Terms and Conditions, ProGenealogists Affiliate Program
This Agreement contains the complete terms and conditions that apply to participation in the ProGenealogists, Inc. Affiliate Program (the "Program"). As used in this Agreement “ProGenealogists” means ProGenealogists, Inc., with offices at 8022 S 1715 E, Sandy, UT, USA, a Utah corporation, "Affiliate" means the Affiliate Program Applicant (you).
This Affiliate Program and ProGenealogists, Inc. are provided "as is" and use of ProGenealogists, Inc. is subject to the user terms and conditions as posted on the site.
1. Enrollment in the Program
ProGenealogists retains the right to accept or deny Affiliates requesting participation in the ProGenealogists Affiliate Program based solely on its own determination. Web Sites are individually invited by ProGenealogists for participation in the Affiliate Program. For those Affiliates considering participation in ProGenealogists Affiliate Program, it is important to note that ProGenealogists will NOT offer our Program to web sites that promote any type of discrimination, violence, pornographic material, illegal activities or those that are defamatory in nature.
2. Promoting ProGenealogists on Affiliate's Site
Affiliate agrees to promote ProGenealogists, Inc. on various buttons, banners, and/or text links from one or more places in Affiliate's site during this Agreement. ProGenealogists will provide some banners, buttons, text and artwork ("Creative") and will suggest corresponding URL Links ("Links") for each location. The Affiliate will be responsible for the placement of these Links in its site.
3. Reporting
ProGenealogists will monitor traffic and Affiliate Commissions data resulting from individuals using Links from Affiliate's site to ProGenealogists, Inc. and the Affiliate will have access to some traffic reports. Affiliate will receive or select a password and then have the ability to enter a password-protected site to view statistics. The form and content of the reports may vary from time to time, depending upon the Affiliate interface chosen by ProGenealogists. It is the responsibility of the Affiliate to ensure that the Links between Affiliate's site and ProGenealogists, Inc. are properly formatted.
4. Affiliate Commission Payment
ProGenealogists will pay Affiliate an Affiliate Commission ("Affiliate Commission") based upon a sale. The exact percentage will be negotiated between ProGenealogists and the respective Affiliate. The Affiliate Commission will be paid only during the period when this Affiliate Agreement is in place.
The Affiliate Commission is subject to change at any time at ProGenealogists' sole discretion. Payments will be calculated on a quarterly basis. Due to the additional time necessary for accounting and printing of statements and checks, approximately thirty (30) days following the end of each calendar month, ProGenealogists will send Affiliate a check for the sum of any Affiliate Commissions earned after a minimum of Twenty Five ($25) is earned.
If Affiliate is terminated from the Program for breach of this Agreement or due to fraud or potential fraud, then no outstanding fees owed to Affiliate will be paid. ProGenealogists reserves the right to audit an Affiliate, Affiliates links, and sites created through such Affiliate and/or links at any time to make a determination as to their accurate reporting.
5. Limited License
For the duration of this Agreement, ProGenealogists grants Affiliate a non-exclusive, non-transferable, and revocable right to use and display ProGenealogists' logos, trade names, and any similar identifying material (collectively "Licensed Materials"), solely for the purpose of promoting ProGenealogists and its related products and services on the Affiliate's site. This Agreement only gives Affiliate limited usage rights as stated above and the Licensed Materials cannot be used for any other purpose than to promote ProGenealogists.
Affiliate may not alter, modify or change the Licensed Materials in any way. The Affiliate is only entitled to use the Licensed Materials if the Affiliate is a member of the ProGenealogists Affiliate Program. ProGenealogists reserves all rights in the Licensed Materials and Affiliate agrees not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays ProGenealogists and/or related products negatively.
6. Responsibility for Affiliate Site
Affiliate is solely responsible for the development, operation, and maintenance of Affiliate's site and for all materials that appear on Affiliate's site. ProGenealogists hereby disclaims all liability for any aspect of the Affiliate’s site.
7. Term of the Agreement
The term of this Agreement will begin upon Affiliate's enrollment in the ProGenealogists Affiliate Program and it will end when terminated by either party. Either ProGenealogists or Affiliate may terminate this Agreement at any time, with or without cause. Affiliate Commissions will only be earned during the period when the Affiliate Agreement is in force.
If Affiliate's site violates any of the Program policies this Agreement will be immediately terminated with or without notice. Upon notice of termination of this Agreement, Affiliate agrees to remove all Links to ProGenealogists, Inc.
8. Modification
ProGenealogists may modify any of the terms and conditions contained in this Agreement, at any time and with ProGenealogists' sole discretion, by posting a change notice or a new agreement on ProGenealogists.com. ProGenealogists will make a reasonable attempt to notify Affiliate of such modification(s), but cannot guarantee success of any notification. Modifications might include, but not be limited to: changes in the scope of available Affiliate Commission, payment schedules, payment procedures, and Program rules.
IF ANY MODIFICATION TO THIS AGREEMENT IS UNACCEPTABLE TO AFFILIATE, AFFILIATE'S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. AFFILIATE'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING PROGENEALOGISTS' POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON PROGENEALOGISTS, INC. WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
9. Relationship of Parties
ProGenealogists and Affiliate agree that they are independent contractors, and nothing in this Agreement will create any business partnership, joint venture, sales representative, agency, or employment relationship, or the relationship of principal and agent between the parties. Affiliate will have no authority to make representations on ProGenealogists' behalf without express written approval.
10. Disclaimers and Limitation of Liability
ProGenealogists makes no warranties, either express or implied, concerning the performance or functionality of the ProGenealogists Affiliate Program, including but not limited to the Banner(s), Link(s), or ProGenealogists Licensed Material, and hereby expressly disclaims all implied warranties, including warranties of merchantability or fitness for a particular use or purpose. Under no circumstances shall ProGenealogists be liable to Affiliate or any other Person or Entity, including, without limitation, customers, for any loss, injury, or damage, of whatever kind or nature, resulting from or arising out of any mistakes, errors, omissions, delays, or interruptions in the receipt, transmission, or storage of any messages or information arising out of or in connection with the ProGenealogists Affiliate Program or ProGenealogists Products and Services. Without limiting the generality of the foregoing, ProGenealogists 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 ProGenealogists has been advised of the possibility of such damages. Further, ProGenealogists' 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.
11. Confidentiality
ProGenealogists may disclose to Affiliate certain information as a result of Affiliate's participation in the Program, which information ProGenealogists 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's site and not generally available to other members of the Program. Confidential Information shall also include any information that ProGenealogists 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 used, 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, with which the other party shall fully comply).
12. Indemnification
Affiliate hereby agrees to indemnify, defend and hold harmless ProGenealogists, its shareholders, directors, employees, officers, 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 ProGenealogists (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i.) the breach of any representation or warranty made by Affiliate herein; or (ii.) or any claim related to Affiliate Site.
13. Waiver and Notice
The parties acknowledge and agree that submission of application and acceptance of that application will be completed either online or by electronic mail. So, parties hereby waive their rights to a written and signed copy of this Agreement.
Affiliate can give written notice by mail to ProGenealogists as follows: Attn: Affiliate Program Manager, ProGenealogists, Inc., PO Box 900188, Sandy, UT 84090-0188.
14. 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 Salt Lake City, Utah. The demand for arbitration shall be filed within a reasonable time after the controversy or claim has arisen.
15. Miscellaneous
Affiliate acknowledges that it has read this agreement and agrees to all its terms and conditions. Affiliate has independently revaluated the desirability of participating in the ProGenealogists Affiliate Program and is not relying on any other representation than that which is enumerated in this agreement. The laws of the United States and the State of Utah 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 Salt Lake County, Utah and Affiliate irrevocably consents to the jurisdiction of such courts. Affiliate may not assign this Agreement, by operation of law or otherwise, without ProGenealogists' prior written consent. Subject to that restriction, this Agreement will be binding on and be enforceable against the parties and their respective successors and assigns. ProGenealogists' failure to enforce Affiliate's strict performance of any provision of this Agreement does not constitute a waiver of ProGenealogists' right to subsequently enforce such provision or any other provision of this Agreement.
