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Affiliate Agreement

ClearPlay Affiliate Program

Terms
This Operating Agreement ("Agreement") contains the terms and conditions that apply to your participation as a Publisher in the ClearPlay Affiliate Program and to the establishment of links from your Publisher Web site to our Web site, " ClearPlay.com". The ClearPlay Affiliate Program is administered through OmniStar "OS".

THIS IS A LEGALLY BINDING AGREEMENT. BY COMPLETING AND SUBMITTING THE ONLINE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT.

  1. Enrollment

    1. To begin the enrollment process, you must submit a complete ClearPlay Affiliate Program application to OS via the OS Web site. We ClearPlay, Inc.) will evaluate your application and will notify you of your acceptance or rejection in a timely manner.

      We may reject your application after initial approval if we determine (in our sole discretion) that your Site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:

      • Infringe trademark rights of "ClearPlay" or any variations or misspellings thereof in the domain name or other HTML tags, including page titles, metatags, or HTML comment tags or otherwise violate the rights of any third party
      • Contain sexually explicit materials
      • Contain hate/violent/offensive content
      • Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age Promote illegal activities or otherwise violate any applicable laws, including those targeting "spyware", "adware", or SPAM
      • Violates copyrights, trademarks, patents or any other intellectual property or other rights of ClearPlay or any other person or entity or including in any way, without limitation, scraping text or images from the ClearPlay Website
      • Do not clearly state an online privacy policy to its visitors
      • Otherwise are considered offensive or inappropriate at the sole discretion of ClearPlay.

    2. Employees of ClearPlay, Commission Junction, Inc., any product or service vendor or supplier doing business with us, and each of their respective subsidiaries and affiliates (all hereinafter referred to as a "Related Party") and the immediate family members of such employees are not allowed to participate in the ClearPlay Affiliate Program.

      If we reject your application, you are welcome to reapply to the ClearPlay Affiliate Program.

  2. Promotion of Affiliation

    1. As an Affiliate Program member, we will make available to you a variety of graphic and textual links ("Links" or "Link"), which, subject to the terms and conditions of this Agreement, you may display as often and in as many areas on your site as you desire. The Links will serve to identify your site as a member of our Affiliate Program and will establish a link from your site to ours.

    2. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You agree not to alter Links or their content in any way unless we provide such option through OS. You also agree that you will display in your site only those graphic or textual images (indicating a Link) that are provided by us, and you will immediately substitute such images with any new images that are provided by us from time to time throughout the term of this Agreement. Each Link connecting users of your site to the pertinent area of our site will in no way alter the look, feel or functionality of our site. In addition, we encourage (but do not require) you to include a Link to the home page of our site.

    3. You also agree to comply with our requirements for removing Links on a timely basis. When promoting deals or prices that expire on a specific date you will clearly show the expiration date with the offer. We will correct or reverse any commission for sales made pursuant to a Link referencing an expired promotion or other deal. Failure to remove expired Links may lead to your termination as a Publisher.

  3. Our Responsibilities

    1. We will be responsible for providing the information necessary to allow you to make appropriate Links from your site to our site. We will be solely responsible for: (i) processing every order placed by a customer following a special Link from your site; (ii) tracking the volume and amount of sales generated by your site; and (iii) providing information to Affiliate Program members regarding sales statistics via the OS Network Service at the location provided to you by CJ upon your acceptance as a ClearPlay Publisher. Our order processing obligations will include order entry, payment processing, shipping of products, performance of services, cancellations, returns and related customer service.

  4. Commission Determination

    Only ClearPlay products and subscriptions that are: (i) sold by the ClearPlay Web site; (ii) purchased by users linking to the ClearPlay Web site from your site pursuant to a Link; (iii) actually shipped by the ClearPlay Web site to a U.S. or Canada shipping address and billed to a U.S. or Canada billing address; and (iv) for which ClearPlay has received full payment, will qualify for a commission ("Qualifying Purchases"). No commissions will be paid for product or subscription orders that are canceled or returned, which such cancellations and returns will be deducted on an on-going basis but no less frequently than monthly.

    Commission rates will be based on the aggregate amount actually paid to ClearPlay for Qualifying Purchases, excluding amounts collected by us for sales taxes, duties, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, credits for canceled orders and returned goods ("Net Sales"). All qualifying product and subscription items available for sale on our site will be included in the computation of Net Sales.

  5. Commission Payments

    Commission Payments shall be made as set forth in the Publisher Service Agreement entered into between you and OS.

  6. Policies/Pricing/Product/Service Descriptions

    Customers who buy products or subscriptions from the ClearPlay Web site through the Affiliate Program will be deemed to be customers of ClearPlay. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, privacy, and ClearPlay product and subscription sales will apply to those customers.

    We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products and subscriptions sold by the ClearPlay Web site under the Affiliate Program in accordance with our own pricing policies. Prices and availability of products or services on the ClearPlay Web site may vary from time to time, and the availability and price of any particular product cannot be guaranteed.

  7. Publicity

    Except as expressly authorized in this Agreement, You shall not create, publish, distribute, or permit any written material that makes reference to ClearPlay without first submitting such material to us and receiving our written consent.

  8. License

    1. We grant you a non-exclusive, non-transferable, revocable right to (i) access our site through the links solely in accordance with the terms of this agreement and (ii) solely in connection with such links, to use the ClearPlay trademark and logo and similar identifying material relating to us but only in the forms that we provide to you (collectively, the "Licensed Materials"), for the sole purpose of linking your site to our site, where your users can purchase products or services from our site. You may not alter, modify, or change the licensed materials in any way. We reserve all of our rights in the Licensed Materials. You accept these rights and licenses subject to the terms and conditions in this agreement.

    2. You acknowledge ClearPlay ‘s ownership in its Licensed Materials, agree that you will not do anything inconsistent with ClearPlay ‘s ownership and that all of your use of the Licensed Materials will inure to the benefit of and be on behalf of ClearPlay, and agree to assist ClearPlay in recording this Agreement with appropriate government authorities. You agree that nothing is this Agreement gives you any right, title or interest in the Licensed Materials other than the right to use the Licensed Materials in accordance with this Agreement. You also agree that you will not attack the title of ClearPlay to the Licensed Materials or the validity of the Licensed Materials or this Agreement.

    3. You agree that the nature and quality of all services provided by you in connection with this Agreement and all related advertising and promotional uses shall conform to high standards of quality and will not impugn the goodwill of ClearPlay or the Licensed Materials. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light.

    4. You agree to use the Licensed Materials only in the form and manner and with appropriate legends as provided from time to time by ClearPlay, and not to use any other trademark or service mark in combination with the trademark or service mark or name of CLEARPLAY.

    5. You agree to not use, register or seek to register any trademark, service mark or domain name that contains the words " ClearPlay.com," " ClearPlay," or any variations or misspelling of them, or is any way confusingly similar to " ClearPlay " or any other trademark owned by ClearPlay. If you do, you agree to transfer the registrations, at your expense, to ClearPlay at the request of ClearPlay and to cooperate by providing any information, signing any documents and providing appropriate authorizations necessary to accomplish the transfer.

    6. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the Affiliate Program. We may revoke your membership upon seven (7) days written notice at any time. If we give you such notice, you must immediately discontinue all use of the Licensed Materials within seven (7) days.

    7. You grant to us a non-exclusive license, for the term of this Agreement, to utilize your names, titles, and logos, as the same may be amended from time to time to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize.

  9. Obligations Regarding Your Site

    1. You are solely responsible for, and we have no liability for, the development, operation, or maintenance of your site, or for any materials contained on your site.

    2. You agree that your site will not, in any way, copy or resemble the look and feel of our site, nor will you create the impression that your site is our site or is a part of our site, nor will you frame any page on the ClearPlay Web site being viewed by a user of your site who links to the ClearPlay Web site through a Link.

    3. You agree that your site does not currently contain and will not contain any content, or links to such material, that is in any way unlawful, harmful, threatening, harassing, defamatory, obscene, or violent as more fully set forth in Section 1.

    4. You also agree that your site will not contain any content from our site or any materials that are proprietary to ClearPlay, except with our prior written permission, or to the extent that materials are obtained by you strictly in accordance with the provisions of this Agreement. You agree not to purchase or otherwise contract with any third party to exploit any of the ClearPlay marks for the purpose of causing the Publisher site to appear as a search result in any search engine or for any other reason.

    5. You agree that your Publisher site will not use any form of mass email communication ("spam") as a marketing tool for the site or for any other purpose related to this Agreement and that any mass email generated by you or your Publisher site will conform in all respects with all applicable local, state and federal laws, regulations and rules including the CAN-SPAM Act.

    6. When promoting ClearPlay via external paid search engines, which may include, but are not limited to, entities such as Google, Yahoo! and MSN, the following guidelines must be followed: (i) you must not give the impression that you are, or represent, ClearPlay, through use of phrases such as ‘Official Site’; (ii) you must not bid on select trademarks and brand names designated by ClearPlay, including but not limited to: "ClearPlay" and "ClearPlay.com"; (iii) you must not outbid ClearPlay for top placement on select trademarks and trade names designated by ClearPlay; (iv) you must not target the brand names of any entities that are direct competitors of ClearPlay, or otherwise engage in marketing practices that are illegal or violate the rights of any third party; and (v) you must ensure that all copy used for search and keyword purposes is appropriate and 100% accurate and does not contain any claims that could be construed to be false or misleading. You agree that, following notice from ClearPlay or OS, you will promptly remove any search listing containing copy and/or creative components that ClearPlay, in its sole discretion, deems inappropriate for any reason.

    7. You agree that your Publisher site, and any other web site operated by you or related to your Publisher site will not permit users to, post on the site or any bulletin board or chat room associated with the site any information relating to the ClearPlay Web Site that may be used by others to take advantage of errors or anomalies discovered on the ClearPlay Web Site (e.g., pricing errors, shopping cart errors, discount calculations) to the disadvantage of ClearPlay. In the event any such information is posted to the Publisher or related web site, you agree to remove it promptly upon becoming aware of such information and take steps to discourage your users from posting such information. In addition, you agree that you have an affirmative duty, as a Publisher of ClearPlay, to inform ClearPlay promptly upon discovering any errors or anomalies on the ClearPlay Web Site. Failure to abide by these terms may lead to a loss of unpaid commissions from ClearPlay to you, or termination, as provided in this Agreement. Further, failure to honor the start and/or end date/time for posting promotional and pricing material of this Agreement shall be considered a failure subject to correction or reversal of commission payments or termination as set forth in this Agreement.

  10. Term of Agreement and Termination

    The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party. You may terminate this Agreement at any time, with or without cause, by using the Expire button within the Commission Junction Account Manager interface. ClearPlay may direct Commission Junction to terminate this Agreement at any time for your breach of this Agreement or of the Publisher Service Agreement, and may terminate you without cause upon 7 days prior written notice of termination by using the Expire option within the Commission Junction Account Manager interface. You are only eligible to earn commissions on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related Qualified Purchases are not cancelled. We may extend any New transactions for one additional commission period to ensure that the correct amount is paid.

  11. Modification

    We may modify any of the terms and conditions contained in this Agreement at any time in our sole discretion by providing you with 7 days prior written notice via offering new terms and conditions attached to a new Program Term. Modifications may include, but are not limited to, changes in the scope of available commissions and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program will constitute binding acceptance of the change.

  12. Relationship of Parties

    You and ClearPlay are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any representations regarding the association of Commission Junction, Inc., with ClearPlay or you.

  13. Disclaimers

    NEITHER CLEARPLAY NOR ITS SUPPLIERS MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS HEREUNDER WITH RESPECT TO THE AFFILIATE PROGRAM OR TO ANY CLEARPLAY PRODUCTS OR SUBSCRIPTIONS SOLD BY THE CLEARPLAY WEB SITE THROUGH THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, NEITHER CLEARPLAY NOR ITS SUPPLIERS MAKE ANY REPRESENTATION THAT THE OPERATION OF THE CLEARPLAY WEB SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND NEITHER CLEARPLAY NOR ITS SUPPLIERS WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

  14. Representations and Warranties

    You represent and warrant to us that: (i) you have the right and authority to enter into this Agreement and perform your obligations under the Agreement; (ii) you are the sole and exclusive owner of the Publisher trademarks and have the right and power to grant to us the license to use your trademarks in the manner provided for in this Agreement; (iii) you are an adult of at least 18 years of age; and (iv) you are not an employee or immediate family member of a Related Party as described in Section 1 b. above.

  15. Confidentiality

    You agree that all customer information related to the ClearPlay Affiliate Program belongs to us. You agree to protect as confidential all ClearPlay Affiliate Program customer information and Affiliate Program business and sales information related to us, you, or our suppliers, including, without limitation, information relating to sale pricing and promotions (collectively, "Information"), not to disclose Information to any third parties, and not to use Information for any purpose other than the purposes of this Agreement. You agree to protect Information using methods at least as protective as those you use to protect your own information of a confidential nature, but in no event, using less than a standard of reasonable care.

  16. Limitation of Liability

    NEITHER CLEARPLAY NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND YOU WAIVE ALL RIGHTS TO ANY CLAIMS FOR ANY SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF CLEARPLAY AND ITS SUPPLIERS WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.

  17. Indemnification

    You agree to indemnify, defend and hold harmless ClearPlay and its subsidiaries and affiliates, and suppliers, and their directors, officers, employees, and shareholders, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses, including reasonable attorneys' fees, ("Losses") insofar as such Losses, or actions in respect of Losses, arise out of or are based on (i) any claim that our use of Publisher trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party; (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you; or (iii) any claim related to your site, including, without limitation, claims regarding content on your site.

  18. Force Majeure

    ClearPlay’s performance under this Agreement shall be excused to the extent that its performance is hindered, delayed or made commercially impractical by causes beyond its reasonable control.

  19. Independent Investigation

    You acknowledge that you have read this Agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement (subject to the restrictions contained in this Agreement specific to those referrals contemplated herein) or operate Web sites that are similar to or compete with your Web site. You have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.

  20. Governing Law

    This Agreement has been made in and shall be construed and enforced in accordance with Utah law without recourse to choice of law considerations. Any action to enforce this Agreement shall be brought in the federal or state courts located in Salt Lake City. Last Revision Date: November 2009