BRANDCYCLE TERMS & CONDITIONS
Effective Date: April 13, 2021
Thank you for your interest in joining the BrandCycle affiliate program (the “Program”) operated by BrandCycle Inc. (“we”, “our”, “us” or “BrandCycle”). By submitting an application or joining the Program, you agree to be bound by the terms and conditions below (the “Agreement”). Therefore, please read this Agreement carefully. If you do not agree to all of the terms and conditions of this Agreement, then you should not apply to or participate in the Program. We may change this Agreement at any time upon notice to you, so you should check this site often to see the latest version.
If an individual is accessing the Program 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. The term “you” shall refer to both the business entity and the individual accessing the Program on behalf of such business entity.
1. ENROLLMENT IN THE PROGRAM
- (a) In order to join the Program, you must submit an application through the service (the “BrandCycle Service”). All information provided by you in connection with the application and your participation in the Program must be complete and accurate. If your information changes, it is your responsibility to immediately update such information.
- (b) Upon receiving your application, we will review your information and notify you of your acceptance or rejection into our Program. We reserve the right to reject any application or later revoke an accepted application; however, we encourage you to contact us if you feel we have made an incorrect decision.
- (c) You are authorized to participate in the Program only during such time as we have approved your participation.
- (d) As part of your application, and at any time upon request, you must identify for us all websites, apps and other services that you will use in connection with the Program (“Your Services”). All of Your Services are subject to our prior written approval. You may not add to Your Services without our prior written approval. We may monitor, crawl or otherwise investigate Your Services in connection with the Program.
- (e) You may not use sub-affiliates or otherwise broker your participation in the Program to any third party without our prior written approval. If we do provide any such approval, you are responsible for ensuring that such third party complies with the terms and conditions of this Agreement, and you shall be responsible for such third party’s acts and omissions.
- (f) In order to participate in the Program, you may be required to create an account with us. Your account is for your sole, personal use, you may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. All registration information about you must be truthful, and you may not use any aliases or other means to mask your true identity. You are responsible for the security of your password and will be solely liable for any use or unauthorized use under such password. You must notify us immediately in the event that any unauthorized access to your account is suspected. We may suspend or terminate your access at any time with or without notice.
2. AFFILIATE SALES COMMISSION
- (a)The Program contains a number of offers for various merchants (“Offers”). The Offers are provided by various merchants (each a “Merchant”) who are not under our control. You agree to comply with all terms, conditions and rules set forth by a Merchant, the program that originates an Offer or otherwise made available to you in connection with an Offer.
- (b)The Merchant and/or their affiliate network provider will determine what qualifying sales or actions will be attributed to you (“Qualifying Sale”). This may include, but is not limited, their practices for tracking sales or actions, dealing with multiple affiliate referrals, reversing fraudulent sales or actions and dealing with returns. Their decisions shall be final and binding.
- (c)We shall pay you a sales commission for all Qualifying Sales at the rate set forth in your account on the BrandCycle Service (defined below) (“Sales Commission”). Notwithstanding anything to the contrary, we shall only be liable for the payment of the Sales Commission to the extent that we have been paid by or on behalf of the Merchant or its network.
- (d)You shall be responsible for all taxes and other similar levies applicable to the Sales Commission pursuant to any law or regulation. You shall report the Sales Commission to its taxation authorities as required by law. While we may provide certain information regarding taxes, you acknowledge that we are not tax consultants and that you should consult with your own financial professionals and advisors.
- (e)We shall post and maintain a designated password-protected web page for you on the BrandCycle Service showing your participation in the Program including the number of Qualifying Sales and an estimate of the Sales Commission due. Subject to subsection (c) above, we shall, during the month after which we receive payment from the Merchant or its network, mail, PayPal or otherwise transmit the Sales Commission representing the amount payable for the sales finalized. We reserve the right to delay sending payment as deemed reasonably necessary to prevent suspected cases of fraud. You will receive the Sales Commission in US dollars unless other arrangements have been mutually agreed upon by the parties.
3. WEBSITE RESTRICTIONS
You and Your Service(s) may not:
- Infringe on our or any anyone else’s copyright or other intellectual property, right of publicity, privacy or other rights.
- Violate any law, rule or regulation.
- Contain or use any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials.
- Contain or use any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
- Contain or use software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of Sales Commissions from another website.
- Contain or use any content that is deceptive, fraudulent or misleading.
4. LINKS TO THE OFFERS
Links for the Offers will be made available to you through the Program. You agree to abide by the following:
- You will only use linking code obtained from the Program without modification or manipulation.
- All portions of Your Services must be listed in your account on the BrandCycle Service.
- You may not engage in cookie stuffing or include pop-ups, false or misleading links on Your Service. In addition, wherever possible, you will not attempt to mask the referring url information (i.e. the page from where the click is originating).
- Your Service may not in any way copy, resemble, or mirror the look and feel of our services.
- You may not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain.
- No type of automated “clicking”, by any technique, is allowed.
- You may not use misleading, confusing or fraudulent means in order to elicit a physical click by the end user on the Links.
5. TRADEMARKS – DOMAIN NAMES & SEARCH ENGINE MARKETING / PPC
Use of any of our trademarks or any terms substantially similar (“BC Trademarks”) as part of the domain or sub- domain for Your Service is strictly prohibited without prior approval by us. If you participate in paid search engine advertising or Pay Per Click (“PPC”), you agree as follows:
- You may not bid on any of the BC Trademarks or Merchant trademarks, including any variations or misspellings thereof for search or content-based campaigns on Google, Bing, Yahoo or any other keyword-based advertising network.
- You may not use the BC Trademarks or Merchant trademarks in sequence with any other keyword.
- You may not use the BC Trademarks or Merchant trademarks in your ad title, ad copy, display name or as the display URL.
- You may not direct link to the BrandCycle Service or Merchant site from any PPC ad or use redirects that yield the same result. Customers must be directed to an actual page on Your Service. If you automate your PPC campaigns, it is your responsibility to exclude the BC Trademarks and Merchant trademarks from your program.
6. EMAIL / TEXT MARKETING
If you intend to promote our Program via e-mail or text campaigns, you must adhere to the following:
- Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) (the “Act”) with respect to our Program.
- E-mail must be sent on your behalf and must not imply that the e-mail is being sent on behalf of us or the Merchant. You shall ensure that you are the “sender” of all such emails as defined under the Act.
- You will not send any unsolicited commercial emails unless the end user has specifically opted in to receiving the emails. You will not promote our Program through an “opt-out” email list where the end user has not specifically opted in to receiving your emails.
- You may not send SMS or MMS messages to an end user’s device unless the user has specifically opted in to receiving such messages, in compliance with all applicable laws, rules, regulations and best industry practices.
- You may not use any sweepstakes or contests in connection with the Program without complying with all applicable laws, rules and regulations.
8. SOCIAL MEDIA
Promotion on Facebook, Twitter, and other social media platforms is permitted following these general guidelines:
- Notwithstanding any authorization provided by us, you must comply with all terms, conditions, guidelines and rules set forth by the applicable social media platform provider and shall not take any actions that would put us in violation of such requirements.
- Subject to the foregoing, You ARE allowed to promote the BrandCycle Service to your own lists; more specifically, you are welcome to use the links on your own Facebook, Twitter, etc. pages.
9. OPERATIONS OUTSIDE UNITED STATES
If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the General Data Protection Regulation (EU) 2016/679 and Privacy and Electronic Communications Directive 2002/58 if you are conducting business in or taking orders from persons in one or more of the European Union countries, or for persons in Canada the Personal Information Protection and Electronic Documents Act (PIPEDA).
10. FTC DISCLOSURE REQUIREMENTS
You shall include a disclosure statement within any and all pages, blog/posts, or social media posts where links to the Offers are posted, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us, this also must be clearly stated in your disclosure.
- Disclosures must be made at each instance of a sponsored link. A single statement on the site, or a separate page with your general disclosure statement is not sufficient.
- Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g., disclosure should be visible before the jump).
- Pop-up, hover state and button disclosures are prohibited.
- Disclosure policy applies to all social media, even when space is restricted (e.g., tweets) You must comply with all Federal Trade Commission (“FTC”) disclosure requirements, including the FTC’s “Dot Com Disclosures” Guidelines at http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf; and the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising at http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides- governing-endorsements-testimonials/091005revisedendorsementguides.pdf and further explained at http://business.ftc.gov/advertising-and-marketing/endorsements If you engage in so called “native advertising”, you further agree to comply with the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements at https://www.ftc.gov/system/files/documents/public_statements/896923/151222deceptiveenfo rc ement.pdf and the related guidelines.
11. REVERSAL OF COMMISSIONS
The Company seeks to maintain a very low reversal rate, and transparent communication with our affiliates. However, we, the Merchants and their networks, reserve the right to reverse Qualifying Sales due to order cancellations, duplicate tracking, returns, disputed charges, and program violations as outlined in this Agreement. Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of our this Agreement, we expect that you will respond in a timely and honest manner. Below are violations of our communications policy.
- You are not forthcoming, intentionally vague or are found to be lying.
- You are not responsive within a reasonable time period and after multiple attempts to contact you.
- You cannot substantiate or validate the source of your traffic to our program with clear and demonstrable proof.
12. VIOLATIONS OF THIS AGREEMENT
Without limiting any of our other rights or remedies, if we reasonably determine that you have violated any of term of this Agreement, we may take any one or more of the following actions, regardless of whether we have sought any clarification from you:
- 1. Reverse your orders, transactions or Sales Commissions.
- 2. Require you to forfeit any or all Sales Commissions.
- 3. Set your Sales Commission level to 0%.
- 4. Suspend you in full or in part from the Program.
- 5. Terminate you from the Program.
- 6. Refer your activities to legal authorities.
- 7. Share your information with third parties who are the victims, targets or otherwise affected by your violation of this Agreement.
13. RELATIONSHIP OF THE PARTIES
While the parties shall work hand-in-hand for the benefit of both, you acknowledge and agree that you shall, from a legal perspective, act as and shall be an independent contractor and not an employee or agent of us. Nothing in this Agreement shall create a partnership, joint venture, agency, or franchise between the parties in the legal sense of these terms. You shall not sign any document in the name of or on behalf of us nor hold yourself out as being an agent of us or as having apparent authority to contract for or bind us. You shall not act or omit to act in any situation that would put us or a Merchant in violation of any applicable law, rule or regulation.
14. DIGITAL MILLENIUM COPYRIGHT ACT
If you believe any materials accessible on the website or services infringe your copyright, or a copyright belonging to a third party in violation of the Digital Millennium Copyright Act, you may request removal of those materials (or access thereto) from the Sites or Services by contacting our copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material and provide Us with its URL or any other pertinent information that will allow Us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the use of the materials at issue is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
BrandCycle’s agent for copyright issues is as follows:
Attn: Copyright Agent
16 Rae Ave
Needham MA 02492
This contact information is only for suspected copyright infringement. We will remove any content that infringes upon the copyright of any person under the laws of the United States upon receipt of such a statement (or any statement in conformance with 17 U.S.C. § 512(c)(3)) and will terminate the access privileges of those who repeatedly infringe on the copyright of others.
15. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
The Program and other services are provided “as is” without any warranties, express or implied. We make no guaranty that you will earn any amount of Sales Commissions. In no event shall we be liable to you or any third party for special, incidental, consequential or punitive damages, including, without limitation, any damages resulting from loss of profits, loss of business or loss of goodwill arising out of or in connection with this Agreement, our service or the Program, whether or not we have been advised of the possibility of such damages. In any event, our maximum liability to you for any claims shall in no event exceed the amount of Sales Commissions paid to you during the prior six (6) months.
You agree to defend, indemnify and hold harmless BrandCycle, its officers, directors, employees, business partners and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) any breach by you of any of this Agreement, (ii) your promotional activities or (iii) your use of materials or features available in the Program (except to the extent a claim is based upon infringement of a third party right by materials created by us).
16. INTELLECTUAL PROPERTY
BrandCycle or its licensors are the exclusive owners of all copy, software, graphics, designs and all copyrights, trademarks and other intellectual property or proprietary rights contained on or used in connection with the BrandCycle Service and Program. Except as set forth herein, you agree not to copy, distribute, modify or make derivative works of any materials without the prior written consent of the owner of such materials. You acknowledge that the BrandCycle Service contains confidential information, and therefore you shall not disclose such materials to any third party without our prior written approval. All rights not granted under this Agreement are reserved by BrandCycle.
You agree to protect all BrandCycle Confidential Information from unauthorized disclosure. “Confidential Information” means all non-public information provided by or obtained through BrandCycle, including but not limited to, the BrandCycle Service portal and user-interface, access credentials, pricing, commission rates and list of Merchants or Offers. You may not share or provide access to any Confidential Information to any party that has not been authorized in writing by BrandCycle to receive such information from you.
17. TERM OF THE AGREEMENT
- Either party may terminate this Agreement and/or your participation in the Program at any time upon written notice.
- As soon as notice of termination of this Agreement is given or upon termination as herein provided, you shall immediately cease marketing and advertising the BrandCycle Service and shall eliminate all mention, links and references to our service. Pending the completion of the foregoing, we may hold any Sales Commissions due.
18. ENTIRE AGREEMENT; MODIFICATION; WAIVER
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
In addition to this Agreement, you must comply with all instructions, policies and procedures set forth on the BrandCycle Service, including those set forth by a Merchant.
This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors and assigns; provided, however, you may not assign any of your rights under this Agreement without written consent from us.
20. GOVERNING LAW; VENUE
This Agreement shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts and without reference to conflict of laws principles. Each party consents to the exclusive jurisdiction and venue of the courts located in Boston, Massachusetts for all matters.
21. RECOVERY OF LITIGATION EXPENSES
If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
If any term, provision, covenant or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
No delay or omission by us in exercising any right under this Agreement shall operate as a waiver of that or any other right.
16 Rae Avenue
Needham, MA 02492