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Ascentive Affiliate Program Agreement

This Agreement contains the complete terms and conditions that apply to participation in the Ascentive Affiliate Program (the "Program"). As used in this Agreement "Ascentive" means Ascentive, LLC, with offices at 201 Spring Garden Street, Suite 400, Philadelphia, PA, 19123, a Delaware limited liability company, "Affiliate" means applicant, "Site" means a World Wide Web site, "Ascentive Site" means www.ascentive.com, and "Affiliate Site" means applicant's Web site.

1. Enrollment in the Program
To begin the enrollment process, Affiliate will submit a complete Affiliate Program application via the Ascentive Site. Ascentive will evaluate Affiliate's application in good faith and will notify Affiliate of acceptance or rejection. Ascentive may reject Affiliate's application if Ascentive determines for any reason in its sole discretion that Affiliate Site is unsuitable for the Program. Sites containing any of the Content Restrictions listed below are unsuitable for participation in the Ascentive Affiliate Program:
  • promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
  • promote products or services via UCE (unsolicited commercial email)
  • promote violence
  • promote illegal activities
  • violate intellectual property rights
  • are defamatory in nature

2. Promoting Offers on Affiliate Site
Affiliate will promote Ascentive on various buttons, banners, and/or text links from one or more places in Affiliate Site at all times during this Agreement. Ascentive will provide all banners, buttons, text and artwork ("Creative") and will specify the corresponding URL Links ("Links") for each location. Affiliate will be responsible for the placement of these Links in Affiliate Site. Affiliate may not alter Creative or create additional promotional elements without express written permission by Ascentive.

Creative supplied by Ascentive to Affiliate for use in Affiliate Site may include banner advertisements, buttons, Links to the Ascentive Site and/or text links to Ascentive Site, containing one or more logos and/or words identifying Ascentive and related products, which are subject to the terms and conditions hereof. In utilizing the Links, Affiliate agrees to cooperate fully with Ascentive in order to establish and maintain such Links. Affiliate shall display such graphic images or text prominently throughout Affiliate Site as Affiliate sees fit. A Link may only be modified and/or expanded with Ascentive's written consent. Each Link connecting users of Affiliate Site to Ascentive Site will in no way alter the look, feel or functionality of the Ascentive Site. Ascentive has the right in its sole discretion to monitor Affiliate Site at any time and from time to time to determine if Affiliate is in compliance with the terms of this Agreement.

3. Order Processing
Ascentive will process Orders placed by customers who follow the Links from Affiliate Site to Ascentive Site. Ascentive reserves the right to reject Orders that do not comply with any requirements that Ascentive periodically may establish. Ascentive is responsible for all aspects of order processing. Among other things, Ascentive will prepare order forms; process Orders; and handle customer service.

Ascentive will track traffic and Affiliate Fee data resulting from individuals using Links from Affiliate Site to Ascentive Site and will make available to Affiliate unaudited reports. Affiliate will receive a password and have the ability to enter a password-protected Site to receive sales statistics on a daily basis. The form, content, and frequency of the reports may vary from time to time in Ascentive's discretion. To permit accurate tracking, reporting, and fee accrual, Affiliate must ensure that the Links between Affiliate Site and Ascentive Site are properly formatted per specifications provided by Ascentive.

4. Affiliate Fee and Referral Fee Payment

Ascentive will pay Affiliate a share ("Revenue Share") of the gross revenue multiplied by a percentage ("Percentage of Revenue") generated by Offers ordered by a party coming to Ascentive's web site(s) from Affiliate, using an Ascentive supplied Link and Ascentive's ordering system ("Orders") in the same session in which such party arrives at Ascentive's web site(s) via such Link. In the case of Orders for periodically billed services, Revenue Share will be accrued on payments during the initial time period of one year for each service subscription. Orders include products and services that generate sales revenue to Ascentive, less any added fees for shipping, handling, and order processing, and other fees that Ascentive is required by law to withhold and excluding fraudulent, canceled, rescinded, or incomplete Orders and any Orders for which funds are not received when and as due. Ascentive in its sole reasonable discretion will determine the validity of each Order received for an Offer. As Revenue Share for each sale is accrued, it is applied to the total balance owed to Company by Ascentive. For a 35-day period ("Hold Period") after Revenue Share is earned, the Revenue Share is placed on hold for review by Ascentive's loss prevention department. After the Hold Period expires, the Revenue Share becomes part of the available balance owed ("Available Balance.")

Ascentive will also pay Affiliate a Referral Fee ("Referral Fee") which will apply on Orders generated by other affiliates referred by Affiliate and noted electronically as Referrals at time of signup or via notification within a maximum of 14 days of signup of referred affiliate. Referral fee is calculated as a Percentage of Ascentive Revenue generated by other web site Affiliates. Ascentive Revenue is the total amount received on Orders generated by referred affiliate less the amount of revenue share due to that affiliate. In the case of Orders for periodically billed services generated by a referred affiliate, Referral Fee will be accrued on payments during the initial time period of one year for each service subscription. Referral Fee does not apply to referred Affiliates with substantially similar ownership as Affiliate and/or where notification of referral did not occur at time of signup or within 14 days. As Referral Fee for a referred affiliate's sale is accrued, the Referral Fee is placed on hold for review by Ascentive's loss prevention department. After the Hold Period expires, the Revenue Share becomes part of the available balance owed ("Available Balance.")

Ascentive will send Company a check for the sum of any Available Balance on a monthly basis. If Company is directly responsible for a fraudulent Order, this agreement may be immediately terminated without notice by Ascentive. Company may be required to repay all funds received from Ascentive related to fraudulent Orders. Ascentive reserves the right to exercise all rights at law to protect itself from fraud and fraudulent transactions.

The Percentage of Ascentive Revenue and Percentage of Revenue shall be determined by Ascentive and is subject to change at any time. Ascentive will make a reasonable attempt to notify Affiliate via electronic mail of change in Percentage of Revenue, but cannot guarantee the success of such notification. Payments will be calculated on a monthly basis.

If Affiliate is terminated from the Program due to fraud, no outstanding fees owed to Affiliate will be paid. Affiliate Fee applies only to Offers and specifically does not apply to any banner advertising, advertising sponsorships, or other revenues.

Offers and availability may vary from time to time. Because Offers may change, Affiliate may not include individual Offer information in Affiliate Site. Ascentive will use reasonable efforts to present accurate information, but cannot guarantee the availability of any particular Offer.

5. Fraud

If Affiliate Site violates any of the Program guidelines or policies, or is responsible in any way for fraudulent Orders, this Agreement will be immediately and automatically terminated without notice. Affiliate may be required to repay all funds received from Ascentive related to fraudulent or potentially fraudulent Orders and may be subject to additional penalties or charges. Ascentive will prosecute to the fullest extent of the law. Fraud also includes violation of the specified Content Restrictions within the Affiliate Site.

6. Policies and Pricing
Customers who order through this Program will be deemed to be customers of Ascentive. Accordingly, all Ascentive rules, policies, and operating procedures concerning customer Orders, customer service, and downloads will apply to those customers. Ascentive may change policies and operating procedures at any time. For example, Ascentive will determine the fees and pricing, if any, for all Offers under this Program in accordance with its own pricing policies. Prices and availability may vary from time to time.

7. Limited License
Ascentive grants Affiliate a non-exclusive, non-transferable, revocable right to (i) access Ascentive Site through Links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such Links during the term of this Agreement, to use and display the Creative provided by Ascentive for Links which may include Ascentive's logos, trade names, trademarks and similar identifying material (collectively "Licensed Materials"), solely for the purpose of promoting Ascentive and/or related products and services on Affiliate Site. Any use of the Licensed Materials by Affiliate must comply with any reasonable usage guidelines communicated by Ascentive to Affiliate from time to time. Nothing contained in this Agreement will give Affiliate any right, title or interest in or to the Licensed Materials or the goodwill affiliated therewith, except for the limited usage rights expressly provided above. Affiliate acknowledges and agrees that, as between Ascentive and Affiliate, Ascentive is the sole owner of all rights in and to the Licensed Materials.

Affiliate may not alter, modify or change the Licensed Materials in any way. Affiliate is only entitled to use the Licensed Materials to the extent it is a member, in good standing, of the Program. Ascentive reserves all rights in the Licensed Materials including icon, the message, any other images, trade names and trademarks, and all other intellectual property rights. Ascentive may revoke this license at any time. Affiliate agrees not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays Ascentive and/or related products in a negative light.

8. Publicity
Affiliate shall not create, publish, distribute, or permit any written material that makes reference to Ascentive without first submitting such material to Ascentive and receiving written consent, which Ascentive agrees shall not be unreasonably withheld.

9. Responsibility for Affiliate Site

Affiliate is solely responsible for the development, operation, and maintenance of Affiliate Site and for all materials that appear on Affiliate Site. For example, Affiliate will be solely responsible for: the technical operation of Affiliate Site and all related equipment; posting Creative and Links on Affiliate Site; the accuracy and appropriateness of materials posted on Affiliate Site; ensuring that materials posted on Affiliate Site do not violate or infringe upon the rights of any third party or the Content Restrictions (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights); and ensuring that materials posted on Affiliate Site are not libelous or otherwise illegal. Ascentive hereby disclaims all liability for these matters.

10. Term of the Agreement
The term of this Agreement will begin upon Ascentive's acceptance of Affiliate Program application and will end when terminated by either party. Either Affiliate or Ascentive may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Affiliate may also terminate this Agreement by permanently removing all Links to the Ascentive Site. Ascentive may also terminate this Agreement by notifying Affiliate via electronic mail. Ascentive will make a reasonable attempt to notify Affiliate via electronic mail of termination, but cannot guarantee success of such notification.

Affiliate is only eligible to earn fees on Offers occurring during the term, and fees earned through the date of termination will remain payable only if the related Orders are not canceled or returned. Ascentive may withhold Affiliate's final payment for a reasonable time to ensure that the correct amount is paid.

11. Modification
Ascentive may modify any of the terms and conditions contained in this Agreement, at any time and in Ascentive's sole discretion, by posting a change notice or a new agreement on Ascentive Site. Ascentive will make a reasonable attempt to notify Affiliate via electronic mail of such modification(s), but cannot guarantee success of such notification. Modifications may include, for example, changes in the scope of available Affiliate Fee and/or Referral Fee, fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE, AFFILIATE'S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILlIATE'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING ASCENTIVE'S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ASCENTIVE SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

12. Relationship of Parties
Affiliate and Ascentive are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent between the parties. Affiliate will have no authority to make or accept any offers or representations on Ascentive's behalf. Affiliate will not make any statement, whether on Affiliate Site or otherwise, that reasonably would contradict anything in this Section. Affiliate, as an independent contractor, will have sole responsibility for its expenses, employees, sales representatives and agents.

13. Limitation of Liability
Ascentive will not be liable for any indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if Ascentive has been advised of the possibility of such damages. Further, Ascentive's aggregate liability arising with respect to this Agreement and the Program will not exceed the total fees paid or payable to Affiliate under to this Agreement.

14. Disclaimers
AFFILIATE ACKNOWLEDGES AND AGREES THAT ASCENTIVE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ASCENTIVE SITE, OPERATION OF THE ASCENTIVE SITE, OR THE ACCURACY OF ANY INFORMATION DELIVERED HEREUNDER, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM PATENT, TRADEMARK, OR COPYRIGHT INFRINGEMENTS, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT. ASCENTIVE SHALL NOT HAVE ANY LIABILITY TO AFFILIATE, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE OR TO ANY OTHER PERSON. IN ADDITION, ASCENTIVE MAKES NO REPRESENTATION THAT OPERATION OF THE ASCENTIVE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ASCENTIVE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

15. Representations and Warranties
Affiliate hereby represents and warrants to Ascentive that this Agreement has been duly and validly executed and delivered by Affiliate and constitutes a legal, valid and binding obligation, enforceable against Affiliate in accordance with its terms; and that the execution, delivery and performance by Affiliate of this Agreement are within Affiliate's legal capacity and power, has been duly authorized by all requisite action on Affiliate's part, requires the approval or consent of no other persons, and neither violates nor constitutes a default under (i) the provision of any law, rule, regulation, order, judgement or decree to which Affiliate is subject or which is binding upon Affiliate, or (ii) the terms of any other agreement, document or instrument applicable to Affiliate or binding upon Affiliate.

16. Confidentiality

Ascentive may disclose to Affiliate certain information as a result of Affiliate's participation in the Program, which information Ascentive considers to be confidential ("Confidential Information"). For purposes of this Agreement, the term "Confidential Information" shall include, but not be limited to, any modifications to the terms and provisions of this Program Agreement made specifically for Affiliate Site and not generally available to other members of the Program, Site, business and financial information relating to Ascentive, customer and vendor lists relating to Ascentive, and pricing and sales information for Ascentive and any members of the Program, other than Affiliate. Confidential Information shall also include any information that Ascentive designates as confidential during the term of this Agreement. Affiliate agrees not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Affiliate for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process. Confidential Information does not include information, technical data or know-how which (i) is in the possession of the Affiliate at the time of disclosure as shown by the Affiliate's written files and records immediately prior to the time of disclosure, (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature other than as a result of any improper inaction or action of Affiliate or any other party, or (iii) is required to be disclosed by applicable law or proper legal, governmental or other competent authority (provided that the party making the disclosure shall be notified sufficiently in advance of such requirement so that it may seek a protective order or equivalent with respect to such disclosure, which the other party shall fully comply with).

17. Indemnification

Affiliate hereby agrees to indemnify, defend and hold harmless Ascentive, its shareholders, officers, directors, employees, agents, partners, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including reasonable attorney's fees and costs) of any nature whatsoever incurred or suffered by Ascentive (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim or threatened claim that Ascentive's use of Affiliate's Trademarks infringes on the rights of any third party; (ii) the breach of any representation or warranty made by Affiliate herein; or (iii) or any claim related to Affiliate Site.

18. Independent Investigation
AFFILIATE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. AFFILIATE UNDERSTANDS THAT ASCENTIVE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT AND FROM COMPETITORS OF AFFILIATE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

19. Waiver
The parties acknowledge and agree that submission of application and acceptance of that application will be completed either online or by electronic mail. Parties waiver their rights to a written and signed copy of this Agreement.

20. Notice
Affiliate can give written notice by mail to Ascentive as follows: Adam Schran, Chief Executive Officer, Ascentive, LLC, 201 Spring Garden, Street Suite 400, Philadelphia, PA 19123, USA.

21. Arbitration
Except actions for injunctive relief which may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes or controversies arising out of, relating to, or concerning any interpretation, construction, performance or breach of this Agreement shall be submitted to a single arbitrator conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Affiliation in a proceeding in Philadelphia, Pennsylvania. The demand for arbitration shall be filed within a reasonable time after the controversy or claim has arisen.

22. Miscellaneous

The laws of the United States and the Commonwealth of Pennsylvania govern this Agreement, 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 Philadelphia County, Pennsylvania, USA, and Affiliate irrevocably consents to the jurisdiction of such courts. Affiliate may not assign this Agreement, by operation of law or otherwise, without Ascentive's 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. Ascentive's failure to enforce Affiliate's strict performance of any provision of this Agreement does not constitute a waiver of Ascentive's right to subsequently enforce such provision or any other provision of this Agreement.


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