Men’s Blue Affiliate Terms and Conditions
These Affiliate Terms and Conditions (“Terms”) are made and entered into by and between MSH Marketing LLC, DBA Men’s Blue. (“we” or “us”), and you, the party submitting an application to become a Men’s Blue affiliate (“you” or “Affiliate”) as of the day these terms are electronically accepted. These Terms apply to your participation with Men’s Blue Affiliate Program(s) (“Affiliate Program”). Each Affiliate Program product offer (an “Offer”) may be for any product and/or service(s) offered by Men’s Blue and may link to a specific website for that particular Offer (“Offer Website”). Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and Offer Websites, which additional terms and conditions are incorporated by reference hereto as part of these Terms, however these Terms shall control in the event of any potential conflict between such additional terms and conditions and these Terms. By submitting an application or participating in an Offer, you expressly consent to abide by these Terms.
1. Enrollment in the Program
In order to be considered for acceptance into the Men’s Blue Affiliate Program, you are required to submit an Affiliate Program application, as made available by Men’s Blue. Acceptance into the Affiliate Program requires that you complete the application accurately and promptly provide us with any changes to the information listed on your application. After we review your application, we will notify you of your acceptance or rejection into the Affiliate Program, which will generally occur within two business days. We may accept or reject your application at our sole discretion for any reason, at any time.
2. Usage.
2.1. As an Affiliate, you can promote Offers by logging into your dashboard for Men’s Blue Affiliates.
2.2. As an Affiliate, you will be given access to links to the Offer Websites, promo codes and other marketing materials. As long as you comply with these Terms you can place the Materials wherever you like on your website, social media and other approved channels of promotion.
2.3. Men’s Blue prohibits the promotion of Offers and/or the display of Materials via and/or bearing any affiliation to websites containing pornographic, racist, or illegal content. The classification of content as pornographic, racist, or illegal is determined at Men’s Blue’s sole and complete discretion.
2.4. Men’s Blue operates in full compliance with the following laws and requires compliance of such by all Affiliates: the CAN-SPAM Act of 2003, as amended and the e-mail marketing laws of the several states that are not pre-empted by CAN-SPAM; Section 5 of the Federal Trade Commission Act (“FTC Act”), FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising; the Telemarketing and Consumer Fraud and Abuse Prevention Act; Personal Information Protection and Electronic Documents Act (“PIPEDA”); the Telephone Consumer Protection Act (“TCPA”); the Telemarketing Sales Rule (“TSR”); the Gramm-Leach-Bliley Act; the Health Insurance Portability and Accountability Act of 1996; the Fighting Internet and Wireless Spam Act (“FISA”); and the regulations promulgated thereunder (collectively, “Applicable Laws and Regulations”).
2.5. Men’s Blue will at all times attempt to monitor any misuse and may issue you warnings for instances of minor noncompliance. You shall be immediately and irrevocably terminated upon receipt of three warnings from Men’s Blue.
2.6. Men’s Blue may deactivate your account if you have violated any portion of these Terms, the Terms of Service, Privacy Policy, or any other agreement and/or policy entered into with Men’s Blue.
2.7. Men’s Blue reserves the right to remove accounts that have remained unverified since creation or have not been accessed in up to twelve months.
3. Men’s Blue’s Obligations.
We will make available to you via the Affiliate Program graphic and textual links to the Offer Website and/or other creative materials (collectively, the “Links”) which you may display on websites owned or controlled by you, in emails sent by you and clearly identified as coming from you and in online advertisements (collectively, “Media”). The Links will serve to identify you as a member of our Affiliate Program and will establish a link from your Media to the Offer Website. We will pay you for each Qualified Action (the “Commission”). A “Qualified Action” means an individual person who: (i) accesses the Offer Website via the Link, where the Link is the last link to the Offer Website, (ii) is not a computer generated user, such as a robot, spider, computer script, or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by Men’s Blue , and (v) is not later determined by Men’s Blue to be fraudulent, incomplete, unqualified, or a duplicate, which determination shall be made in Men’s Blue ’s reasonable discretion.
We will pay you any Commissions earned on a monthly basis, provided that your account is greater than $100 at the time of disbursement. Affiliate Commission accounts with a balance of less than $100 will roll over into the next month, and will continue to roll over on a monthly basis until the $100 threshold is reached. We reserve the right to charge back to your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
Men’s Blue shall automatically generate an invoice on behalf of Affiliate for all Commissions payable under these Terms and shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Men’s Blue in its sole and complete discretion. In the event that Affiliate disputes in good faith any portion of an invoice, Affiliate must submit that dispute to Men’s Blue in writing and in sufficient detail within thirty (30) days of the date on the invoice. If Affiliate does not dispute the invoice as set forth herein, then Affiliate agrees that it irrevocably waives any claims based upon that invoice. In the event that Affiliate is also tracking Qualified Actions and Affiliate claims a discrepancy, Affiliate must provide Men’s Blue with Affiliate’s reports within three (3) days of claiming such discrepancy, and if Men’s Blue ’s and Affiliate’s reported statistics vary by more than 10% and Men’s Blue reasonably determines that Affiliate has used generally accepted industry methods to track Qualified Actions, then Men’s Blue and Affiliate agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Men’s Blue ’s calculations shall govern.
If Affiliate has an outstanding balance due to Men’s Blue under these Terms or any other agreement executed between the Affiliate and Men’s Blue , whether or not related to the Affiliate Program, Affiliate agrees that Men’s Blue may offset any such amounts due to Men’s Blue from amounts payable to Affiliate under these Terms.
4. Affiliate Obligations.
If you are approved by Men’s Blue to participate in its Affiliate Program, you hereby agree to all the following obligations:
4.1. You must strictly comply with all terms, conditions, guidelines, policies, and laws of, and applicable to, any third-party services used by you in connection with the Affiliate Program, including but not limited to, email providers, social networking services, and website creation tools.
4.2. You must always prominently post and make available to end-users a privacy policy in compliance with all applicable local, state federal and international laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Affiliate Program and the provision of such personally identifiable information to Men’s Blue for use as intended by Men’s Blue The aforementioned privacy policy must be displayed at all times, including prior to the collection of any personally identifiable information.
4.3. Always prominently post and make available to end-users any terms and conditions in connection with any applicable Offer you promote, as set forth by Men’s Blue, or as required by applicable laws regarding such Offers.
4.4. You must never place your Media, Links, or any Men’s Blue advertisements on any online auction platform (i.e. eBay, Amazon, etc.).
4.5. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by Men’s Blue in writing. Any pop-up and/or pop-under advertisement styles that you might use for the Affiliate Program shall be clearly identified as your property in a clear and conspicuous fashion so that such pop-up and/or pop-under styles are not affiliated with Men’s Blue. No software may be installed on any end-user’s computer unless: (1) the name, function, and developer of such software are clearly displayed, (2) the end-user affirmatively opts in to the installation of such software; (3) the end-user is given a simple and recognizable opportunity to opt out from installing the software, and (4) the installation is pursuant to an affirmatively accepted and plain-English end user license agreement and the software be easily removed according to generally accepted methods.
4.6. You must notify Men’s Blue at marketing@mensblue.com if your website is no longer active or if your website becomes owned by someone else.
4.7. Ensure that your Media does not copy or resemble the look and feel of any Offer Website or create the impression that your Media is endorsed by Men’s Blue, or is a part of any Offer Website, without our prior written consent, which may be unreasonably withheld.
4.8. You shall have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, your Media.
4.9. You bear sole responsibility for ensuring that all materials posted on your Media or otherwise used in connection with the Affiliate Program: (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party, and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability, or age), promotes illegal activities (such as gambling), contains profanity, or otherwise contains materials which Men’s Blue informs you that it considers objectionable (collectively, “Objectionable Content”). Men’s Blue may deem material/content as objectionable in its sole and complete discretion.
4.10. You shall refrain from making any representations, warranties, or other statements concerning Men’s Blue or any of their respective products or services, except as expressly authorized herein.
4.11. You shall refrain from making any written or oral statements or representations, whether of fact or opinion, that disparage or otherwise impair the reputation of any party to these Terms, (including its business purpose, and its other assets and activities), any party’s employees, officers, agents, contractors, and assigns.
5. Termination.
These Terms shall commence on the date of our approval of your Affiliate Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Affiliate Program at any time by removing all Links from your Media, deleting all copies of the Links, and notifying Men’s Blue in writing thereof. We may terminate these Terms or your participation in one or more Offers at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Links or providing you with a written notice. Upon termination of these Terms or of your participation in one or more Offers for any reason, you will immediately cease all use of and delete all Links, remove all Materials, delete all Men’s Blue property, and will cease representing yourself as a being affiliated with Men’s Blue or any Offer. All rights to validly accrued payments, causes of action, and any provisions, which by their terms are intended to survive termination, shall survive any termination.
6. Limited License on Men’s Blue Intellectual Property.
We grant you a worldwide, nonexclusive, non-transferable, revocable right to use the Links and to access the Men’s Blue website through the Links solely in accordance with these Terms, for the sole purpose of identifying your Media as a participant in the Affiliate Program and assisting in increasing sales through the Offer Websites. You may not alter, modify, manipulate or create derivative works of the Links or any graphics, creative, copy or other materials owned by or licensed to Men’s Blue in any way. Your ability to use the Links is predicated at all times to you being a member in good standing of Men’s Blue ’s Affiliate Program. We may revoke your license anytime by providing written notice of the same. Except as expressly stated herein, nothing in these Terms is intended to grant you any rights to any of Men’s Blue trademarks, service marks, copyrights, patents, or trade secrets. You agree that Men’s Blue may use any suggestion, comment or recommendation you provide to Men’s Blue without compensation or recognition thereof.
7. Prohibition on Fraud.
You are expressly prohibited from using any persons, means, devices, or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cloaking technology, cookie-stuffing and other deceptive acts or click-fraud. Men’s Blue shall make all determinations about fraudulent activity in its sole and complete discretion.
8. Anti-Corruption.
You shall comply with, and shall ensure that you and your affiliates comply with all applicable laws and regulations enacted to combat bribery and corruption, including the United States Foreign Corrupt Practices Act, the UK Bribery Act, the principles of the OECD Convention on Combating Bribery of Foreign Public Officials, and any corresponding laws of all countries where business or services will be conducted or performed pursuant to this Agreement. You shall not, and shall ensure that you and your affiliates do not, either directly or indirectly, pay, offer, promise to pay, or give anything of value (including any amounts paid or credited by Men’s Blue ) to any person, including an employee or official of a government, government controlled enterprise or company, or political party, with the reasonable knowledge that it will be used for the purpose of obtaining any improper benefit or to improperly influence any act or decision by such person or party for the purpose of obtaining, retaining, or directing business. Any amounts paid by Men’s Blue to you pursuant to the terms of this Agreement will be for services actually rendered, or products sold, in accordance with the terms of this Agreement. You shall not, and shall ensure that you do not, offer or accept bribes or kickbacks in any form.
9. Opt Out Compliance.
Men’s Blue will provide an opt-out method for customers in all Links, however, should you receive any opt-out requests, you shall immediately forward them to Men’s Blue at support@mensblue.com. Your emails containing the Links may not include any content other than the Links, except as required by applicable law, expressly including a prohibition on the use of cloaking technology of any kind.
11. Terms Applicable to Affiliate Networks.
Affiliate shall remain jointly and severally liable for all acts or omissions of any Third Party Affiliate. For all Affiliate’s who maintain their own affiliate networks, Affiliate agrees to place the Links in its affiliate network (“Network”) for access and use by those affiliates in Affiliate’s Network (each a “Third Party Affiliate”). Affiliate agrees that it will expressly forbid any Third Party Affiliate from modifying any Link in any way and monitor its affiliates to prevent such. Affiliate agrees to maintain its Network according to the highest industry standards. Affiliate shall not permit any party to be a Third Party Affiliate whose website or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. Affiliate must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, these Terms prior to obtaining access to the Links. Affiliate shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates any of these Terms. In the event that either party suspects any wrongdoing by a Third Party Affiliate with respect to the Links, Affiliate shall promptly disclose to Men’s Blue the identity and contact information for such Third Party Affiliate. Affiliate shall immediately remove any Third Party Affiliate from the Affiliate Program and terminate their access to all Offers upon written notice from Men’s Blue .
12. Disclaimers.
No warranties of any kind (including express or implied warranties of merchantability or fitness for a particular purpose) are given with respect to the Links or materials provided to you or used under these Terms, and Men’s Blue shall not be liable to you for damages arising out of or cause by defects or deficiencies in the Links or materials provided to you, whether direct, incidental, consequential, or otherwise. The Affiliate Program and Links, and the products and services provided in connection therewith, are provided to Affiliate “as is.” Except as expressly set forth herein, Men’s Blue expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and noninfringement, and any warranties arising out of course of dealing, usage, or trade. Men’s Blue does not warrant that the Affiliate Program or Links will meet Affiliate’s specific requirements or that the operation of the Affiliate Program or Links will be error-free or uninterrupted. Men’s Blue expressly disclaims any and all liability for any act or omission of r their products or services. Men’s Blue does not guarantee that Affiliate will earn any amount of commissions.
13. Affiliate Warranties.
You hereby represent and warrant that you possess full authority to execute and to perform these Terms; the execution and delivery of these Terms and the consummation of the transactions contemplated hereby do not and will not conflict with, result in a breach, violation or default or give rise to an event which, with the giving of notice or after the passage of time, or both, would conflict with or result in a breach, violation or default of any of the terms or provisions or of any indenture, agreement, judgment, decree or other instrument or restriction to which you are a party or by which you may be bound or affected; and no further authorization or approval, whether of governmental bodies or otherwise, is necessary in order to enable you to enter into and perform the same.
14. Men’s Blue ’s Warranties.
Men’s Blue hereby represents and warrants that it possesses full authority to execute and to perform these Terms; the execution and delivery of these Terms and the consummation of the transactions contemplated hereby do not and will not conflict with, result in a breach, violation or default or give rise to an event which, with the giving of notice or after the passage of time, or both, would conflict with or result in a breach, violation or default of any of the terms or provisions or of any indenture, agreement, judgment, decree or other instrument or restriction to which Men’s Blue is a party or by which Men’s Blue may be bound or affected; and no further authorization or approval, whether of governmental bodies or otherwise, is necessary in order to enable Men’s Blue to enter into and perform the same.
15. Relationship of Parties
The parties are independent contractors, and nothing in these Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on our behalf. Affiliate will not make any statement, whether on the Affiliate Site or otherwise, that reasonably would contradict anything in this section. You are solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. No part of your compensation or payments received will be subject to withholding by Men’s Blue for the payment of any social security, federal, state or any other employee payroll taxes.
16. Limitation of Liability
Men’s Blue shall not be liable to you or to any other person or entity for any indirect, consequential, incidental, special, or exemplary damages, including lost profits, arising out of or in connection with these Terms (however arising, and regardless of the theory of recovery). Men’s Blue ’s total liability to Affiliate arising out of or in connection with these Terms is limited to the greater of five hundred dollars ($500.00) or the amounts paid by Men’s Blue to Affiliate during the twelve (12) months immediately preceding the first occurrence of events giving rise to the imposition of liability under these Terms.
17. Disclaimers
Men’s Blue makes no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, Men’s Blue makes no representation that the operation of the Men’s Blue Site will be uninterrupted or error-free, and we will not be liable for any such interruptions or errors.
18. Independent Investigation
Affiliate acknowledges that it has read these Terms and agrees to all its terms and conditions. Affiliate understands that Men’s Blue may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in these Terms or operate websites that are similar to or compete with Affiliate’s site. Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representations or statements other than as set forth in these Terms.
19. Miscellaneous
All rights not expressly granted herein by Men’s Blue to Affiliate are reserved by Men’s Blue . There are no implied rights.
You acknowledge that you have read these Terms and agree in full. You have independently evaluated the desirability of participating in the Affiliate Program and each Offer and are not relying on any representation, guarantee, or statement other than as set forth in these Terms or anywhere within the Affiliate Program.
Any notice provided for or permitted under these Terms will be treated as having been given when: (1) sent via email from or to marketing@mensblue.com, (2) delivered personally, (3) sent by nationally recognized commercial overnight courier with written verification or receipt; (4) posted, or otherwise made publicly viewable in a conspicuous manner on Men’s Blue’s website; or (5) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the address set forth on Affiliates applicable registration form, in the case of Affiliate, and the address set forth below for Men’s Blue .
Men’s Blue ’s
10900 Research BLVD
STE 160C-1208
Austin, TX 78759
No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
Time is of the essence in the performance of this Agreement.
If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision(s) and Terms shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
These Terms shall be governed by and construed under the laws of the State of Texas, without regards to its conflict of laws principals.
Men’s Blue may assign these Terms without restriction, provided that assignee agrees in writing to be bound by the terms hereunder. Affiliate may not assign these Terms or any rights, duties, or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Men’s Blue and any attempt to do so without such consent will be void. These Terms will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of these Terms, which shall be considered as a whole. Except as may be otherwise specifically provided in these Terms, these Terms are not intended to and shall not confer upon any other person or business entity, other than the parties hereto, any rights or remedies with respect to the subject matter hereof.
These Terms constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations and agreement, whether written or oral.
