registration for the Service is specific to the Properties set out in Publisher’s application and it may not use the Service in relation to any Property other than those for which it has Affiliate.com’s prior permission. Affiliate.com will not pay a Publisher if the Publisher drives traffic to an unapproved destination, commits fraud or is otherwise in breach of Agreement. If Affiliate.com in its sole discretion determines that a Publisher has driven traffic to an unapproved destinate, commits fraud or is otherwise in breach of Agreement the Publisher will forfeit all revenue in the calander month in which the violative activity took place.
3.2 If Publisher wishes to use the Service in relation to any additional or alternative Properties then Publisher may request (via the Publisher Hub) that such Properties are added to its registration (an “Additional Property Request”), which Affiliate.com may approve or reject at its entire discretion.
3.3 Affiliate.com shall make available redirect links for Publisher to implement on the Properties, which, if enabled by Publisher, may cause the downloading of Javascript file(s) to Users’ devices, enabling the collection and usage of Usage Data for the provision of the Service,.
3.4 THE SERVICE IS MADE AVAILABLE TO YOU FOR THE SOLE PURPOSE OF FACILITATING BUSINESS TRANSACTIONS AS PERMITTED UNDER THIS AGREEMENT.
3.5 By signing up you agree to the Program Policies that are incorporated below as Exhibit A.
4. Merchants
4.1 Publisher acknowledges and agrees that:
4.1.1 Affiliate.com may from time to time, and with immediate effect and at its discretion, integrate or exclude any Merchant into or from the Service. The Service may affiliate any existing, unaffiliated Merchant links (added by Publisher or in user-generated content) found on the Properties, unless Publisher uses the Network Overwrite tool or excludes a link from the Service or from its own Property;
4.1.2 A Merchant may from time to time, and with immediate effect, vary commission rates and the way in which Total Revenue is calculated;
4.1.3 A Merchant may from time to time, and with immediate effect, terminate its involvement in the Service in relation to all or some publishers or request removal of a specific link, brand, product, or trademark from any or all Properties; and
4.1.4 Affiliate.com may notify Publisher of any changes by way of updates to the Publisher Hub.
5. Use of Core Tools, Optional Tools and Content
5.1 In order to use the Optional Tools, Publisher:
5.1.1 must be registered and approved for the Service pursuant to clause 3, and have the Core Tools activated on a Property that has been approved by Affiliate.com and with which it intends to use the Optional Tools;
5.1.2 must not sell, transfer, sublicense or otherwise disclose its login;
5.1.3 Notwithstanding the foregoing, if Affiliate.com considers that Publisher’s use of the Tools is excessive or fraudulent, then such use will constitute a breach of this Agreement for the purposes of clause 11.1.
5.2 In order to use any Tools, Publisher:
5.2.1 acknowledges that Affiliate.com is entitled to monitor Publisher’s use of the Service to ensure it is being used by Publisher in accordance with this Agreement;
5.2.2 agrees, represents and warrants that it will comply with all Applicable Laws in its performance of this Agreement, including with respect to the use of the Service;
5.2.3 must comply with Affiliate.com’s Program Policies which is displayed as Exhbit A (as amended by Affiliate.com from time to time).
5.2.4 must comply with the Privacy Policy (as amended by Affiliate.com from time to time), the current version of which may be accessed here.
6. Revenue
6.1 Publisher Revenue:
6.1.1 Publisher shall be entitled to revenue that it earns directly from Affiliate Networks and Merchants that it has a directly relationship with.
6.1.2. Publisher may rely on relationships Affiliate.com has with merchants. In such cases Publisher shall be entitled to its share of the Total Revenue (less any Chargebacks) (also referred to as “Publisher Revenue”) collected by Affiliate.com resulting from Publisher’s use of the Tools, which may be viewed in the Publisher Hub. The Total Revenue shall be split 75%-25% where Affiliate.com keeps 25%, unless otherwise provided by Affiliate.com.
6.2 Publisher acknowledges and agrees that:
6.2.1 the calculation of Total Revenue for Tools shall be performed by the relevant Merchant, or Affiliate Network and Affiliate.com shall only pay and share on revenue that it collects;
6.2.2 different Merchants use different methods for calculating Total Revenue, which may include (without limitation) using fixed amounts per Sale or referral, percentage-based methods, or “cost per click”;
6.2.3 a sale of goods and/or services by a Merchant may follow two or more referrals from a User across different marketing channels and the affiliate network may not pay Affiliate.com; and
6.3 Affiliate.com shall collect, calculate, and aggregate the Publisher Revenue for all Tools, and display in reports which may be viewed in the Publisher Hub.
7. Payment Terms
7.1 By signing up you agree to pay Affiliate.com the stated fees for its Service. The fees will be stated on the website. Affiliate.com will automatically charge your credit card monthly for such Service. The fee charged may change upon notice to you. You authorize
Affiliate.com to automatically charge your credit card each month, and you waive any and all rights of charge-backs or other deductions.
7.2 If you use our link and Affiliate.com collects the revenue, Affiliate.com will pay Publisher the Publisher Revenue for a given month, minus any Chargebacks, within 30 days of the last day of the month in which payment was received from the Merchants, and/or Affiliate Networks.
7.2 If the amount of the Publisher Revenue is less than $100 in any month (the “Minimum Threshold”), any such amount will be carried over and paid when the cumulative amount due for payment to Publisher exceeds the Minimum Threshold.
7.3 Payments will be made in accordance with the payment method selected by Publisher in the Publisher Hub.
8. Force Majeure
Neither party shall be liable to the other by reason of any event arising which is beyond the reasonable control of the affected party (including any industrial action (save in respect of affected party’s employees or suppliers), governmental regulations, fire, flood, disaster, civil riot or war).
9. Chargebacks
9.1 A Merchant may require Affiliate.com (either directly, via an Affiliate Network) to reverse the Total Revenue paid in respect of a Sale (a “Chargeback”) in certain circumstances, including (but not limited) to the following:
9.1.2 the Sale was not a bona fide transaction;
9.1.3 the relevant goods sold are returned by the User; or
9.1.4 it is discovered that the transaction was fraudulent.
9.2 In the event of a Chargeback, the Publisher Revenue figure available on the Publisher Hub will be reduced accordingly. Publisher acknowledges and accepts Publisher has no right to appeal or otherwise challenge a Chargeback.
9.3 Publisher acknowledges and agrees that Total Revenue remains subject to Chargebacks, and is therefore conditional, even after it has been paid to Affiliate.com or Publisher.
10. Service Availability
10.1 Affiliate.com will use its reasonable endeavours to ensure that the Service works on the Properties but gives no warranty that the Service will achieve any minimum availability or response targets.
10.2 Publisher agrees to notify Affiliate.com promptly of any Service availability or performance issues via e-mail or the Publisher Hub. Affiliate.com will use reasonable endeavours to correct any reported issues as soon as reasonably practicable.
11. Service Suspension
11.1 If Affiliate.com has reasonable grounds to believe that Publisher is not using the Service in accordance with the terms of the Agreement and/or in breach of the Program Policies, Affiliate.com may:
11.1.1 request Publisher either to remedy the breach or other default within such time frame as Affiliate.com may reasonably require; or
11.1.2 if Affiliate.com in its discretion considers that the breach or other default is sufficiently serious, or if Publisher has failed to respond to Affiliate.com’s request under clause 11.1.1 to Affiliate.com’s reasonable satisfaction, suspend Publisher’s access to the Service, in whole or in part, with immediate effect and without any obligation to provide prior notice (a “Service Suspension”).
11.2 As soon as reasonably practicable following a Service Suspension, Affiliate.com will notify Publisher of the reason(s) for the Service Suspension and, where applicable, confirm the steps that Publisher is required to take in order for Affiliate.com to reinstate Publisher’s access to the Service.
11.3 After a Service Suspension, Affiliate.com, in its discretion, may permit Publisher to change its affiliate links in a timeframe stated or may continue to support some or all of Affiliate.com’s links being utilized by Publisher.
12. Term and Termination of the Agreement
12.1 The Agreement will commence when Affiliate.com notifies Publisher in accordance with these Terms of Service that Publisher’s application has been accepted and, unless terminated earlier in accordance with clause 12.2, will continue until either party gives the other party written notice of termination at any time via email. Notices to Affiliate.com should be sent to
contact@affiliate.com. Notices to Publisher will be sent to the email address provided by Publisher in the Publisher Hub.
12.2 Either party may terminate the Agreement with immediate effect upon written notice to the other party.
12.3 On termination of the Agreement:
12.3.1 Publisher will immediately cease use of the Service; and
12.3.2 except where the Agreement is terminated by Affiliate.com under clause 3.1 (in which case Publisher forfeits all rights to receive any further payments) Affiliate.com shall pay Publisher the Publisher Revenue accrued (less any Chargebacks and pending payments from Merchants, Advertisers and/or Affiliate Networks) not later than the date falling three (3) months after the date of termination. If there are Chargebacks after final payment to Publisher, Publisher shall immediatley pay Affiliate.com the amount of such Chargebacks.
13. Grant of Rights
13.1 All intellectual property rights subsisting in the Publisher Hub or the Service (or any part thereof), and in any developments, enhancements, data, information and other material relating to, arising out or derived from the Service, or any part thereof (“Derivative Works”), shall at all times be owned by and vest in Affiliate.com. Subject to clause 13.2, Publisher agrees that the Agreement does not transfer or grant any right, title or interest in Affiliate.com’s intellectual property rights in the Publisher Hub, the Service, or the Derivative Works (or any part thereof) to Publisher.
13.2 Affiliate.com grants to Publisher a non-exclusive, non-transferable, non-sublicensable, revocable, worldwide, licence to use the Publisher Hub and the Service during the term of the Agreement.
13.3 Publisher shall not be entitled to use the Publisher Hub or the Service in any other way other than as set out in the Agreement. Any attempt to interfere with the operation of the Service (or any part thereof) will constitute a breach of the Agreement.
13.4 Each party owns all data that such party collects. As to the Affiliate.com and its affiliates (the “Affiliate.com Group”), such data may include and is not limited to Usage Data. The foregoing shall further include any reports created, compiled, analyzed, or derived by a party with respect to such data. Affiliate.com data collection practices are reflected in the Privacy Policy, which Affiliate.com recommends Publisher review from time to time.
13.5 Publisher is not required to provide any feedback or suggestions to Affiliate.com. To the extent Publisher does provide any such feedback or suggestions, Publisher hereby grants to Affiliate.com and its affiliates a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right, and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit all such feedback and suggestions without restriction.
14. Privacy and Data Protection
14.1 Role of the Parties. Each party acknowledges that they shall be Controllers of any Personal Data relating to Users (“User Personal Data”) that it collects or processes pursuant to the Agreement for purposes of Applicable Privacy Laws.
14.2 The Affiliate.com Group shall collect and process User Personal Data for the following purpose(s): (i) reporting to Publishers and calculating Publisher Revenue; and (ii) optimizing, personalizing, analyzing, and recommending advertising content to Users (the “Agreed Purpose(s)”).
14.3 Each party shall at all times ensure that:
14.3.1 all User Personal Data made available to the other party has been collected, processed and made available in accordance with Applicable Privacy Laws; and
14.3.2 the essence of the arrangements in this clause 14 has been made available to Users.
14.4 As between the parties, responsibility for compliance with Applicable Privacy Laws shall be dealt with as follows:
14.4.1 Publisher shall be responsible for:
14.4.1.1 complying with the transparency requirements on its website related to the services being provided by Affiliate.com; and
14.4.1.2 ensuring the lawfulness of the processing of the User Personal Data for the Agreed Purpose(s). In particular, Publisher must adhere to the consent and opt-out requirements pursuant to Applicable Privacy Laws;
14.4.2 any Data Subject Request falls on the party which first received such Data Subject Request;
14.4.3 any complaint falls on the party which receives the complaint from a complainant;
14.4.4 any Personal Data breach (including notification to the data protection supervisory authority and/or Data Subject(s)) relating to any User Personal Data falls on the party which incurred the Personal Data breach; and
14.4.5 any other matter under Applicable Privacy Laws falls on the party subject to such obligations under Applicable Privacy Laws.
14.5 Each party shall promptly co-operate with and provide reasonable assistance, information and records to the other party to assist that party with its compliance with this clause 14, Applicable Privacy Laws and in relation to all complaints and Data Subject Requests.
14.6 Each party shall implement appropriate technical and organizational security measures to protect User Personal Data from accidental or unlawful destruction, loss, alteration, and unauthorized disclosure or access, consistent with the requirements of Applicable Privacy Laws.
15. Assignment
Publisher may not assign or otherwise transfer its rights and/or obligations under the Agreement, whether in whole or in part.
16. Communication
16.1 Any notice under the Agreement shall be in writing and shall be made either via e-mail or posting on Affiliate.com’s website. .
16.2 Affiliate.com may disclose its relationship with Publisher in its marketing material (including its Properties) and in its operational relationship with Affiliate Networks and Merchants, including using for such purposes Publisher’s name and trademarks.
16.3 Publisher agrees that Affiliate.com may use Publisher’s contact details (including its email and registered address) to notify it about its account with Affiliate.com, send them promotional communcation, any issues relating to, and updates to, the Service, and any modifications to the terms of the Agreement.
17. Modifications
Affiliate.com may modify all or any part of this Agreement, at any time and at its sole discretion, effective immediately upon notice published on the Affiliate.com Publisher Interface. Continued participation in the Service after receiving notice of such modification will constitute Publisher’s unconditional acceptance of the modification to this Agreement.
18. Indemnity
Publisher shall indemnify, defend and hold harmless Affiliate.com against all losses, liabilities, damages and costs (including legal expenses) sustained, incurred or suffered by Affiliate.com as a result of any claim, action or proceeding that: (i) the Properties infringe the intellectual property rights of any third party; (ii) Publisher is in breach of its obligations under the terms of the Agreement; or (iii) any third party claims arising from Publisher’s use of the Service otherwise than in accordance with the terms of the Agreement.
19. Liability
19.1 Except as expressly and specifically provided in the Agreement, all warranties, conditions, representations and other terms of any kind, whether express or implied, are, to the fullest extent permitted by law, excluded from the Agreement. In particular (but without prejudice to the generality of the foregoing), Affiliate.com makes no express or implied warranties or representations with respect to the operation or availability of the Publisher Hub or the Service, or to the optimization of Total Revenue from its routing strategy. Affiliate.com will not be liable for the consequences of any interruptions to or errors in the Publisher Hub or the Service.
19.2 Affiliate.com shall not be liable for: loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; or loss of goods; or loss of use; or loss or corruption of data or information; or any special, indirect, consequential or pure economic loss (whether or not falling in any of the foregoing categories), costs, damages, charges or expenses. Affiliate.com shall not be liable if links do not work or function properly.
19.3 Subject to clauses 19.1 and 19.2, Affiliate.com’s total aggregate liability under or in connection with the Agreement, whether for breach of contract, tort (including negligence), misrepresentation or otherwise, shall be limited to an amount equal to the amount the Publisher paid Affiliate.com in the prior three (3) months preceding the date on which the claim arose.
19.4 Nothing in the Agreement excludes the liability of either party for any other liability which cannot be excluded under applicable law, including fraud, fraudulent misrepresentation, or death or personal injury caused by either party’s negligence.
21. Entire Agreement
The Agreement constitutes the whole agreement between the parties relating to its subject matter and supersedes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter save that this clause 21 shall not exclude liability for any fraud or fraudulent misrepresentation of a party.
22. Governing Law and Jurisdiction
22.1 The Agreement shall be governed by, and construed in accordance with:
22.1.1 the laws of the State of New York.
22.2 In relation to any legal action or proceedings to enforce the Agreement or arising out of or in connection with the Agreement each of the parties irrevocably submits to the exclusive jurisdiction of:
22.2.1 the courts of New York City, New York.
23. Confidenitaly Information
23.1 Definition. “Confidential Information” means any material or information disclosed by the Disclosing Party to the Receiving Party that is marked or otherwise identified as confidential at the time of disclosure, or which given facts and circumstances under which such information is disclosed, should reasonably be considered confidential and proprietary; and includes the terms and conditions of this Agreement and all schedules, exhibits and amendments thereto.
23.2 Non-Disclosure. Each party (“Receiving Party”) will keep the other party’s (“Disclosing Party”) Confidential Information secure using at least the same degree of care that it uses to protect its own Confidential Information, but no less than reasonable care, and will not disclose or use such other party's Confidential Information except to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement. Further, the Receiving Party may disclose the Disclosing Party's Confidential Information only to those of its employees, officers and directors, third-party consultants, and advisers, and the employees and officers of its Affiliates (collectively referred to as Representatives”) with a legitimate need to know such information in order to perform their respective duties; provided that (a) each such person has a legal or contractual obligation to maintain the confidentiality of such information, and (b) in the case of Representatives, no such Representative is a competitor of, or affiliate of a competitor of, the Disclosing Party. You are responsible for the use and storage of the password and ID issued by Affiliate.com and will immediately notify Affiliate.com in writing of any loss or involuntary disclosure thereof. Affiliate.com reserves the right to change the password and ID issued to You in the event of a suspected breach of this Agreement or compromise of the security of Your account.
23.3 Exceptions. The term "Confidential Information" will not include information that (a) is or becomes publicly available without breach of this Agreement, (b) the Receiving Party obtains from a source other than the Disclosing Party, provided that the disclosure to the Receiving Party by such source is not known to the Receiving Party to be a violation of a confidentiality obligation of such source to the Disclosing Party, and (c) the Receiving Party knew prior to receiving such information from the Disclosing Party or develops independently without use of the disclosing party’s trade secrets or confidential information, as shown by contemporaneous records. The confidentiality restrictions in this Agreement will not apply to disclosure by the Receiving Party of the Disclosing Party's Confidential Information to the extent required by law or court order, provided that the Receiving Party uses reasonable efforts to give the Disclosing Party prompt written notice of such requirement, in advance if possible, in order to give the Disclosing Party an opportunity to lawfully prevent or limit the scope of such disclosure.
Exhibit A
Program Policies
Publishers using Affliate.com are required to adhere to the following policies, so please read them carefully. We may change our policies at any time, so please check here often for updates.
Content Guidelines
We do not allow publishers with the following types of content to use Affliate.com:
• Violent or hateful content
• Pornographic content
• Content that promotes illegal activity
• Content that specifically targets children aged 13 and below
• Duplicated content from other websites
It is a breach of our Program Policies to:
• Generate impressions, clicks, or transactions through any means other than those initiated by non-incentivized end users.
• Use a domain name containing merchant or other entities' names, brands or trademarks, or misspellings thereof.
• Operate multiple accounts without express written consent from Affliate.com.
• Be non-compliant with all applicable United States Federal Trade Commission and UK Advertising Standards Authority guidelines, including those regarding how implied endorsements and testimonials like affiliate marketing must be disclosed to consumers (see, for example, some relevant information here and here).
• Create the impression that your website is the website of a Merchant or other entity, including, without limitation, framing or copying of a website in any manner or creating banners or advertisements that mimic a Merchant or other entity's website’s search, display, or social ads in any manner.
• Use Affliate.com affiliate tracking tags outside of Affliate.com technologies.
Affliate.com reserves the right to deny any publisher suspected of engaging in the above activities from its publisher network. In the case of a publisher already accepted into the Affliate.com publisher network, should they be suspected of engaging in prohibited activities, Affliate.com reserves the right to suspend or terminate their account at any time, without compensation and in its sole discretion.
