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MYFANTASYBALL AFFILIATE AGREEMENT & TERMS |
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MyFantasyBall Affiliate Agreement
This
Affiliate Agreement (this "Agreement") contains the complete terms and
conditions between MyFantasyBall and the individual or organization (the
"Affiliate") participating in MyFantasyBall's Affiliate Program (the "Program").
Execution by you of this Agreement as set forth below constitutes your
acceptance of the terms and conditions of this Agreement, and will be a legally
binding agreement between both parties.
1. Enrollment in the MyFantasyBall Affiliate Program
To
begin the enrollment process, you must submit a properly completed online
application on MyFantasyBall.com. MyFantasyBall will evaluate your
application in good faith and will notify you of your acceptance or rejection in
a timely manner. MyFantasyBall may reject your application if MyFantasyBall
determines, in accordance with our sole discretion, that your website, MySpace
profile, Friendster Profile, Linkedin profile, or any other Internet web-based
site or Internet web page (hereinafter “ your site”) whereby you are promoting
MyFantasyBall or the MyFantasyBall Affiliate Program, is unsuitable for the
Program, for any reason, including, but not limited to; inclusion of
content on your site that MyFantasyBall deems is in any way unlawful, harmful,
threatening, defamatory, obscene, harassing, or racially, ethnically or
otherwise objectionable, which by way of example only, contains (i) sexually
explicit, pornographic or obscene content (whether in text or graphics), (ii)
speech or images that are 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) graphic violence, (iv) politically sensitive or controversial
issues or (v) any unlawful behavior or conduct.
In
this regard, you understand that MyFantasyBall reserves the right to conclude
that your site is unsuitable, completely at our discretion, in accordance with
our standards. Further, MyFantasyBall may come to such a conclusion even if it
is based upon our opinion or mere suspicion or belief, without any duty to prove
that our opinion or suspicion is well-founded, and even if our opinion or
suspicion is proven not to be well-founded or if others' sites have been
accepted despite having the same or similar characteristics as your site. You
also understand that if MyFantasyBall accepts your application, such acceptance
shall not imply that your site complies with our standards. MyFantasyBall
reserves the right to terminate this agreement, at its own discretion, due to
the presence of any content which MyFantasyBall determines to be objectionable.
If MyFantasyBall rejects your application, you are welcomed to reapply to the
Program at any time.
MyFantasyBall accepts applications from the USA and Canada. Other countries will
be evaluated and examined on a case-by-case basis.
2. Promotion of Our Affiliate Relationship
In the
event of your acceptance to the Affiliate Program, MyFantasyBall will make
available to you banner advertisements, text links, and other links as
determined by MyFantasyBall which shall all link to program sites (collectively
referred to hereinafter as a "Link"), which you may display on your web site,
provided you abide by the terms and conditions of this Agreement. In using the
Links, you agree that you will cooperate fully with us in order to establish and
maintain such Links. All Affiliate web sites shall display the Links prominently
throughout such sites. If during the term of this Agreement you wish to place
the Links on web sites other than the web sites which you have previously
reported to MyFantasyBall and which MyFantasyBall have approved ("Alternative
Sites"), you shall be obligated to request and receive MyFantasyBall's
permission for the placement of the Links on Alternative Sites. You may not
modify a Link, unless you have received prior written consent from MyFantasyBall
to do so. MyFantasyBall reserves the right, in its sole discretion, to monitor
your site at any time, and from time to time to determine if you are in
compliance with the terms of this Agreement. In the event that MyFantasyBall
determines that your use of any Link is not in compliance with the terms of this
Agreement, MyFantasyBall shall be entitled to take such measures as to render
inoperative the Links used by you. Further, the use of the Links is the only
method by which you may advertise our site(s). You may not advertise our site(s)
in any other way, including, without limitation, the use of spam e-mails.
In the event that you desire to offer certain incentives to potential
subscribers, you are required to receive our prior written approval for such
incentives prior to your commencement of such activity. Further, in the event
that you do not receive such approval and offer such incentives, you shall not
be permitted to receive any commissions generated on account of subscribers who
have become such in connection with the unapproved incentives.
3. Email Spam Policies
As a
MyFantasyBall Affiliate, you agree to comply with the requirements of the
CAN-SPAM Act of 2003 (the "Act") in its directives regarding the distribution of
email that contains messaging concerning MyFantasyBall. More specifically, email
that meets this criteria:
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May only be sent to recipients who have expressly agreed directly with
Affiliate, in advance, to receive such communications from the Affiliate.
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Must clearly and conspicuously identify that the message is an advertisement
or solicitation, unless recipient has given prior affirmative consent to
receipt of the message. Affirmative consent means that the recipient
expressly consented to receive the message either in response to a clear and
conspicuous request for such consent or at the recipient's own initiative.
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Must clearly and conspicuously notify the recipient of the opportunity to
decline to receive further commercial email from the Affiliate.
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Must provide a valid physical postal address of Affiliate.
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Must provide a functioning return email address or other Internet-based
mechanism, clearly and conspicuously displayed, that a recipient may use to
submit, in a manner specified in the commercial email, a reply email or
other Internet-based mechanism a request not to receive future commercial
email from Affiliate. The return address or Internet-based mechanism must be
capable of receiving such messages for at least thirty (30) days after the
transmission of the original message. Affiliate may not send subsequent
commercial emails more than ten (10) business days after the recipient's
request not to receive further emails has been received (unless there is a
subsequent affirmative consent by the recipient to receive such emails.)
Once Affiliate receives such a request, Affiliate may not sell, lease,
exchange or otherwise transfer or release the email address of the
recipient.
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May not contain materially false or materially misleading header
information, or deceptive subject heading.
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May not contain sexually oriented material.
In
addition, before distribution of email that contains messaging regarding
MyFantasyBall, Affiliate agrees (1) to send the email addresses of all intended
recipients of such email to MyFantasyBall, or a third-party designated by
MyFantasyBall, so that MyFantasyBall may identify those individuals who have
notified MyFantasyBall that they do not want to receive emails from or about
MyFantasyBall, and (2) to suppress the email addresses of those individuals, as
identified by MyFantasyBall.
Affiliates may not initiate or assist in the transmission of commercial email
using an email address: (1) that was collected through automated means, from a
third party web site in violation of that third party's posted privacy policy,
or (2) that was generated through automated means by combining names, letters or
numbers into numerous permutations. Affiliates may not conduct fraudulent
activities related to electronic mail, including but not limited to the material
falsification of header or transmission information, the unauthorized use of
someone else's computer to send bulk commercial email, and the registration of
an email account that materially falsifies the identity of the actual
registrant.
Upon
MyFantasyBall’s request, the Affiliate shall provide MyFantasyBall with
documentation demonstrating that the recipients consented to receive the email
at issue.
In
addition, in the event of a breach of this Email/Spam Agreement by the Affiliate
and/or a third party or licensee, in addition to all other remedies available to
it, MyFantasyBall shall have the right to refuse to make payments to
Affiliate and remove the affiliate from the program as a result of Affiliate's
efforts promoting MyFantasyBall, when such efforts cannot be proven by the
Affiliate as having complied with the terms and conditions of this Email/Spam
Agreement.
Affiliate agrees to indemnify, defend, and hold MyFantasyBall harmless from any
cost, expense or liability arising out of any breach or alleged breach of your
obligations under this Email/Spam Agreement.
4. MyFantasyBall Responsibilities Under this Agreement
MyFantasyBall will be responsible for providing all information necessary to
allow you to make appropriate Links from your site to MyFantasyBall.com.
MyFantasyBall will track each Subscriber coming to MyFantasyBall.com by way of
your link or Affiliate code. A "Subscriber" is defined as a new customer
paying for MyFantasyBall services without a prior account with MyFantasyBall who
accesses our site through the Links placed on your site and subscribes. Neither
you nor your relatives are eligible to become Subscribers and should you or they
do so you will not be eligible to receive the relevant commission. For this
purpose, the term "relative" shall mean any of the following: spouse, partner,
parent, child or sibling.
5. Referral Fees
MyFantasyBall will pay you referral fees only on US and Canadian sign ups. Your
entitlement to a referral fee will accrue only if the customer (I) accesses our
sites through the use of an authorized Link on your site or enters your
Affiliate Code on MyFantasyBall.com; and (II) before exiting our sites
subscribes using our Registration methods. MyFantasyBall will not holdover
or pay referral fees on any services that a customer purchases after the
customer has reentered the site (other than through an authorized Link from your
site or an additional entry of your Affiliate code on MyFantasyBall.com), even
if the customer previously followed a Link from Your site to MyFantasyBall.com.
6. Commissions
MyFantasyBall will pay each Affiliate in accordance with the following fee
schedule:
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If between 1 and 50 sales of MyFantasyBall paid subscriptions originate
from your efforts by disclosing an Affiliate I.D. to the purchaser, or
by providing a link on your site, which the purchaser uses in order to
purchase a MyFantasyBall subscription, you, the Affiliate will be
awarded 20% of all revenues from such designated sales.
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If between 51 and 100 sales of MyFantasyBall paid subscriptions
originate from your efforts by disclosing an Affiliate I.D. to the
purchaser, or by providing a link on your site, which the purchaser uses
in order to purchase a MyFantasyBall subscription, you, the Affiliate
will be awarded 25% of all revenues from such designated sales.
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If over 100 sales of MyFantasyBall paid subscriptions originate from
your efforts by disclosing an Affiliate I.D. to the purchaser, or by
providing a link on your site, which the purchaser uses in order to
purchase a MyFantasyBall subscription, you, the Affiliate will be
awarded 35% of all revenues from such designated sales.
For
these purposes, the term "subscriptions" shall mean the sum total of the price
of a subscription taking any discounts into effect or any uncollectible revenue
attributable to a subscriber.
Commissions shall be paid to you within an amount of time not to exceed 90 days,
unless frequency specified otherwise. MyFantasyBall Affiliates may request
payment via check for amounts totaling in excess of $100, but reserves the right
to pay affiliates through PayPal. In the event that the commission to be
paid to you in any calendar month is less than $50 (the "Minimum Amount"),
MyFantasyBall shall not be obligated to make the payment until such time as the
commission is equal to or greater than $50.
MyFantasyBall grants to you a non-exclusive, non-transferable, revocable
right (I) to access our sites through the Links solely in accordance with
the terms of this agreement and (ii) solely in connection with such Links,
to use our logos, trade names, trademarks and similar identifying material
relating to us (collectively, the "Licensed Materials"), for the sole
purpose of establishing a Link to our sites so users of Your site can
subscribe to MyFantasyBall or any of the entities operated by
MyFantasyBall. You may not alter, modify or change the Licensed
Materials in any way.
Other than establishing a Link from Your site to our sites, you shall not
make any use of any Licensed Materials without first obtaining our prior
written consent. You shall not use the Licensed Materials in any
manner that is disparaging or that otherwise portrays us in a negative
light. MyFantasyBall reserves all of its rights in the Licensed Materials
and of our other proprietary rights. MyFantasyBall, in its sole discretion,
may revoke your license at any time, by giving you either written or
electronic notice.
7. Publicity
You
shall not create, publish, distribute, or permit any written material that makes
reference to us without first submitting such material to us and receiving our
prior written consent, which MyFantasyBall agrees shall not be unreasonably
withheld.
8. Obligations Regarding Your Site
You
will be solely responsible for the technical operation of your site and the
accuracy and appropriateness of materials posted on your site. You agree that
your site will not, in any way, copy or resemble the look and feel of the
MyFantasyBall site, nor will you create the impression that your web site is
neither the MyFantasyBall site, nor any part of our site. You also agree that
your site will not contain any content of MyFantasyBall.com or any materials
which are proprietary to MyFantasyBall, except (i) with our prior permission, or
(ii) materials obtained by you via the Affiliate Program information site in
accordance with the provisions hereof or the policies or instructions therein.
You will indemnify and hold MyFantasyBall harmless from all claims, damages,
and expenses (including, without limitation, attorney's fees and expert witness
fees) relating to the development, operation, maintenance, and contents of your
site or any materials, products or services linked to therein. You hereby
acknowledge that your conduct as an Affiliate shall reflect on MyFantasyBall and
has the potential to cause substantial damage to MyFantasyBall's reputation and
goodwill and that you shall at all times consider the goodwill and reputation of
MyFantasyBall and MyFantasyBall's name.
You
are solely responsible for ensuring that the content of your site and your
products and services that you offer from your site comply with all applicable
copyright and other laws. You must have express permission to use another
party's copyrighted or other proprietary material. MyFantasyBall will not be
responsible if you use another party's copyrighted or other proprietary material
on your site in violation of the law or any agreement, and your indemnity,
below, will protect us if you do so.
9. Term of this Agreement and Termination
The
term of this Agreement will begin when you complete the sign-up procedure and
will be continuous unless and until either party notifies the other in writing
that it wishes to terminate the Agreement, in which case this Agreement will be
terminated immediately. TERMINATION IS AT WILL, WITH OR WITHOUT REASON, BY
EITHER PARTY. For purposes of notification of termination, delivery via e-mail
is considered a written and immediate form of notification.
10. Consequences
Upon
termination you must remove all of our banners/icons from your site(s) and
disable all links from your site(s) to ours. All rights and licenses given to
you in this Agreement shall immediately terminate. You will return to us any
confidential information and all copies of it in your possession, custody, and
control, and will cease all uses of our Marks.
11. Commissions
Under
the commissions scheme, you will be entitled only to those unpaid referral fees,
if any, earned by you on or prior to the date of termination. You will not be
entitled to referral fees occurring after the date of termination.
If
MyFantasyBall continues to permit activity (generation of revenue) from
customers after termination, this will not constitute a continuation or renewal
of this Agreement or a waiver of termination.
MyFantasyBall may withhold your final payment for a reasonable time to ensure
that the correct amount is paid.
12. Modification
MyFantasyBall may modify any of the terms and conditions contained in this
Agreement at any time and in our sole discretion. You will be notified via a
change notice which will be posted in the “Legal Notices” section on the
MyFantasyBall website. Modifications may include, but are not limited to,
changes in the scope of available referral fees, referral fee schedules, payment
procedures and Program rules. If any modification is unacceptable to you, your
only recourse is to terminate this Agreement; should you so terminate, the
changes MyFantasyBall has announced shall, nevertheless, become effective unless
MyFantasyBall agrees, in writing, to the contrary. Your continued participation
in the Program following our posting of a change notice or new Agreement on Our
Site will constitute binding acceptance of the change.
13. Relationship of Parties
You
and MyFantasyBall and any of the entities it represents are independent
contractors, and nothing in this Agreement will create any partnership, joint
venture, agency, franchise, sales representative or employment relationship
between you and MyFantasyBall. You will have no authority to make or accept any
offers or representations on our behalf. You will not make any statement,
whether on your site or otherwise, that reasonably would contradict anything in
this Article.
14. Representations and Warranties
Except
as otherwise stated in this Article 16, MyFantasyBall make no express or implied
warranties or representations with respect to the Program or any MyFantasyBall
Services sold through the Program (including, without limitation, warranties of
fitness, merchantability or non-infringement, or any implied warranties arising
out of course of performance, dealing or trade usage). In addition,
MyFantasyBall makes no representation that the operation of our site will be
uninterrupted or error free, and MyFantasyBall will not be liable for the
consequences of any interruptions or errors.
Each
of us (the "Warrantor") hereby represents and warrants to the other party as
follows:
a.
This Agreement has been duly and validly executed and delivered by the Warrantor
and constitutes its legal, valid, and binding obligation, enforceable against
the Warrantor in accordance with its terms.
b. The
execution, delivery, and performance by the Warrantor of this Agreement and the
consummation of the transactions contemplated hereby will not, with or without
giving of notice, the lapse of time, or both, conflict with or violate (i) any
provision of law, rule or regulation to which the Warrantor is subject, (ii) any
order, judgment or decree applicable to or binding upon the Warrantor's assets,
(iii) any provision of the Warrantor's by-laws or certificate of incorporation,
or (iv) any agreement or other instrument applicable to or binding upon the
Warrantor's assets.
c. No
consent, approval, authorization of, exemption by or filing with any
governmental authority or any third party is required to be obtained or made by
the Warrantor in connection with the execution, delivery and performance of this
Agreement or the taking by the Warrantor of any other action contemplated
hereby.
15. Confidentiality
During
the term of this Agreement, you may be entrusted with confidential information
relating to our business, operations, or underlying technology and/or the
Affiliate Program (including, for example, Referral Commissions earned by you
under the Affiliate Program). You agree to avoid disclosure or unauthorized use
of any such confidential information to third persons or outside parties unless
you have our prior written consent and that you will use the confidential
information only for purposes necessary to further the purposes of this
Agreement. Your obligations with respect to confidential information shall
survive the termination of this Agreement.
16. Limitation of Liability.
MyFantasyBall will not be liable for indirect, special, or consequential
damages, or any loss of revenue, profits or data arising in connection with this
Agreement or the Affiliate Program, even if MyFantasyBall has been advised of
the possibility of such damages. Further, our aggregate liability arising 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
hereby agree to indemnify and hold harmless MyFantasyBall, the entities it
represents and affiliates, and their directors, officers, employees, agents,
shareholders, partners, members and other owners, against any and all
claims, actions, demands, liabilities, losses, damages, judgments, settlements,
expenses (including reasonable attorneys' fees), and costs (any or all of the
foregoing hereinafter referred to as "Losses") insofar as such Losses (or
actions in respect thereof) arise out of or are based on (i) any claim that our
use of the Affiliate 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 herein, (iii) the development,
operation, maintenance and content of your site and products and services
offered from your site, or (iv) any claim related to your site, including,
without limitation, content therein not attributable to us.
18. Notification
All
notices to us in connection with this Agreement shall be deemed given as of the
day they are received either by messenger, delivery service or in the Chicago
mails, postage prepaid, certified or registered, return receipt requested, and
addressed as follows:
MyFantasyBall LLC
Attn: MyFantasyBall Affiliate Program
205 West Randolph Street
Suite 1830
Chicago, IL 60606
All
notices to you in connection with this Agreement shall be deemed given as of the
day they are dispatched either by messenger, delivery service or in the Chicago
mails, postage prepaid, certified or registered, return receipt requested.
19. Independent Investigation
YOU
ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND
CONDITIONS. YOU UNDERSTAND THAT MYFANTASYBALL MAY AT ANY TIME (DIRECTLY OR
INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE
CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE
WITH YOUR SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF
PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION,
GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
20. Construction
If for
any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, that provision of the
Agreement will be enforced to the maximum extent permissible so as to effect the
intent of the parties, and the remainder of this Agreement will continue in full
force and effect. Our failure to enforce your strict performance of any
provision of this Agreement will not constitute a waiver of our right to
subsequently enforce such a provision or any other provision of this Agreement.
21. Governing Law
This
Agreement will be governed by the laws of the State of Tennessee, without
reference to rules governing choice of laws. Any action relating to this
Agreement must be brought in the federal or state courts located in Williamson
County, Tennessee, United States. You, hereby, irrevocably consent to the
personal and subject matter jurisdiction of such courts. You may not assign this
Agreement, by operation of law or otherwise, without our prior written consent.
Subject to that restriction, this Agreement will be binding on, inure to the
benefit of, and be enforceable against the parties and their respective
successors and assigns.
22. Entire Agreement
This
Agreement constitutes the entire agreement between you and MyFantasyBall with
respect to the subject matter hereof and supersedes all prior and
contemporaneous communications. Therefore, no prior oral or written
communications, assurances, or statements govern any aspect of any subject
matter discussed within this Agreement.
Legal Notices
Privacy Policy
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