These terms are between you (“you” or “Affiliate”) and Active. “Active” means The Active Network, Inc. with a principal place of business at 10182 Telesis Court, San Diego, CA 92121. In order to participate in the affiliate program, you must first agree to these terms. Affiliate understands and agrees that Active has the right to accept or deny in its sole discretion its entry into the program based on Affiliate's application. The effective date of this Agreement is the date upon which Active accepts Affiliate's entry into the program (the “Effective Date”). You represent and warrant that you have the necessary and full right, power, authority, and capability to accept these terms, to bind your organization, and to perform your obligations hereunder. You can accept the terms by clicking to accept or agree to these terms, where this option is made available to you by Active in the user interface. You may not participate in the affiliate program and may not accept the terms if (a) you are not of legal age to form a binding contract with Active, or (b) you are a person barred from participating in the affiliate program under the laws of the United States or other countries including the country in which you are resident or from which you participate in the affiliate program. You may not participate in the affiliate program if you do not accept the terms. By accepting the terms, you agree as follows:
Active owns, programs, edits and primarily operates or primarily controls Web sites, primarily relating to online transactions and related information (the “Active Site(s)”), including but not limited to Web sites which primarily relate to campgrounds reservations (the “Active Campgrounds Sites”) and Affiliate desires to promote the Active Sites (including the Active Campgrounds Sites) and Active desires to compensate Affiliate for such promotion by compensating Affiliate for each Qualifying Transaction (as defined below), all subject to the terms and conditions set forth in this Agreement.
(a) General. Affiliate shall promote the Active Sites in accordance with this Agreement.
(b) Active Links. Active will make links available by Active through Affiliate owned and operated Web sites (“Affiliate Sites”) or any other means, which provide a path to a specific page on one of the Active Sites (the “Active Link(s)”) such that, when clicked on, will cause a user to be transferred to the applicable page of such Active Site, however, the ‘rel=”nofollow”’ tag may not be used and a robots file or META tag must not prevent search engines from indexing the page or following the Active Links. In accessing the application programing interface, it is a responsibility of the Affiliate to pull the latest links on a regular basis in order to stay synchronized with the Active directory
(c) Active Materials. Active shall make available to Affiliate Active’s approved logo (the “Active Logo”), web buttons, text links, etc. designed by Active to promote the Active Sites, which will include an Active Link embedded therein for Affiliate’s use as provided in Section 1(d) and (e) below. All of the foregoing materials are collectively referred to herein as the “Active Materials” more specifically outlined in the Active Affiliate Website and brand guidelines set forth therein. From time to time Active may modify, supplement or give Affiliate new Active Materials, in Active’s sole discretion. Affiliate shall be solely responsible for integrating (and for all costs related thereto) the Active Links and the Active Materials into the Affiliate Sites in accordance with the terms of this Agreement.
(d) Grant of License. Active hereby grants to Affiliate, a worldwide, royalty-free, non-exclusive, non-transferable license for the Term of the Agreement (the “License”) to (i) display, reproduce, distribute and transmit in digital form the Active Materials on the Affiliate Sites for the sole purpose of promoting the Active Sites, (ii) publish the Active Materials in e-mail solicitations from Affiliate to its users whereby Affiliate promotes, in whole or in part, the Active Sites, and (iii) deeplink from the Affiliate Sites and/or, if applicable, from e-mails to the Active Sites. Affiliate hereby grants to Active a nonexclusive license to use Affiliate’s name and display its logo for customer and affiliate reference purposes during the Term.
(e) Scope of License. Affiliate shall not use any of the Active Materials for any purpose other than promoting the Active Sites in accordance with the terms of this Agreement or as approved in writing by Active. The exact manner of placement of, and the size and location of, the Active Materials on the Affiliate Sites shall be as reasonably determined by Affiliate; provided, however, that Affiliate shall not (i) use, copy or format any of the Active Materials (A) in any illegal, libelous, defamatory or other tortuous or improper manner, or (B) on any website that promotes pornography, gambling, or any illegal activity; or (ii) alter, edit, translate, create derivative works of or otherwise modify any of the Active Materials unless Active expressly approves thereof in writing. Without limiting any of the foregoing, if Active reasonably objects to the placement, size, location or other use of any of the Active Materials, or any other promotion of Active by Affiliate, Affiliate shall promptly remedy any such objection.
(f) Affiliate Sites. (i) You will be solely responsible for the Affiliate Sites, including the development, operation, and maintenance and all materials that appear on or within them. For example, you will be solely responsible for:
- the technical operation of the Affiliate Sites all related equipment;
- displaying Active Links and content (including Active Materials) on the Affiliate Sites in compliance with this Agreement and any agreement between you and any other person or entity (including any restrictions or requirements placed on you by any person or entity that hosts the Affiliate Sites);
- creating and posting, and ensuring the accuracy, completeness, and appropriateness of, materials posted on the Affiliate Sites (including all product and service descriptions and other related materials and any information you include within or associate with Active Links including the Active Materials);
- using content, the Affiliate Sites, and the Active Materials on or within the Affiliate Sites in a manner that does not infringe, violate, or misappropriate any of our rights or those of any other person or entity (including copyrights, trademarks, privacy, publicity or other intellectual property or proprietary rights);
- promptly removing from your site and delete or otherwise destroy any content that is no longer displayed on the Active Site or that Active notifies you is no longer available for your use; and
- any use that you make of content and the Active Materials, whether or not permitted under this Agreement.
(ii) Active will have no liability for those matters set forth in subsection (i) above or for any of your end users’ claims relating to such matters. You agree to defend, indemnify, and hold Active, Active’s affiliates, licensors and suppliers and Active’s and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) (“Damages”) relating to (A) the Affiliate Sites or any materials that appear on the Affiliate Sites, including the combination of the Affiliate Sites or those materials with other applications, content, or processes; (B) the use, development, design, manufacture, production, advertising, promotion, or marketing of the Affiliate Sites or any materials that appear on or within the Affiliate Sites, and all other matters described herein; (C) your use of any content, whether or not such use is authorized by or violates this Agreement or applicable law; (D) your violation of any term or condition of this Agreement; (E) your or your employees’ negligence or willful misconduct; or (F) your violation of any applicable federal, state or local law or regulation, including, without limitation, laws that govern data privacy and marketing email (e.g., the CAN-SPAM Act of 2003 and Bill C-28 in Canada).
(iii) You will ensure that the information in your application and otherwise associated with your account, including your email address and other contact information and identification of your site, is at all times complete, accurate, and up-to-date. Active may send notifications (if any), approvals (if any), and other communications relating to this Agreement to the email address then-currently associated with your account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
(a) Qualifying Transactions. A “Qualifying Transaction” shall mean one of the following:
(i) A “Qualifying Standard Transaction” occurs when the end user of a site (a “User”) follows an Active Link from your site to one of the Active Sites (excluding Qualifying Campgrounds Transactions) and completes a purchase relating to one of the following products: RegCenter, ActiveWorks, ActiveGolf, ActiveNet (as of 11/20/12), ActiveAdvantage, ReserveAmerica, RegOnline, TennisLink, Thriva, Active Trainer 2.0.
(ii) A “Qualifying Campgrounds Transactions. A “Qualifying Campgrounds Transaction” occurs when a User follows an Active Link from your site to one of the Active Campgrounds Sites, creates a User account with the Active Campgrounds Site immediately after following the Active Link, and within ten (10) days of creating a User account, completes a registration on the Active Campgrounds Site in excess of $5.00 per registration.
(b) Transactions that are cancelled, refunded or the subject of a credit card chargeback will not qualify for commissions. Commissions are attributed to an Affiliate when the Affiliate is responsible for the User’s last click before arriving at the Active Site, as measured through LinkTrust's standard tracking methods. . To permit accurate tracking, reporting and fee accrual, you must ensure that the Active Links between your site and the Active Sites are properly formatted. Active will not be responsible for paying referral fees on transactions that are not correctly tracked and reported because the links between your site and the Active Sites are not properly formatted. Notwithstanding the foregoing, a Qualifying Transaction does not include referrals relating to (i) an Affiliate’s own events, camps, licenses, classes, tickets, facility/equipment use, transactions, sales, memberships, reservations, donations, and/or activities, and (ii) repeat purchases or sales except in the case of Qualifying Standard Transactions where repeat purchases or sales occur within ten (10) days of referral from your site.
(c) Payment of Referral Fees. Fees relating to Qualifying Transactions will be paid within forty five (45) business days of the end of each month following the Effective Date per the terms of the PayQuicker agreement with you. Affiliate must enter into an agreement with PayQuicker to be paid under this Agreement. Active will not pay any fees for any transactions occurring before you have properly completed the online W9 form (located within your online affiliate center at https://affiliate.activenetwork.com/Home.aspx).
(d) Taxes. Affiliate shall be solely responsible for all fees, taxes, charges or other assessments (except taxes on the income or gross revenue of Active) on any payments made by Active to Affiliate hereunder, including, without limitation, the referral fees, and any other services provided by Active to Affiliate hereunder, if any, including, without limitation, any sales, use, personal property, value added, excise or customs charges, whether designated as federal, state, local or otherwise, including any penalties or interest thereon, and shall promptly pay all such amounts as and when they may become due.
(e) Processing. Notwithstanding anything to the contrary set forth herein, Active reserves the right to reject orders from Users that do not comply with any requirements on the Active Site, as they may be updated from time to time.
3. Ownership. (a) Active shall retain, (i) all transaction revenues received by Active from Users accessing the Active Sites or services via links on pages of the Affiliate Sites, excluding any fees due Affiliate under this Agreement; and (ii) all banner and advertising revenues received from the Active Sites, and all User data collected by Active on the Active Sites (regardless of whether such User linked to such Active Site via an Active Link), including full credit for the page views in external tracking services. All right, title and interest in and to the Active Materials (including all component parts thereof), and in any ideas, know-how, code or intellectual property associated therewith, shall remain the sole and exclusive property of Active including all rights not expressly enumerated in this Agreement. Affiliate shall take no actions that are inconsistent with such ownership. Affiliate shall promptly notify Active of any Active Materials if it obtains knowledge that any Active Materials could reasonably be deemed to violate the intellectual or other property rights of a third party.
(b) If you provide Active or any of its affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Agreement (collectively, “Submissions”), you hereby irrevocably assign to Active all right, title, and interest in and to the Submissions and grant Active (even if you have designated a Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Submissions in any manner; and (ii) adapt, modify, re-format, and create derivative works of Submissions for any purpose.
(c) Additionally, you hereby warrant that: (i) you have all rights and licenses in the Submissions necessary to grant to Active the rights set forth above; and (ii) the exercise of rights under the license above will not violate any person’s or entity’s rights, including any intellectual property rights. You agree to provide Active such assistance as Active may require to document, perfect, or maintain its rights in and to the Submissions.
4. Marketing; Press Releases. Affiliate shall reasonably cooperate in Active’s marketing and public relations activities to promote the Active Sites (provided that such cooperation shall not result in any out-of-pocket cost or unreasonable internal administrative cost to Affiliate). Such activities may include, without limitation, issuing a joint press release announcing the relationship between Active and Affiliate. Neither party shall (i) issue a press release or other public announcement regarding this Agreement or the matters addressed herein or (ii) use the name, logo, trademark or other service mark, in each instance without first obtaining the other party’s prior written consent; provided, however, that the foregoing is subject to the License granted to Affiliate. You will not misrepresent or embellish the relationship between Active and you (including by expressing or implying that Active supports, sponsors, endorses, or contributes to any charity or other cause), or express or imply any relationship or affiliation between Active and you or any other person or entity except as expressly permitted by this Agreement. You must, however, clearly state the following on your site: “[Insert your name] is a participant in the Active Affiliate Program, an affiliate advertising program designed to provide a means for sites to earn fees by advertising and linking to [insert the applicable site name (e.g., Active.com)].”
5. Term/Termination. This Agreement shall commence on the Effective Date and continue unless terminated by either party at any time by one party providing the other written notice of termination (the “Term”). In addition, Active reserves the right to cancel the program at any time and for any reason, without prior notice. Upon the termination of this Agreement, the Affiliate will immediately cease use of, and remove from any site, all links to the Active Sites and all Active Materials. You are eligible to earn fees only on transactions that occur during the term of this Agreement, and fees earned through the date of termination will remain payable only if the related transactions are not cancelled or disputed. Due to refunds and chargeback issues, to ensure that you are paid the correct amount, Active may withhold a final payment for a reasonable time.
6. Representations and Warranties; Limitations on Liability.
(a) Authority; Binding Agreement; Noncontravention. Each party has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and binding obligation of such party, enforceable in accordance with its terms. Neither the execution and delivery of this Agreement nor the consummation of the actions and transactions contemplated herein will, with or without the passage of time or the delivery of notice, (i) conflict with, result in a breach of or constitute a default under any note, bond, mortgage, indenture, license, franchise, permit, agreement, lease or other instrument or obligation to which either party is a party or bound, (ii) violate any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court, administrative agency, commission or other governmental entity or instrumentality, or (iii) violate any provision of the charter, bylaws or other constituent documents of either party.
(b) Consents. No notice to, filing with or authorization, consent or approval of any governmental entity or third party is necessary for the consummation by either party of the actions and transactions contemplated by this Agreement.
(c) Warranty. ACTIVE EXPRESSLY DISCLAIMS ANY and all WARRANTies and conditions THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. ACTIVE’S LINKS AND MATERIALS ARE PROVIDED TO COMPANY ON AN “AS-IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.
(d) Limitations of Liability. ACTIVE SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA, OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. ACTIVE’S MAXIMUM aggregate LIABILITY UNDER THIS AGREEMENT in any case whatsoever SHALL NOT EXCEED AN AMOUNT more THAN two thousand five hundred dollars ($2,500US).
7. Miscellaneous Provisions.
(a) Entire Agreement/Waiver. This Agreement sets forth the entire understanding and Agreement of the parties as to the subject matter hereof, and supersedes any and all prior representations, warranties, negotiations, agreements, and arrangements, and may be changed only by a written agreement signed by both parties. Headings are inserted for the convenience of the parties only and shall not be interpreted to modify the contractual language within each section. A failure or omission by either party to enforce any remedy for any breach of any term or condition in this Agreement shall not be construed as a waiver of such term or condition. Any waiver hereunder shall be valid only to the extent that such waiver is expressed in writing and executed by the party granting such waiver.
(b) Notice. All notices or other written communication required under this Agreement shall be in writing sent to the addresses provided in this provision or provided by Affiliate during setup (as changed from time to time upon noticed as provided in this provision) and shall be deemed properly given by sender and received by the addressee if on (i) the date of personal service or courier delivery or (ii) the fifth (5th) business day following first class, registered or certified, postage prepaid mailing. Notice sent to Active shall be sent to 10182 Telesis Court, San Diego CA 92121, attn.: Legal Department.
(c) Attorneys’ Fees. In addition to any other damages that either party may be entitled to at law or in equity, should either party breach this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, costs, and expenses incurred in successfully enforcing the terms of this Agreement.
(d) Governing Law; Submission to Jurisdiction. This Agreement and any disputes arising under or related thereto (whether for breach of contract, tortious conduct or otherwise) shall be governed by the laws of the state of California and the federal laws applicable therein, without reference to principles of conflicts of law. The state and federal courts with jurisdiction in San Diego County, California shall have exclusive jurisdiction to hear and decide any and all legal actions, suits or proceedings arising out of this Agreement (whether for breach of contract, tortious conduct or otherwise), and the Parties to this Agreement each hereby irrevocably accept and submit to the personal jurisdiction of such court with respect to any legal actions, suits or proceedings arising out of this Agreement.
(e) No Assignment. This Agreement is non-assignable without the written consent of the other party, except that Active may assign this Agreement without consent to an affiliate or in connection with any sale of or any other transaction involving the transfer of more than fifty percent of its voting securities or assets. Any assignment in violation of this Agreement will be void.
(f) Force Majeure. Each party will promptly notify the other upon becoming aware that a Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations hereunder. Subject to the foregoing, neither party will be liable for any delay resulting from a Force Majeure Event and relevant performance dates will be extended to the extent of any such delay. For purposes hereof, "Force Majeure Event" means, with respect to either party, any strike or other labor dispute, riot, war, act of terrorism, any natural disaster, fire, explosion, act of government or governmental agency or instrumentality, or other contingency beyond the reasonable control of either party, which in any such case interferes with, or prevents, the fulfillment by such party of its obligations hereunder.
(g) Relationship of Parties. Nothing in this Agreement shall be construed to (i) create a joint venture, partnership, employer/employee relationship, agency or any other relationship other than that of parties contracting at arms-length, or (ii) to authorize either party to assume or undertake any obligations of any kind, express or implied, on behalf of the other party. Each party is responsible for payment of all employment taxes, benefits, insurance and the like for all work performed by its employees in connection with the performance of this Agreement.
(h) Expenses. Except as explicitly provided in this Agreement with respect to indemnification claims, each party shall bear its own expenses in connection with the negotiation, execution and performance of this Agreement, including without limitation legal fees and expenses.
(i) Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. Delivery by a party of executed counterparts of this Agreement by facsimile shall constitute execution and delivery of such counterpart to the same extent as if such counterpart were originally executed and delivered by such party.
(j) Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable in any jurisdiction, such provision shall be ineffective to the extent of such invalidity, illegality or unenforceability, the validity, legality or enforceability of the other provisions hereof shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid and enforceable provision as similar as possible to the provision at issue, all without affecting the validity, legality or enforceability of such provision in any other jurisdictions.
(k) Interpretation. The parties hereto acknowledge and agree that this Agreement represents the product of negotiations conducted in good faith and at arms-length and that this Agreement should not be interpreted in favor of or against any party because of such party’s ability or inability to control the drafting of this Agreement.
(l) Survival. The obligations under this contract of both Parties shall survive termination of this agreement. The provisions of this Agreement which are intended to survive termination, including, without limitation, the indemnification obligations and limitations of liability, or are necessary to interpret the rights and obligations of the parties in connection with such termination, as well as all unpaid payment obligations, shall survive the execution of this Agreement and remain binding on the parties in accordance with the terms of this Agreement.