The Aces High/HiTech Creations Affiliate Agreement
HiTech Creations AFFILIATE PROGRAM AGREEMENT
This HiTech Creations Affiliate Program Agreement ("Agreement") contains the complete terms and conditions that apply to your participation in the FlyAcesHigh.com Affiliate Program (the "Program") of HiTech Creations, Inc., a Texas corporation ("we," "us," "ours").
1. Enrollment in the Program. Participation in the Program gives the affiliate ("you") the opportunity to earn commissions from subscriptions to the Aces High World War II game. To begin the enrollment process, you must submit an application form. We will evaluate your application and notify you via email whether or not you have been accepted to participate in the Program. We may reject your application if we determine in our sole discretion that your web site ("Site") is unsuitable for participation in the Program. Unsuitable web sites include, but are not limited to, those that:
(a) Contain sexually explicit or obscene materials, or other offensive materials;
(b) Advocate discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or other impermissible criteria;
(c) Promote or engage in illegal activities;
(d) Violate intellectual property rights of third parties;
(e) Contain or promote deceptive information; or
(f) Promote gambling.
By applying to participate in the Program, you are representing to us that your Site does not do any of the items noted in clauses (a) through (f) and, if you are accepted to participate in the Program, you agree that your Site will not engage in any of the items described above during the period of your participation.
2. Links. If you are accepted to participate in the Program, we will make available to you for use on your Site the following items: banners, buttons, icons, text links, and other items ("Links"), subject to the terms and conditions hereof. The Links will link to one of our URLs, where visitors may subscribe to the Aces High game. You may post as many Links on your Site as you like. The position, prominence, and nature of the Links on your Site shall comply with any requirements specified by us, but otherwise will be at your discretion.
3. Commissions.
"Qualifying Link" means a direct link from your Site to our web site established in accordance with our technical requirements. There will be no Commissions or other fees or consideration payable to you other than as specifically stated herein.
We will process subscription orders placed by customers who follow links from your site to the FlyAcesHIgh.com site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment.
Among other things, we will prepare order forms; process payments and cancellations; and handle customer service. We will track sales made to customers who subscribe to the Aces High game using links from your site to our store and will provide you reports summarizing this sales activity. To permit accurate tracking, reporting, and fee accrual, you must ensure that the links between your site and our site are created with the HTML generator. If our site pages change and you have links that direct visitors to these pages, we will re-direct your visitors to an appropriate page automatically.
Subject to the terms and conditions of this Agreement, we will pay you a commission on all net subscription sales to third parties. For a subscription sale to generate a commission, the customer must follow a link from your site to FlyAcesHigh.com, subscribe to the game using our automated ordering system and remit full payment to us.
You will earn a commission based on the subscription price of the Aces High game, according to fee schedules to be established by us.
You will earn a commission of $5.00 for the first month's subscription to the Aces High game. You will also be paid a recurring of $2.00 for each month a subscriber continues payment of the monthly subscription fee.
The fee schedule is subject to change without notice.
We will pay you, or cause you to be paid, within thirty (30) days after the end of each calendar month; the commissions owed you in accordance with the above-mentioned commission structure. Commission checks will be for the applicable amount of commissions (less any taxes required to be withheld pursuant to applicable law).
4. Termination; Effect on Commissions; Modification.
4.1 This Agreement shall be effective on the date we accept your application form and shall continue until terminated by either party. Either you or we may terminate this Agreement, with or without cause, by giving written notice to the other party in the manner specified in Section 12.
4.2 You will not have the right to receive any further Commissions following the termination of this Agreement, regardless of whether or not you or we terminate or whether or not the termination was with or without "cause."
4.3 We reserve the right, in our discretion, to change the terms of this Agreement from time-to-time. We will notify you of any such changes in the manner specified in Section 12. Changes may include, without limitation, changes in the commission structure or payment procedures. If you do not agree with the changed terms and conditions, your only recourse is to terminate this Agreement. Your continued participation in the Program after you have been notified of the changes to the terms of this Agreement shall constitute your agreement to the changed terms and conditions.
5. Licenses, Marks. We grant you a non-exclusive, non-transferable, royalty-free, revocable license (a) to access our web site through the Links and (b) to use our logos, domain names, trade names, trademarks, service marks, and similar identifying material (collectively, "Our Marks") included in the Links for the sole purpose of promoting the HiTech Creations game through your Site as contemplated by this Agreement. No right, property, license, or interest in any of Our Marks is intended to be given by us to you or acquired by you under this Agreement, except as stated in the preceding sentence. You may not alter, modify, or change Our Marks in any manner. You may not use Our Marks in any manner that is disparaging or otherwise portrays us in a negative light. Upon termination of this Agreement, you agree to return to us all property and non-public information you received from us and agree to promptly cease using Our Marks. You agree not to challenge the validity of, adopt, or register or attempt to register with any domestic or foreign government, quasi-governmental authority, or domain name registrar, the marks "FlyAcesHigh.com", "Aces High", "HiTech Creations," or any confusingly similar or derogatory derivation thereof as a trademark, service mark, Internet domain name, trade name, or similar item. You may not use or infringe upon the logos, trade names, trademarks, service marks and similar identifying material or other intellectual property of the third party that administers the Program, without their express prior written consent.
6. Publicity; Promotional Activities. You may not make any public announcements about your participation in the Program or about the third party that administers the Program or engage in any promotional activities (other than inserting Links on your Site) pertaining to your participation in the Program, without our prior written consent. You agree not to publish or otherwise make any representations, warranties, or other statements concerning us, our web sites, or the HiTech Creations product, except as expressly authorized by us in writing. We may, in our discretion, announce your use of the Links on your Site, and otherwise advertise, market, promote, and publicize this Agreement in any manner, including listing your name and company logo(s) on our web site.
7. Your Responsibilities. You agree to indemnify, defend, and hold harmless us and our affiliates, directors, officers, employees, and agents, from and against any and all liability, claims, losses, damages, injuries, or expenses (including reasonable attorneys' fees) relating to (a) the contents, development, operation, and maintenance of your Site, (b) your breach of this Agreement or any of the terms hereunder, (c) any misrepresentation or breach of a covenant or agreement made by you in your application form, or (d) any claim that our use of your Marks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party. You are responsible for the contents, development, operation, and maintenance of your Site. You are responsible for ensuring that your Site complies with all applicable copyright and other laws. We will not be responsible if your use of another party's copyrighted or other proprietary material is in violation of the law. You agree to maintain in confidence any information we provide you pertaining to us or the third party that administers the Program that is designated as "confidential," "proprietary," or the like or is disclosed in circumstances of confidence, or would be understood by a receiving party, exercising reasonable business judgment, to be confidential.
8. Anti-Fraud Measures and Forfeitures. We will, from time-to-time, utilize techniques designed to identify fraudulent activities. You understand and agree to cooperate with such efforts as we, in our sole discretion, deem necessary to identify such attempts at fraud. You further agree that if, for any reason, you or others acting on your behalf are suspected of fraud or other breach of this Agreement, we may, in our sole discretion, suspend or terminate your participation in the Program, retain any unpaid monies, and seek prosecution to the fullest extent of the law. Any retained monies shall be in addition to, not in lieu of, any actual or punitive damages, or right to seek other remedies under law, including, but not limited to, disgorgement of any prior monies paid. You also understand and agree that we may utilize and disclose any personally identifiable information we maintain about you for purposes of seeking remedies under law for any breach of this Agreement.
9. Solicitation of HiTech Creations Subscribers. You will not send unsolicited, commercial email (i.e., "Spam") to HiTech Creations subscribers if your only business relationship with them is that they clicked through your Site to our web site through the Links.
10. Disclaimer of Liability. OUR ONLY OBLIGATION TO YOU HEREUNDER IS TO PAY YOU THE COMMISSIONS. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. THIS LIMITATION OF LIABILITY APPLIES WHETHER ANY OF SUCH EVENTS WAS ADVERTENT OR INADVERTENT, INTENTIONAL OR UNINTENTIONAL, JUSTIFIED OR NOT, NEGLIGENT OR GROSSLY NEGLIGENT, OR BROUGHT UNDER A CAUSE OF ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN ADDITION TO THE FOREGOING, OUR AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY UNDER ANY THEORY OF RECOVERY SHALL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
MOREOVER, AS BETWEEN YOU AND US, OUR WEB SITE, THE LINKS, THE HiTech Creations PRODUCTS ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT, OR WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
11. Arbitration. You agree to the resolution by binding arbitration of all claims, demands, causes of action, disputes, controversies, or other matters in question ("claims") brought by you arising under this Agreement and the transactions contemplated hereby. We reserve the right to bring court actions in any court of competent jurisdiction to enforce our rights under this Agreement. The claims shall be submitted to arbitration and finally settled under the applicable rules of the American Arbitration Association ("AAA") in effect at the time the written notice of the claim is received by us. The arbitration will be held in Grapevine, Dallas County, Texas. The award and findings of such arbitrator shall be conclusive and binding upon the parties, and judgment upon such award may be entered in any court of competent jurisdiction. Each party shall pay all costs and expenses of its advisors. The costs and expenses of the arbitration proceedings will be paid by the non-prevailing party or as the arbitrator otherwise determines. Discovery will be permitted to the extent directed by the arbitrator. You agree to pay our costs and expenses (including reasonable attorney’s fees) if we are required to enforce this agreement to arbitrate against you.
12. Contact Info. You may contact us under this Agreement at: This email address is being protected from spambots. You need JavaScript enabled to view it.
We may contact you under this Agreement at the address, including the email address, noted in your application form. Official communications under this Agreement must be in writing and delivered by (a) courier or certified mail to the addresses referenced above or (b) via regular email or via and to the applicable email addresses referenced above. A party may change the contact information for sending and receiving notices by giving notice in the manner as stated.
13. General.
13.1 Governing Law; Forum. This Agreement shall be construed, interpreted, and governed by the laws of the State of Texas (without regard to the conflicts of law provisions thereof) and applicable United States federal law. You hereby consent to the personal jurisdiction of the federal and state courts sitting in the county of Tarrant, State of Texas, USA.
13.2 Entire Agreement; Waiver. This Agreement and your application form shall constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes any and all prior written and prior or contemporaneous oral agreements and understandings pertaining hereto. Any waiver or modification of this Agreement shall only be effective as provided in this Agreement or after an affirmation intended to have the effect of a signature by the party sought to be bound by the waiver or modification. In the event of any inconsistency between the terms of this Agreement and the description of the Program that appears on our web site, the terms of this Agreement shall govern. Our failure to exercise any of our rights or remedies hereunder or enforce any provision hereof shall not act as a waiver of any such right, remedy, or provision.
13.3 Severability. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect.
13.4 Assignment; Survival. You may not assign this Agreement or delegate your rights or obligations under this Agreement, in whole or in part, and any such attempted assignment or delegation will be void. We reserve the right to assign this Agreement or delegate our rights or obligations under this Agreement. All causes of action and any provisions of this Agreement which by their nature are intended to survive termination, shall survive termination of this Agreement.
13.5 Independent Parties. Nothing contained herein shall imply any partnership, joint venture or agency relationship between the parties, and neither party shall have the power to obligate or bind the other in any manner whatsoever.
13.6 Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the parties hereto and, subject to Subsection 13.4, their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person or entity other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations, or liabilities under or by reason of this Agreement.
13.7 Injunctive Relief; Remedies. You acknowledge a violation of this Agreement could cause irreparable harm to us for which monetary damages may be difficult to ascertain or may be an inadequate remedy. You, therefore, agree that we will have the right, in addition to our other rights and remedies at law or in equity, to seek preliminary injunctions unilaterally without notice and final injunctions with notice, enjoining and restraining any violation, or threatened or intended violation, of this Agreement. Except where otherwise specified, the rights and remedies granted to us under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies that we may possess at law or in equity.
13.8 Excuse of Performance. Neither party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.