Terms and Conditions for the Switcher Affiliate Program
Last updated December 2, 2020
Please read the entire agreement carefully before you join the Switcher Studio Inc. Affiliate Program (the “Program”). You may print this page for your records. This is a legal agreement between you and Switcher Studio, Inc. (“Switcher Studio”) that applies to your participation in the Program (this “Agreement”). By submitting the online application for participation in the Program, you are agreeing that you have read and understand the terms and conditions of this Agreement and that you agree to be legally responsible for compliance with all terms and conditions in this Agreement. If you are agreeing to this Agreement on behalf of an entity, you represent that you are authorized to bind that entity to this Agreement. This Agreement is effective upon our acceptance of your enrollment in the Program, and will continue unless (i) terminated hereunder or (ii) superseded by new or revised terms or conditions.
Switcher Studio owns and operates www.switcherstudio.com. This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the Program, which allows HTML linking between your website and Switcher Studio’s web site. Please note that throughout this Agreement, "we," "us," and "our" refers to Switcher Studio, “our website” refers to www.switcherstudio.com (or a successor website designated by Switcher Studio), "you," "your," and "yours" refers to you in your capacity as an affiliate in the Program.
2. Affiliate’s Obligations
To begin the enrollment process in the Program, you will complete and submit an online application through our website. We will evaluate each application carefully. We reserve the right to reject any application at our sole discretion. We may reject your application if we determine that your website is unsuitable for the Program, including without limitation if your website:
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 that infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
2.1.6. Includes "Switcher Studio" 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. Operates in a manner that resembles our website or designs your website in a manner which leads customers to believe you are Switcher Studio or any other affiliated business.
2.1.10. Contains viruses or other computer programming tactics that are intended to damage, interfere with, or intercept the system data or user information of end users.
2.1.11. Uses any method for the automatic redirecting of users, auto-spawning of browsers, generating of click-throughs, or placing of links that automatically reload or go to another page, without affirmative action by the customer.
You will ensure that your website meets the requirements in this Section 2.1 during your participation in the Program.
The maintenance and the updating of your website is solely your responsibility. We may monitor your website for content and/or brand displayed on your website, including but not limited to, ensuring that you maintain accurate content and brand representation. We may notify you of any changes that you will need to implement in order to maintain accurate content or that we feel will improve your performance in the Program.
It is solely your responsibility to follow all applicable intellectual property and other laws that pertain to your website. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work on your website. We are not 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’s rights.
3. Switcher Studio’s Rights and Obligations
We have the right to monitor your website at any time to determine if you are following the terms and conditions of this Agreement, including review of your placement, and approval of the use of, your affiliate links. We may require that you change the placement or use of the affiliate links to comply with any guidelines that we may provide to you. You are fully responsible for all content, links and activities conducted on your website. We may notify you of any changes to your website that we feel should be made. If you do not make the changes to your website that we feel are necessary, we reserve the right to immediately terminate your participation in the Program and to retain all outstanding and future payments for participation in the Program.
Either you or we may end this Agreement at any time, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email, fax, or our website. In addition, Switcher Studio reserves the right to terminate this Agreement and your participation in the Program immediately and without notice to you should you breach the terms of this Agreement or if Switcher Studio believes that you have abused the Program in any way. If such breach or abuse is detected, Switcher Studio shall not be liable to you for any commissions for such breaching or abusive sales.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such an event, you will be notified of such changes by email. Modifications may include, but are not limited to, changes in the payment procedures and the Program rules. Your continued participation in the Program following the posting of the change notice or new Agreement on our website will indicate your agreement to the changes. Any changes to this Agreement will not apply to any dispute between you and us arising prior to the date on which we made available the revised Agreement incorporating such changes, or otherwise notified you of such changes. You may not modify these terms and conditions, such as by making typed, handwritten, or any other changes to it for any purpose, and any such purported modifications will be of no force and effect.
6. Commission and Payment
Switcher Studio uses a third party to handle all of the tracking and payment. The third party is Stripe Connect. You will be required to register for a Stripe Connect account upon acceptance to Switcher Studio’s Affiliate Program. Kindly review the Stripe Connect’s payment terms and conditions.
Affiliates will be given commission credit for all referrals until $200 of commission credit is directly attributable to an affiliate during the affiliate’s participation in the Program (regardless of whether such participation is continuous). Then, an affiliate will be paid the amount of their commission credit, and is eligible for quarterly commission payout for any subsequent earnings for the duration of participation in the Program.
Only new subscription sign-ups are eligible transactions for any sort of commission/reward. Subscription renewals are ineligible for commission or reward of any type.
Subscription credits applied monthly, by the 7th of the following month. Commission payouts applied quarterly, on the 15th following the end of a calendar quarter.
Commission or commission credit cannot be earned through upgrade of an existing paid plan. New subscriptions being paid for by someone currently on free trial status are eligible for commission.
One-time use passes will not be considered eligible for commission credit or commission payout.
6.7. Commission Structure
7. Access to Affiliate Account
You will access our calculation of the commissions due to you through the Switcher Studio interface that we will make available to you in connection with the Program. There, you will be able to see how many customers have utilized your unique coupon code to sign up for Switcher Studio’s products and services. Payment tracking is performed by the third party network, Stripe Connect.
8. Promotion Restrictions
You are free to promote your own websites, but naturally any promotion that mentions Switcher Studio 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 Switcher Studio. 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 Switcher Studio so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Switcher Studio so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your websites as independent from Switcher Studio. 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 Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
Affiliates that bid in their Pay-Per-Click (“PPC”) campaigns on keywords such as Switcher Studio, Switcher, www.switcherstudio, www.switcherstudio.com, 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 our website, will be considered trademark violators, and will be banned from Program. We will attempt to contact the affiliate prior to implementing the ban. However, we reserve the right to expel any trademark violator from the Program without prior notice, and on the first occurrence of such PPC bidding behavior.
You 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 Switcher Studio’s website (i.e., no page from our website or any Switcher Studio 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 Switcher Studio website in IFrames, hidden links and automatic pop ups that open Merchant.com’s website; (d) targets text on websites, other than those websites 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.
You shall not include links or coupon codes in paid ads (e.g., search engine ads, Facebook ads, etc.) or anything similar that would compete with Switcher Studio’s marketing or cause confusion for potential customers.
You must clearly and prominently state the following, or any substantially similar statement previously allowed under this Agreement, on your website or any other location where Switcher Studio may authorize your display or other use of Program content (including but not limited to any logos, graphics, product messaging or other information provided to you for your use in the Program): “As a Switcher Studio affiliate, I earn from qualifying purchases.” Except for this disclosure, and other than as required by applicable law, you will not make any public communication with respect to this Agreement or your participation in the Program without our advance written permission. You will not misrepresent or embellish our relationship with you (including by expressing or implying that we support, sponsor, or endorse you), or express or imply any affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
9. Grant of Licenses
We grant to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty free right and license to (i) access our website 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 may not copy, distribute, modify, alter, reverse engineer, or create derivative works from the Licensed Materials. You may not sublicense, assign or transfer any such licenses or grant permission for the use of the Licensed Materials in any manner. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the Program, as determined by us in our sole discretion. You agree that all uses of the Licensed Materials will be on behalf of Switcher Studio and the good will associated therewith will insure to the sole benefit of Switcher Studio. You grant us a limited, non-exclusive, non-transferable, non-sublicensable, royalty free right and license to use your logos, trade names, trademarks, and similar identifying material to identify you as a participant in the Program and for other purposes as mutually agreed-upon by the parties.
You will not use any confusingly similar trademark, service mark, trade name, iconography, or derivation including, but not limited to, the registration of any domain name or combination mark including any of the Licensed Materials, during your participation in the Program and after you discontinue the program.
You recognize and acknowledge Switcher Studio’s ownership of, and you will not do anything inconsistent with Switcher Studio’s ownership of the Licensed Materials. It is understood and agreed by Affiliate that Switcher Studio, as owner and authorized licensor of the Licensed Materials, respectively, shall have standing to enforce its rights in the intellectual property.
You agree not to use the Licensed Materials in any manner that is disparaging, misleading, obscene or that otherwise portrays Switcher Studio in a negative light. We reserve all of our rights in the Licensed Materials covered by this license. Other than the license granted in this Agreement, we retain all right, title, and interest in and to the Licensed Materials.
Any use of the Licensed Materials that is not authorized in this Agreement or in writing by Switcher Studio is strictly prohibited.
SWITCHER STUDIO MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE SWITCHER STUDIO WEBSITE, THE PRODUCTS OR SERVICES PROVIDED THEREIN, OR THE LICENSED MATERIALS. ANY IMPLIED WARRANTIES OF SWITCHER STUDIO 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 WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
This Agreement has been duly and validly agreed to by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
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;
You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. 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 SWITCHER STUDIO’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.
You hereby agree to indemnify and hold harmless Switcher Studio, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all third party claims, actions, demands, judgments, and settlements, and any associated liabilities, losses, damages, costs, and expenses (including reasonable attorneys' fees) arising out of or based on (i) any claim that our use of your trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) your breach of this Agreement,(iii) any claim related to your website, including, without limitation, content therein not attributable to us, (iv) your infringement of any intellectual property or other proprietary rights of any third party, including without limitation patent, trademarks, copyright, trade secret, moral rights and rights of privacy, (v) any violation of applicable law or regulations by you in connection with the Program, or (vi) any claim of actual or alleged negligent acts or other wrongful acts or omission by your or your employees or contractors.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by Switcher Studio to you during the term of this Agreement which is a reasonable person would consider to be confidential or which is marked "confidential" or “proprietary” by Switcher Studio will remain the sole property of Switcher Studio. You shall not use or disclose such confidential information except in performance of your obligation under this Agreement or as otherwise permitted by Switcher Studio.
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 Switcher Studio. 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 website or any other of your website or otherwise, that reasonably would contradict anything in this Section.
Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws and principles thereof.
This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
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.
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.
At this time, only U.S. residents are eligible to participate in the Switcher Studio Program.
The provisions of this Agreement are severable. If any provision of this Agreement, or the application thereof to any person or circumstance shall be deemed invalid or unenforceable under any applicable law, such invalidity or unenforceability shall not affect the other provisions of this Agreement that can be given effect.
No delay or failure by Switcher Studio in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.