2. Promotional Materials: Affiliate wants to include certain materials promoting Company, and to include a link to Company’s website within those materials on Affiliate’s website. Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, as specified by Company.
3. Use of Promotional Materials: The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
A. Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
B. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products and services available thereon), and for linking to Company’s website.
C. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
D. The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.
4. Affiliate License: Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “Affiliate License”) to use the Promotional Materials as specified under the terms of this Agreement. The term of the Affiliate License shall expire upon the expiration or termination of this Agreement.
5. Intellectual Property: Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the Affiliate License as set forth above.
6. Relationship of Parties: This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor and in no other capacity. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
A. In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) in the amount of a percentage of product sold to a user that accesses Company’s website through a link on Affiliate’s website. This percentage varies according to the product sold and is subject to change by the Company at any time. Notification to Affiliate of any change in Affiliate’s commission percentage will be given by Company at the email address on hand for the Affiliate. Commission will be based on purchases made by a user for any new and recurring purchases for the life of the registered user.
B. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 14 days of discovering such discrepancy.
C. Commissions are held for a period of two weeks after the end of the calendar month of any purchase to protect Company in the event of any chargeback that may occur. Company shall pay all Commissions accrued and payable to Affiliate within 14 days of the last day of each calendar month in which Affiliate logged purchases in their account (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than US$20, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month. If at any time, the balance of accrued and payable Commissions is held over for 2 consecutive months, then Company shall pay all accrued and payable Commissions to Affiliate in the third month, regardless of the total amount owed. Payment is made via the Affiliate’s PayPal account.
E. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of the breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
8. Affiliate’s Representations and Warranties: Affiliate represents and warrants the following:
A. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
B. Affiliate’s website does not contain any materials that are: (i) sexually explicit, obscene, or pornographic, (ii) offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, national origin, creed, religion, gender, sexual orientation, physical disability, or otherwise), (iii) graphically violent, including any violent video game images, or (iv) solicitous of any unlawful behavior.
C. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
D. Affiliate will not use the Promotional Materials in any manner other than those set forth above.
E. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property of the Company.
F. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference the Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, in Affiliate’s own promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
G. Affiliate will not engage in the distribution of any unsolicited bulk emails (spam), text messages or any other messages in any way mentioning or referencing Company or Company’s website.
10. Confidentiality: Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except when and where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
11. Term, Termination, Amendment: This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section. Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination. Affiliate cannot amend the terms of this Agreement; except for Commissions already paid or already earned and payable to Affiliate under this Agreement, Company reserves its exclusive right to alter and amend any term of this Agreement at any time with or without notice to Affiliate.
12. Taxes: Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate. Upon entering into this Agreement, Affiliate immediately shall provide whatever tax-related information may be required and requested by Company in order to comply with applicable tax laws, including without limitation, tax identification numbers, employer identification numbers, street address information, etc. (“Affiliate’s Tax Information”). Affiliate’s failure to provide such tax-related information will result in Affiliate’s not being paid any Commissions that may have accrued, regardless of their amount; after Affiliate has failed to provide the Affiliate’s Tax Information for more than 60 days, Affiliate shall forfeit any and all Commissions which have accrued in the Affiliate’s account with the Company.
13. Limitation of Liability: Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
14. Entire Agreement: This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
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END OF AFFILIATE AGREEMENT