Affiliate Program

By participating or seeking to participate in the ROM America Affiliate Program, you (“You” or the “Affiliate”) understand and accept the ROM America Terms and Conditions and the following Affiliate Program terms (the “Affiliate Program Terms”):

 

The ROM America Affiliate Program (the “Program”) is provided by ROM America on ROM America’s website for users to earn commissions by sharing links to ROM America product pages. It is open to users of the Services who are aged 18 or older. If you are between the ages of 18 and the age of legal majority in your jurisdiction, you may only participate in the Program with the permission of a parent or legal guardian who agrees to be bound by these Affiliate Program Terms. 

 

Section 1. Affiliate Links

The Affiliate Program permits you to monetize your website, social media user-generated-content, or online software application (referred to here as your “Site"), by placing on your Site links to ROM America website. The links must properly use the special “tagged" link formats we provide and comply with this Agreement (the “Affiliate Links").

 

When our customers click through the Affiliate Links to purchase an item sold or services offered on the ROM America platform or take other actions, you can receive commission income for qualifying purchases. Affiliate Links may be generated within ROM America’s website, and may be created for pages including, but not limited to, (a) product detail pages, (b) collection pages for deals and promotions, (c) personal shopping lists, and (d) product list pages for lightning deals. 

 

You may select a sharing channel listed on the tray to post directly or copy the Affiliate Link to share. To share Affiliate Links from ROM America’s website, copy the page’s URL from the address bar in your browser.

 

Section 2. Affiliate Program Commission Income

 

2.1. Qualifying Purchases and Qualifying Revenue

ROM America will pay Affiliate pursuant to this Section 2 in connection with “Qualifying Purchases”, which (subject to the exclusions described in Section 2.2) occur when:

1. a customer clicks through an Affiliate Link on your Site to a ROM America website; and
2. within the initial forty-eight (48) hours, which is measured as beginning when a customer clicks through that Affiliate Link and ending upon the first to occur of the following: (x) the customer places an order, (y) forty-eight (48) hours after clicking through that Affiliate Link or (z) the customer visits a ROM America website through a third party’s Affiliate Link; and
3. the customer places an order with items from grocery delivery, marketplace delivery, Fulfillment by ROM America or Local+, and this order is successfully paid for and delivered to the customer.

 

For each Qualifying Purchase, the corresponding “Qualifying Revenue” is equal to the amount the customer paid for that Qualifying Purchase, less any shipping charges, taxes (e.g. sales tax and VAT), tips, and service charges.

 

ROM America will pay Affiliate pursuant to this Section 2 in connection with “Qualifying New User Purchases”, which (subject to the exclusions described in Section 2.2) occur when:

1. A new user registers for a ROM America account through an Affiliate Link on your Site; and
2. the new user places their first order and receives the order's delivery within the initial fourteen (14) days of the new user’s registration; and
3. places subsequent Qualifying New User Purchase” with items within one hundred eighty (180) days of the user’s registration and not through Affiliate Links from your Site or any other affiliate’s Site.. 

 

For each Qualifying New User Purchase, the corresponding “Qualifying New User Revenue” equals fifty percent (50%) of the amount the user paid for that Qualifying New User Purchase, less any shipping charges, taxes, tips, and service charges.

 

Purchases of ROM America Points, ROM America VIP Membership Program, or any other non-physical products or services do not count as Qualifying Purchases or Qualifying New User Purchases.

 

2.2. Disqualified Purchases

Notwithstanding the foregoing, Qualifying Purchases and Qualifying New User Purchases are disqualified whenever they occur in connection with a violation of this Section 2 or any other terms, conditions, specifications, statements, and policies that we may issue from time to time that apply to the Program, including the most up-to-date version of these Affiliate Program Terms (collectively, the “Program Documents”).

 

Further, the following purchases that would otherwise be Qualified Purchases or Qualified New User Purchases are disqualified and excluded from the Affiliate Program:

1. any Product purchased after the termination of your participation in the Program;
2. any Product order where a cancellation, return, or refund has been initiated;
3. any Product purchased by a customer, where such customer does not comply with the terms and conditions applicable to a ROM America website; 
4. any Product purchase that is not correctly tracked or reported because the links from your Site to the relevant ROM America website is not properly formatted;
5. any Product purchase that is conducted by another Affiliate.

 

Further, the following purchases that would otherwise be Qualified Purchases are disqualified and excluded from the Affiliate Program:

1. any Product purchased by a customer who is referred to a ROM America website through any advertisement that you purchased through participation in bidding or auctions on keywords, search terms, or other identifiers that include the word “weee!”, or “sayweee”, or any other ROM America Mark, or variations or misspellings of any of those words (e.g., “wee!”, “weee”, and “we!”) (collectively, a “Prohibited Paid Search Placement”);
2. any Product purchased by a customer who is referred to a ROM America website application by a link that is generated or displayed on a search engine, including but not limited to, Google, Yahoo, Bing, or any other search portal, sponsored advertising service, or other search or referral service, or any site that participates in such search engine’s network (a “Search Engine”);
3. any Product purchased by a customer who is referred to a ROM America website by a link that sends users indirectly to a ROM America website via an intermediate site, without requiring the customer to click on a link or take some other affirmative action on that intermediate site (a “Redirecting Link”);

 

2.3. Tiered Commission Income

Subject to the limitations described in this Section 2 and compliance with these Affiliate Program Terms, ROM America agrees to pay Affiliate “Commission Income” based on a tiered commission structure each month. Your commission rate for a month increases as your Qualifying Revenue during that month meets certain tiered thresholds. Your commission rate may change during special promotions or events.

 

Your Commission Income will be the Commission Rate times the total of your Qualifying Revenue and your Qualified New User Revenue.

 

Monthly Qualifying Revenue	Commission Rate
$0 – $999.99	2% Commission Rate
$1,000 – $2,999.99	3% Commission Rate
$3,000 – $5,999.99	4% Commission Rate
$6,000 – $9,999.99	5% Commission Rate
More than $10,000.00	6% Commission Rate

 

 

2.4. Commission Income Limitations

From time to time, we may impose limits on Affiliates’ opportunity to earn Commission Income. For the avoidance of doubt (and notwithstanding any time period), ROM America reserves the right to discontinue or modify all or part of any limitation at any time. 

 

2.5. Referral Bounties

ROM America will pay Affiliate pursuant to this Section 2 in connection with “Referral Bounties”, which (subject to the exclusions described in Section 2.2) occur when a New User registers on a ROM America's website through your Affiliate Link. A “New User” means (i) a customer that prior to registration did not have an account with ROM America, (ii) connects their account to a unique and verified phone number, and (iii) receives a qualified delivery within fourteen (14) days of registering for a ROM America account.

 

Although the bounty may change from time to time at ROM America’s sole discretion, a Referral Bounty worth ten dollars ($10.00) in ROM America Points may be awarded if a New User, registered through your Affiliate Link, receives a delivery of a Qualified Purchase of at least ten dollars ($10.00) USD within fourteen (14) days of account registration. A second Referral Bounty worth ten dollars ($10.00) in ROM America Points may be awarded if a New User, registered through your Affiliate Link, receives a second delivery of a Qualified Purchase of at least ten dollars ($10.00) within thirty (30) days of account registration.

 

Referral Bounties will be awarded in addition to Qualified New User Purchases. 

 

Affiliates cannot participate in ROM America’s general referral program and the Program.

 

2.6. Commission Reporting and Payment

We will use commercially reasonable efforts to accurately and comprehensively track Qualifying Purchases for the purposes of our internal tracking, and creating and distributing to you our reports summarizing Commission Income and Referral Bounties (collectively the “Commission”) earned by you during that month.

 

We will pay Commission in points redeemable at ROM America approximately 15 days following the end of each calendar month in which they were earned. If overpayment is issued for any reason, including but not limited to, due to a change in the status of a Qualified Purchase by reason of return or refund, ROM America reserves the right to subtract the wrongfully issued payment from the following month’s Commission. 

 

Unless otherwise prohibited by state law, if at any time there has been no substantial activity on your account for at least 3 years, then we will have the right, with 7 days’ written notice to withhold the accrued commission income for your inactive account. 

 

Payments made to you, as reduced by all deductions or withholdings described in the Affiliate Program Terms, will constitute full payment and settlement to you of amounts payable under the Affiliate Program Terms.

 

If any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent commission income payable to you under the Affiliate Program Terms.

 

Section 3. Affiliate Program Participation Requirements (“Participation Requirements”)

 

3.1. Enrollment and Eligibility

Currently, the Program is only available to candidates who are identified and invited by ROM America. Notwithstanding this invitation, your Site will not be eligible for inclusion in the Program, and you will not be able to include any Affiliate Links, if your Site is deemed unsuitable at any time. By accepting an invitation to participate in the Program, you represent that your Site is free of unsuitable content. Unsuitable Sites include those that:

1. promote or contain sexually explicit or obscene materials,
2. promote violence or contain violent materials or promote, endorse or incite potentially dangerous or harmful acts,
3. promote or contain false, deceptive, libelous or defamatory materials,
4. promote or contain materials or activity that is hateful, harassing, harmful, invasive of another’s privacy, abusive, or discriminatory (including on the basis of race, color, sex, religion, nationality, disability, sexual orientation, or age),
5. promote or undertake illegal activities,
6. are directed toward children or knowingly collect, use, or disclose personal information from children under 13 years of age or other applicable age threshold (as defined by applicable laws and regulations); or violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any applicable governmental authority related to child protection (for example, if applicable, the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) or any regulations promulgated thereunder or the Children’s Online Protection Act);
7. include any trademark of ROM America or its partners, or a variant or misspelling of a trademark of ROM America or its partners in any domain name, subdomain name, in any “tag” or referral ID, or in any username, group name, or other identifier on any social networking site; or
8. otherwise violate any intellectual property rights.

 

ROM America will determine suitability at its sole discretion. ROM America reserves the right to terminate your account in connection with any violation or abuse (as determined in our sole discretion), in which case you will be ineligible to re-join the Program without our advance authorization. 

 

You will ensure that the information you provide to ROM America in connection with your participation in the Program, including your email address, other contact information, and identification of your Site, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and these Affiliate Program Terms to the email address then-currently associated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.

 

If you are a non-US person participating in the Program, you agree that unless you have otherwise notified us in your tax information you will perform all services under these Affiliate Programs Terms outside the United States.

 

The Program is free to join. We have never authorized any business to provide paid set-up or consulting services to our affiliates, so please be wary of any business like that (even one attempting to appropriate the ROM America name) reaches out to offer you costly services.

 

3.2. Links on Affiliate’s Site

 

        3.2.1. Affiliate Links

After you have accepted an invitation to join the Program, you are permitted to display Affiliate Links on your Site. Affiliate Links enable accurate tracking, reporting, and accrual of commission income.

 

Affiliate Links must use the referral ID we have assigned to you.

 

        3.2.2. General Requirements Applicable to All Affiliate Links

Affiliate Links may be created by you or made available to you by us. If we inform you that your Site does not qualify to use certain types of links, you must cease displaying those types of links on your Site. You are solely responsible for the content, style, and placement of each link that you place on your Site and for ensuring that Affiliate Links (whether created by you or made available to you by us) include the appropriate formatting necessary for us to properly track referrals of our customers from your Site. You must not encourage customers to bookmark your Affiliate Links. All Affiliate Links must be accessed directly from your Site. For example, you must include your referral ID (appearing as #######, or such other format as we may designate) as a parameter in the URL of each link you place on your Site to a ROM America website.

 

You must remove from your Site any links and related references to limited time promotions as soon as that promotion on the relevant ROM America website ends. For instance, if your Site contains links to Products in ROM America's Latin Market with a mention of a 15% discount, you must promptly remove the reference to the discount when the promotion ends.

 

You must not make inaccurate, overbroad, deceptive or otherwise misleading claims about any Product, a ROM America website, or any of our policies, promotions, or prices. For example, if you include on your Site a link to a 16 oz passion fruit juice sold on a ROM America website, you may not state that you are linking to a 32 oz passion fruit juice.

 

You must not post any Affiliate Links on ROM America or link to any page on your Site from ROM America specifically to promote your Affiliate Links.

 

3.3. Responsibility for Affiliate’s Site

You will be solely responsible for your Site, including its development, operation, and maintenance and all materials that appear on or within it. For example, you will be solely responsible for:

1. the technical operation of your Site and all related equipment,
2. displaying Affiliate Links on your Site in compliance with these Affiliate Program Terms, all applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any applicable governmental authority, including those related to disclosures (for example, if applicable, the U.S. FTC Guides Concerning the Use of Endorsement and Testimonials in Advertising) and electronic marketing, data protection and privacy (for example, if applicable, the Directive 2002/58/EC (Privacy and Electronic Communications Directive), and any agreement between you and any other person or entity (including any restrictions or requirements placed on you by any person or entity that hosts your Site),
3. creating and posting, and ensuring the accuracy, completeness, and appropriateness of, materials posted on your Site (including all Product descriptions and other Product-related materials and any information you include within or associate with Affiliate Links),
4. using your Site, and the materials on or within your Site in a manner that does not infringe, violate, or misappropriate any of our rights or those of any other person or entity (including copyrights, trademarks, privacy, publicity, or other intellectual property or proprietary rights),
5. disclosing on your Site accurately and adequately and otherwise satisfying applicable legal requirements, either through a privacy policy or otherwise, the use of cookies, pixels, and other technologies by you and third parties and how you collect, use, store, and disclose data collected from visitors in accordance with applicable laws, including, where applicable, that third parties (including us and other advertisers) may serve content and advertisements, collect information directly from visitors, and place or recognize cookies on visitors’ browsers, and providing information on the visitor’s choices with respect to opting-out from online advertising where required by applicable law.

 

3.4. Promotional Limitations

You will not engage in any promotional, marketing, or other advertising activities on behalf of us or our partners, or in connection with a ROM America website or the Program, that are not expressly permitted under the Agreement. You will not engage in any promotional, marketing, or other advertising activities in any offline manner, including by using any of our or our partners’ trademarks or logos (including any ROM America Mark) or any Affiliate Link in connection with email, offline promotion or in any offline manner (e.g., in any printed material, ebook, mailing, or attachment to email, or other document, or any oral solicitation).

 

3.5. Distribution of Affiliate Links through Software and Devices

Except as agreed between you and us in a separate written agreement referencing this Subsection 3.5, you will not use any Affiliate Link on or in connection with: (a) any client-side software application (e.g., a browser plug-in, helper object, toolbar, extension, component, or any other application executable or installable by an end user) on any device, including computers, mobile phones, tablets, or other handheld devices; or (b) any television set-top box (e.g., digital video recorders, cable or satellite boxes, streaming video players, blu-ray players, or dvd players) or Internet-enabled television (e.g., GoogleTV, Sony Bravia, Panasonic Viera Cast, or Vizio Internet Apps).

 

3.6. Content on Affiliate’s Site

You will be solely responsible for the content on your Site and ensure:

1. You will not (and you will not seek to) purchase, register or otherwise use any ROM America mark or variations or misspellings of any of those words (e.g., “wee!”, “weee”, and “we!”) for use in any Search Engine. In addition to any other rights or remedies available to us, upon our request you will cause any Search Engine designated by us to exclude Proprietary Terms (defined below) from keywords used to display your advertising content in association with search results (e.g., request exclusion by negative keyword bidding), assuming the Search Engine offers such exclusion capabilities.
2. You will not bid on or purchase keywords, search terms, or other identifiers, including the word “ROM America,” sayweee,” or any other trademark of ROM America or its affiliates or variations or misspellings of any of these words or otherwise participate in keyword auctions on any Search Engine if the resulting paid search advertising is a Prohibited Paid Search Placement (as defined in Section 2). You may purchase paid search advertisements and submit links to Search Engines to appear in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), so long as you comply with the Agreement and those paid or unpaid search results send users to your site and not directly, or indirectly via a Redirecting Link (as defined in Section 2), to a ROM America website.
3. You will not offer any person or entity any consideration, reward, or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using Affiliate Links. For example, you cannot implement any “rewards” or loyalty program that incentivizes persons or entities to visit a ROM America website via your Affiliate Links.
4. You will not intercept, record, redirect, read, interpret, or fill in the contents of any electronic form or other material submitted to us by any person or entity.
5. You will not request, collect, obtain, store, cache, or otherwise use any account information used by our customers in connection with any ROM America website (including any usernames or passwords of ROM America customers).
6. You will not modify, redirect, suppress, or substitute the operation of any button, link, or other feature of a ROM America website.
7. You will not make any orders or engage in other transactions of any kind on a ROM America website on behalf of any other person or entity, or authorize, assist, or encourage any other person or entity to do so.
8. You will not take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (for example, search, browse, or order) are occurring.
9. You will not include on your Site, display, or otherwise use Affiliate Links or Program content in connection with, any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device.
10. You will not post or serve any Affiliate Links or other content promoting a ROM America website within any pop-up or pop-under windows, transitional page ads, or layer ads, except for pop-up windows in conjunction with your Site promoting Products closely associated with the materials on your Site.
11. You will not include any Affiliate Links in any content that you place on a ROM America website (for example, in connection with any advertising service available through a ROM America website or in a customer review, or any other customer-generated context available on a ROM America website).
12. You will not attempt to artificially increase your commission income. For example, you cannot cause any page of a ROM America website to open in a customer’s browser other than as a result of the customer clicking on an Affiliate Link on your Site.
13. You will not attempt to intercept or redirect (including via software installed on users’ computers) traffic from or on, or divert commission income from, any site that participates in the Program.
14. You will not artificially generate clicks or impressions on your Site or create sessions on a ROM America website, whether by way of a robot or software program or otherwise.
15. You will not cloak, hide, spoof, or otherwise obscure the URL of your Site containing Affiliate Links (including by use of Redirecting Links) or the user agent of the application in which Program content is displayed or used such that we cannot reasonably determine the site or application from which a customer clicks through such Affiliate Link to a ROM America website.
16. You will not use a link shortening service, button, hyperlink or other ad placement in a manner that makes it unclear that you are linking to a ROM America website.
17. Upon our request, you will provide us with written certification that you have complied with these Affiliate Program Terms (generally or specifically with respect to any provision of these Affiliate Program Terms). Any failure to provide the certification in accordance with our request will constitute a material breach of these Affiliate Program Terms.

 

Section 4. Affiliate Program Compliance Requirements

You must comply with these Affiliate Program Terms to participate in the Program and receive Commission Income. 

 

You must promptly provide us with any information that we request to verify your compliance with these Affiliate Program Terms. 

 

If you violate these Affiliate Program Terms, or if you violate terms and conditions of any other applicable ROM America marketing agreement, then, in addition to any other rights or remedies available to us, we reserve the right to permanently (to the extent permitted by applicable law) cease payment of (and you agree you will not be eligible to receive) any and all Commission Income otherwise payable to you under these Affiliate Program Terms, whether or not directly related to such violation without notice and without prejudice to any right of ROM America to recover damages in excess of this amount.

 

Section 5. ROM America Customers

Our customers are not, by virtue of your participation in the Program, your customers. As between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the ROM America websites will apply to those customers and may be changed at any time. You will not handle or address any contacts with any of our customers, and, if any of our customers contact you regarding interactions with a ROM America website, you should direct them to follow the contact instructions provided on the ROM America website to address their customer service issues.

 

Section 6. Warranties

You represent, warrant, and covenant that (a) you will participate in the Affiliate Program and create, maintain, and operate your Site in accordance with these Affiliate Program Terms, (b) neither your participation in the Affiliate Program nor your creation, maintenance, or operation of your Site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor or otherwise legally prevented from contracting), (d) you have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in these Affiliate Program Terms, (e) you will not participate in the Affiliate Program or use any other Service Offerings if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using any Service Offering; (f) you will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (g) the information you provide in connection with the Affiliate Program is accurate and complete at all times. You can update your information at any time on the ROM America website through the affiliate portal.

 

ROM America does not make any representation, warranty, or covenant regarding the amount of traffic or commission income you can expect at any time in connection with the Affiliate Program, and ROM America will not be liable for any actions you undertake based on your expectations. 

 

Section 7. Identifying Yourself as an Affiliate

You must clearly and prominently state the following, or any substantially similar statement previously allowed under these Affiliate Program Terms, on your Site or any other location where ROM America may authorize your display or other use of Program Content: “As a ROM America 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 these Affiliate Program Terms or your participation in the Affiliate Program without our advance written permission. You will not misrepresent or embellish our relationship with you (including by expressing or implying that ROM America supports, sponsors, or endorses you), or express or imply any affiliation between us and you or any other person or entity except as expressly permitted by these Affiliate Program Terms.

 

Section 8. Term and Termination

The term of these Affiliate Program Terms will begin upon your registration for or use of the Affiliate Site. Either you or ROM America may terminate these Affiliate Program Terms at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party written notice of termination provided that the effective date of such termination will be 7 calendar days from the date notice is provided. You can provide termination notice by sending an email to the direct manager responsible for services being provided as well as cs@romfresh.com. In addition, ROM America may terminate these Affiliate Program Terms or suspend your account immediately upon written notice to you for any of the following: (a) you are in material breach of these Affiliate Program Terms, (b) you otherwise fail to cure within 7 days of our notice to you regarding any other breach of these Affiliate Program Terms (including any Program Policy); (c) ROM America believes that ROM America may face potential claims or liability in connection with your participation in the Affiliate Program; (d) ROM America believes that its brand or reputation may be tarnished by you or in connection with your participation in the Affiliate Program; (e) your participation in the Affiliate Program has been used for deceptive, fraudulent or illegal activity; (f) ROM America believes that ROM America is or may become subject to tax collection requirements in connection with these Affiliate Program Terms or the activities performed by either party under these Affiliate Program Terms; (g) ROM America has previously terminated these Affiliate Program Terms (or suspended your account) with respect to you or other persons that ROM America determines are affiliated with you or acting in concert with you for any reason, or (h) ROM America has terminated the Affiliate Program as ROM America generally makes it available to participants. For the avoidance of doubt and without limitation for purposes of the foregoing subsection (a) any violation of Section 7 and as specified in the Program Policies will be deemed a material breach of these Affiliate Program Terms. 

 

ROM America may hold accrued unpaid commission income for a reasonable period of time following termination to ensure that the correct amount is paid (for example, to account for any cancellations or returns). 

 

Upon any termination of these Affiliate Program Terms, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with these Affiliate Program Terms, except that the rights and obligations of the parties under Sections 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of these Affiliate Program Terms together with any payable but unpaid payment obligations under these Affiliate Program Terms, will survive the termination of these Affiliate Program Terms. No termination of these Affiliate Program Terms will relieve either party for any liability for any breach of, or liability accruing under, these Affiliate Program Terms prior to termination.

 

Section 9. Disclaimers 

The affiliate program, the rom america website, any products and services offered on the rom america website, any special links, link formats, content, data feed, product advertising content, our and our partners’ domain names, trademarks and logos (including the rom america marks), and all technology, software, functions, materials, data, images, text, and other intellectual property rights, information and content provided or used by or on behalf of us or our partners or licensors in connection with the affiliate program (collectively the “service offerings”) are provided “as is” and “as available”. neither rom america nor any of its partners or licensors make any representation or warranty of any kind, whether express, implied, statutory, or otherwise, with respect to the service offerings. rom america and its partners and licensors disclaim all warranties with respect to the service offerings, including any implied warranties of title, merchantability, satisfactory quality, fitness for a particular purpose, or non-infringement and any warranties arising out of any law, custom, course of dealing, performance, or trade usage. rom america may discontinue any service offering, or may change the nature, features, functions, scope, or operation of any service offering, at any time and from time to time. neither rom america nor any of its partners or licensors warrant that the service offerings will continue to be provided, will function as described, consistently or in any particular manner, or will be uninterrupted, accurate, error free, or free of harmful components. neither rom america nor any of its partners or licensors will be responsible for (a) any errors, inaccuracies, viruses, malicious software, or service interruptions, including power outages or system failures or (b) any unauthorized access to or alteration of, or deletion, destruction, damage, or loss of, your site or any data, images, text, or other information or content. no advice or information obtained by you from us or from any other person or entity or through the service offerings will create any warranty not expressly stated in these affiliate program terms. further, neither rom america nor any of its partners or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with (x) any loss of prospective profits or revenue, anticipated sales, goodwill, or other benefits, (y) any investments, expenditures, or commitments by you in connection with your participation in the affiliate program, or (z) any termination or suspension of your participation in the affiliate program. nothing in this section 9 will operate to exclude or limit warranties, liabilities, or representations that cannot be excluded or limited under applicable law.

 

Section 10. Limitations on Liability

neither rom america nor any of its partners or licensors will be liable for indirect, incidental, special, consequential, exemplary damages, or any loss of revenue, profits, goodwill, use, or data arising in connection with the service offerings, even if rom america has been advised of the possibility of those damages. further, our aggregate liability arising in connection with the service offerings will not exceed the total commission income paid or payable to you under these affiliate program terms in the twelve months immediately preceding the date on which the event giving rise to the most recent claim of liability occurred. you hereby waive any right or remedy in equity, including the right to seek specific performance, injunctive or other equitable relief in connection with these affiliate program terms. nothing in this paragraph will operate to limit liabilities that cannot be limited under applicable law.

 

Section 11. indemnification

 

To the maximum extent permitted by applicable law, rom america will have no liability for any matter directly or indirectly relating to the creation, maintenance, or operation of your site (including your use of any service offering) or your violation of these affiliate program terms, and you agree to defend, indemnify, and hold us, our partners and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes, (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, (c) your use of any service offering, whether or not such use is authorized by or violates these affiliate program terms or applicable law, (d) your violation of any term or condition of these affiliate program terms (including any program policy), (e) your taxes and duties or the collection, payment, or failure to collect or pay your taxes or duties, or the failure to meet tax registration obligations or duties, or (f) your or your employees' or contractors’ negligence or willful misconduct. rom america or its nominee may take legal action and perform any procedural act on behalf of any rom america party, including through special mandate, to exercise or defend a legal claim or for the protection of rights, including for the purpose of enforcing this section.

 

Section 12. Governing Law and Disputes

Any dispute relating in any way to the Affiliate Program or these Affiliate Program Terms (including any actual or alleged breach hereof), any transactions or activities under these Affiliate Program Terms, or your relationship with us or any of our partners will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of California, without regard to principles of conflict of laws, will govern these Affiliate Program Terms and any dispute of any sort that might arise between you and us.

 

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Affiliate Program Terms as a court would.

 

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our corporate center, Rom America, INC., 4395 Ayers Ave, Vernon CA 90058, United States. All claims should be addressed to ROM America Legal Department. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. ROM America will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, ROM America will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.

 

ROM America and Affiliate each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, ROM America and Affiliate each waive any right to a jury trial. ROM America and Affiliate also both agree that you or ROM America may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

Notwithstanding anything to the contrary in these Affiliate Program Terms, ROM America may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights.

 

Section 13. Taxes

ROM America may deduct or withhold any taxes that ROM America may be legally obligated to deduct or withhold from any amounts payable to you under the Affiliate Program. From time to time, ROM America may request tax information from you. If ROM America requests tax information from you and you do not provide it to us, ROM America reserves the right (in addition to any other rights or remedies available to us) to hold your Commission Income until you provide this information or otherwise satisfy us that you are not a person from whom ROM America is required to obtain tax information.

 

Section 14. Additional Provisions

ROM America may send you emails relating to the Affiliate Program from time to time. In addition, ROM America may (a) monitor, record, use, and disclose information about your Site and users of your Site that ROM America obtains in connection with your display of Special Links (for example, that a particular ROM America customer clicked through a Special Link from your Site before buying a product on the ROM America website), (b) review, monitor, crawl, and otherwise investigate your Site to verify compliance with these Affiliate Program Terms, and (c) use, reproduce, distribute, and display your logo and marketing content displayed on your Site as examples of best practices in our educational materials. For information on how ROM America processes personal information, please see the relevant ROM America Privacy Policy. 

 

You acknowledge and agree that (a) ROM America and its partners may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in these Affiliate Program Terms, (b) ROM America and its partners may at any time (directly or indirectly) operate sites or applications that are similar to or compete with your Site, (c) our failure to enforce your strict performance of any provision of these Affiliate Program Terms will not constitute a waiver of our right to subsequently enforce such provision or any other provision of these Affiliate Program Terms, and (d) any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under these Affiliate Program Terms can be made, taken, or given in our sole discretion and are only effective if provided in writing by our authorized representative. 

 

You may not assign these Affiliate Program Terms, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, these Affiliate Program Terms will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. 

 

These Affiliate Program Terms incorporates, and you agree to comply with, the most up-to-date version of all policies, appendices, specifications, guidelines, schedules, and other rules referenced in these Affiliate Program Terms and any other policies that apply to tools, subprograms, and features made available to you under the Affiliate Program (“Program Policies”), including any updates of the Program Policies from time to time. In the event of any conflict between these Affiliate Program Terms and any Program Policy, these Affiliate Program Terms will control. In the event of a conflict between these Affiliate Program Terms and your agreement with a ROM America partner under a separate partner marketing program that agreement will control with respect to such separate programs. These Affiliate Program Terms (including the Program Policies) is the entire agreement between you and us regarding the Affiliate Program and supersedes all prior agreements and discussions. 

 

Whenever used in these Affiliate Program Terms, the terms “include(s)", “including”, and “for example” are used and intended without limitation. 

 

Any information relating to ROM America or any of its partners that ROM America provides or make accessible to you in connection with the Affiliate Program that is not known to the general public or that reasonably should be considered to be confidential is ROM America’s “Confidential Information” and will remain ROM America’s exclusive property. You will use Confidential Information only to the extent reasonably necessary for your performance under these Affiliate Program Terms and ensure that all persons or entities who have access to Confidential Information in connection with your account will be made aware of and will comply with the obligations in this provision. You will not disclose Confidential Information to any third party (other than your partners bound by confidentiality obligations) and you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in these Affiliate Program Terms. This restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties and will apply for the terms of these Affiliate Program Terms and five (5) years after termination. 

 

You and ROM America are independent contractors, and nothing in these Affiliate Program Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective partners. You will have no authority to make or accept any offers or representations on our or our partners’ behalf. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of these Affiliate Program Terms, you will be deemed to have taken the action yourself.

Notwithstanding anything to the contrary herein, nothing in these Affiliate Program Terms will, or will be interpreted or construed to, induce or require any party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. laws, regulations, rules or requirements that apply to any party to these Affiliate Program Terms.

 

Section 15. Modification

ROM America reserves the right to modify any of the terms and conditions contained in these Affiliate Program Terms at any time and in our sole discretion by posting a change notice, revised Agreement, or revised Program Policy on the Affiliate Site or by sending notice of such modification to you by email to the primary email address then-currently associated with your Affiliate account. The effective date of such change will be the date specified, which other than increased Commission Income will be no less than two business days from the date the notice is provided. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH CHANGE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THESE AFFILIATE PROGRAM TERMS IN ACCORDANCE WITH SECTION 8.