Big Fish Affiliate Program Terms of Service
Last updated: February 10, 2016
Welcome to the Terms of Service (the "Agreement") for the Big Fish Games, Inc. Affiliate Program (the "Program"). This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Program, and govern our respective rights and obligations. As used in this Agreement, "we", "us", or "our" means Big Fish Games, Inc. or any of our affiliated companies, and "you" means the applicant. The "Big Fish Site" means the bigfishgames.com web site, which has its primary home page identified by the URL www.bigfishgames.com. "Your Site" means any site that you will link to the Big Fish Site (and which you identify in your Program application).
UPON ACCEPTANCE OF THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT AS YOU PARTICIPATE IN THE PROGRAM.
1.Enrollment and Participation in the Program.
You may apply to enroll in the Program by submitting an application through the Big Fish Affiliate Program site located at affiliates.bigfishgames.com (the "Program Site"). Participation in the Program is limited to parties that can lawfully enter into and form contracts under Applicable Laws (as defined in Section 5(a)). Without limiting the foregoing, you must be older than eighteen (18) to apply. Additionally, you must have (or create) a Big Fish Site customer account to be eligible. Employees and on-site contractors of Big Fish Games, Inc. and its affiliated companies are not eligible to apply. You may only have one (1) Program account for your benefit, or the benefit of any member of your immediate family or any business associated with you or such person, at any given time.
As part of your Program application, we will request and collect your first and last name, an email address and physical address for you, and a description of your business, Your Site, and how you plan to promote the Big Fish Site. We will also request on an optional basis additional business information from you, including a business name, a Uniform Resource Locator (URL) for your business, and a business phone number. The information we request and collect from you when you enroll in the Program, whether mandatory or optional, is referred to in this Agreement as your "Program Information." Any Program Information you provide us must be valid and complete at all times. You are obligated to update your Program Information if it changes in any manner.
We will evaluate your Program application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine in our sole discretion that Your Site or how you intend to use Your Site to promote the Big Fish Site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:
- promote violence, sexually explicit materials or any other subject matter not in keeping with the merchandising or quality standards of the Big Fish Site
- promote any illegal activities or include any illegal content
- market or promote products or services to children under the age of thirteen (13)
- market or promote alcohol, tobacco or prescription drugs
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- defame or violate the privacy or publicity rights of any person
- include any trademark or other brand identifier, or any copyrighted materials, of Big Fish Games, Inc. or any of its affiliated companies (other than as allowed pursuant to this Agreement once a Program application is accepted)
- incorporate any variation or misspelling of any trademark or other brand identifier of Big Fish Games, Inc. or any of its affiliated companies in any domain name or in any username, group name, or other identifier on any social networking site;
- in any way copy or resemble the "look and feel" of the Big Fish Site, or imply that they are in fact the Big Fish Site; or
- otherwise violate any of our or any third party's intellectual property or other proprietary rights.
By participating in the Program, you agree that you do not and will not engage in any such activities. If we accept your application and Your Site is thereafter determined in our sole discretion to be unsuitable for the Program, we may suspend or terminate your Program account.
Upon completion of the application process, a Program account will be conditionally available for your use, subject to our approval of your application. During the pendency of our review, you will be able to set up your referral mechanisms in accordance with the requirements described in Section 2 below, and begin generating Referrals (as defined in Section 3). However, you will not be able to request or receive payments until we have approved your application. If your application is not approved, your conditional Program account will be closed, you will not be entitled to receive payment for any Referrals which occurred during the application review period, and you must immediately cease using any of the Program Assets (as defined in Section 2).
2.Implementation and Use of Program Assets.
(a)Program Assets. Upon approval of your Program application, we hereby grant you a revocable, non-exclusive, non-transferable, worldwide, royalty-free right and license to the following program assets during the term of this Agreement, solely for purposes of facilitating Referrals from Your Site to the Big Fish Site (such materials being referred to herein as the "Program Assets"): (i) XML and RSS feeds, and properly formatted special links to the Big Fish Site and/or to specified Games (as defined below), any or all of which contain the necessary files, data and/or paths to functionalities for the purpose of merchandizing any downloadable game in our catalog for which we have sufficient rights to offer you hereunder (collectively, all "Games"), including, without limitation, Game ids, images, videos, descriptions, rankings, release dates, genre ids, file sizes, system requirements, inline frames to enable Game downloads and tracking, inline frames to enable Game sales and tracking, inline frames to enable online Games to be embedded and played on Your Site, Game URLs, and Game purchase URLs, (ii) certain consumer offers to be generated and provided by us for your use from time to time, which may include promotions for discounted or free Games or other promotional offers in our sole discretion, and (iii) subject to the restrictions contained in this Section 2(a)(iii), the proprietary trademarks, trade names, drawings, logos and other symbols which are available for your use on the Program Site, and which are owned by us and associated with the Big Fish Site (collectively, the "Big Fish Marks"). You may use the Big Fish Marks solely for the purpose of marketing, identifying and promoting the Big Fish Site in connection with this Agreement and your participation in the Program. All such uses by you of the Big Fish Marks will be in accordance with all Applicable Laws (as defined in Section 5(a)) and shall be consistent with our Trademark Usage Guidelines, which may be updated from time to time. Nothing in this Agreement grants you any rights in and to the Big Fish Marks, and all goodwill generated by your use of the Big Fish Marks shall inure to our benefit. Further, you will indemnify and hold us harmless from any and all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to any misuse of the Big Fish Marks by you or on your behalf.
(b)Certain Restrictions. You may not use any of the Program Assets to launch or announce the release of a Game on Your Site or any other site before the date of its general release on the Big Fish Site. Without limiting the generality of the foregoing, any Games or versions of certain Games which are made available to specified customers (such as, by way of example only, "Big Fish Game Club" members) prior to the general release of such Games, will be made available to you only as of and following the date of their general release on the Big Fish Site.
You may not purchase, register, or bid on any keywords, search terms or other identifiers that include any of the Big Fish Marks for use in connection with any search engine, portal, or sponsored advertising service, or other search or referral service.
Apart from what is provided in connection with the Program Assets, you may not use any of the Big Fish Marks or any Game titles or logos to create any advertisements, banners or promotional materials.
You may not use any of the content contained in the Program Assets to create goods for physical distribution, including, without limitation, CDs, cards or any other physical media.
You may not alter or obstruct any of the content contained in the Program Assets. Without limiting the foregoing, you may not: (i) modify or alter any content that consists of a graphic image, other than to resize it, (ii) edit any content that consists of text, other than to shorten its length, (iii) sell, redistribute, sublicense or transfer any content, (iv) use any content in a manner intended to send sales to any site other than the Big Fish Site, or (v) use any content, including any name or likeness embodied therein, in a manner that implies any endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, political party or cause.
3. Generating Referrals
Upon proper implementation and use of the Program Assets, you may begin referring users to us and generating Referral Fees (as defined in Section 4). In order to be eligible, a user must: (a) be referred to us by means of a properly-formatted link to the Big Fish Site, (b) receive Your Big Fish Tracking Cookie upon being referred, and (c) be a Qualifying Customer, each as defined further below. For purposes of this Agreement, any user that meets these requirements will be deemed your "Referral" hereunder.
You acknowledge that it is your sole responsibility to properly implement any links to the Big Fish Site in the format provided by us. You will not receive credit for, and you will not earn Referral Fees with respect to, any user who is not referred to us through properly-formatted links that enable our ability to track such user's activity and assign them to you as your "Referral."
The following additional terms will apply with respect your ability to generate Referrals pursuant to this Agreement:
(w)Your Big Fish Tracking Cookie.The term "Your Big Fish Tracking Cookie" means a Big Fish tracking cookie that is set when a person is referred to the Big Fish Site by you via a hyperlink from Your Site or any other marketing initiative approved in advance and in writing by us that includes a properly-formatted affiliate tracking code in the form provided by us.
(x)Qualifying Customers.A "Qualifying Customer" means any user who makes a Qualifying Purchase within ninety (90) calendar days of last receiving Your Big Fish Tracking Cookie; provided, that: (i) Your Big Fish Tracking Cookie is the last Big Fish tracking cookie that such user received prior to making such Qualifying Purchase, and (ii) in the immediately preceding twelve (12) month period, such user has not: (A) made any purchase transaction greater than $0 on any Big Fish Casual Game Site (as defined below) or any other web site owned and operated by us or on our behalf, or (B) redeemed a gift certificate or a "Big Fish Game Club" credit on any such web site (the transactions described in clauses (A) and (B) being referred to herein as a "Financial Activity").
(y)Qualifying Purchases. A "Qualifying Purchase" means a valid purchase of a Game from any Big Fish Casual Game Site either directly through a purchase transaction greater than $0 or through redemption of a gift certificate or a "Big Fish Game Club" credit, other than a purchase: (i) determined to be fraudulent or that is refunded, (ii) for which the transaction payment fails to clear, or (iii) by a person incented to purchase a Game for any reason unrelated to such person's interest in such Game
(z)Big Fish Casual Game Site. The term "Big Fish Casual Game Site" means any downloadable casual game web site owned and operated by us or on our behalf, including, without limitation, the Big Fish Site, www.bigfishgames.de, www.bigfishgames.fr, www.bigfishgames.es, www.bigfishgames.jp, www.bigfishgames.nl, www.bigfishgames.it, www.bigfishgames.pt, www.bigfishgames.com.br, www.bigfishgames.dk, www.bigfishgames.se, and any other non-English language downloadable casual game web sites launched by us from time to time.
4.Earning and Payment of Referral Fees
With respect to each of your Referrals, you will earn referral fees ("Referral Fees") in the amount of seventy percent (70%) of the Net Revenue (as defined below) (which equates to forty and six-tenths percent (40.6%) of the Gross Revenue (as defined below)) generated from all Qualifying Purchases made by such Referral during the twelve (12) month period immediately following the date that such Referral became a Qualifying Customer (the "Binding Period"). For purposes of this Agreement, with respect to each Qualifying Purchase, the term: (a) "Gross Revenue" means the actual amounts paid for any Game by your Referral (or, in the case of any redemption of a gift certificate or a "Big Fish Game Club" credit, the total value being redeemed), and (b) "Net Revenue" means Gross Revenue less: (i) a forty-two percent (42%) allowance for our cost of sales, including, without limitation, transaction processing fees, developer royalties, and digital rights management fees, (ii) any taxes, duties, fees, excises or tariffs paid or payable by Big Fish in connection with such sales, and (iii) any credits granted for returns, refunds, chargebacks and other similar adjustments. Following the expiration of the Binding Period with respect to such Referral, you will no longer earn Referral Fees with respect to such Referral.
Referral Fees which accrue on your behalf in any calendar month are payable to you forty-five (45) calendar days or later after the end of such month. You must request payment from us in order to receive your Referral Fees. Once you have an available balance in your Program account, you may request payment from us not more than once in any calendar month. At your option, Referral Fees may be remitted to you by means of a check payable to you, ACH transfer, or by wire transfer; provided, that you must have a minimum of $50.00 USD in your Program Account to request an ACH transfer, and you must have a minimum of $100.00 USD in your Program Account to request a wire transfer; and provided, further, that a $20.00 USD charge will be deducted from the balance in your Program account if you elect to receive payment via wire transfer.
We are obligated by U.S. federal law to obtain tax information from Program participants who are U.S. citizens, U.S. residents or U.S. corporations, and from Program participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. If we believe you are a Program participant from whom we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your Referral Fee payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
You are required to provide complete and accurate payment information each time you request a payment from us. We are not responsible for any failure or delay in remitting payments to you if you have not provided us with complete and accurate information.
We expressly reserve the right during the term, and following any termination, of this Agreement to seek any and all available legal remedies to reclaim any overpayments of Referral Fees made to you or any Referral Fees paid to you which were generated as a result of any fraudulent activity or violation of this Agreement on your part.
5.Legal Compliance Standards
(a)Compliance with Applicable Laws. As a condition to your participation in the Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you (collectively, all "Applicable Laws"), whether those Applicable Laws are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all Applicable Laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws. You are solely responsible for understanding the scope and applicability of, and complying with, all such Applicable Laws when you send marketing emails or participate in any other activities related to the Program. Any instance of non-compliance with such Applicable Laws may result in suspension or termination of your Program account in our sole discretion.
(b)Fraudulent or Suspicious Activity. We reserve the right to suspend or terminate your Program account in our sole discretion based on any actual or suspected fraudulent or suspicious activity on your part, or any activity not in keeping with our brand and customer standards or the integrity of the Program. This may include, but is not limited to:
- participating in any activity that attempts to generate illegitimate, unearned Referrals or Referral Fees, including, without limitation, (i) engaging in any method of "cookie stuffing," or (ii) adding yourself, a member of your immediate family, or a business associated with you or such person as a Referral
- using any automated scripts that attempt to mimic the activity of legitimate, human Referrals
- surreptitiously gathering a user's personally identifiable information without explicit consent
- diverting a user to another site not requested by such user
- falsely promoting any Game in a manner which misleads consumers
- posting or otherwise making any public communications about us, any Big Fish Casual Game Site, including, without limitation, the Big Fish Site, or the Program which are derogatory or false
- keystroke logging
- modifying a user's settings with respect to browser home page, Internet connections (including default access provider), bookmarks, or security levels; or
- deploying software that initiates or terminates a user's connection to the Internet, removes or disables security settings, pop-up-blocking, or anti-virus, anti-adware, or anti-spyware programs, or automatically reinstalls or reactivates itself or another application after being uninstalled or removed by a user.
6.Additional Program Policies.
(b)Customers and Pricing Policies. As between the parties, we will be responsible for enabling downloads and providing e-commerce services to Referrals who download and purchase Games. Any such Referrals will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders and customer service will apply to those customers. We may change our policies and operating procedures at any time, including our pricing policies on the Big Fish Site. For this reason, you are responsible for ensuring that any price information you include in promoting the Big Fish Site or any Game is current and accurate at all times.
(d)Publicity. You may not issue any press release or other public announcement with respect to this Agreement or your participation in the Program. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).
7.Suspension of Accounts.
(a)General. The provisions in this Section 7 govern the suspension of Program accounts. If we suspend your Program account for any reason, you will be notified by us upon your next attempt to log in to such account. During the tenure of any suspension, (i) you may continue to generate Referrals and earn Referral Fees, but (ii) you are not entitled to request or receive payments from your Program account.
(b)Inactivity. If you have not logged into your Program account for any consecutive six (6) month period, your account will be deemed inactive ("Inactive") and suspended. If your Program account is Inactive and suspended, and you attempt to log in to your account at any time in the six (6) month period following the suspension date (the "Pendency Period"), you may contact us at firstname.lastname@example.org to resume activity and have your account reinstated. If you do not attempt to log in to your Program account prior to the expiration of Pendency Period, your account will be closed and any accrued Referral Fees remaining in your account at such time will be unconditionally and irrevocably forfeited.
(c)Violation of Agreement. If you violate or breach this Agreement in any manner, we may in our sole discretion suspend your Program account while we investigate the matter and consider the appropriate resolution; provided, that nothing in this Section 7(c) is intended to restrict our ability, and we expressly reserve the right, to immediately terminate your participation in the Program and your Program account in accordance with Section 8 upon any violation or breach of this Agreement.
(d)Reinstatement Following Violation. If we determine in our sole discretion to lift the suspension and reinstate your Program account, you will be eligible (but not guaranteed) to receive credit for any Referrals and Referral Fees generated during the suspension period. Without limiting the generality of the foregoing, if your violation or breach of this Agreement was material as determined by us in our sole discretion, you may not receive credit for such Referrals or Referral Fees.
(ii)Termination Following Violation If your Program account is suspended as a result of any violation or breach of this Agreement and we thereafter determine in our sole discretion to terminate this Agreement and your account, any accrued Referral Fees remaining in your account at such time will be unconditionally and irrevocably forfeited, regardless of whether those amounts were accrued before or during the suspension period.
8.Termination of Accounts.
(a)Termination Rights. Either you or we may terminate your Program account and this Agreement at any time, with or without cause, by giving the other party written notice of termination. Without limiting the generality and inclusiveness of these rights, we may terminate this Agreement with you and your participation in the Program if: (a) this Agreement is violated in any way by you, as determined by us in our sole discretion, (b) you substantially decrease or stop promoting the Big Fish Site and/or the Program, or substantially promote one or more affiliate program(s) of any of our competitors more prominently than the Program, all as determined by us in our sole discretion, or (c) your Program account is deemed Inactive, and you have not attempted to log in to your account prior to the expiration of the applicable Pendency Period.
(b)Use of Program Assets. Upon any termination of this Agreement by you or us for any reason, you will immediately cease use of any and all materials provided by or on behalf of us to you pursuant to this Agreement or in connection with the Program, including, without limitation, all Program Assets. Without limiting the foregoing, upon termination of this Agreement, you will remove from Your Site all links to the Big Fish Site and/or any Games, and any and all uses of the Big Fish Marks.
(c)Effect of Termination.
(i)Termination by Us. If we elect to terminate your participation in the Program for inactivity upon expiration of any Pendency Period, for any violation or breach of this Agreement by you, or for any other reason, any accrued Referral Fees remaining in your Program account upon termination will be unconditionally and irrevocably forfeited.
(ii)Termination by You. If you voluntarily and legitimately elect to terminate your participation in the Program, you are eligible to earn Referral Fees on Qualifying Purchases that occur prior to the effective date of any such termination, subject to any returns or chargebacks with respect such Qualifying Purchases; provided, that, if any voluntary termination on your part is a subterfuge to conceal or avoid responsibility for any violation or breach of this Agreement by you, you will not be entitled to receive any such amounts, and any accrued Referral Fees remaining in your Program account upon termination will be unconditionally and irrevocably forfeited. Subject to the foregoing, you must request payment of any remaining balances in your Program account within sixty (60) calendar days following the effective date of any voluntary termination on your part. If you do not, then any accrued Referral Fees remaining in your Program account at such time will likewise be unconditionally and irrevocably forfeited. In addition, we may withhold your final payment for a reasonable period time to ensure that the correct amount is paid and that no returns or chargebacks, or amounts which were fraudulently generated or generated in violation of this Agreement, should be validly deducted.
We may modify the Program, including, without limitation, any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a notice of the changes or a new agreement on the Big Fish Site. In the event we elect to do so, you may terminate this Agreement and your participation in the Program in accordance with Section 8 of this Agreement. If any change to this Agreement is found to be invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity or the enforceability of any other change to this Agreement.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM AFTER WE CHANGE THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES, YOU MUST TERMINATE YOUR PARTICIPATION IN THE PROGRAM.
10.Treatment of Pre-Existing Affiliate Program Members.
If you were a member of any customer referral program operated by us prior to February 5, 2010 (a "Pre-Existing Big Fish Affiliate Program"), the provisions contained in this Section 10 govern your rights and responsibilities should you elect to join the Program.
As of the date that the Program launches, any and all Pre-Existing Big Fish Affiliate Programs will automatically and irrevocably terminate. Subject to the terms of service relating to your participation in any Pre-Existing Big Fish Affiliate Program, any account balances due and owing to you under such program will be available to you as of and following the date which is forty-five (45) calendar days following the launch date of the Program (regardless of whether you choose to join the Program).
Should you elect to join the Program, certain of your referrals from any Pre-Existing Big Fish Affiliate Program ("Pre-Existing Referrals") may qualify as "Referrals" for your benefit hereunder. In order to qualify, (a) a Pre-Existing Referral's first Financial Activity must have occurred within the twelve (12) month period prior to the launch date of the Program, and (b) such Pre-Existing Referral must not already be deemed a "Referral" of another participant in the Program.
If any of your Pre-Existing Referrals qualify as a "Referral" hereunder, the Binding Period with respect to such Referral shall expire on the date which is twelve (12) months following the date of such Referral's last Financial Activity prior to the launch of the Program. For the avoidance of doubt, following the launch of the Program, you will earn Referral Fees (rather than any commissions or other amounts which applied in connection with any Pre-Existing Big Fish Affiliate Program) with respect to such Referral's Qualifying Purchases only.
11. Miscellaneous Provisions.
(a)Relationship of Parties. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us. 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.
(b)Limitation of Liability. We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. In addition, our aggregate liability to you arising out of this Agreement and the Program will not exceed the total Referral Fees paid or validly due and payable to you under this Agreement.
(c)No Warranties; Disclaimers. We make 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, noninfringement, or any implied warranties arising out of a course of performance, dealing or trade usage). In addition, we make no representation that the operation of the Big Fish Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
(d)Independent Evaluation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR THAT COMPETE WITH YOUR SITE. YOU HAVE INDEPENDENTLY EVALUATED YOUR POTENTIAL PARTICIPATION IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
(e)Disputes. The laws of the State of Washington, U.S.A., without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly consent to jurisdiction in the federal and state courts located in King County, Washington, U.S.A. with respect to any such dispute. Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal, or other court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity's intellectual property or proprietary rights.
(f)Assignment and Successors; No Waiver. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against you and us, and our respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.