MetalKards Inc. Affiliate Terms and Conditions

Written on February 5, 2017. Updated on: January 8, 2019

Thank you for joining the MetalKards Affiliate Program (the “Program”)! PLEASE READ THESE AFFILIATE PROGRAM TERMS AND CONDITIONS CAREFULLY. By registering for the Program, you agree to these Terms and Conditions. If you do not accept these Terms and Conditions, do not register for the Program.

1. Introduction

These Affiliate Program Terms and Conditions (“Agreement” or “Terms”) are a legal agreement between (a) the affiliate program participant (the “Affiliate”, “you”, or “your”), and (b) MetalKards Inc. (“MetalKards,” “we,” “us,” or “our”), the owner and operator of managed WordPress hosting services, software, and support through our MyMetalKards application, website, and other related applications, services, and personnel (collectively, the “Services”).

You represent, warrant, and agree (a) that you have the full power and authority to enter into and perform under these Terms, or (b) if you are joining the Program on behalf of an organization, entity, or group that you are authorized to accept these Terms on such organization’s, entity’s, or group’s behalf.

Updates to the Terms. We reserve the right to make changes to these Terms at any time at our sole discretion. If we make changes to these Terms, we will provide notice of such changes by revising the date at the top of these Terms. Your continued participation in the Program following any changes will constitute your acceptance of such changes. Please periodically review these Terms and check for any updates.

2. Eligibility and Registration

MetalKards may approve or deny any application for membership in the Program for any lawful reason or no reason.

You must be at least eighteen (18) years of age, or any higher minimum age in the jurisdiction where you reside, to register for a Program account (an “Account”).

You are not eligible for the Program if (a) you are located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, including Iran, Syria, Cuba, and North Korea, or (b) you are subject to economic or other sanctions by the United States, European Union, United Nations, or any other government or international body.

By applying for the Program, you agree to (a) provide accurate, truthful, current, and complete information; (b) maintain and promptly update your information upon any changes; (c) maintain the security of your Account by protecting your password and restricting access to your Account; (d) promptly notify MetalKards if you discover or otherwise suspect any security breaches or unauthorized access related to your Account, the Services, or the Program; (e) are a citizen of the United States or Canada; and (f) take responsibility for all activities that occur under your Account and accept all risks of any authorized or unauthorized access to your Account.

If there is a dispute about the ownership of an Account, we reserve the right to investigate and determine ownership of the Account based on our reasonable judgment.

3. Affiliate Websites

Affiliate’s websites from which the Affiliate promotes MetalKards and the Services (collectively, the “Affiliate Websites”) shall not (a) infringe, misappropriate, or violate any patent, copyright, trademark, trade secret, confidentiality, moral, or privacy right, or any other proprietary or intellectual property right; (b) violate or promote the violation of any law; (c) be defamatory, fraudulent, false, misleading, or deceptive; (d) constitute spam, phishing attempts, “chain letters”, “pyramid schemes”, or similar unethical marketing or advertising; (e) be pornographic, vulgar, exploitative of children, or otherwise obscene; (f) include sex or adult-themed products, services, or other material; or (g) promote violence, discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group.

Affiliate is fully responsible for and retains all rights and ownership in its Affiliate Websites. The Affiliate acknowledges and agrees that MetalKards (a) has no obligation to review, monitor, validate, correct, or update Affiliate Websites in any way, and (b) expressly disclaims any liability arising from the Affiliate Websites.

4. Affiliate Responsibilities & Restrictions

Affiliate shall comply with all applicable local, state, national, and international laws and regulations, including, but not limited to, consumer protection, advertising, anti-bribery, export-control, and data privacy laws.

Affiliate agrees to promptly assist MetalKards in complying with any applicable laws, including data subject requests that MetalKards may receive from any individuals referred to MetalKards by Affiliate. Affiliate further agrees to promptly assist MetalKards in complying with any duties to cooperate with supervisory authorities under applicable data protection laws.

Affiliate shall only refer potential customers to MetalKards who (a) have provided valid contact information; (b) are not bots, fake, illegitimate, or otherwise fraudulent; and (c) meet the eligibility requirements set in MetalKards’s Terms of Service (https://metalkards.com/terms/).

Affiliate Advertising

Subject to the restrictions set forth in these Terms, Affiliate is responsible for the content, communications, and materials, including the form and format thereof, used by the Affiliate to promote MetalKards or the Services in connection with the Program (“Promotional Content”). Affiliate shall not modify, change, customize, copy, or imitate any of MetalKards’s Property (defined below), including MetalKards’s trademarks, logos, banners, and graphics, when using any of MetalKards’s Property in or as part of the Promotional Content. Authorized versions of MetalKards’s Property that may be used in Promotional Content are available in the Affiliate’s Account at https://metalkards.com/affiliate-account-page/

Affiliate shall promptly comply with MetalKards’s instructions to modify or remove Promotional Content.

Promotional Content shall include a disclosure that Affiliate is a member of the Program and has a marketing relationship with MetalKards. Affiliate shall not conceal its relationship with MetalKards or obscure its participation in the Program in any way; nor shall Affiliate represent or imply that it is a MetalKards partner, employee, or other representative of MetalKards.

Affiliate Code of Conduct: Affiliate shall abide by the highest standards of ethics and professionalism. Without limiting the generality of the foregoing, Affiliate and/or your Promotional Content shall not, in connection with the Program:

Misrepresent the Services in any way, including its prices, plans, discounts, or functionality;

Offer or provide any warranties, guarantees, incentives, rewards, or indemnities, except as set forth in the MetalKards Inc. Terms of Service or approved in writing by MetalKards;

Disparage MetalKards and its representatives, the Services, or the Program;

Use any illegal or spam method of advertising;

Compete or interfere with MetalKards’s direct advertising efforts. From time to time MetalKards may opt to engage in direct online advertising. The Affiliate shall not place advertisements targeting MetalKards’s trademarks and service marks or place advertisements that in any way advertise or display MetalKards’s trademarks or service marks. This means, among other things, that the Affiliate shall not bid (in regards to online advertising, including but not limited to Pay per Click or Pay per Impression campaigns) on any keywords or phrases containing MetalKards trademarks, service marks, registered trademarks, or registered URLs, or on any variations, abbreviations, or misspellings of the same.

Refer traffic to MetalKards through any pay to read, pay to click, banner exchanges, click exchanges, PPC advertising, pop-up/under, or similar methods. Referrals must be made from the Affiliate Websites;

Using iframes or any other techniques or technology to add the Affiliates tracking cookie to a referral by any means other than an actual click-through;

Using link cloaking, or masking techniques or technology, with the goal of promoting MetalKards on websites and/or networks not explicitly mentioned in your Account;

Display MetalKards.com, “MetalKards”, MetalKards’s logos or trade names, or any variation, abbreviation, or misspelling thereof in any URL, domain name, social media profile, or any other online or offline presence.

Place links to MetalKards or refer to MetalKards in any way on coupon websites;

Engage in incentivized programs or business-opportunity sites;

Self-refer or refer yourself in any fashion. This includes referral of any operation or website in which the Affiliate has a controlling, proprietary, or equitable interest. Any referral where payment is made utilizing a form of payment controlled by or belonging to the Affiliate shall be considered a violation of these Terms.

5. Referral Commissions

Affiliate shall place a hyperlink on the applicable Affiliate Websites, in a format approved by MetalKards, which redirects a potential MetalKards customer to the MetalKards website (the “Affiliate Link”). A “Referred Customer” is a potential MetalKards customer who clicks an Affiliate Link, registers for a MetalKards account, and selects a Service plan.

MetalKards reserves the right in its sole discretion to deactivate and remove Referred Customers from the Program which have failed to maintain an active Service plan or otherwise violate the Terms of Service.

Affiliate is eligible for one-time and/or recurring referral payments from MetalKards (“Commission”) upon the following conditions:

Referred Customer has never previously been a customer of MetalKards;

Referred Customer has made payment to MetalKards for the Services (the “Fee”);

Affiliate’s Account is active at the time the Referred Customer pays its Fees to MetalKards; and

MetalKards has received all requested tax documents (e.g., Form W-9) from Affiliate.

The amount of and methodology of calculating Commissions are determined, and subject to change by, MetalKards in its sole discretion. Commission amounts and methodology, and updates thereto, are available at https://MetalKards.com/affiliates/ .

Commissions are calculated based on the actual Fees paid by the Referred Customer, exclusive of any taxes (such as value added tax, sales tax, goods and services tax, etc.), levies or duties owed by the Referred Customer. If the Referred Customer has received a discount, the Commission is calculated from the discounted Fee. One-time or overage fees and add-on subscriptions shall not be considered in the calculation of Commissions. If any Fees are refunded to a Referred Customer for any reason, MetalKards may set off such amounts from Affiliate’s future Commissions.

MetalKards is not responsible for tracking cookies that have been either intentionally or unintentionally deleted. No Commission will be paid for tracking errors of any kind, including, without limitation, any tracking errors caused by Affiliate’s editing, masking, or tampering with an Affiliate Link.

Commissions are paid via PayPal or another payment method selected by MetalKards. MetalKards is not responsible for any transaction fees charged by PayPal or any other payment provider.

Commissions shall only be paid when the balance of all Commissions due is more than $50.00.

MetalKards is not responsible for lost, stolen, or misdirected Commission payments.

You are solely responsible for all tax obligations due to all taxing authorities arising from or in connection with your participation in our Program. MetalKards will not withhold any taxes of any kind from your Commissions.

6. Termination

MetalKards may in its discretion terminate the Program, this Agreement, and/or your Account at any time without formal notice, and Affiliate may terminate this Agreement at any time by providing written notice to MetalKards (collectively, “Termination”).

Upon Termination, (a) Affiliate shall (i) immediately cease all use of MetalKards’s Property, including MetalKards’s logos, marks, banners, images, content, trademarks, and software, (ii) remove and return or destroy all Promotional Content, and (b) MetalKards shall have no further obligations to Affiliate under this Agreement, including the payment of any pending or prior earned Commissions.

Upon any termination, expiration, discontinuance, or suspension of these Terms or the Program, any provision that, in order to give proper effect to its intent, should survive the termination, expiration, discontinuance, or suspension of these Terms or the Program, will survive such termination, expiration, discontinuance, or suspension of these Terms or the Program, including, but not limited to Sections 6, 7, 8, 9, 10, 12, 13, 14, and 15.

7. MetalKards’s Property

The Services and the Program, and all proprietary rights related thereto, are the sole and exclusive property of MetalKards. Without limiting the generality of the foregoing, all rights, title, and interest in and to the Services and the Program, including any and all servers, artwork, graphics, images, website templates and widgets, literary work, source and object code, computer code (including html), applications, audio, music, video and other media, designs, animations, interfaces, documentation, derivatives and versions thereof, the look, feel, and arrangement of the Services and the Program, methods, products, algorithms, data, interactive features and objects, advertising and acquisition tools and methods, inventions, trade secrets, logos, domains, customized URLs, trademarks, service marks, trade names and other proprietary identifiers, whether or not registered and/or capable of being registered, and any derivations thereof (collectively, “MetalKards’s Property”) are owned by and/or licensed to MetalKards.

Affiliate shall not assert any claim of ownership of, or any claim to, MetalKards’s Property and shall not take and shall not permit any action or omission in derogation of any of the rights in MetalKards’s Property, either during the term of this Agreement or thereafter.

8. Submissions

We welcome questions, comments, suggestions, and ideas about MetalKards and our Program (“Submissions”). If you provide a Submission, whether by email or otherwise, you agree that it is non-confidential (unless we state otherwise in writing) and shall become the sole property of MetalKards.

MetalKards shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise. You agree that MetalKards is not obligated to provide acknowledgment or compensation to you in exchange for Submissions.

9. Confidentiality

Any information provided to Affiliate relating to MetalKards’s business, customers, vendors, software, technology, or financial condition, or any other information designated as confidential by MetalKards (collectively, the “Confidential Information”) is a valuable asset which MetalKards desires to retain in confidence. Affiliate shall keep in confidence, and ensure its employees and subcontractors keep in confidence, all Confidential Information provided to or acquired by Affiliate and shall not disclose, divulge, or reveal the same, or any part thereof, directly or indirectly, to any person or persons, or make any use of such Confidential Information (other than in the performance of its obligations under this Agreement), without the express written consent of MetalKards.

10. Relationship of Parties

The relationship between you and MetalKards is solely that of independent contracting parties. Nothing in this Agreement creates any agency, joint venture, partnership, franchise, or other form of joint enterprise, employment, or fiduciary relationship between us. Neither MetalKards nor you have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.

11. Audit and Inspection

MetalKards reserves the right to request from the Affiliate information, documents, data, personnel, and other materials regarding the Affiliate Websites and Promotional Content. The Affiliate is required to provide complete, accurate, truthful, and detailed information to MetalKards upon request.

12. Limitation Of Liability

NEITHER METALKARDS, ITS OWNERS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, AFFILIATES, SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR PROGRAM WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUE OR PROFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MetalKards HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL MetalKards’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EXCEED THE AMOUNT OF YOUR EARNED AND UNPAID COMMISSIONS.

THE EXCLUSIONS AND LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MetalKards AND YOU.

13. Indemnity

You agree to defend, indemnify, and hold harmless MetalKards (and each of our owners, officers, directors, employees, agents, contractors, licensors, and affiliates) (collectively the “MetalKards Indemnitees”) from and against any and all losses, costs, expenses, damages, injuries, and/or liability of any kind, including attorney’s fees, that a MetalKards Indemnitee may incur or suffer as a result of any claims, suits, proceedings, or investigations asserted or commenced by any third party, which arise out of or are in any way connected with (a) your participation in the Program; (b) Affiliate Websites or Promotional Content; (c) your breach or alleged breach of these Terms; or (d) your violation or alleged violation of any law or the rights of another.

We reserve the right, in our sole discretion, to control any action or proceeding, including selection of counsel, and determine whether we wish to settle it, and if so, on what terms, in which event you will cooperate with us in asserting any available defenses.

14. Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES WITH METALKARDS AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.

We want to address your concerns without resorting to a formal legal case. Before filing a formal legal claim against MetalKards, please contact us at support@MetalKards.com. We’ll try to resolve the dispute and address your concerns. If a dispute is not resolved within 15 days after submission, you or MetalKards may bring a formal proceeding as set forth in this Section 14.

Any dispute, controversy, or claim arising out of or relating to the Program or these Terms, or the breach thereof, shall be exclusively settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof; provided, however, that you and MetalKards are not required to arbitrate any dispute in which either party seeks equitable or injunctive relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, patents, or other confidential information or intellectual property.

You and MetalKards agree that arbitration will occur exclusively in Arvada, Colorado, and that arbitration will be conducted confidentially by a single arbitrator.

If for any reason this agreement to arbitrate does not apply to the dispute, you and MetalKards agree that any judicial proceeding, including any appeal of an arbitration award, will be brought exclusively in the federal or state courts located in the County of Jefferson, State of Colorado. Both you and MetalKards exclusively consent to venue and personal jurisdiction in the County of Jefferson, State of Colorado, and we both agree to waive our right to a jury trial. If a judicial proceeding is brought in the state courts of Colorado under this section 14.5, the parties consent and agree to the transfer of such proceeding to the Metro Denver Business Case Division.

The Terms and the resolution of any disputes shall be governed by and construed in accordance with the laws of the State of Coorado, USA without regard to its conflict of laws principles.

WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU WAIVE ANY RIGHT TO COMMENCE A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.

15. Miscellaneous

Our Privacy Policy is incorporated herein by reference and, together with these Terms, constitute the entire agreement of the parties and supersede all prior and contemporaneous understandings between the parties regarding their collective subject matter.

You may not assign any of your rights or obligations under these Terms without prior written consent from MetalKards. MetalKards may assign any or all of its rights under these Terms, in whole or in part, without obtaining your consent or approval.

Our failure or delay in exercising any right, power, or privilege under these Terms shall not operate as a waiver thereof.

The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.