Associate Operating Agreement
Updated: March 1, 2018
Welcome to Check Cherry’s website for associates (the “Associates Site”), where you can manage your affiliate marketing relationship with Check Cherry or any of its affiliate companies, as the case may be (“Check Cherry” or “us” or similar terms).
Description of the Associates Program
The Associates Program permits you to monetize your website, social media user-generated content, or online software application (referred to here as your “Site”), by placing links to the checkcherry.com website (“Check Cherry Site”) on your Site. The links must properly use the special “tagged” link formats we provide and comply with this Agreement (“Special Links”).
When our customers click through the Special Links to purchase services offered on the Check Cherry Site (a “Service”) or take other actions, you can receive commission for qualifying purchases. In order to facilitate your advertisement of Services, we may make available to you data, images, text, link formats, widgets, links, marketing content, and other linking tools, application program interfaces, and other information in connection with the Associates Program (“Content”). Content specifically excludes any data, images, text, or other information or content relating to product offerings on any site other than the Check Cherry Site.
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 you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. You will not make any statement, whether on your Site or otherwise, that contradicts or may contradict anything in this paragraph. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you will be deemed to have taken the action yourself.
All non-public information provided by us in connection with this Agreement or the Associates Program is considered confidential information, and you will maintain the same in strict confidence and not disclose the same to any third party (other than your affiliates) or use the same for any purpose other than your performance under this Agreement, which restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties.
Associates Program Compliance Requirements
You must promptly provide us with any information that we request to verify your compliance with this Agreement.
If you violate this Agreement, or if you violate terms and conditions applicable to any other Check Cherry program then, in addition to any other rights or remedies available to us, we reserve the right to withhold (and you agree you will not be eligible to receive) any and all fees otherwise payable to you under this Agreement, whether or not directly related to such violation.
Check Cherry Customers
Our customers are not, by virtue of your participation in the Associates Program, your customers. As between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Check Cherry Site will apply to those customers, and we may change them at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with an Check Cherry Site, you will state that those customers must follow contact directions on that Check Cherry Site to address customer service issues.
You represent, warrant, and covenant that (a) you will participate in the Associates Program and create, maintain, and operate your Site in accordance with this Agreement, (b) neither your participation in the Program nor your creation, maintenance, or operation of your Site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any applicable governmental authority (including all such rules governing communications and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor) and (d) the information you provide in connection with the Associates Program is accurate and complete at all times. You can update your information by logging into your account on the Associates Site and selecting “Account Settings”.
We do not make any representation, warranty, or covenant regarding the amount of traffic or fees you can expect at any time in connection with the Associates Program, and we will not be liable for any actions you undertake based on your expectations.
Identifying Yourself as an Associate
You must clearly state the following on your Site or any other location where Check Cherry may authorize your display or other use of Content: “We are a participant in the Check Cherry Associates Program, an affiliate advertising program designed to provide a means for us to earn fees by linking to Check Cherry.com and affiliated sites.” Except for this disclosure, you will not make any public communication with respect to this Agreement or your participation in the Associates Program. You will not misrepresent or embellish our relationship with you (including by expressing or implying that we support, sponsor, or endorse you), or express or imply any affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
Term and Termination
The term of this Agreement will begin upon your registration on or use of the Associates Site and will end when terminated by either you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You can provide termination notice by logging into your account on the Associates Site and selecting the option to close your account in “Account Settings”.
We may hold accrued unpaid fees for a reasonable period of time following termination to ensure that the correct amount is paid (for example, to account for any cancellations or chargebacks).
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
THE ASSOCIATES PROGRAM, THE CHECK CHERRY SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE CHECK CHERRY SITE, ANY SPECIAL LINKS, LINK FORMATS, CONTENT, THE PRODUCT ADVERTISING API, DATA FEED, PRODUCT ADVERTISING CONTENT, OUR AND OUR AFFILIATES’ DOMAIN NAMES, TRADEMARKS AND LOGOS (INCLUDING THE CHECK CHERRY MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE ASSOCIATES PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE ASSOCIATES PROGRAM, CONTENT, THE PRODUCT ADVERTISING API, DATA FEED, PRODUCT ADVERTISING CONTENT, PROGRAM POLICIES, THE ASSOCIATES SITE, OR ANY CHECK CHERRY SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE ASSOCIATES PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE ASSOCIATES PROGRAM.
Limitations on Liability
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT.
WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR SITE OR YOUR VIOLATION OF THIS AGREEMENT (INCLUDING ANY PROGRAM POLICY), AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) YOUR SITE OR ANY MATERIALS THAT APPEAR ON YOUR SITE, INCLUDING THE COMBINATION OF YOUR SITE OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES, (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR SITE OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR SITE, (C) YOUR USE OF ANY CONTENT, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT, ANY OPERATIONAL DOCUMENTATION, OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT (INCLUDING ANY PROGRAM POLICY), OR (E) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.
You acknowledge and agree that (a) we and our affiliates may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in this Agreement, (b) we and our affiliates may at any time (directly or indirectly) operate sites or applications that are similar to or compete with your Site, (c) our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement, and (d) any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Agreement can be made, taken, or given in our sole discretion and are only effective if provided in writing by our authorized representative.
You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
This Agreement incorporates, and you agree to comply with, the most up-to-date version of all policies, appendices, specifications, guidelines, schedules, and other rules referenced in this Agreement or accessible on the Associates Site (“Program Policies”), including any updates of the Program Policies from time to time. In the event of any conflict between this Agreement and any Program Policy, this Agreement will control. This Agreement (including the Program Policies) is the entire agreement between you and us regarding the Associates Program and supersedes all prior agreements and discussions.
Whenever used in this Agreement, the terms “include(s)”, “including”, and “for example” are used and intended without limitation.
You will receive the commission based on the revenue we generate resulting from your referrals. Your commission percentage and the number of Card Charges you will earn commission is listed on the Associate Site. Commission is calculated based on subscriptions created through properly coded Special Links for the number of Card Charges listed on your Associate Site page. A Card Charge is the successful charge to a Check Cherry customer’s card for Services in the amount of $1 or more and originating from qualified, correctly structured Special Links. Properly coded links are the sole responsibility of the Associate.
Your Commission rate and Charge Count may change and at any time and under our sole discretion. We will notify you of any changes with the then-current email address related with your Associate Account.
For you to earn commission, our customer must remit full payment for the Service (net of chargebacks or refunds). For the avoidance of doubt, word of mouth referrals will not result in an affiliate commission being generated and Special Links must be used prior to a customer starting a subscription.
You acknowledge it is possible the number of Card Charges could be shorter or longer than number of months a customer maintains an active subscription as the result of Check Cherry activities (e.g. free trials, customer credits or other services offered).
You will no longer earn commission on a Card Charge after 3 years from the customer signup date. For the avoidance of doubt, it is possible you will earn zero commission for a referral as a result of our Customer or Check Cherry activities. For example, a customer may cancel their subscription prior to Check Cherry completing a successful Card Charge or Check Cherry may offer your Referral account credits (e.g. credits earned via a customer referral program or for any other reason whatsoever).
Check Cherry pays Associates via check. Payment will be made to the then-current business Name and address associated with your Associates account. We will not resend payments returned due to incorrect payment information. Your Payment address must be based in the United States. Alternatively, Payment may be made to Associates outside the United States via PayPal or money transfer. Check Cherry will deduct any fees associated with processing payments via PayPal or money transfer. Associate may request payment at most once per month and only if the net monies owed to Associate is greater than $100. We may at anytime make payments in part or in full for commissions owed to you.
If a person clicks your Special Link, they must purchase a Service within ninety days and before the cookie expires. Commission for referrals with expired cookies are not eligible for commission. If a person clicks on your Special Link and then later they click on another Associates Special Link, you will be the one to earn credit for the referral. A user referred via your referral link must not be related to you or your business or company.
If a user has visited one of the Check Cherry sites before or has an existing account with us and then clicks a Special Link, the referral is not eligible for commission. Linking to Check Cherry from within any of the Check Cherry sites or from any domain controlled by Check Cherry in order to gain referrals is not allowed. This includes bouncing links off other domains in order to add a referral. Check Cherry reserves the right to review each and every referral. The validity of a Referral is under Check Cherry's sole discretion.
In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party will be awarded reasonable attorney fees, together any costs and expenses, to resolve the dispute and to enforce the final judgment.
In the event of any controversy, claim or dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including determination of the scope or applicability of this Agreement (“Dispute”), the parties agree first to attempt in good faith to settle the dispute by mediation administered by, the American Arbitration Association (AAA), JAMS, Judicate West, or any ADR provider, as may be agreed by the parties.
In the event of any controversy, claim or dispute arising out of this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including determination of the scope or applicability of this Agreement (“Dispute”), cannot be settled by mediation, the parties will submit all disputes relating to this Agreement, whether contract, tort, or both to binding arbitration, in accordance with California Code of Civil Procedure §§1280-1294.2, as set forth in Section 2A of this Agreement. Either party may enforce the award of the arbitrator under Code of Civil Procedure §1285. The parties understand that they are waiving their rights to a jury trial.
Any controversy or claim relating this Agreement, whether contract, or tort, or both, or the breach of this Agreement, will be arbitrated by and in accordance with the then (existing arbitration rules) of the American Arbitration Association (AAA), JAMS, Judicate West, or any other ADR provider, as may be agreed by the parties.
This Agreement shall be deemed to have been made in the State of California, and it shall be governed by the substantive laws of the State of California without regard to any applicable conflict of law provisions.
Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law. The language used in this Agreement is language chosen by both parties to express their mutual intent, and no rule of strict construction against any either party will apply to any term or condition of this Agreement.
Captions and Headings
Captions and headings used in this Agreement are for purposes of convenience only and shall not be deemed to limit, affect the scope, meaning or intent of this Agreement, nor shall they otherwise be given any legal effect.
We reserve the right to modify any of the terms and conditions contained in this Agreement at any time and in our sole discretion by posting a change notice on the Associates Site or by sending notice of such modification to you by email to the primary email address then-currently associated with your Associates account (any such change by email will be effective on the date specified in such email but will in no event be less than two business days after the date the email is sent). YOUR CONTINUED PARTICIPATION IN THE ASSOCIATES PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH NOTICE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.