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APPLE AFFILIATE PUBLISHER AGREEMENT

Apple will evaluate your registration form and notify you whether your Site is accepted for participation or not in the Apple Store for Business Affiliate Publisher Program ("Program") powered by Kowabunga's MyAP. We may reject your application after initial approval if we determine (in our sole discretion) that your Site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:

  • Infringe trademark rights of Apple or any third party or otherwise violate the rights of any third party
  • Contain sexually explicit materials
  • Contain hate/violent/offensive content
  • Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
  • Promote illegal activities or otherwise violate any applicable laws, including those targeting “spyware,” “adware", or SPAM
  • Violate any intellectual property rights, including, without limitation, scraping text or images from Apple’s Websites
  • Do not clearly state an online privacy policy to its visitors
  • Otherwise are considered offensive or inappropriate at Apple’s sole discretion 

This Agreement governs participation in the Program only. 

Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement.  You should also note that if you are accepted to participate in the Program and your Site is thereafter determined (in our sole discretion) to be unsuitable based on the criteria above for the Program, we may terminate this Agreement. 

MASTER AGREEMENT

This Master Agreement ("Agreement") is made between Apple, Inc ("Apple") and Affiliate Publisher.

BACKGROUND

Affiliate Publisher is enrolled in the private label Apple Store for Business Program in the Kolimbo Network owned by Think Partnership Network.

Affiliate Publisher and Apple desire to establish the general terms and conditions that shall govern advertising and commission arrangements between Affiliate Publisher and Apple resulting from their participation in the  Koilmbo Network .

TERMS AND CONDITIONS

In consideration of the promises set forth below, Apple and Affiliate Publisher agree as follows:

1. Program Terms and Engagements.

1.1. From time to time, Apple may post in the Apple Store for Business Program’s interface, offers to pay to other participants a specified commission in return for certain advertising services leading to a Qualifying Link, as defined in section 3.2 below.   If such offers have been created with the Program Term function in the Apple Store for Business program’s interface they shall be deemed to be "Program Terms" for purposes of this Agreement.

1.2. If a Publisher applies to a Program Term and is accepted by Apple via Think Partnership,, an "Engagement" is formed.  Each Engagement shall be created and tracked by Think Partnership, and shall be governed by the terms and conditions of this Agreement.  However, if there is inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.

1.3. At any time prior to Affiliate Publisher providing a Qualifying Link, Apple may (a) upon 7 days written notice change, suspend or discontinue any aspect of a Program Term or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by Apple for a Program Term or an Engagement without notice.  Affiliate Publisher promptly (and in no event in less than 48 hours) shall implement any request from Apple to remove, alter or modify any graphic or banner ad submitted by Apple that Affiliate Publisher uses as part of an Engagement.

2. Affiliate Publisher's Responsibilities.

2.1. Affiliate Publisher shall link its site to areas within Apple's site using special URLs specified in the Engagement (the "Required URLs").  Affiliate Publisher may post multiple links to the Required URLs and Apple's site on Affiliate Publisher's site.  The position, prominence and nature of links on the Affiliate Publisher's site shall comply with any requirements specified in the Engagement, but otherwise will generally be in Affiliate Publisher’s discretion.  Affiliate must ensure that the proper graphics are used with the appropriate URLs, and that the URLs link to the correct pages.  Affiliate Publisher promptly (and in no event in less than 48 hours) shall remove links to the Required URLs and Apple’s site upon Apple’s request.

2.2. Affiliate Publisher may bid on search terms from website search engines or other directory or referral services (e.g. Yahoo Search Marketing, Google, etc. collectively “Search Engines”), provided that (i)Publisher Affiliate’s search terms, listing titles and descriptions, and the content of their websites do not violate the copyright or any other rights of Apple or third party, as determined by Apple at its sole discretion; and (ii) Publisher Affiliate complies with the following guidelines, as determined by Apple and its sole discretion: Affiliate Publisher Ads shall not be displayed in response to a keyword query containing Apple or any other Apple trademark, not any confusingly similar term, and Affiliate Publisher will not be paid for any transactions resulting from any keyword or phrase containing search keyword (including but not limited to Apple, Apple Store, Mac, MacBook, iPod and iPhone; for a complete list of terms please see Apple website at http://www.apple.com/legal/trademark/appletmlist.html).  Affiliate Publisher may be required to employ negative keyword matching to prevent violation of this guideline.  If Affiliate Publisher bids on permitted keywords (i.e. notebook, computer, etc.) not in combination with Apple’s trademarks, then all such advertising placements must comply with the Terms of Service for the Search Engine that will display the advertising.
 
2.3. Affiliate Publisher’s site shall not in any way copy or resemble the look and feel of Apple’s site, nor shall Affiliate Publisher create the impression that its site is part of the Apple domains or reseller program. Affiliate Publisher shall not use Apple trademarks, or any variation or misspellings of those trademarks, in its URL, company name, business name, or site name without prior written consent from Apple.  Affiliate Publisher shall not scrape or frame, or permit the scraping or framing of, any page of the Apple site.

2.4. Affiliate Publisher shall not make any representations, warranties or other statements concerning Apple, Apple's site, any of Apple's products or services, or Apple's site policies, except as expressly authorized by the Engagement.

2.5. Affiliate Publisher shall notify Apple and Think Partnership, of any malfunctioning of the Required URLs or other problems with Affiliate's participation in the Engagement.

2.6. Affiliate Publisher will not present or use any content at its site, including, without limitation, graphical images, logos, text copy, editorial copy, press releases, or marks, that (i) could be interpreted to suggest that such content has been authored or otherwise provided by, or represents the views or opinions of, Apple; (ii) is misleading, defamatory, libelous, obscene, or otherwise objectionable; (iii) infringes, derogates, dilutes, or impairs the rights of Apple or any third party; (iv) refers to Apple but is used as part of a name of a product or service of a company other than Apple; or (v) is used in any other manner inconsistent with any term of this Agreement or with any provision of law.

2.7 Affiliate Publisher will not engage in deceptive software download or computer settings practices to promote Apple or Apple’s site.  The deceptive practices prohibited include, but are not limited to, installing software without user knowledge, changing a user’s home page without securing user permission, and offering downloadable software that does not uninstall.  

3. Commissions.

3.1. Apple shall pay Affiliate Publisher the commission specified in the Engagement if Apple sells to a visitor (a "Customer") to Apple's online store site (apple.com/store or apple.ca/store) a qualifying product that is the subject of the Engagement and if that Customer has accessed Apple's site and purchased the qualifying product via a Qualifying Link.  Customer purchases that are completed by telephone or in a retail location will not be tracked for commission payment to Affiliate Publishers.

3.2. A "Qualifying Link" is a link from Affiliate Publisher's site to Apple's site using one of the Required URLs or any other URL provided by Apple for use in Apple Store for Business Affiliate Program if it is the last link to the Apple site that the Customer uses during a Referral Period where a sale of a product or a service to Customer occurs.  A "Referral Period" is the period of time beginning from a Customer's initial contact with Apple's site via a link from the Affiliate Publisher's site and terminating (a) when the Customer returns to the Apple site via a Qualifying Link from a site other than Affiliate Publisher's site; or (b) the Engagement or Program Terms are terminated.

3.3. Apple shall process all Customer orders. Affiliate Publisher acknowledges that all agreements relating to sales to Customers shall be between Apple and the Customer. Apple will set prices for ordered products in its discretion.

3.4 Newly introduced Apple-branded products will not be eligible for commissions unless and until Apple provides Affiliate Publishers written notice that such products are eligible.

4. Ownership and Licenses.

4.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or that it may use or develop in the future.

4.2. Apple grants Affiliate Publisher a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology provided by Apple and posted on Apple Store for Business Program, interface solely for the purpose of creating links from Affiliate Publisher's site to Apple's site during Engagements.  Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate Publisher may not copy, distribute, modify, reverse engineer, or create derivative works from the same.  Any good will resulting from Affiliate Publisher's use of Apple's name, logos, trademarks, service marks and trade dress will inure solely to the benefit of Apple and will not create any right, title or interest for Affiliate Publisher.  Affiliate Publisher may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.

4.3. Affiliate Publisher may use only the logos, trademarks, service marks, trade dress, banners, text links, data feeds, search boxes, videos, coupon codes, etc. ("Creative") that is provided by Apple and is posted in the Apple Store for Business Affiliate Program.  Creative is to be used solely for the purpose of advertising the Apple Store. Affiliate Publisher shall not use the Creative in connection with any activity that disparages Apple or its products or services, or that damages the reputation for quality inherent in the same.  The use of Creative that is posted on other sites, found in other emails or other sources, manipulated in any way or derived from any means besides the Apple Store for Business Affiliate Program  is not permitted.  If Affiliate Publisher does not fully comply with this provision Apple may withhold commissions, immediately terminate this Agreement, permanently remove Affiliate Publisher from the program, or utilize any remedy otherwise available to it by law or in equity.

4.4. Affiliate Publisher's use of Apple's name, logos, trademarks, service marks, and trade dress pursuant to Section 4.2 must be in a manner that is clearly less prominent than that of Affiliate Publisher's name, logos, trademarks, service marks, trade dress, products and site name.  Affiliate Publisher shall not create or attempt to create an impression that there is an association or affiliation between Apple and Affiliate Publisher beyond the arrangement that this Agreement governs.

4.5. Apple shall at all times have the right to review Affiliate’s activities related to this Agreement. 

4.6 Affiliate Publisher immediately shall cease using Apple's name, logos, trademarks, service marks, trade dress, proprietary technology and any Creative upon the termination or expiration of this Agreement.

4.7. Affiliate Publisher grants Apple a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Affiliate Publisher solely for co-branding purposes or as a return link from Apple's site to Affiliate Publisher's site. Apple will remove such graphic or banner ad upon Affiliate Publisher's request.

5. Confidentiality.

5.1 Except as otherwise provided in this Agreement or with Apple’s prior written consent, all information including, without limitation, the terms of this Agreement, Apple's business and financial information, its customer lists, and its pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by Affiliate Publisher for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than Affiliate Publisher. Notwithstanding the foregoing, Affiliate Publisher may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process.

5.2 Apple shall own and retain all right, title and interest in all names, addresses and other identifying information of customers visiting Apple's sites ("Customer Data") that Apple collects, including without limitation, Customers who access Apple's sites through Qualifying Links, and Affiliate Publisher shall have no right to use any such Customer Data.

6. Privacy.

6.1. Affiliate Publisher shall not send out any emails, directly or indirectly, that advertise or promote Apple or Apple’s products, services, web sites or Offers without Apple's prior express written consent and approval of final email content must be given by Apple in each and every instance. Affiliate Publisher emails must comply with the CAN-SPAM Act of 2003 and any comparable laws that apply to the transmission of Affiliate Publisher’s emails.

6.2. Affiliate Publisher shall not send any email or other form of electronic message, advertisement, or other promotional communication containing Apple's name, product, web site address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from Affiliate Publisher or Affiliate Publisher has a pre-existing business relationship with the recipient.  In addition, Affiliate Publisher shall provide a recipient of such communication with the ability to "opt out" of further communications from Affiliate Publisher either by calling a toll free number or by sending an "unsubscribe" email to Affiliate Publisher.

7. Termination.

7.1. Apple may terminate any Engagement upon 7 days written notice by: (a) expiring the Engagement through Think Partnership’s MYAP,; or (b) replacing the Program Term for an Affiliate Publisher.   Termination of an Engagement shall not terminate this Agreement or any other Engagement.

7.2. Apple may terminate this Agreement at any time, for any reason, provided that it provides at least seven days' prior written notice of such termination to the other party and Think Partnership,. In addition, Apple may terminate this Agreement immediately if Affiliate Publisher materially breaches or violates any terms or conditions of this Agreement, or if Apple determines, in its sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online or Internet technology) that adversely affect compliance with this Agreement, or that Affiliate Publisher obtained referrals fraudulently or through misrepresentation, in which case Apple reserves the right to withhold payment of commissions pending an investigation of the suspected fraud or misrepresentation.  Termination of this Agreement shall also terminate any outstanding Engagements.  However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination, shall survive termination of this Agreement.

7.3. This Agreement shall commence as of the date last executed below and shall terminate in accordance with sections 4.3 and 7.2 above.

8. Representations.

8.1. Each party represents that it has the authority to enter into this Agreement.

8.2. Affiliate Publisher represents that: (a) the contents of its website do not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) contain defamatory or libelous material; (iv) contain lewd, pornographic or obscene material; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, or other similar harmful or deleterious programming routines; and (b) that Affiliate Publisher has and complies with a privacy policy that is prominently displayed on its website and in conformity with any laws that may apply to the privacy policy.

8.3. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF NON-INFRINGEMENT.

9. Cross-Indemnification.

9.1. Each party shall indemnify, defend and hold harmless the other party and its Affiliate Publishers, directors, officers, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.

10. Limitation of Liability.

10.1. Except for indemnity as provided in section 9.1, in no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.

11. General.

11.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.

11.2. Apple may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion upon at least 7 days prior written notice, by posting a change notice or a new agreement on the Apple Store for Business Affiliate Program and giving Affiliate Publisher notice of the modification through email, or through a subsequent written agreement between the parties.   IF ANY MODIFICATION IS UNACCEPTABLE TO AFFILIATE PUBLISHER, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT.  AFFILIATE PUBLISHER'S CONTINUED COMPLIANCE WITH THIS AGREEMENT FOLLOWING APPLE'S POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ITS SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

11.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of California.  Any disputes arising out of this Agreement shall be brought in the federal or state courts located in Santa Clara County, California.  Notices to Apple should be directed by certified mail to Apple Computer, Inc. Legal Department, 1 Infinite Loop MS: 3-TM, Cupertino, CA 95014.

11.4 Affiliate Publisher will express affirmative acceptance of this Agreement’s terms by so indicating when asked to do so at the Apple Store for Business Affiliate Program interface and, if requested, at Apple’s site.

11.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

BY APPLYING FOR THE APPLE AFFILIATE PUBLISHER PROGRAM AND CHECKING THE “I ACCEPT” BOX ON THE SIGNUP PAGE, YOU, AFFILIATE PUBLISHER, CONSENT TO BE BOUND BY THIS AGREEMENT AS IF YOU PERSONALLY SIGNED THIS DOCUMENT.