This Affiliate Program Operating Agreement (“Agreement”) is a legally binding contract made and entered into by and between Mayflower Interactive, Inc. doing business as Resume Express (“ResumeExpress” or “we” or “our”), and you (“Affiliate” or “you” or “your”), the party submitting an application to become a Resume Express affiliate). The terms and conditions contained in this Agreement apply to your participation with our Affiliate Program. Each Affiliate Program offer (“Offer”) may be for any offering by ResumeExpress and may link to a specific web site for that particular Offer (“Program Web Site”). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
Affiliate Program Enrollment
You must submit a complete and accurate Affiliate Program application from our website, as well as updating us to material changes in this information. You must not use any aliases or other means to mask your identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Affiliate Program. We reserve the right to reject your application at our sole discretion for any reason.
Obligations of the Parties
Subject to our acceptance of you as an affiliate and your continued compliance with the terms and conditions of this Agreement, ResumeExpress agrees as follows:
1. We will make available to you via the Affiliate Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links”) which you may display on web sites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Program Web Site.
2. We will pay Affiliate for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields, (iv) completes the order process and pays ResumeExpress, (v) does not later cancel any order, and (vi) is not later determined by ResumeExpress to be fraudulent, incomplete, unqualified or a duplicate. Unless otherwise agreed in writing, commissions are paid according to our published commission schedule.
3. We will pay you any Commissions earned on the 15th day of the month following the month in which Qualified Actions were completed. We reserve the right to charge back to your account any previously paid Qualified Actions that are later cancelled, discovered to be fraudulent, or determined to have otherwise not met the requirements to be a Qualified Action. Payment for Commissions is dependent upon receipt of customer funds by ResumeExpress, and therefore, you agree that ResumeExpress shall only be liable to you for Commissions to the extent that ResumeExpress has received such funds.
4. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by ResumeExpress in its sole discretion. In the event that Affiliate disputes in good faith any portion of these calculations, Affiliate must submit a written dispute in sufficient detail to ResumeExpress within thirty (30) days of the disputed Qualified Action. If Affiliate does not dispute the calculation as set forth herein, then Affiliate agrees that it irrevocably waives any claims to the disputed amount(s). ResumeExpress and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then ResumeExpress’s determination shall govern.
5. If Affiliate has an outstanding balance due to ResumeExpress under this Agreement or any other agreement between the Affiliate and ResumeExpress, whether or not related to the Affiliate Program, Affiliate agrees that ResumeExpress may offset any such amounts due to ResumeExpress from amounts payable to Affiliate under this Agreement.
Affiliate also agrees to:
1. Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
2. Indemnify ResumeExpress for actions or negligence arising from your performance or actions contrary to this Agreement.
3. Ensure that all materials posted on your Media or otherwise used in connection with the Affiliate Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination, promotes illegal activities, contains profanity or otherwise contains materials that ResumeExpress informs you that it considers objectionable (collectively, “Objectionable Content”).
4. Not make any representations, warranties or other statements concerning ResumeExpress or any of their respective products or services, except as expressly authorized herein.
5. Ensure that your Media does not copy or resemble the look and feel of the Program Web Site or create the impression that your Media is endorsed by ResumeExpress or a part of the Program Web Site, without prior written permission from us.
6. Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to your business, your Media or your use of the Links.
7. Comply with the terms, conditions, guidelines and policies of any third party services used by Affiliate in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks.
9. You must strictly comply with the federal CAN-SPAM Act of 2003 (the “Act”). All emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link. Prior to your sending emails containing linking or referencing the Affiliate Program, we reserve the right to require that that you submit the final version of your email to ResumeExpress for approval by sending it to our Affiliate Manager and waiting to transmit the email to any third party until such approval is granted.
10. Always prominently display any terms and conditions in connection with the Offer set forth by ResumeExpress, or as required by applicable laws regarding such Offers.
11. Not display Media or Offers on third party affiliate networks without the express written consent of ResumeExpress.
Except as otherwise provided in this Agreement or with the consent of ResumeExpress, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Affiliate shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
Intellectual Property Licensing
We grant you a nonexclusive, nontransferable, revocable right to use the Links and to access our web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Program Web Site. You may not alter, modify, manipulate or create derivative works of the Links or any ResumeExpress graphics, creative, copy or other materials owned by, or licensed to, ResumeExpress in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Affiliate Program. We may revoke your license anytime by giving you written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of ResumeExpress’ trademarks, service marks, copyrights, patents or trade secrets. You agree that ResumeExpress may use any suggestion, comment or recommendation you choose to provide to ResumeExpress without compensation. All rights not expressly granted in this Agreement are reserved by ResumeExpress.
Nature of Relationship
Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
This Agreement shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media and deleting all copies of the Links. We may terminate your participation in one or more Offers or this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of your participation in one or more Offers or this Agreement for any reason, you will immediately cease all use of and delete all Links, plus all ResumeExpress intellectual property, and will cease representing yourself as a ResumeExpress affiliate for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement, ResumeExpress reserves the right to delete any actions submitted through your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to your account if (i) ResumeExpress determines that you have violated this Agreement, (ii) ResumeExpress receives any complaints about your participation in the Affiliate Program which ResumeExpress reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Affiliate Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, ResumeExpress reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
Representations & Warranties
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, ResumeExpress represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to ResumeExpress’s own business operations or ResumeExpress’s proprietary products and services.
Modifications to this Agreement
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. Any changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within this ten (10) business day period. Your continued participation in this Affiliate Program after this ten (10) business days period will constitute your acceptance of any change(s). In addition, ResumeExpress may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Affiliate agrees to promptly implement any request from ResumeExpress to remove, alter or modify any Link, graphic or banner ad that is being used by Affiliate as part of the Affiliate Program.
This Agreement contains the entire agreement between ResumeExpress and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Both parties agree that this Agreement shall be governed by the laws of the State of North Carolina and agree to venue and jurisdiction in North Carolina. Affiliate may not assign all or any part of this Agreement without ResumeExpress’s prior written consent. ResumeExpress may assign this Agreement at any time with notice to Affiliate. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights.
Affiliate is responsible for the payment of all attorneys fees and expenses incurred by ResumeExpress to enforce the terms of this Agreement. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of this Agreement and any accrued payment obligations shall survive the termination of this Agreement. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.
By submitting and application to Affiliate Program, you affirm and acknowledge that you have read this Agreement in its entirety, independently investigated and evaluated the terms herein, and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Affiliate Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. This Agreement was last revised on 02/03/2014.