Swappa Affiliate Agreement
Please read the entire agreement (hereinafter the “Agreement”).
You may print this page for your records.
This is a legal agreement between you (hereinafter “you”, ‘your” or “Company” refers to the affiliate) and Swappa, LLC (“Swappa” or “we”).
“Swappa Affiliate Program” is defined as the program managed by or on behalf of Swappa, by which participating entities place links on their website, blogs or their social media accounts that connect to the swappa.com website and for a which referral fee is earned for conversions as outlined at https://swappa.com/affiliate
By submitting the online application you are agreeing that you have read and understand the terms and conditions for this agreement and that you agree to be legally responsible for each and every term and condition. You specifically and explicitly represent to Swappa that you are an authorized employee, owner, agent or representative with permission and authority to enter into this agreement (the “Agreement”) on behalf of your company, organization or website.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Swappa's Affiliate Program. The purpose of this Agreement is to allow HTML linking between your website and the Swappa website.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application on Swappa affiliate enrollment page. You will not be able to participate in the program until we approve the submission, despite any preliminary access granted to the affiliate portal through affiliate provider, Tapfiliate. Swappa may reject your application or terminate your affiliate status at our sole discretion. Further, Swappa may cancel your application if we determine that your site is unsuitable by including the following:
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 or utilizes fraudulent means of obtaining commissions, conversion or traffic.
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 "Swappa" 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. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Swappa or any other affiliated business.
2.2. As a member of Swappa's Affiliate Program, you will have access to the affiliate portal through Tapfiliate. You will be able to monitor your associated performance, download HTML code (that provides for links to web pages within the Swappa website) and banner creatives, In order for Swappa 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.
2.3. Swappa 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.
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. Swappa 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. Swappa Rights and Obligations
3.1. Swappa has the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. Swappa may notify you of any changes we feel should be made or to make sure that your links to our web site are appropriate. If you do not make the changes to your site that Swappa requests Swappa reserves the right to terminate your participation in the Swappa Affiliate Program.
3.2. Swappa reserves the right to terminate this Agreement and your participation in the Swappa Affiliate Program immediately and without notice to you should you commit fraud in your use of the Swappa Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, Swappa shall not be liable to you for any commissions for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your affiliate application, and will continue unless terminated hereunder.
Either you or Swappa 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 email. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
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 at the email address you provided. Modifications may include, but are not limited to, changes in the payment procedures and Swappa's Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Swappa's Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
Swappa uses a third party to manage affiliate performance tracking and associated compensation, tracking and payment. The third party is the Tapfiliate.com affiliate network with payments provided via PayPal. Please review the payment terms and conditions for those services.
7. Access to Affiliate Account Interface
You will create a password so that you may enter Tapfiliate’s secure affiliate account interface. From the Tapfiliate site you will be able to receive your reports that will describe our calculation of the commissions due to you.
8. Promotion Restrictions
8.1. You are free to promote your own website(s), but naturally any promotion that mentions Swappa 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 Swappa. 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. Also, you may post to newsgroups to promote Swappa 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 Swappa. 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 Swappa Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
8.2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as Swappa or derivatives containing Swappa, any misspellings or similar alterations of – be it separately or in combination with other keywords, will be considered trademark violators, and will be banned from Swappa’s Affiliate Program. Swappa will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior.
8.3. 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 Merchant’s site (i.e., no page from our site or any Swappa’s content or branding is visible on the end-user’s screen). As used herein, “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, Bing, Yahoo, DuckDuckGo, and similar search or directory engines); (c) set commission tracking cookies through loading of Swappa in IFrames, hidden links and automatic pop ups that open Swappa’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; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
9. Grant of Licenses
9.1. 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 Swappa's Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Swappa and the good will associated therewith will inure to the sole benefit of Swappa.
9.2. 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.
SWAPPA MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING SWAPPA SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF SWAPPA’S 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 SWAPPA WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. 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;
11.2. 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;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
SWAPPA 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 SWAPPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL SWAPPA'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 Swappa, 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.
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.
15.1. 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 Swappa. 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 any other of site or otherwise, that reasonably would contradict anything in this section.
15.2. 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.
15.3. This Agreement shall in all respects be interpreted and construed with and by the laws of the State of Missouri, without regard to the conflicts of laws principles thereof. Any litigation or dispute arising from or relating to the subject matter of this Agreement shall be litigated in the Circuit Court of Platte County, Missouri or the U.S. District Court for the Western District of Missouri. Customer agrees and hereby submits to the exclusive personal jurisdiction and venue of the Circuit Court of Platte County, Missouri or the U.S. District Court for the Western District of Missouri with respect to any litigation or dispute arising from or relating to the subject matter of this Agreement.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. 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.
15.7. 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.