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Affiliate Agreement

 

1. Overview

This is a legal agreement between you (“Affiliate” or “you”) and ForB dba WAYB (“WAYB”, “we”, or “us”), a California corporation. This agreement describes the terms and conditions for participation in the WAYB affiliate program (“Program”). By submitting the online application to participate in the affiliate program, you are agreeing that you have read this agreement in its entirety and understand the terms and conditions set forth in this agreement and that you agree to be bound by the terms herein. 

 

2. Affiliate Obligations 

2.1. To begin the enrollment process, you will complete and submit the online application at Tapfiliate.com. 

 

If we approve your application, we reserve the right to re-evaluate and terminate your status as an affiliate at any time.

 

We may reject your application at our sole discretion. We may cancel your application if we determine that your site (or any other site that you operate, directly or indirectly) is unsuitable for our Program, including if it:

 

2.1.1. Promotes sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
2.1.6. Includes "WAYB" or variations or misspellings thereof in its domain name
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our Program.
2.1.9. Is created or designed in a manner which resembles our website (as determined in our sole discretion), or is designed in a manner which leads customers to believe you are WAYB.com or any other affiliated business.

2.1.10. Fails to disclose the affiliate relationship for any promotion that qualifies as an endorsement under existing Federal Trade Commission guidelines and regulations, or any applicable state laws.

 

2.2. As a member of WAYB’s Affiliate Program, you will have access to the WAYB affiliate portal.  Here you will be able to review our Program’s details, download HTML code (that provides for links to web pages within the WAYB website) and banner creatives, and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.

 

2.3. WAYB reserves the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with the guidelines provided to you.

 

2.4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.

 

2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third party rights.

 

3. WAYB Rights and Obligations

3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, including to ensure that your links to our web site are appropriate. If you do not make the changes to your site that we feel are necessary within 10 business days of notice, we reserve the right to terminate your participation in the WAYB Affiliate Program.

 

3.2. WAYB reserves the right to terminate this Agreement and your participation in the WAYB Affiliate Program AT ANY TIME, with or without cause, by giving you written notice. Written notice can be in the form of mail or email. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you. We may also terminate this agreement immediately and without notice to you should you commit fraud in your use of the WAYB Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, WAYB shall not be liable to you for any commissions for such fraudulent sales. 

 

If the Affiliate terminates the agreement, no further commissions from WAYB will be paid for any past or future customer transactions.

 

If WAYB chooses to terminate the agreement, any balance greater than Fifty Dollars ($50) USD will be paid to the Affiliate within 60 days of termination. Balances that are smaller than Fifty Dollars ($50) USD will be forfeited.

 

3.3. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.

 

4. Modification

We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and WAYB’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in WAYB’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.

 

5. Payment

WAYB uses a third party, Tapfiliate, to handle all of the tracking and payment. You are responsible for reviewing and complying with all Tapfiliate payment terms and conditions.

An Affiliate can request a payment when their balance reaches a minimum balance of Fifty Dollars ($50) USD. Payments can be requested every 30 days. Payment processing can take up to 30 days from the request date. Payments will generally be paid out via PayPal.

 

6. Commissions

For a sale to generate a commission to an Affiliate, the customer must complete the order form and remit full payment for the product. Commissions will only be paid on sales that are made when the customer clicks through qualified, correctly structured Affiliate links. Properly coded links are the sole responsibility of the Affiliate. Commissions can be viewed on the Affiliate Dashboard.

You cannot refer yourself, and you will not receive a commission on your own accounts. Affiliates can earn commission for referring multiple orders, provided that each order is referred through the Affiliate's tracking link. Commission rates will be listed in the affiliate platform.

 

7. Refunds

Transactions that result in chargebacks or refunds will not be paid out. In the event a customer requests a refund for a transaction for which the Affiliate has earned commissions, any commissions earned on the refund amount will be deducted from the Affiliate’s balance.

 

8. Access to Affiliate Account Interface

You will be required to create a password so that you may enter Tapfiliate's secure affiliate account interface. From their site you will be able to receive your reports that will describe our calculation of the commissions due to you.

 

9. Promotion Restrictions

9.1. You are free to promote your own web sites, but naturally any promotion that mentions WAYB could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by WAYB. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote WAYB so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote WAYB so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from WAYB. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the WAYB Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.

 

9.2. At no time shall Affiliates advertise on search engines utilizing keywords containing, in whole or in part, the same, or anything confusingly similar to WAYB’s marks or any terms listed as disallowed on the PPC Keyword Rules page in WAYB’s affiliate portal. Affiliates that bid on keywords in their Pay-Per-Click (PPC) campaigns that are disallowed on the PPC KeyWord Rules page and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be banned from WAYB’s Affiliate Program. We will do everything possible to contact the Affiliate prior to the ban. However, we reserve the right to expel any violator from our Affiliate Program without prior notice, and on the first occurrence of such PPC bidding behavior.

 

9.3. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited WAYB’s site (i.e., no page from our site or any WAYB content or branding is visible on the end-user’s screen). As used herein, a “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of WAYB site in IFrames, hidden links and automatic pop ups that open WAYB’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.

 

10. IP Ownership; Grant of Licenses

10.1. As between the parties: (i) Affiliate owns and retains all rights, title, and interest in Affiliate’s site, marks, and all intellectual property rights therein; and (ii) WAYB owns and retains all rights, title, and interest in WAYB’s sites, content, and marks, and all intellectual property rights therein.

 

10.2. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of WAYB’s Affiliate Program. You must use the Licensed Materials solely in accordance with any usage policies and guidelines provided to you by WAYB.  You agree that all uses of the Licensed Materials will be on behalf of WAYB and the goodwill associated therewith will inure to the sole benefit of WAYB.  You will not contest or aid others in contesting the validity of or WAYB’s ownership of any Licensed Materials.  You will not apply for, or aid or cause others to apply for, any registration of WAYB trade names or trademarks.  All such rights and licenses shall terminate immediately upon the termination of this Agreement or WAYB’s termination of your participation in the Affiliate Program.

 

10.3. Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.

 

11. Disclaimer

WAYB MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING WAYB’S WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF WAYB ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

 

12. Representations and Warranties

You represent and warrant that:

 

12.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;

 

12.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;

 

12.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.

 

13. Limitations of Liability

WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL WAYB'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.

 

14. Indemnification

You hereby agree to indemnify and hold harmless WAYB, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.

 

15. Confidentiality

All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.

 

16. Governing Law

This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of California, without regard to its conflict of laws rules.

 

17. Arbitration

All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the State of California. An award of arbitration may be confirmed in a court of competent jurisdiction.

 

18. Miscellaneous

18.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and WAYB. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

 

18.2. You may not assign any of your rights or obligations under this Agreement to any third party without WAYB’s prior written consent.

 

18.3. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.

 

18.4. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.

 

18.5. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.

 

18.6. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.

 

18.7.  Sections 11, and 13-18 shall survive any expiration or termination of this Agreement.