1. Enrollment In The Program
The purpose of the Program is to promote the sale of products offered on our Website. To begin the enrollment process, you must submit an application through the Program Registration Page on our Website. When you provide information during the registration process, you agree to provide only true, accurate, current and complete information and to update it as necessary to maintain its truth and accuracy. We will evaluate your application and notify you of your acceptance or rejection. We may reject your application for any reason, or no reason and at our sole discretion. We may reject applications related to websites that: (i) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (ii) promote violence, hate, illegal activities or display sexually explicit materials; (iii) are intended to harass or defame anyone; or (iv) otherwise violate our intellectual property rights or those of others. We have the right, in our sole discretion, to monitor your website and social media accounts at any time to determine if you are in compliance with the terms of this Agreement. If we reject your application, you are welcome to reapply to the Program at any time for our reconsideration.
2. Program Links To Our Website
If you have been notified that you have been accepted into the Program we may, at your option, enable you to provide on your Website one or more of the following types of links to our Website: Ambassador Links, Coupon Codes or Email Triggers (collectively, “Program Links”). These links are to permit accurate tracking, reporting and accrual of commissions and may be provided to you in the Program Registration Page on our Website. You must ensure that each link between your website and our Website is a Program Link. You will earn commissions on sales that originate through Program Links. In order for you to be eligible for a commission on any purchase (including future purchases by a repeat customer), the customer must visit ProBand.com through your Program Link and complete the purchase before logging out. We are not responsible for any failure by you to use Program Links. Because of the difficulty verifying other purchases by customers you refer to us, we will not pay commissions unless you use Program Links. Finally, you may only earn commissions by referring customers to ProBand.com
3. Use of Content
We may provide you with product images, graphics, logos and other content (“Content”) through the Program Registration Page on our Website. Any content that we provide to you is the property of ProBand® or its content suppliers and is protected by United States and international copyright laws. We grant you a limited, nonexclusive, full paid, revocable right to use the Content solely for purposes of your participation in the Program. You may not licensee any Content to any other person or party. Content cannot be used in any form other than the form provided by us. We reserve all of our rights in the Content. You may not: (a) alter, modify or change any Content or create any derivative Content; (b) use Content in any form other than that provided by us; (c) remove any code or identifying information from any Content; (d) inactivate a link associated with any Content or cause the Content to link to a destination other than our Website; or (e) link to or display any Content that describes a product after it has been discontinued from the ProBand.com product catalog.
4. Trademark License; Use of Trademarks
You understand and agree that ProBand® is the sole and exclusive owner of the entire right, title and interest in and to the “Marks”. The defined term "Marks" means the following trademarks: ProBand®, the associated logo and any components or variations thereof, and any other trademarks that we own. You have no right to use the Marks except as specifically granted in this Agreement. You shall make no use of any Mark except in the form authorized by us. You shall not adopt or use any name, mark, logo, insignia or design that is, or is likely to be, confusingly similar to or could cause deception or mistake with respect to any of the Marks. You shall not attack the validity of any of the Marks or of our title to any of the Marks at any time, whether during or after the term of this Agreement. You shall not apply for (or aid or abet others to apply for) registrations in the United States or in any foreign country of any mark or design which includes the Marks (or any variations of them), alone or in combination. The goodwill resulting from your use of the Marks (as well as any variations of the Marks) shall inure to our benefit. You shall not purchase or register domain names that include the Marks or any variations and misspellings of the Marks. Furthermore, you shall not purchase or bid on search engine keywords, AdWords, search terms, or other identifying terms (whether for use in a search engine, portal, sponsored advertising service or other search or referral service) that include the Marks, any components of the Marks, or any variations and misspellings of the Marks. You may use the Marks solely for the purposes authorized by this Agreement. You may not alter graphics containing the Marks in any manner. For example, you may not change the proportion, color, or font of the Marks. You may not display the Marks in any manner that implies sponsorship, endorsement by us other than your involvement in the Program. You may not use the Marks to disparage our company, our products or services, or in a manner which, in our reasonable judgment, may diminish or otherwise damage our goodwill in the Marks. You acknowledge that all rights to the Marks are our exclusive property, and all goodwill generated through your use of the Marks will inure to our benefit. You may not use or display any of our Marks or logos or trademarks in your profile on any social media site. You may not dilute or damage the value of our trademarks, and/or products and services. You may not misrepresent ProBand.com’s brands including our URL, logos, trademarks and trade names, or misrepresent that either you or your website are ProBand.com or operated by ProBand.com. If we determine that you have violated any of the foregoing restrictions, we may (without limiting any other rights or remedies available to us) withhold any commission otherwise payable to you under this Agreement and/or terminate this agreement. If we are required to enforce any of the foregoing restrictions, you will be obligated to reimburse us for any attorneys' fees and expenses we may incur.
5. Additional Program Restrictions
Be courteous and polite when you are promoting ProBand.com ambassador. Using illegal or unethical marketing methods or spam will cause immediate termination from the Program and may expose you to punitive damages. You agree to the following restrictions: (a) You must follow common search engine guidelines, such as: (1) your display URL must match the ultimate actual destination URL; (2) you may not frame our website as a landing page; and (3) you may not create "redirects" or "jump pages" that immediately direct to our website. (b) You may not engage in any conduct that violates the CAN-SPAM Act of 2003, as amended, or any privacy or data protection law of any jurisdiction. (c) You may not enable any sales that are not in good faith, such as using any device, public coupon site, program, robot, Iframe, hidden frame or redirect. (d) You may not use any device or technology that will replace, intercept, interfere, hinder, disrupt or otherwise alter in any manner a Web user's access, view or usage of, our Website or of any ambassador of ours in a manner that causes or otherwise results in a different experience from what was otherwise intended by our ambassador. (e) You may not use any device or technology that will block, alter, direct, redirect, substitute, insert, or otherwise intercept or interfere in any manner with any click through or other traffic-based transaction that originated from the website of any ambassador of ours with the result of reducing any compensation or other payment earned by or owing to such ambassador. (f) You may not issue or post any press release or other broad-based communication regarding your participation in the Program unless you receive our prior written consent from us.
You may promote your website via mailings to recipients who are customers or subscribers to your website's services, provided that the recipients have the option to remove themselves from future mailings and that you otherwise comply with all applicable laws of your jurisdiction. Further, you may promote your website via newsgroup postings to newsgroups that welcome commercial messages. (g) You may promote your Ambassador store on social media platforms provided that you use the correct and appropriate name and brand likeness. This includes the following: (1) Correct spelling and capitalization of our brand's name - ProBand®; ProBand Sports (2) When tagging us in social media posts, you must utilize our correct handle which is: @ProBandSports; and (3) You are not required to include our hashtags but if you do, ensure that you use the correct form: #ProBandSports & #ProBand (h) We do not permit any promoters of coupons or other discounts to join the Program. No commissions shall be payable to any such parties. The Program is void where prohibited. (i) You will not promote any products or services to children under the age of thirteen (13). We reserve the right to modify these rules at any time and our sole discretion. If we determine, in our sole discretion, that you have violated any of the foregoing restrictions, we may withhold any commission otherwise payable to you under this Agreement and/or terminate this Agreement. If we are required to enforce any of the foregoing restrictions, you will be obligated to reimburse us for, among other things, any attorneys' fees or expenses that we may incur.
6. Order Processing
We will process product orders placed by customers who follow a Program Link from your website to our Website. We reserve the right to reject orders that do not comply with one or all requirements that we may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations and returns, and handle customer service. Through Refersion, our ambassador marketing platform, we will track sales made to customers who purchase products using Program Links and will make available to you reports summarizing sale activity. You will not receive any of our individual customer information.
You will be eligible to earn ambassador payments on certain product sales in accordance with Section 8 below. For a product sale to be eligible for payments, the customer must follow a Program Link from your website to our Website, select and purchase the product using our service provider’s shopping platform, accept delivery of the product at the shipping destination, and remit full payment to us. No ambassador payments will be paid if the visitor to the ambassador's website cannot be tracked by our system.
8. Earning Ambassador Payments
We may pay ambassador based on a percentage of sales, a flat rate, or a tiered commission structure. The payment method and percentage is subject to change from time to time, in our sole discretion. Certain ambassadors may receive offers to be paid under different commission structures as we may determine from time to time. If a product that generated commissions is returned by the customer, we will deduct the corresponding commission from your next commission payment. All commission related data under the Program is collected, calculated and managed by Refersion, our ambassador marketing platform, and its data will be the only valid basis used for determining commissions.
9. Length of Cookie Purchase Period
Our Program uses a seven (7) day cookie purchase period. This means that if a visitor to your website clicks through a Program Link to our Website, you will be eligible for commissions related to purchases made by your visitor within seven (7) days of its click on the Program Link on your website. We will pay commissions to only one ambassador for purchases associated with a given cookie. To the extent multiple ambassadors request payments, Refersion shall determine which ambassador to pay. Its decision shall be final and binding. We may change the length of our cookie period from time to time.
10. Commission Payments
No commissions will be paid to you until you have accrued ambassador payments of at least $25.00. Any money held in your account will not collect interest. Subject to the foregoing, we will pay commissions on a monthly basis. Payment will be posted on the 1st of the month, if the 1st falls on a Saturday, Sunday or banking holiday please wait until the following business day for the payment to be processed. Payments may take 7-10 business days to appear in the account. We will pay commissions to you through PayPal or gift card at your preference. You authorize us to share with PayPal such information and other transaction information necessary for our use of the payment processing services provided by PayPal. If a product that generated commission is returned by the customer, we will deduct the corresponding commission from your next payment. If there is no subsequent ambassador payment to you, we will send you a bill for the commission. Ambassador accounts that are “abandoned” will be removed from the Program if their balance is less than $25. An abandoned account is any account that has not been logged into for a period of one (1) year without any transactions having been posted to that account.
11. Customer Policies and Pricing
Customers who buy products through the Program are customers of ProBand.com. All of our rules, policies, and operating procedures concerning customer orders, customer service, and product 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 sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
12. Special Rules for Endorsements
All endorsements made by you in connection with any promotions of any product will be accurate and contain all disclosures and disclaimers necessary to prevent such endorsements from being false or deceptive. Such disclosures and disclaimers must be made in a clear and conspicuous manner, and comply with all U.S. federal and state laws, including U.S. Federal Trade Commission ("FTC") regulations, policies and guidelines governing advertising, disclosure and consumer protection, including the FTC's Endorsement Guidelines. The Guidelines may be found here: https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf
13. Responsibility For Your Website
You will be solely responsible for the development, operation, and maintenance of your website and for all materials or content that appear on your website. You are responsible for ensuring that materials posted on your website do not infringe the intellectual property rights of any person or entity. You must have express permission to use another party's intellectual property. We will not be responsible if you use another party's intellectual property in violation of their rights. You will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your website.
14. Data Protection
If you receive any personal identifying information from our customers (“PII") or process such PII under the Program, you warrant, represent and covenant to us that you will comply with all applicable privacy and data protection laws rules and regulations. You agree to implement appropriate systems and processes to comply with this requirement. As such you shall establish and maintain physical, electronic and procedural safeguards to prevent the unauthorized access, use, copying, disclosure, modification, transference, destruction, loss, or alteration of any PII during your use, transmission or storage of any such PII under the Program. If you receive any PII from our customers, you will: (1) indemnify us for any claim, expense, demand or cost related to your receipt or use of such information or violation of any privacy law or regulation; (2) upon request, provide us with information sufficient to demonstrate your compliance with this section, and allow us to audit your data practices if necessary in our sole discretion; and (3) manage such PII as we may direct.
The term of this Agreement will begin upon our acceptance of your Program Application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement, you will immediately cease use of, and remove from your website, all Program Links, the Content, all of our Marks, and all other materials provided by us in connection with the Program. You are only eligible to earn commissions during the term of this Agreement, and commissions earned through the date of termination will remain payable subject to Section 8 above. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any provision of this Agreement at any time by posting a change notice or a new agreement on our Website. We may also announce changes to the terms of this Agreement by email. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement on our Website will constitute your acceptance of the change.
17. Limitation Of Liability; Indemnification
We 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 Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total commission fees paid or payable to you under this Agreement within the last six (6) months. Unless you notify us of a discrepancy in your commission payments within six (6) months from the date of the applicable payment, such payment shall be deemed accepted and no protest shall be allowed. You hereby agree to indemnify and hold harmless ProBand and its subsidiaries and ambassadors, their directors, officers, employees, agents, and shareholders against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (collectively, the "Losses") insofar as such Losses arise out of or are based on (a) any claim that your use of any trademark or other intellectual property infringes on any other trademark or intellectual property belonging to any third party, (b) any breach of a representation, warranty, covenant or agreement made by you in this Agreement, or (c) any claim related to your website, including, without limitation, any content that resides on your website but that was not provided by us.
You hereby represent and warrant to us that (i) this Agreement is a legal, valid, and binding obligation, enforceable against you in accordance with its terms; and (ii) any information you provide to us in connection with your participation in the Program will be true and correct. This Agreement will be governed by the laws of the State of California, 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 Santa Barbara, California, and you hereby irrevocably submit to the exclusive jurisdiction of such courts in any such action or proceeding, and irrevocably waive any defense of an inconvenient forum to the maintenance of any such action of proceeding. We may assign our rights and duties under this Agreement in our sole discretion. You may not assign your rights or duties under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, beneficiaries, successors, and permitted assigns. You and we 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.
In the event that any provision of this Agreement shall be illegal or otherwise invalid or unenforceable, such provision shall be deemed modified in a manner consistent with the intent of the original provision, so as to make it valid and enforceable, or, if modification is not possible, such provision shall be deemed severed, and the balance of the Agreement shall continue in full force and effect, and shall be construed as if the invalid, illegal, or unenforceable provision had never been contained within the terms hereof.
20. Controlling Agreement
If there is any inconsistency between this Agreement and any other documents, purchase orders, invoices, or the like between the Parties relating to any Work, whether executed before or after the execution of this Agreement, the terms of this Agreement shall control unless the Parties explicitly agree otherwise in writing.