THIS AFFILIATE AGREEMENT (“Agreement”) is entered into by and between 2Checkout.com, Inc., a Delaware Corporation with principal offices located at 855 Grandview Avenue, Suite 110, Columbus, Ohio, 43215 (“2CO”) and you (“Affiliate” or “you” or “your”).
BY CLICKING “I AGREE” YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ALL DOCUMENTS, POLICIES, AND PROCEDURES INCORPORATED HEREIN BY REFERENCE.
You agree to be bound by any electronic affirmation, assent, or agreement transmitted through 2CO’s website. You represent and warrant that you have the authority to agree to this Agreement. You agree that any decision or action to click on an “I agree”, “I consent”, or other similarly worded “button” or entry field using a mouse, keystroke, or other computer device, will indicate your agreement and will be legally binding and enforceable and the legal equivalent of your handwritten signature.
- that you have read and understood this Agreement;
- that this Agreement has the same force and effect as a signed agreement; and
- that this Agreement constitutes the entire agreement between 2CO and you, and governs your participation in the Affiliate Program, superseding any prior agreements between you and 2CO pertaining to the Services for the Affiliate Program.
2CO is an Internet-based marketplace for goods and services (“Products”) obtained from sellers of products and services (“Suppliers”) and offered for resale via the Internet. 2CO has instituted a program whereby third parties (“Affiliates”) can act on behalf of the Supplier to market Products of the Supplier for resale by 2CO (“Affiliate Program”). Once you have been accepted into the Affiliate Program you are deemed a member of the 2CO Network (“2CO Network”).
Real Time Purchases
2CO purchases Products of a Supplier for the sole purpose of immediate resale to persons who buy Products of a Supplier on 2CO’s website (“Customers”) rather than directly from Supplier’s or Affiliate’s website. 2CO’s website allows Customers to purchase the Products from 2CO by using such electronic payment methods that 2CO accepts from time to time, allows a Customer to obtain a refund for a Product previously purchased, and allows a Customer to exchange a Product previously purchased (individually and collectively, “Transaction”).
In addition to the purchase of Products from a Supplier for immediate resale to Customers, 2CO processes all Transactions by using a Secure Sockets Layer (“SSL”) encryption network and any other processes available through the processing platform of its merchant services provider (collectively, “Services”).
Once accepted into the Affiliate Program by 2CO, you will have the right to market only those Products which 2CO has authorized you to market. You may not purchase products during sessions initiated through the links on your website to 2CO’s website for your own use, for resale, or commercial use of any kind. You may not offer any purchase incentives, discounts, or other purchase rewards without the consent of 2CO. You will not interfere with the operation of the Affiliate Program by taking any actions that circumvent the policies and procedures governing the Affiliate Program.
3. Notice and Fees for Changes
You must notify 2CO immediately of any changes you intend to make in any of the following:
- Primary Contact Information;
- Web address; and/or
- URL or Domain Name.
You are responsible for keeping current all the information listed above. If information is not kept up date, 2CO reserves the right to suspend the Affiliate Account.
Should the proposed change result in a breach of the Agreement, 2CO may, at its discretion, suspend activity on the applicable Account or Additional Account, as each is defined below, until the breach is cured, or terminate the Agreement.
4. Effective Date, Accounts, Verification, and Links
This Agreement becomes effective when you click “I Agree” (“Effective Date”). The information gathered by 2CO from you in the online Affiliate registration process (“Affiliate Registration Form”), the list of Products that may not be marketed on your website (“Prohibited Products List”), and such other documents, policies, and procedures 2CO requires Affiliates to conform to, are all incorporated into and become a part of the Agreement by this reference.
After you agree to be bound by this Agreement and complete the Affiliate Registration Form, 2CO will establish an account for you (“Account”). You may establish more than one Account (“Additional Accounts”) by completing additional Affiliate Registration Forms. This Agreement shall be binding upon you and govern the Account and all Additional Accounts. Any Additional Accounts you establish must be to a URL that is operational and belongs to you.
Verification of Registration Information
2CO may confirm or otherwise verify or check, in its sole determination, the truth and accuracy of any of your registration information at any time. You hereby authorize 2CO to use third-party databases to conduct such reviews.
You hereby authorize 2CO to access third party databases to verify the accuracy of your registration information, including without limitation, your name, address, and tax identification number. This shall be an ongoing authorization that enables 2CO to access third-party databases throughout the term of this agreement as necessary to verify any changes in your registration information.
Please be advised that if any information is determined in good faith by 2CO to be misleading, inaccurate, or untruthful, 2CO may restrict, deny, or terminate your Account, your access and use of, and/or any benefits derived from your participation in the Affiliate Program; 2CO may also withhold payment of any commissions and/or other fees that may be or become due or payable to you, and may assess charges against such amounts for 2CO’s activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
Link to 2CO
Once 2CO notifies you that you have been accepted into the Affiliate Program, 2CO will grant you a revocable, non-exclusive, royalty-free license for the term of this Agreement, to access the 2CO website solely through a link to the 2CO website and solely for the purpose of allowing you to market Products of the applicable Supplier for sale.
5. Consumer and Supplier Assistance
You shall at all times have the ability to respond promptly to inquiries from 2CO on behalf of Customers and Suppliers or directly from Customers and Suppliers, and shall endeavor to resolve disputes with said Customer or Supplier.
In the event a Customer or a Supplier contacts you directly, you shall immediately notify 2CO and provide 2CO with information requested by 2CO regarding such direct Customer or Supplier contact.
If you receive any document request, interrogatory, subpoena, or other legal process (“Request”) that would, by its terms, require the disclosure of any Confidential Information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, you shall notify 2CO in writing of your receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, 2CO may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by 2CO, you may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. 2CO will be entitled to seek and obtain injunctive relief preventing any breach of your obligations, without the need to show irreparable harm, and without the need to post a bond or undertaking.
You shall be responsible, at your expense, to monitor and resolve issues related to your 2CO Account. Failure to do so shall be deemed a breach of your obligations under the Agreement.
If such a breach of your obligations under this Agreement occurs, 2CO may charge you reasonable fees and recover its expenses related to Customer or Supplier inquiries, Returns, or Refunds.
In any direct contact with Customers or Suppliers, you shall at all times, act in a professional and courteous manner. At no time will you conduct an inappropriate communication with the Customer or Supplier. Inappropriate communications include, without limitation, threats of any nature, harassment, or attempts at extortion. Such inappropriate communication shall be deemed a material breach of the Agreement.
In addition to the other remedies 2CO has for your breach of your obligations, including without limitation the suspension of an Account or an Additional Account, or termination of the Agreement, 2CO may assess a charge of $100.00 as partial reimbursement for costs incurred by 2CO in resolving an issue with a Customer or a Supplier resulting from your inappropriate communication.
You shall indemnify and hold 2CO harmless from any costs, expenses, or damages claimed by a Customer or Supplier as a result of your inappropriate communications.
6. Conditions of Service
2CO assumes no liability for disruptions in service or improper operation of its equipment or software for any reason, including, without limitation, vandalism, theft, phone service outages, Internet disruptions, human error, extreme or severe weather conditions, or any other causes commonly referred to as “Acts of God.”
Restrictions Upon Offering Warranties
You agree you will not provide, offer, or advertise any guarantee or other warranty not offered by the Supplier of the Products you are marketing on behalf of the Supplier.
- License to 2CO. To enable 2CO to use the information you supply to 2CO, including without limitation, the images, trademarks, trade names, and logos found on your website(s), without violating any rights you might have in the information and the images, trademarks, trade names, and logos found on your website, you agree to grant, and hereby do grant, 2CO a royalty free, worldwide, nonexclusive, perpetual, and irrevocable license to exercise the copyright, publicity, and database rights, and to sublicense such rights through multiple tiers, that you have in such information, images, trademarks, trade names, and logos, in any media now known or not currently known, with respect to the information, images trademarks, trade names, and logos.
- License to Affiliate. Each Affiliate that is a member in good standing, is granted, by 2CO, a personal, non-exclusive, non-transferable, non-sublicenseable, revocable, and limited license and right, subject to the terms of this Agreement, to:
- Participate in any 2CO Network for which you have registered as an Affiliate.
- Access the areas of the relevant Affiliate Account Area necessary for your participation in such 2CO Network as an Affiliate.
- Solely for your use in connection with your participation in such 2CO Network, download any reports made available to you by 2CO.
- Use the object code version of any software code or other content that is provided by 2CO solely for the purpose of creating and maintaining qualifying links in accordance with this Agreement and your engagements, for such purpose, and no other purpose, but only in the form so provided. You may not reverse engineer, decompile, or disassemble the software, or attempt in any other manner to obtain the source code.
All other use of any 2CO Network, Affiliate Account Area, any reports made available to you by 2CO and such software code or Content, including modification, publication, transmission, transfer, or sale of, reproduction, creation of derivative works, distribution, performance, display, incorporation into another website, or mirroring is prohibited.
2CO may change the form and/or content of any report at any time without notice to you.
Access to Customer Information
Monitor Affiliate Website
You acknowledge that 2CO may monitor your website through the use of such technical means as selected by 2CO. You will not block or otherwise attempt to interfere with any monitoring activity performed by 2CO. In addition, you acknowledge that as a participant in the Affiliate Program, 2CO may from time to time send you updates about the Affiliate Program via email. By participating in the Affiliate Program, you consent to email updates from 2CO.
7. Acceptance of Limitations in Service
Limitations on Products and Services Offered For Resale
- Right to Prohibit Certain Sales/Registrations. 2CO may prohibit the registration and/or sale of certain products and services (“Prohibited Products”). 2CO may change the list of Prohibited Products from time to time, in its discretion, without notice to you or your consent. 2CO shall have no liability or obligation to you for a change in the Prohibited Products listings, even if the addition of a Product to the Prohibited Products list eliminates all Products that you market for sale. For a complete and up-to-date listing of Prohibited Products please go to the following link: (https://www.2checkout.com/policies/prohibited-product-list).
- You shall not market currently Prohibited Products or Products that become prohibited for sale. At the discretion of 2CO, an Affiliate that markets a Prohibited Product for sale may have its Account and its Additional Accounts suspended or terminated at the sole discretion of 2CO. If a suspension occurs, it may continue indefinitely, or result in your permanent suspension, the termination of the Agreement, and the forfeiture of the right to a payment of a commission for completed sales of Prohibited Products.
Limitations on Customer Transactions
2CO may impose limits on sales of Products and refuse to process Transactions to specific Customers for any reason, in its sole discretion.
Limitations on Services
You shall be bound by any limitations 2CO may place on the Supplier of Products that you promote, including without limitation: (1) limiting or restricting sales to a minimum Product price; (2) imposing limits on the amount or number of purchases which may be charged to the credit or debit card of a Customer during any time period; (3) requesting additional validation information from Customers, such as signed contracts and/or receipts; (4) refusing to accept orders from Customers with a prior history of questionable charges; or (5) imposing certain limits or restrictions on Transactions on specific Accounts, either temporarily or permanently, which are more restrictive than limits placed on other Suppliers or Affiliates.
2CO shall not be liable to you for any losses, expenses, or damages you sustain, including claims for lost profits, resulting from or related to 2CO’s imposition of limits on Transactions, for any reason.
8. Reversal of Customer Transactions
A “Cancellation” occurs when Customer, Supplier, you or 2CO voids an order for a withdrawal of funds from a Customer’s credit card (“Card”) account or bank account before a sale is sent for deposit. 2CO will not collect a deposit from the Customer and the previously authorized funds will be released at the Card issuing bank’s discretion.
After a sale is sent for deposit, any attempt to reimburse the cost of a Product to a Customer constitutes a refund and shall be dealt with as set forth below.
A return occurs when a Customer returns Products previously purchased from 2CO (“Return”).
In the event of a Return, you will refund to 2CO any commission paid to you for the returned Product.
A refund is the actual reimbursement of the cost of a Product to a Customer regardless of the basis for the reimbursement (“Refund”). 2CO accomplishes the Refund by reversing the amount previously charged to the Customer’s Card or account at the Card issuing bank and the appropriate amount is credited to the appropriate Card or account at the Card issuing bank of Customer.
2CO may issue a Refund without your prior knowledge or consent in any case 2CO deems it appropriate.
Your Account or Additional Account, as applicable, will be debited by 2CO in an appropriate amount for all Refunds, regardless of the basis for the Refund.
In the event of a Return or Refund, you agree to indemnify and hold 2CO harmless from liability and, further, you agree to immediately pay 2CO an amount equal to the commission 2CO has paid to you.
Bank Assisted Disputes
2CO, as a merchant for various card associations, is subject to obligations which entitle the Card issuing bank to assess a charge or fee for handling bank assisted Refund activity. 2CO may, in turn, assess a fee to you to cover 2CO’s additional expenses which result from bank assisted Refund activity.
A bank assisted dispute occurs when the Customer or the Card issuing bank disputes the validity of a purchase of Products from 2CO as the card association merchant, or the Card issuing bank initiates a reversal of the purchase, providing the Customer with a credit for the full amount of the Product purchased from 2CO (“Bank Assisted Dispute”).
In the event multiple Products are purchased as part of a single transaction, the Customer or the Card issuing bank may initiate a Bank Assisted Dispute for less than all of the Products purchased and the credit granted to the Customer will only be in the amount of the Products for which the Bank Assisted Dispute was initiated.
9. Affiliate’s Warranties and Representations
You make the following representations and warrant that at all times during the term of this Agreement such representations shall be true and accurate:
You have the power and authority to carry on your business as it is conducted, are duly authorized to enter into this Agreement and that no other authorizations, consents, or approvals are required in connection with the validity and enforceability of this Agreement or the execution, delivery, and performance of this Agreement by you.
Truthful and Complete Information
All information and data you provide to 2CO, or for which you engage a third party to provide to 2CO is complete, truthful, accurate, valid, your lawful property, and you have the right to communicate such information.
Authority to Conduct Business
You are legally authorized to market any Product of a Supplier that you market and you have obtained all necessary regulatory approvals and certificates (hereafter, “Certificates”). You will provide 2CO with copies of Certificates immediately upon your receipt of a request by 2CO.
Compliance with Laws and Regulations
You are in compliance with all applicable national, federal, state, and local laws, rules, regulations, requirements, and/or other standards established by any governmental authority having jurisdiction to control such activities, including, without limitation, the Federal Trade Commission, and State and local consumer protection agencies; you are also in compliance with the regulations of applicable credit card associations regarding the sale of Products over the Internet or other transactions where the credit or debit card utilized for the purchase is not present, which are in effect prior to the effective date of this Agreement, or which become effective during the term of this Agreement.
10. Fee and Transaction Payments
Waiver of Account Establishment Fee
2CO shall not charge you an “Account Establishment Fee,” to establish the Account described in Section 4 (B). This exemption is effective only for your activities under the Affiliate Program and the terms of this Agreement.
Continuing Payments for Services
You agree to pay 2CO all Transaction fees and other amounts required by this Agreement when due.
Contingent upon the purchase by a Customer of a Product you offer under the Affiliate Program, in accordance with the terms hereof, 2CO will pay the Supplier for the purchase of Products you have sold, in accordance with the terms of the agreement between Supplier and 2CO.
It is your sole responsibility to assist 2CO in determining that 2CO knows your identity and is paying fees on behalf of the Supplier to the appropriate party, you must, within thirty (30) days of opening an Account, ensure that your name as set forth in the Affiliate Registration Form, and is the same as the name of the person or entity that is to be the payee of fees. If you do not fulfill such requirement, 2CO may, in its sole discretion, withhold fees, suspend your ability to participate in the Affiliate Program, or terminate this Agreement.
2CO will pay you the commission agreed to by the Supplier for completed sales no sooner than sixty (60) days after payment for the sale is received by 2CO.
This Agreement shall remain in effect from the Effective Date until:
- 2CO or you issues a “Notice of Cancellation” as set forth in Section 16 (C) of this Agreement; or
- The Agreement is terminated as otherwise provided in Section 16.
12. Compliance with Merchant Obligations
As a merchant for various card associations (i.e., VISA, MasterCard, American Express, Discover, JCB and Diner’s Club), 2CO has obligations it must fulfill to protect its ability to participate as a merchant in those card associations.
2CO does not confer card association merchant status upon Affiliate. 2CO is the card association merchant and acts as an authorized retail sales outlet for Suppliers. Affiliate shall not conduct itself in a manner that will endanger 2CO’s merchant status, including without limitation, misrepresenting the relationship between 2CO and Affiliate. It is important to the card associations, and to 2CO’s status as a card association merchant, that the relationship between Affiliate and 2CO is not misrepresented.
13. Prohibited Activities
In addition to prohibitions which may be found elsewhere in the Agreement, Affiliate shall not allow or conduct any of the following listed activities. If 2CO ascertains that Affiliate is allowing or conducting any of the following listed activities, the Account or Additional Account may be immediately suspended at 2CO’s sole discretion and funds for commissions on completed sales of Products will be withheld from Affiliate pursuant to Section 10:
Virtual Terminal Activity (i.e., Self-Keying)
Allowing a third party to directly key in Card or bank account information related to a transaction involving 2CO via the Internet
Unsolicited Electronic Messaging
Generating unsolicited electronic messages to Customers which constitutes SPAM. For the purposes of the Agreement the term “SPAM” means an unsolicited commercial electronic communication to a Customer, or commercial electronic communications sent to a Customer after the Customer has revoked authorization for the sender. SPAM includes, without limitation:
- Instant Messaging;
- Unwelcome email;
- Newsgroup cross-postings;
- Windows that spawn new windows; or
- Windows which resist closure.
Further you are required to comply with any and all applicable laws, including the requirements of the Can-Spam Act of 2003 (Public Law No. 108-187).
Sale of Prohibited or Restricted Products
The marketing of Products that are classified by 2CO on its Prohibited products List as Prohibited Products or Restricted Products.
Use of Personal Information Regarding a Customer
The use of personal information regarding a Customer for anything other than as necessary to complete the resale of a Product by 2CO to a Customer, or to conduct customer assistance requested by the Customer.
Other Electronic Activities
Using the Services or access to 2CO’s website or Customers for any purpose other than that for which 2CO’s website and Services are intended, including without limitation phishing, pharming, hacking, tampering, modifying, or otherwise corrupting the security or functionality of the Services. You may not use spyware, viruses, malware, adware, or parasiteware for any purpose, including but not limited to bypassing system security, invading consumer privacy, driving traffic, duping consumers to either purchase advertised items, or inject tracking mechanisms onto the consumers device so commissions are earned in a manner that would not have occurred had an end user activated such qualifying link without your interference. You cannot spawn process pop-ups. You cannot promote, reference or link to any spyware, adware, malware, virus, trojan horse, worm, back door, time bomb, drop dead device, or other program, routine, instruction, device, code, contaminant, logic, or effect designed or intended to disable, disrupt, erase, enable any person or entity to access without authorization, or otherwise adversely affect the functionality of, any software or other information technology asset. You may not use any method to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the consumer.
The marketing, sale, lease, other transfer, or possession of Products to a Customer when such marketing, sale, lease, other transfer, or possession violates the law. You and your affiliates, officers, directors, employees, consultants, agents, and representatives, and the conduct of your business shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments, and decrees.
Fraud, Abuse, etc.
You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with any of the Affiliate Program’s offerings.
You may not use any 2CO’s Affiliate Program’s offerings in connection with aggregating, soliciting or recruiting Supplier, Affiliates, other websites or other persons to form or join affiliate marketing, advertising or similar network.
You may not sublicense, rent, lease, sell, resell, outsource, or service bureau any 2CO’s Affiliate Program’s Offerings, and any attempt to do so shall be null and void.
You will not make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of any 2CO’s Affiliate Program’s offerings, or interfaces.
You agree not to hack, abuse, adversely interfere with, infect with viruses, worms, or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, any of 2CO’s Affiliate Program offerings, including any servers, bandwidth supply, equipment, software, and other technological resources provided by 2CO.
You may not offer points, rewards, cash, prizes, contest entries, or other incentives to consumers in return for their response to any advertisement.
You may not, through downloadable or other technology, replace, intercept, redirect, block, alter, or otherwise interfere with the full functioning and intended actions of any qualifying link that has been placed or distributed by another affiliate including any action that would in any way prevent the behavior or result that would occur or would have occurred had an end user activated such qualifying link without your interference.
You may not use any name, trademark, service mark, domain name, or other intellectual property rights of any third party in connection with your use of any qualifying links, any of 2CO’s Affiliate Program’s offerings, in any way or for any purpose that infringes or violates any intellectual property rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to Your qualifying links or for any other purpose. You may not use typo-squatting or other related activity for the purpose of increasing the levels of tracked activities attributable to your qualifying links or for any other purpose.
You may not misrepresent price, features or any other aspect of any products or services offered by 2CO or through any of 2CO’s affiliate program offerings. Your promotion copy may not include content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable Laws, including without limitation, federal and state consumer protection laws.
You may not include any “Testimonial” (defined in this Agreement to include, without limitation, consumer endorsements or testimonials, celebrity, or expert endorsements, verbal statements, demonstrations, photos, or other depictions of the name, signature, image, likeness, or other personally identifying characteristics of an individual or the name, Mark, or seal of an organization) unless: (i) Affiliate has obtained written releases from the individual or organization providing the Testimonial to distribute the Affiliate Ad; and (ii) the Testimonial is truthful, non-misleading, and substantiated, reflects the honest opinions, findings, and/or experiences of the individual or organization providing the Testimonial, and otherwise complies with all applicable Federal Trade Commission Guidelines and other Laws concerning the use of endorsements and testimonials in advertising.
You may not include any claim (which may include Testimonials) regarding the efficacy of any product or services, or any ingredients contained therein, unless the Affiliate possesses documented, competent and reliable evidence, in writing, to verify the truthfulness and support the factual accuracy of the claim.
You may not include a photo or other image of any celebrity and/or a Testimonial purporting to have been made by a celebrity unless such photo, image or Testimonial has been approved by the applicable advertiser before use.
In respect or in relation to any website (or portion thereof) used by you in connection with your participation in the 2CO Affiliate Program. You may not engage in any activity that is or constitutes, or that involves, facilitates, advocates, or promotes, one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age, or disability; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, sexually explicit, or similar activities; (d) gambling; (e) sale, export, or use of illegal substances; (f) terrorism, sedition, or other illegal activities; (g) MP3, MPEG, and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights; (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or entity; (i) harm to minors in any way; or (j) impersonation of any person, including any 2CO representative, or misrepresentation of affiliation with any person.
14. Disclaimer of Warranties
YOU UNDERSTAND AND AGREE THAT 2CO IS PROVIDING ITS SERVICES TO YOU “AS IS” AND THAT 2CO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT.
15. Limitation of Liability
- AFFILIATE ASSUMES ALL LIABILITY FOR ITS USE OF 2CO’S SERVICES
- 2CO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY PRODUCTS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
- IN NO EVENT SHALL YOU BE ENTITLED TO RECOVER DAMAGES FROM 2CO THAT EXCEED THE SUM OF FEES PAID TO YOU BY 2CO UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES.
- 2CO ASSUMES NO LIABILITY FOR YOUR FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT OR ANY RESULTS CAUSED BY ACTS, OMISSIONS, OR NEGLIGENCE BY YOU, A SUBCONTRACTOR OR AN AGENT OF YOURS OR AN EMPLOYEE OF ANY ONE OF THEM, NOR SHALL 2CO HAVE ANY LIABILITY FOR CLAIMS OF THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF THIRD PARTIES ARISING OUT OF OR RESULTING FROM, OR IN CONNECTION WITH, THE PRODUCTS YOU MARKET, SERVICES, MESSAGES, PROGRAMS, CALLER CONTRACTS, PROMOTIONS, ADVERTISING, INFRINGEMENT, OR ANY CLAIM FOR LIBEL OR SLANDER OR FOR VIOLATION OF COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS.
You may terminate this Agreement or your Account with 2CO at any time upon providing a notice of the intent to terminate at least five (5) days prior to the desired date of termination.
2CO may terminate this Agreement or your Account and any Additional Accounts at any time, for any reason, or for no reason. 2CO may suspend your access to 2CO’s website and/or Services, or any other transactions immediately and without notice if you are in breach of any of your obligations hereunder and then terminate this Agreement and your access to 2CO’s website, or 2CO may terminate this Agreement and your access to 2CO’s website immediately and without notice if you are in breach of any of your obligations hereunder. If the termination is at the convenience of 2CO, 2CO shall provide you with notice seven (7) days in advance of the date of termination.
Notice of Cancellation
If a party to the Agreement intends to terminate the Agreement, it must send a notice to the other party of its intent to terminate (“Notice of Cancellation”). The Notice of Cancellation shall contain the date upon which the termination shall become effective and shall be delivered in accordance with Section 30 of this Agreement. In the event 2CO determines it is necessary to immediately terminate the Agreement, 2CO may provide notice to you via telephone, followed by delivery of a Notice of Cancellation as required in Section 30. Such termination shall be effective as of the time of the telephone call to you.
Payments/Obligations to be Completed After Termination
Upon termination of this Agreement, any outstanding and unpaid fees and charges of yours to 2CO shall become immediately due and payable.
In the event 2CO is holding funds related to your Account at the termination of the Agreement and it is later determined that such funds should be sent to you, the information you provided to 2CO regarding your name and address will be used to try to send you any funds that are being held in custody for you. If that information is not accurate, and 2CO is unable to complete the payment of funds to you, the funds will be subject to applicable state laws regarding escheat of unclaimed property.
Upon Termination of this Agreement, the provisions of Sections 10 (B), 10 (D), 14, 15, 16 (D), 16 (E), 20, 23, 24, 25, 29, and 33 shall survive such Termination.
Obligation to Pay Taxes
You agree that you are solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with your participation in any 2CO’s Affiliate Program offerings, the 2CO Network, or any Supplier engagement.
Affiliate’s Obligation to Pay Taxes Resulting from 2CO Services
In your role as an Affiliate, you are not acting as a seller of any Products and most likely will not be liable for any excise, sales, or use taxes with regard to the Products sold. Nonetheless, you agree that if taxes in the nature of an excise, sales, or use tax are imposed in connection with 2CO’s Services and paid by 2CO on your behalf, you shall be liable to 2CO in an amount equal to the amount of such tax payment made by 2CO. You authorize 2CO to collect and pay over taxes in the nature of an excise, sales, or use tax on your behalf or on account of 2CO’s sale of Products if reasonably required to do so by any jurisdiction’s taxing authority and paid on your behalf. 2CO shall have the right to recover from you the amount of any such taxes, related penalties, and interest paid by 2CO with its own funds. You shall also pay 2CO for any related expenses incurred by 2CO, including reasonable attorney’s fees, in its collection of any amounts due from you.
18. Fees and Charges
All fees and charges are in United States Dollars (“USD”)
All fees and charges are listed on the Fee Schedule and incorporated in this document as such.
The Fees to open an Account or an Additional Account are set forth on the Fee Schedule under the Account Establishment Fees category.
Participation in the 2CO affiliate program is voluntary and is subject to 2CO’s approval. 2CO reserves the right to refuse service to any new or existing Affiliate, in its sole discretion, with or without cause.
Each New or Additional Account opened will be placed in and become subject to the New Accounts Verification process of 2CO.
A “Transaction” occurs when you provide marketing to a customer and the Customer then purchases from 2CO a Product of a Supplier which has been authorized for resale (i.e., registered in 2CO’s product database); a Customer obtains a Refund of the purchase price for a Product previously purchased as a result of a Return or a Bank Assisted Dispute; or a Customer exchanges a Product previously purchased.
The Transaction Fees are as described under the Transaction Fees category on the Fee Schedule.
2CO may, in its sole discretion, assess a higher Transaction Fee for certain Products marketed by Affiliate if 2CO determines that the resale of any Product(s) creates a potential or actual financial or reputational risk to 2CO, such as those Products which constitute Restricted Products.
All Transactions are processed using 2CO’s SSL encryption network and any other processes made available through its merchant service provider. Payment will be initiated via the secure payment processes.
The Transaction Fees shall be deducted from the proceeds received by 2CO for the resale of the Product prior to payment of any commission to Affiliate.
A “Dispute” occurs when Customer or the Card issuing bank disputes the validity of a purchase of a Product from 2CO and initiates a Bank Assisted Dispute against 2CO.
In addition to the obligation to fully refund the commission paid by 2CO, or if the Dispute results in a Refund, you may be assessed a Dispute Charge in accordance with the Dispute Charge category on the Fee Schedule.
You shall pay all Dispute Charges upon demand by 2CO via a debit to the Account.
2CO’s determination as to whether or not Dispute Charges are to be assessed to you will be based, in part, upon the “reason codes” selected by the card issuing bank. The “reason codes” have been established by card associations as the basis for a Customer to dispute the validity of a transaction when a credit or debit card is used to purchase goods or services.
Fraud prevention is an important service provided by 2CO to its Suppliers and Affiliates. Fees or charges to 2CO related to a Transaction will not be passed through to you if such charges result from fraudulent activity not participated in by you. In addition to active participation in fraudulent activity, you will be deemed to have participated in fraudulent activity if 2CO classifies a Transaction as fraudulent, the Transaction is reinstated at your request, and the Transaction subsequently becomes disputed by the Card issuing bank.
Fees or charges to 2CO related to a Transaction which result from service related issues (i.e., failure to accurately advertise its Products), may result in charges to you. As described in the Dispute Charges category of the Fee Schedule.
Affiliate Error Fees
An Affiliate Error occurs when any of the following events take place:
- Return Wire;
- ACH Pass Through;
- ACH Return; or
- Check Stop Payment.
Fees for each of these items, per occurrence, will be as described in the Fee Schedule under the category Affiliate Error Fees.
2CO may change the amounts indicated herein, at its sole discretion, without prior notice to you. You agree to pay all Wire Transfer Fees in effect at the time you initiate a wire transfer.
Change in Fees
2CO may change any or all of the fees and charges, or add new fees and charges, with reasonable advance notice of such changes to you via posting the changes on 2CO’s website. If third party charges are included in, or the basis for, a charge to you and the third party changes those charges, 2CO will provide notice to you if 2CO receives notice from the third party in advance of the effective date of such third party increases. 2CO may charge such increases to you upon the effective date of the third party increase, regardless of whether or not 2CO provides notice to you.
19. Pay Periods and Payment Schedules
Delay in Payment
Commissions may be delayed by 2CO while 2CO verifies certain aspects of any Transaction, including without limitation, proof of shipment of the Product (“Verification Processes”). Verification Processes will be established by 2CO and may be modified in 2CO’s discretion to ensure the quality of Products you market.
In the event 2CO, in its discretion, determines that there is a need for an investigation and analysis regarding fraud or violation of law relating to the Transactions related to your efforts, 2CO may withhold payment of commissions to you without penalty to enable 2CO to complete such investigation and analysis. In the event it is determined that there has been fraud or a violation of law, 2CO may withhold payment of the commissions to you indefinitely.
Accounts will not be eligible for payment of a commission until sixty (60) days after 2CO has received payment for the Product connected to your marketing efforts.
In no event shall you earn any interest on, or any other form of earnings for, any commissions, regardless of the length of time during which 2CO is in possession of such funds.
20. Payment of Fees and Charges
Deduction from Commissions
You hereby grant 2CO the right to deduct all fees, charges, fines, penalties, wire transfer charges, and other expenses that you are responsible for from the commissions you earned prior to making any payment to you.
In the event a Refund is paid to a Customer by 2CO for a Transaction, you will be obligated to reimburse 2CO for the amount of commission paid related to the Refund. In the event the commission for the purchase that is the subject of the Refund has not been paid to you, 2CO may deduct the amount of the commission from the funds held for you.
In the event 2CO, in its sole discretion, has any reasonable doubt as to whether the Product delivered to the Customer was as advertised, 2CO may withhold the applicable commission until 2CO is satisfied that you performed your obligations to the Customer.
Direct Payment from Affiliate
You hereby grant 2CO the right to deduct all fees, charges, fines, penalties, and other expenses that you are responsible for from the DDA into which 2CO is to deposit your commission from a Transaction. You will, upon demand by 2CO execute any documentation required by your financial institution to enable 2CO to make such deductions.
Retention of Funds for Damages, Refunds and Failure to Deliver.
Pursuant to the Agreement, you are liable to 2CO for damages, costs, and expenses, including attorney fees, incurred by 2CO which result from a breach of the agreement by you. 2CO shall retain all funds it has that are attributable to you until such time as a determination is made as to the amount of damages, costs and expenses incurred by 2CO. Upon making such determination, 2CO may apply as much of the funds being held as is necessary to reimburse 2CO.
21. Payment Options
Affiliates based in the United States can elect to have commissions paid by direct ACH deposit or by check. ACH transactions are performed at no cost to you. The fees for the selected option are as described in the Fee Schedule under the category Fees For Payment Options.
Affiliates based in Canada can elect to have commissions paid by direct ACH deposit, check payment or wire transfer. The fees for the selected option are as described in the Fee Schedule under the category Fees For Payment Options.
Non-US or Canadian Affiliates
Affiliates not based in the United States or Canada can elect to have commissions paid by wire transfer or check. The fees for the selected option are as described in the Fee Schedule under the category Fees For Payment Options.
In the event wire transfers are used to pay commissions to you, all wire transfer fees will be deducted from the proceeds paid to you.
Minimum Payment Amounts
The minimum amount for payment by check is $100.00, for payment by wire transfer the minimum amount is $300.00, for payment by Payoneer the minimum amount is $20.00, and for payment by DEFT or ACH the minimum amount is $10. All commission payments made to you are in US dollars (“USD”).
Affiliates electing to receive commissions by wire transfer or check may specify a higher release level. Until the applicable release level is reached, commissions due an Affiliate may be comingled with other funds of 2CO.
Change in Percentages, Time Frames, and Minimums
2CO may change any of the percentages, time frames or minimums set forth in this Section 21. Such changes become effective when posted upon 2CO’s website.
Claim of Error
In the event you believe that 2CO has committed an error in the payment to you, you must notify 2CO in accordance with Section 30 of this Agreement within thirty (30) days of receipt of a commission from 2CO, or if no commission is received, within thirty (30) days of the delivery of a statement from 2CO. Your failure to so notify 2CO shall be deemed an acceptance of the commission or statement.
22. Patriot Act Compliance
In the ongoing fight against terrorist activities, the United States government has enacted certain laws and regulations. 2CO supports the efforts of the United States government in these efforts and will fully comply with all laws and regulations regarding those efforts. To the extent such efforts affect you, 2CO shall have no liability to you for any claim of loss, cost, or damage you suffer, including without limitation, the loss of revenue.
2CO is also fully committed to helping in the elimination of money laundering. As such, 2CO will assist the US Government is their efforts to combat this worldwide problem through the Anti-Money Laundering section of the Patriot Act in any way possible.
23. Dispute Resolution
Parties shall resolve their disputes in accordance with this Section.
Choice of Law
The laws of the State of Ohio, without reference to its conflict of law principles, govern this Agreement.
Forum for Disputes
Any claim or suit arising out of or related to this Agreement must be brought exclusively in the federal or state courts located in the State of Ohio, Franklin County, U.S.A, except as otherwise agreed by the parties or as described in the Arbitration Option subsection below. Affiliate consents to the exclusive jurisdiction of such courts for the purpose of litigating these claims or suits.
Parties, to the extent permitted by law, knowingly, voluntarily, and intentionally waive their right to a trial by jury in any action or other legal proceeding arising out of or relating to this Agreement. This waiver applies to any action or legal proceeding, whether sounding in contract, tort, or otherwise.
Parties may elect to resolve a dispute or claim using binding, non-appearance-based arbitration. This arbitration option does not apply to:
- Claims exceeding $10,000;
- Disputes relating to injunctive relief or other equitable relief; or
- Claims relating to 2CO’s intellectual property.
Parties shall arbitrate these claims through a reputable alternative dispute resolution provider agreed upon by the parties. The parties and the alternative dispute resolution provider shall conduct the arbitration:
- By phone, online, or by written submissions elected by the parties;
- Without the need for personal appearance by either party; and
- Without the need for the appearance of witnesses unless otherwise agreed in writing by both parties.
Furthermore, the judgment on the award rendered by the arbitrator may be entered in a court of competent jurisdiction.
Improperly Filed Disputes
Parties shall resolve their disputes using only the options available under this Dispute Resolution Section. All claims or suits filed contrary to this Dispute Resolution Section are improperly filed and a breach of this Agreement. 2CO may recover attorneys’ fees or costs for improperly filed claims.
24. Enforcement Activities
The website and Services of 2CO may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name, mask your true identity or the Products you offer to the public, or use an invalid or unauthorized credit or debit card or invalid or unauthorized bank account information. You may not impersonate any participant or use another participant’s information. Fraudulent conduct may be reported to law enforcement and 2CO will cooperate in any investigation.
2CO has the right, but not the obligation, to monitor any activity and content associated with its website and Services. 2CO may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension, or termination of service, denying access, and/or removal of any materials on the portion of 2CO’s website used by you. 2CO reserves the right to remove or edit any content that violates this Agreement or is otherwise objectionable. As part of the investigation of content on the portion of the 2CO website used by you that may violate this Agreement, you hereby consent to allowing 2CO representatives to examine your website.
Disclosure of Information
2CO may report any activity that it suspects is a violation of any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect 2CO’s systems, you, and Customers, or to ensure the integrity and operation of 2CO’s business and systems, 2CO may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing, and traffic information, usage history, and posted content.
Suspension of Account
In the event 2CO determines that you are in breach of this Agreement, 2CO may suspend and activity on your Account and/or terminate your account.
Commitment to Privacy
Unless otherwise authorized by 2CO in writing, you agree not to use any information regarding Customers except for the purpose of entering into and completing Transactions. You agree not to use Customer information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy, or conduct which may be otherwise deemed to be objectionable conduct.
26. Copyright Notice
2CO’s website is subject to the protection of the copyright laws of the United States and other countries. No part of 2CO’s website may be reproduced without the prior written permission of 2CO.
In the event that you fail to perform any duty, obligation, or provision contained in this Agreement (“Default”), you agree to pay to 2CO any damages, expenses, and costs, whether directly or indirectly caused, including reasonable attorney’s fees incurred by 2CO due to your Default.
28. Amendments and Modifications
2CO’s Right to Amend or Modify Agreement
2CO may amend or modify this Agreement and any such amendment or modification will be effective when posted to 2CO’s website and will become binding upon Affiliate when posted. Provided, however, that the amendment or modification will not be effective as to any Affiliate that terminates this Agreement within thirty (30) days of the posting of an amendment or modification to 2CO’s website. You accept the responsibility of a continuing review of the content of 2CO’s website to determine whether any amendments have occurred.
You may communicate any proposed modifications or amendments to this Agreement to 2CO at the address provided in Section 30. However, such changes or amendments will only become effective if agreed upon by 2CO, in its sole discretion, in writing.
855 Grandview Avenue
Columbus, Ohio 43215
To the latest address 2CO has for you in its records.
To the last email address 2CO has for you in its records.
Method of Delivery and Date of Receipt
Any written notice under this Agreement, which shall include email to you by 2CO, shall be deemed given and delivered upon the earlier of: (a) actual receipt; or (b) five (5) days after being deposited in the United States mail, postage prepaid, and addressed to the party to whom the notice is being sent as set forth in Section 30 (A).; or (c) one (1) business day after being sent by email by 2CO to you at the email address described in Section 30 (A).
Notice of New Address
Either party may communicate a change in its mailing address by notifying the other party in accordance with Section 30 (B)., in writing, including an electronic communication by 2CO to you, which sets forth the old mailing address and provides the new mailing address.
The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
32. Severability of Provisions
Each provision of this Agreement shall be considered severable. If, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid.
33. Intellectual Property
Except for the rights expressly granted herein, this Agreement does not transfer any intellectual property or technology of 2CO to you and all rights, title, and interest in such intellectual property and technology, whether developed, licensed, or owned by 2CO shall remain with 2CO. You agree that you will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets of 2CO.
34. Independent Contractors
The relationship between 2CO and you shall be that of independent contractors. Neither party will be considered an agent, employee, joint venture, or partner of the other, unless otherwise specifically provided herein.
35. Questions on Account
For questions regarding your Account, please fill out an online request at the following link: http://www.2checkout.com/support.