This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Kolbe/TakesTwo Affiliate Program (KTAP). As used in this Agreement, "we", "us", or "our" means Kolbe Corp, as the case may be, and "you" means the applicant. "Kolbe.com and/or TakesTwo.com" means the site that have their primary home pages identified by the URLs www.Kolbe.com and/or www.TakesTwo.com, and "site" means a World Wide Web site. "Your site" means any site that you will link to the Kolbe.com and/or TakesTwo.com Site (and which you will identify in your KTAP application).
1. Enrollment in the KTAP
To begin the enrollment process, you will submit a complete KTAP application via the Kolbe.com and/or TakesTwo.com Site. We will evaluate your application and will notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the KTAP. Unsuitable sites include those that:
- promote sexually explicit materials
- promote violence
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- promote illegal activities
- otherwise violate intellectual property rights.
By participating in the KTAP you agree that you will not engage in any such activities. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the KTAP, we may terminate this Agreement.
2. Links on Your Site
Once you have been notified that your site has been accepted into the KTAP, you may provide on your site one or more of the following types of links to the Kolbe.com and/or TakesTwo.com Site:
General Link to Kolbe.com and/or TakesTwo.com Site Home Page: You may provide a general link on your site to the home page of the Kolbe.com and/or TakesTwo.com Site.
Kolbe Index Links: You may select to link to one or all of the Kolbe Indexes or the Takes Two report options. You will provide a Special Link from each Index or report option reference on your site to the corresponding Indexes or report options on our Kolbe.com and/or TakesTwo.com site.
Product Links: You may select one or more Products to list on your site. A "Product" is any product listed on the Kolbe.com and/or TakesTwo.com Site that is fulfilled by us or on our behalf. You will be responsible for the content, style, and placement of these references. You will provide a Special Link (as defined below) from each Product reference on your site to the corresponding Kolbe.com and/or TakesTwo.com Site online catalog entry. Each such link will connect directly to a single item in our online catalog. You may add or delete Products (and related links) from your site at any time without our approval.
We will provide you with guidelines and graphical artwork to use in linking to the Kolbe.com and/or TakesTwo.com pages. We will provide you with special "tagged" link formats to be used in all links between your site and the Kolbe.com and/or TakesTwo.com Site to permit accurate tracking and reporting. You must ensure that each of the links between your site and the Kolbe.com and/or TakesTwo.com Site properly utilizes special link formats. You will earn referral fees only with respect to activity on the Kolbe.com and/or TakesTwo.com Site occurring directly through Special Links; we will not be liable to you with respect to any failure by you to use Special Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.
You acknowledge that, by participating in the KTAP and placing any of the above links within your site, we may receive information from or about visitors to your site or communications between your site and those visitors. Your participation in the KTAP constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in the Privacy Notice on the Kolbe.com and/or TakesTwo.com Site.
You also acknowledge that as a participant in the KTAP, we may from time to time send you email updates about KTAP. By participating in KTAP, you consent to our sending you these email updates.
Further, you acknowledge and agree that you will: (a) use any data, images, text, or other information obtained by you from us or the Kolbe.com and/or TakesTwo.com Site in connection with this Agreement ("Content") only in a lawful manner and only in accordance with the terms of this Agreement; (b) not modify or alter any Content that consists of a graphic image, other than to resize it; (c) not edit any Content that consists of text, other than to shorten its length; (d) not sell, redistribute, sublicense or transfer any Content; (e) not use any Content in a manner intended to send sales to any site other than the Kolbe.com and/or TakesTwo.com Site; and (f) promptly delete any Content that is no longer displayed on the Kolbe.com and/or TakesTwo.com Site or that we notify you is no longer available for your use.
We will process Product orders placed by customers who follow Special Links from your site to the Kolbe.com and/or TakesTwo.com Site. We reserve the right to reject orders that do not comply with any requirements that we may establish periodically. 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. We will track sales made to customers who purchase Products by using Special Links from your site to the Kolbe.com and/or TakesTwo.com Site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion.
4. Referral Fees
We will pay you referral fees/commission on certain Product sales to third parties, as described in paragraph 5 below. For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from your site to the Kolbe.com and/or TakesTwo.com Site, and add the Index, Report, or Product to his or her shopping cart or take a Kolbe Index during a session. The session ends upon one of the following events: (a) 24 hours elapses from the customer's initial click-through, or one hour in the case of customers who have identified themselves as minors, (b) the customer orders the Product, (c) the customer closes the session, or (d) the customer follows a third party's Special Link. We will only pay referral fees on eligible Products after order, payment and shipping have occurred. Referral fees/commission will apply to all purchases made in U.S. dollars. It does not apply to purchases made in Australian dollars or in any other currency.
We will not, however, pay referral fees on any Products that are added to a customer's Shopping Cart after the customer has reentered the Kolbe.com and/or TakesTwo.com Site (other than through a Special Link from your site), as determined by us, even if the customer previously followed a link from your site to the Kolbe.com and/or TakesTwo.com Site. In addition, gift certificates are not eligible to earn referral fees.
You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees and/or the termination of this Agreement.
In addition, you may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Special Links on your site to access the Kolbe.com and/or TakesTwo.com Site; (b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (c) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the Kolbe.com and/or TakesTwo.com Site; (d) make any orders or subscription requests, or engage in other transactions of any kind on the Kolbe.com and/or TakesTwo.com Site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so; (e) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring; (f) other than providing Special Links on your site in accordance with this Agreement, post or serve any advertisements or promotional content promoting the Kolbe.com and/or TakesTwo.com Site or otherwise around or in conjunction with the display of the Kolbe.com and/or TakesTwo.com Site (e.g., through any "framing" technique or technology or pop-up or pop-under windows), or assist, authorize, or encourage any third party to take any such action; (g) attempt to circumvent the referral fee schedule or artificially increase your referral fees (e.g. by intentionally featuring, purchasing or requesting or encouraging any third party to purchase low-price items offered on the Kolbe.com and/or TakesTwo.com Site (as determined by us) for the purpose of exceeding any referral fee threshold or by causing any page of the Kolbe.com and/or TakesTwo.com Site to open in a customer's browser other than as a result of the customer clicking on a Special Link on your site); (h) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert referral fees from, any web site that participates in the KTAP; or (i) seek to purchase or register any keywords, search terms or other identifiers that include the word "Kolbe," Takes Two" or variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
5. Referral Fee Schedule
Commissions are based on product type. 8% commission will be given on Index sales of all types. 8% will be given on TakesTwo.com purchases of all types. 5% commission will be given on all other sales of products on Kolbe.com. Commissions are subject to change, and there may be different levels of commissions available. Commissions are calculated quarterly, and to be eligible to receive payment, you must accrue a minimum of $25 in commissions.
6. Referral Fee Payment
We will pay you referral fees on a quarterly basis. Approximately 30 days following the end of each calendar quarter, we will pay you by check if your balance is more than $25.00. If you have earned less than $25.00, we will roll that balance forward and pay you once your balance has exceeded $25.00. Commissions that remain unpaid after one year because the total level of accrued commissions has not reached $25 will expire and will not be payable by Kolbe Corp. If you have an outstanding balance with Kolbe Corp that is more than 90 days past due, we will first apply your Affiliate commission to the amount payable, with any remaining balance being paid to you by check. We may be obligated by U.S. federal law to obtain tax information from KTAP participants who are U.S. citizens, U.S. residents or U.S. corporations and from KTAP participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. If we believe you are a KTAP participant from whom we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your referral fee payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
7. Identifying Yourself as an Associate
You may not issue any press release with respect to this Agreement or your participation in the KTAP; such action may result in your termination from the KTAP. We will make available to you a small graphic image that identifies your site as a Kolbe.com and/or TakesTwo.com affiliate. You must display this logo or the phrase "In association with Kolbe Corp" or "In association with Takes Two" somewhere on your site. We may modify the text or graphic image of this notice from time to time. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).
8. Limited License
We grant you a nonexclusive, revocable right to use the graphic image and text images for which we grant express permission, solely for the purpose of identifying your site as a KTAP participant and to assist in generating Index, Report, or Product sales. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our Trademark Guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.
9. Responsibility for Your Site
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:
- the technical operation of your site and all related equipment
- creating and posting Product descriptions on your site and linking those descriptions to the Kolbe.com and/or TakesTwo.com site products
- the accuracy and appropriateness of materials posted on your site (including, among other things, all Product-related materials)
- ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
- ensuring that materials posted on your site are not libelous or otherwise illegal
We disclaim all liability for these matters. Further, 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 site.
10. Compliance with Laws
As a condition to your participation in the KTAP, you agree that while you are a KTAP participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a KTAP participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the KTAP you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
11. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your KTAP 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 for any reason, you will immediately cease use of, and remove from your site, all links to the Kolbe.com and/or TakesTwo.com Site, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the KTAP. You are eligible to earn referral fees only on sales that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Kolbe.com and/or TakesTwo.com Site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and KTAP rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE KTAP FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE KOLBE.COM AND/OR TAKESTWO.COM SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
13. Relationship of Parties
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. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
14. Limitation of Liability
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 KTAP, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the KTAP will not exceed the total referral fees paid or payable to you under this Agreement.
We make no express or implied warranties or representations with respect to the KTAP or any products sold through the KTAP (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the Kolbe.com and/or TakesTwo.com Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
16. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE KTAP AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us shall be submitted to confidential arbitration in Phoenix, Arizona, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of Arizona (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.