Bluestack Systems Inc. Affiliate Agreement
1.2. “BlueStacks App Player” means a BlueStacks App Player Windows client software.
1.3. “BlueStacks Marks” means the trademarks, service marks, trade names, logos or other words or symbols identifying the BlueStacks Products, BlueStacks’ services and business, as well as any other marks or designations used by BlueStacks anywhere in the world.
1.5. “BlueStacks Products” means BlueStacks App Player and BlueStacks.com.
1.6. “End User” means the end-user consumer who acquires any BlueStacks Products.
1.7. “Intellectual Property Rights” means all present and future copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights anywhere in the world.
1.9. “Affiliate Website” means websites operated by Affiliate and entered in the Affiliate Application.
2. AFFILIATE RIGHTS AND OBLIGATIONS
2.1. To begin the enrollment process, you will complete and submit the online application at BlueStacks.com. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion at any time.
2.2. As a member of BlueStacks Affiliate Program, you will have access to the Affiliate Management Dashboard. Here you will be able to review our program’s details and download HTML code for banner creatives, browse and get tracking codes for our vast array of Game Offer installs. In order for us to accurately keep track of all Referred Installs from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.
2.3. BlueStacks reserves the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your Affiliate Website. You must have express permission to use any copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use all copyrighted material or other intellectual property in violation of the law or any third party rights.
3. BLUESTACKS RIGHTS AND OBLIGATIONS
3.1. We reserve the right to monitor your site at any time. We may notify you of any changes to your site that, in our sole determination, should be made to comply with this Agreement, to ensure that your links to our web site are appropriate or any other changes we deem appropriate. If you do not make the changes to your site that we determine are necessary, we reserve the right to immediately terminate this Agreement and your participation in the BlueStacks Affiliate Program.
3.2. BlueStacks reserves the right to terminate this Agreement and your participation in the BlueStacks Affiliate Program immediately and without notice to you should you commit fraud in your use of the BlueStacks Affiliate Program or should you abuse this program in any way as determined solely by Bluestacks. If such fraud or abuse is detected, BlueStacks shall not be liable to you for any commissions for such fraudulent installs.
4. REPRESENTATIONS AND WARRANTIES
4.1. Partner represents and warrants that (i) neither the Affiliate Website nor this Agreement (or its performance) will infringe, misappropriate or violate any Intellectual Property Rights or other rights or agreements and (ii) the Affiliate Website does not and will not contain any viruses or worms or other harmful or disabling code, or anything that defames, libels or otherwise injures or interferes with the privacy or publicity rights of any third party.
4.2. Partner represents and warrants that the Affiliate Website does not:
4.2.1. Promote sexually explicit materials
4.2.2. Promote violence
4.2.3. Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
4.2.4. Promote illegal activities
4.2.5. Incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
4.2.6. Include “BlueStacks” or variations or misspellings thereof in its domain name
4.2.7. Otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
4.2.8. Contain software downloads that potentially enable diversions of commission from other affiliates in our program.
4.3. You may not create or design the Affiliate Website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are BlueStacks or any other affiliated business.
5. PROMOTION RESTRICTIONS
5.1. You are free to promote your own web sites, but any promotion that mentions BlueStacks could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by BlueStacks. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote BlueStacks.com so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote BlueStacks.com so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from BlueStacks. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the BlueStacks Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
5.2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click (“PPC”) campaigns on keywords such as BlueStacks.com, BlueStacks, www.BlueStacks, www.BlueStacks.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will result in the affiliate being banned from BlueStacks Affiliate Program. We will attempt to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behavior. Furthermore, any use of PPC campaigns must be approved by Bluestacks prior to its launch by Affiliate. Failure by the Affiliate to request prior approval for such PPC campaigns will result in expulsion of the Affiliate from the BlueStacks Affiliate Program, without prior notice, and the Affiliate will be liable to Bluestacks for any damages, including lost profits, caused by the PPC campaign.
5.3 Affiliate must mention, use, and promote only the latest version of BlueStacks App Player available on the official BlueStacks Website (“https://www.bluestacks.com). Versions released prior to BlueStacks 3 do not qualify for the BlueStacks Affiliate Program.
6. OWNERSHIP & USE RESTRICTIONS
6.1. BlueStacks retains all rights, title and interest (including patent rights, copyrights, trade secret rights and all other Intellectual Property Rights) towards the BlueStacks Products and any modifications and derivative works (by whomever produced) and all related documentation and materials thereto, and all BlueStacks Marks, trademarks, service marks and/or registered marks, whether or not such marks are incorporated into or with any Integrated Product.
6.2. BlueStacks acknowledges that Affiliate Website are proprietary to your and that you retain its ownership thereof.
7. TRADEMARK LICENSES
7.1. BlueStacks hereby grants the Affiliate a revocable (upon termination hereof), non-exclusive, non- transferable, non-assignable, limited license to use BlueStack’s name, product names and trademarks (collectively the “Marks;” such Marks are limited to the BlueStacks Marks designated by BlueStacks for the applicable purpose) for the purpose of accurately identifying BlueStack’s Products which are marketed pursuant to the terms and conditions of this Agreement. All goodwill generated as a result of Affiliate’s use of the Marks is solely for the benefit of BlueStacks. The Affiliate shall use the Marks in accordance with the BlueStack’s communications guidelines in effect and as updated from time to time. The Affiliate shall obtain BlueStack’s prior written approval (which may be obtained by email) for any publications, marketing collateral or other items produced by or on behalf of Affiliate that employ the Marks. Requests for approval that are not answered within ten (10) days shall be deemed denied. Any changes or corrections requested by BlueStacks will be made at the Affiliate’s own expense.
7.2. Nothing herein shall grant to Affiliate any right, title or interest in or to the BlueStacks Marks. At no time during or after the Term shall Affiliate challenge or assist others to challenge the BlueStacks Marks or BlueStacks registration thereof or attempt to register anywhere in the world, any trademarks, trade names or domain names confusingly similar to those of BlueStacks.
8.1. BlueStacks Warranty. BlueStacks represents and warrants to Affiliate that:
8.1.1. it has the full corporate power and authority to grant the rights under this Agreement and the right to enter into this Agreement;
8.1.2. to BlueStacks’ knowledge, the BlueStacks Products do not infringe any third party’s intellectual property rights; and
8.1.3. to BlueStacks’ knowledge, the BlueStacks Products contain no known viruses or other intentionally harmful code.
8.2.1. The BlueStacks Products, are provided “as is,” and no claims will be accepted concerning failure to fulfill any functions. BlueStacks does not guarantee that the BlueStacks Products are error free, or will function without interruption.
8.2.2. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, BLUESTACKS MAKES AND AFFILIATE RECEIVES NO WARRANTIES ON THE BLUESTACKS PRODUCTS OR ANYTHING ELSE, WHETHER EXPRESS, IMPLIED, STATUTORY OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH THE OTHER PARTY. AFFILIATE AND BLUESTACKS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE OR NON-INFRINGEMENT. NEITHER PARTY SHALL PASS THROUGH ANY OF THE WARRANTIES SET FORTH IN THIS AGREEMENT.
9. LIMITATIONS OF LIABILITY
IN NO EVENT WILL BLUESTACKS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS (OTHER THAN PAYMENT HEREUNDER), FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE BREACH OR NONPERFORMANCE OF THIS AGREEMENT OR THE TERMINATION THEREOF, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the above, BlueStacks’ total liability arising under or in connection with this Agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to USD $50,000 (Fifty Thousand US Dollars). The foregoing limitations will not operate to reduce either party’s obligations under Sections 6.1, 6.2 or 7, or Section 10 “Indemnification”, or either party’s liability for personal injury (including death) caused by the gross negligence or willful misconduct of that party, or any violation of the provisions of Section 14 “Confidentiality”, the Affiliate’s use of BlueStacks Intellectual Property Rights other than in accordance with the licenses granted herein, or any intentional breach of this Agreement.
Affiliate (the “Indemnifying Party”) will defend at its expense any action brought against BlueStacks (the “Indemnified Party”) by an unaffiliated third party to the extent that it is based on a claim (i) that the Indemnifying Party’s products or services or any part thereof (or any Indemnifying Party’s trademarks used in accordance with this Agreement in relation thereto), infringes any third party intellectual property right (excluding claims based on any (a) modification or combination for which the Indemnifying Party is not responsible or (b) act or omission of the Indemnified Party); or (ii) Indemnifying Party’s gross negligence or willful misconduct. The Indemnifying Party will pay any reasonable costs, damages and/or attorneys’ fees awarded against the Indemnified Party in such action or payable pursuant to a settlement agreed to by the Indemnifying Party. The foregoing obligation shall be subject to the Indemnified Party notifying the Indemnifying Party promptly in writing of the claim, giving the Indemnifying Party the exclusive control of the defense and settlement thereof (provided that the Indemnified Party has consented to such settlement, which consent shall not be unreasonably withheld or delayed) and providing all reasonable assistance in connection therewith.
11. TERM AND TERMINATION
11.1. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder
11.2. This Agreement may be terminated by either party at any time upon notice to the other party.
11.3. Upon termination of the Agreement, Affiliate shall stop marketing or promoting the BlueStacks Products.
11.4. Any unpaid Commission Fee earned through the date of termination, shall be paid by BlueStacks to Affiliate within thirty days.
12. COMMISSION FEE
12.1. Under the Affiliate Program, you will be paid a commission fee for each Referred Install in accordance with the terms of this Agreement (“Commission Fee”). Each Referred Install must meet the following criteria:
- Each Referred Install must have accurate tracking with your affiliate unique ID attached to ensure correct affiliate attribution.
- Each Referred Install must involve a completed installation of a Game Offer. For example, if a visitor clicks the download button but does complete an installation, no Referred Install occurs.
12.2. The fee per Referred Install (“Install Rate”) is as determined by BlueStacks and is subject to change by BlueStacks at its sole discretion. The estimated fee rate listed in the Affiliate Application (“Average Rate”) is an approximation based on average rates for the geographic region the application targets. The actual Install Rate may vary significantly from the Average Rate.
12.3. BlueStacks reserves the right to withhold Commissions Fees for Affiliates that are potentially fraudulent as determined by BlueStacks in its sole discretion.
12.4. BlueStacks, in its sole discretion, reserves the right to withhold indefinitely any Commission Fee, and/or to reverse, deny or reject any Commission Fee, for:
- All commissions generated for accounts that may be fraudulent, including but not limited to the use of software that generates real and fictitious information.
- If we deem orders to be fraudulent or see a pattern of potentially fraudulent activity, including, without limitation, where there are multiple accounts from the same affiliate partner, or referral of accounts which do not comply with this Agreement.
- Referred Install from Affiliate Websites containing Affiliate Links which have been altered in any way.
- Customers engaging in “Domain Speculation,” which is determined by the identification of two (2) web hosting accounts with the same Referred Customer’s name, email address, or other identifying characteristic as determined by BlueStacks and/or the identification of two (2) or more web hosting accounts that have no content on their websites or have similar content, templates or formatting, as determined by BlueStacks.
12.5. Any attempt by an Affiliate to manipulate, falsify or inflate Referred Install or Commission Fees, to intentionally defraud BlueStacks or violation of any of the terms of this Agreement constitutes immediate grounds for BlueStacks to terminate this Agreement.
13. COMMISSION PAYMENTS
13.1. Utilizing your Google sign-in credentials you may access BlueStacks Affiliate Management Dashboard’s secure affiliate account interface. From the dashboard you will be able to review commissions earned, and review how many clicks & installs you’ve influenced via our simplified color coded graph.
13.2. Commission Fees are calculated each calendar month by BlueStacks. Commission Fees are payable once the outstanding unpaid fee exceeds the payment threshold as listed in the BlueStacks Affiliate Management Dashboard (“Payment Threshold”). Commission Fees will be paid by BlueStacks during of the calendar month following the month that the Payment Threshold is exceeded. For example, if an Affiliate’s Commission Fee exceeds the Payment Threshold in the month of January, the Commission Fee will be paid in February.
13.3. Commission Fees shall be paid to the account listed in your account profile. You can update or change the payment profile at any time in the Affiliate Dashboard. Changes to payment profile may take up to two payout cycles to take effect.
13.4. You are responsible for managing your payment form/type:
a) You may choose to receive Commission Fees in the form of a bank transfer to your preferred account. If you elect to receive Commission Fees in the form of a bank transfer, BlueStacks will credit your account in the amount of your Commission Fee, as defined in this Agreement.
b) You may choose to receive Commission Fees in the form of a PayPal payment. Please refer to PayPal’s policy to ensure you are eligible to receive payment if you reside outside of the United States.
13.5. BlueStacks is not responsible for any third-party fees charged by PayPal, bank or other financial institution used to receive Commission Fees.
13.6. PayPal payments will only be reissued within 120 days of original issue date in the case of incorrect Paypal address or refusal from Paypal to accept payment.
13.7. BlueStacks, in its sole discretion, reserves the right to modify the terms of this Commission payment method or schedule at any time. Such changes shall take effect when posted.
14.1. Throughout the Term, each party (“Discloser”) may find it desirable to disclose to the other party (“Recipient”) certain information that is not public information, which Discloser intends to protect as confidential, proprietary and/or trade secret information. “Confidential Information” shall include, but not be limited to, all disclosures of hardware, software, designs, specifications, sketches, descriptions, photographs, graphics, inventions, trade secrets, patents, copyrights, future product plans, know-how and technology, marketing plans and other proprietary or business information that a reasonable recipient would identify as confidential. Recipient shall make use of the Confidential Information solely for carrying out its obligations under this Agreement. Recipient’s duty to protect Confidential Information shall expire five (5) years from the date of receipt of such Confidential Information. Recipient shall not disclose the Confidential Information and shall protect the Confidential Information using at least the same degree of care, but no less than a reasonable degree of care, as it employs to preserve and safeguard its own confidential information of like importance. Further, Affiliate will not take any action regarding the BlueStacks Products or BlueStacks’ Intellectual Property that is not expressly authorized by this Agreement.
14.2. Permitted Disclosure. Confidential Information shall not include information which belongs to Recipient or is (i) already known by Recipient without an obligation of confidentiality, as demonstrated in Recipient’s written records; (ii) publicly known or becomes publicly known (other than as result of any breach of this Agreement or any other agreement between the parties hereto) through no unauthorized act of Recipient; (iii) rightfully received by Recipient from a third party that is not a party to this Agreement without an obligation of confidentiality; (iv) independently developed by Recipient without the use of Confidential Information and Recipient can prove such independent development; or (v) prior to any disclosure, is specifically approved in writing for disclosure by Discloser. In addition, the Recipient may disclose the Discloser’s Confidential
14.3. Information in response to a valid order by a court or other governmental body, or the request of any applicable stock exchange, or as otherwise required by law; provided, however, that the Recipient shall provide the Discloser with prior written notice of any such disclosure that is reasonably sufficient in length to allow the Discloser to contest such disclosure before the appropriate court or governmental body, and Recipient shall limit the disclosure to the Confidential Information strictly required by such order or law.
15. GENERAL TERMS
15.1. All notices, documents, and materials (collectively “Notices”) issued or provided by either party in connection with this Agreement shall be in writing and delivered by email. Notices to Affiliate shall be delivered to the e-mail address entered in the Affiliate Application. Notices to Bluestacks shall be delivered to firstname.lastname@example.org. Delivery by email shall be deemed to arrive when the data enters the other party’s system.
15.2. This Agreement states the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the parties hereto concerning the subject matter hereof. Unless otherwise provided herein, any amendment or modification of this Agreement shall be made in writing signed by both parties.
15.3. Unless otherwise provided herein, no waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
15.4. Affiliate is an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate has no authority to make or accept any offers or representations on behalf of BlueStacks. Affiliate will not make any statement, whether on their sites or otherwise, that reasonably would contradict this statement.
15.5. BlueStacks may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. These modifications may include, but not limited to changes in the fee schedules or payment procedures. If any of the modifications are unacceptable to Affiliate, its sole recourse is to terminate this Agreement.
15.6. Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect as though such provisions were deleted.
15.7. No party shall be deemed in default of this Agreement to the extent that performance of its respective obligations or attempts to cure any breach are delayed or prevented by reason of any force majeure, such as an Act of God, fire, natural disaster, act of government; provided, that the party interfered gives the other party notice thereof within ten (10) business days of any such event or occurrence.
15.8. Nothing contained in this Agreement shall be construed as creating any partnership or joint venture between the parties. Neither party shall be authorized to act as an agent for the other, nor shall either party enter into any agreement or contract on behalf of the other as representative or agent.
15.9. Affiliate shall not assign this Agreement to any third party without the prior written consent of BlueStacks.
15.10. Sections 1, 6.1, 6.2, 7.2, 8.2, 9, 10 and 14 shall survive the termination or expiration of this Agreement.
15.11. This Agreement shall be governed by and construed in accordance with the laws of California, without reference to its conflict of laws rules. Any dispute, controversy or claim arising in any way out of or in connection with this Agreement, including the existence, validity, interpretation, performance, breach or termination of this Agreement (“Dispute”) will be referred to and finally resolved by binding arbitration administered by California Arbitration Rules (“Rules”) in force when the Notice of Arbitration is submitted in accordance with those Rules. The seat of arbitration will be Santa Clara County, CA, USA. The arbitration tribunal will consist of three arbitrators to be appointed in accordance with the Rules. Arbitration will be conducted in English. Judgment upon the award rendered by the arbitrators is final and binding upon parties, and may be entered in any court of competent jurisdiction.
15.12. Affiliate represents and warrants that the terms and conditions of this Agreement are in compliance with and consistent with all applicable laws or regulations in their country.