DERMPOINT AFFILIATE PROGRAM
Participating in the Dermpoint, Inc. Affiliate Program is easy.
The Dermpoint Affiliate Program offers eligible affiliates, including blogs and third party websites (“Affiliates”), the opportunity to earn commissions on qualifying sales that originate from links to Dermpoint Inc.’s websites (ParaMiPro.com, AnjaliMD.com and other websites owned and operated by the Company) on an Affiliate’s site and social media platforms. In order to gain access to the Affiliate Program all prospective affiliates must apply for and be approved by Dermpoint, Inc. The Affiliate must provide Dermpoint, Inc. with truthful, accurate and complete registration information, and must immediately update his/her/its registration information when it changes.
THIS APPLICATION FOR ENROLLMENT AS A MARKETING AFFILIATE OF DERMPOINT, INC. (“DERMPOINT"), IF ACCEPTED BY DERMPOINT, WILL BECOME A LEGALLY BINDING AGREEMENT THAT WILL GOVERN THE AFFILIATE’S PARTICIPATION IN THE "DERMPOINT AFFILIATE PROGRAM". BY CLICKING THE "I ACCEPT" BUTTON BELOW, THE AFFILIATE AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.
AFFILIATE MARKETING AGREEMENT
The Affiliate, by joining the Dermpoint Affiliate Program (the "Program"), agrees to be bound by the following terms and conditions:
Parties: The parties to this Agreement are the owner and operator of this website, Dermpoint, Inc. ("Dermpoint" or the “Company”) and you (the “registrant” or the “Affiliate”) the person and entity who agree(s) to participate in the Dermpoint Affiliate Program (the "Program"). If you are acting for or on behalf of an entity, then the reference to the word “you” or the “Affiliate” collectively refers to and includes the Affiliate and his/her/its agents, associates or any other entity or organization for or under which the Affiliate performs any functions or carries out any activities pursuant to this agreement. The word “entity” refers to and includes any organization recognized by law as a legal party which has an independent, separate or self-contained existence, separate from its owners, such as, a sole proprietorship, corporation, partnership, limited liability company, trust and like.
Non-Exclusive Appointment: Effective upon the Company’s acceptance of the Affiliate Application and subject to the terms and conditions hereof, Dermpoint hereby authorizes you to be a non-exclusive participant in the Dermpoint Affiliate Program (also referred to as the "Program") for the purposes of promoting and marketing its products and services. No payment of any fee or equivalent charge is required from the Affiliate as a condition to enter into this Agreement.
The word “website”, “websites” “Site” or “Sites” herein collectively refers to and includes all websites, social media pages and other online services and marketing platforms, now known and those which may come in existence in the future in any form or medium. Any reference to "your site", “your website”, “affiliate website” or “affiliate site” collectively refers to and includes the Affiliate’s website, social media pages, blogs and any other platforms that may be used by the Affiliate to link to the Dermpoint, Inc. websites (ParaMiPro.com, AnjaliMD.com and other websites owned and operated by the Company), online services and marketing platforms used by the Company in connection with the Program.
Custom Links: “Custom Links” or “Links” refers to and includes the specific website links, hyperlinks, electronic access, software, technology, codes, custom discount codes and referral codes provided by the Company to the Affiliate under the Program that will refer potential customers or visitors on the Affiliate’s site to the Company’s websites for viewing and ordering the Company’s products. The reference to “products” collectively refers to the products and services sold by the Company.
Affiliate’s Representation and Warranties: The Affiliate represents and warrants that:
The Affiliate is over the age of eighteen years. All representations made by the Affiliate in his/her/its application for registration in the Dermpoint Affiliate Program are true, correct and complete. The Affiliate, under the penalty of perjury, affirms that he/she/it 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. If the Affiliate is acting for or on behalf of any entity, the Affiliate further affirms under the penalty of perjury that he/she/it is duly authorized on behalf of such entity to execute this Agreement and bind such entity with the terms and conditions of this Agreement.
The Affiliate shall notify, keep current and immediately update any and all information provided by the Affiliate to the Company as part of the application and/or registration process, including any matter affecting the operation of the Affiliate sites and warranties, no later than five (5) business days of any change.
The Affiliate has identified each and every website and social media address which will incorporate custom links or coupon codes to be provided by the Company.
The Affiliate’s website and/or social media pages do not contain and shall not contain any material which is (i) sexually explicit, obscene, or pornographic; (ii) offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory, whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise; (iii) graphically violent, or (iv) likely to promote any illegal activity.
The Affiliate’s websites are and shall remain at all times during the operation of this Agreement in full compliance with all applicable Local, State and Federal laws, rules and regulations, including without limitation, all applicable FTC guidelines. The Affiliate has obtained and shall keep current during the operation of this agreement all necessary clearances, licenses and other permits for the Affiliate’s business and websites.
The Affiliate shall promptly supply any additional information, complete all forms and formalities, reasonably requested by the Company from time to time, and timely acknowledge any and all communication directed to the Affiliate, including without limitation receipt of any memos, guidelines, procedures, policies, accounting and tax matters annual disclosures, and like.
Status and Relationship of the Parties:
The parties to this Agreement expressly understand and agree that each party is an independent party and their relationship shall be at all times that of independent contractors. Neither party has the right or authority to bind the other party. Nothing herein, including the length or duration of association between the parties, shall create any partnership, fiduciary, joint venturer, licensor-licensee, employer-employee, principal-agent or any other relationship between the parties. This Agreement does not grant or create any agency, distributorship, territorial rights, franchise or exclusiveness for the sale and distribution of products of the Company. This Agreement does not appoint the Affiliate as the Company’s Sales Representative.
The Affiliate is an independent self-employed contractor in the performance of each and every part of this Agreement. The Affiliate shall employ such means and methods as the Affiliate deems appropriate for Affiliate’s performance under this agreement. The Affiliate shall be solely and personally responsible for any and all obligations that may arise on account of the Affiliate's activities and operations, including without limitation, costs, debts, expenses, taxes, labor, claims, liabilities, insurance and damages. The Company is in no manner associated or otherwise connected with the actual performance of this Agreement on the part of the Affiliate.
The Affiliate will be fully responsible for and will obtain and keep current all authorizations, licenses, permits and other governmental or regulatory agency approvals as are required for the performance of this Agreement by the Affiliate and/or the Affiliate's employees and agents, if any, and for reporting and payment of all applicable taxes on his/her activities. The Affiliate agrees to exonerate, hold harmless and indemnify the Company from any liability, loss, damage or claim arising against or incurred by or paid by the Company by reason of Affiliate’s failure to fully or timely assume and satisfy any responsibilities under this Agreement.
No Guarantees: The Company does not guarantee any success, or make any representation or warranty regarding any potential income the Affiliate may earn under the Affiliate Program.
Under the Program, the Company shall make available to the Affiliate, promotional material, coupon codes and specific website Link/Links that will refer the visitors on the Affiliate's site to the Company’s website to visit and order its products.
The Affiliate may use any form of promotion, consistent with the terms of this Agreement, including banner advertisements, button links and/or text links and like. The Affiliate shall not alter, add to, subtract from, or otherwise modify any material provided under this Program to the Affiliate. The Affiliate shall not modify, reverse engineer, disassemble, decompile any Link. In utilizing the promotional material and Links, the Affiliate shall follow all directions provided by the Company and fully cooperate with the Company. The Affiliate may only use the given promotional materials for the purpose of promoting the products and services of the Company and for linking to the Company’s website or other online services used by the Company, and shall not use the same for any other purpose. The Affiliate shall not use the promotional material or Links for any purpose which is not permitted by the Company or which is prohibited by the Company. The Affiliate shall not use the promotional material or Links in any way or form which negatively affects the Company’s products.
The Company may, at any time change, suspend or discontinue any offer, link or promotion.
The material provided on the Company’s websites and online services used by the Company is protected by law, including, but not limited to, United States copyright law and international treaties. All intellectual property rights, including without limitation, all trademarks, copyrights, patent rights, or applications, trade names, domain names, graphics, artwork, logos and service marks, including rights in and to any derivatives thereof related to the foregoing, are and shall remain the sole property of the Company and its licensors. The intellectual property also includes intellectual property with respect to the tracking URL(s), links, link formats, technical specifications, guidelines, or graphical artwork with respect to the Company’s websites and online services used by the Company. No license or assignment of any intellectual property is made by the Company to the Affiliate under this agreement.
The Affiliate is only granted a non-exclusive, non-assignable, non-transferrable, limited, revocable and temporary right to access and use the promotional material and Links provided by the Company, strictly in the form provided by the Company and in accordance with the terms and conditions of this Agreement. The said promotional material and links may incorporate items of intellectual property; however, the said items or any part thereof shall not be deemed assigned or licensed to the Affiliate. Except for the limited rights to use the promotional material granted herein, all other rights are reserved by the Company and respective owners.
The Affiliate shall not modify in any way, trademarks, banners, artwork, images or any other material provided to the Affiliate. At the termination of this Agreement, or as and when directed by the Company for any reason, the affiliate shall immediately remove any Company provided promotional material including trademarks and banners, from the Affiliate’s website, social media pages, blogs or any other platforms.
The Affiliate is prohibited from bidding on, purchasing or registering any keywords, search terms or other identifiers that include any principal words in the Company’s trade names, domain names, product names, brand names, or any of the Company’s trademarks or logos, or any variation thereof ("Proprietary Terms") for use in any portal, platform, search or advertising, including without limitation, search engine, pay-per-click advertising (PPC) service, content networks and social networking sites, referral services, extended or hybrid searches and like. Variations include any misspellings, any other combination of letters and/or numbers that are the same as, or confusingly similar to, any of Company's Proprietary Terms. Further, the Affiliate is prohibited from broadening or phrase matching any of the Proprietary Terms and keywords. The Affiliate is also prohibited from outranking the Company’s internal paid search ad on any keywords, and direct linking to our website from any paid search ads, or using our website as a display URL.
The Affiliate is not permitted to use the Company’s Proprietary Terms or any misspellings or variations or broadening or phrase matching any of the Proprietary Terms and keywords thereof as a sub-domain or sub-folder.
The Affiliate is not permitted to list Company products on any marketplaces (Ebay, Amazon, Alibaba, Craigslist and like).
The Affiliate is not permitted and agrees that any material provided by the Company under this Program, including links, and coupon codes, shall not be placed by the Affiliate in any newsgroups, unsolicited e-mail, ICQ, coupon websites, “cash-back” sites, voucher sites, price comparison sites, deal websites, advertising networks, marketplaces, banner networks, sites which launch “pop-up” or hidden windows on users’ browsers, or messaging platforms or chatrooms and any sites that violate the Company’s Trademark Policy. The Affiliate shall not send traffic through automatic redirects on any platform.
The Affiliate shall not place the Company’s links on any private social media accounts that cannot be monitored by the Company.
From time to time the Company may request that the Affiliate cause any applicable web search provider to exclude the Company’s Proprietary Terms from keywords used to display the Affiliate’s advertising content in association with search results, and if the provider of such web search engine offers such exclusion capabilities, the Affiliate agrees to promptly comply with such requests.
If the Company determines that the Affiliate has registered, listed, purchased or attempted to register or purchase any Proprietary Terms in violation of this Agreement, the Company may in its sole discretion pursue any or all of the following actions: (i) Seek injunctive relief or take any other legal action; (ii) Withhold all compensation otherwise payable to the Affiliate; (iii) Remove the Affiliate from the Program; and/or (iv) remove the ad immediately and permanently by contacting the search engine in which the Affiliate’s ad appears.
Affiliate Site Operation:
The Affiliate shall be solely responsible for the Affiliate site, including its development, operation and maintenance, and all content that appears on or within it. The Affiliate shall ensure that the marketing through the Affiliate site is honest and transparent, and complies with all applicable laws, rules and regulations, including those of the Federal Trade Commission.
The Company shall be authorized but not obligated to monitor the Affiliate’s (i) advertisements for the Company’s products and services regardless of the media, platform, or format, and (ii) marketing methods, procedures, and communications by any means now known or hereafter developed for purposes of determining the Affiliate’s compliance with this Agreement, including without limitation, monitoring the Affiliate’s website(s), emails, and social media posts both directly by the Company and indirectly via third parties.
The Affiliate agrees that the Company does not have an obligation but it reserves the right to approve the Affiliate advertisements and promotions prior to their publication. The Company may notify the Affiliate regarding any requirement for assistance with monitoring the Affiliate advertisements and promotions, and the Affiliate agrees to implement any and all such requirements.
The Affiliate agrees that the Company has the right to require the Affiliate to modify or cease any of its advertisements, marketing methods, procedures, and communications. The Affiliate agrees to immediately implement any such request from the Company. In the event of refusal or non-compliance with such request, the only alternative for the Affiliate will be to terminate this Agreement and discontinue participation in the Program, without holding the Company liable for any loss or damage.
The Affiliate shall not, under any circumstance, compromise the security of his/her/its Affiliate account. The Affiliate is fully responsible for maintaining the confidentiality of its Affiliate account and for any and all activities that occur under the Affiliate account. The Affiliate shall immediately notify the Company of any unauthorized use of the Affiliate account or of any other breach of security. The Company shall not be held liable for any loss that the Affiliate may incur as a result of any unauthorized access or use by any party of the Affiliate’s account. Further, the Affiliate will be held liable and will be required to indemnify the Company for any loss or damage suffered by the Company as a result of unauthorized use of the Affiliate account by a third party.
The Affiliate shall notify the Company within seventy-two (72) hours of any inquiry or investigation by any governmental entity in which the Company or the Company's products are mentioned, and shall promptly transmit to the Company all documents received by the Affiliate from such entity in connection with such inquiry.
Policies Regarding Affiliate Site & Marketing:
Spam and Unacceptable Marketing Methods: The Affiliate may engage in general email promotions; provided, however, that as a condition of the Affiliate’s participation in the Program, the Affiliate shall strictly comply with all applicable Local, State and Federal laws, rules and regulations that govern marketing email, including without limitation, the U.S. CAN-SPAM Act of 2003, Canada's Anti-Spam Law (if applicable), all applicable FTC guidelines and all other applicable anti-spam laws. Violation of any of these laws will lead to immediate termination of this Agreement. The Affiliate shall not use any malware, adware, spyware, phishing, pharming, hacking or any other similar technique.
Non-Interference: The Affiliate shall not (i) Cause the overwriting of the Affiliate commission tracking cookies through any means (ii) Intercept searches to redirect traffic through any means (iii) Set commission tracking cookies through loading of merchant site in iFrames, hidden links, or automatic pop-ups and like or (iv) Target text on websites, other than those websites 100% owned by or connected with the Affiliate, for the purpose of contextual marketing (v) use software or programming that potentially enable diversions of commission from other affiliates in our program.
Truthful and Non-Deceptive Advertising: The Federal Trade Commission (FTC) Act’s prohibition on “unfair or deceptive acts or practices” broadly covers advertising claims, marketing and promotional activities, and sales practices. The FTC Act is not limited to any particular method or medium. In addition, other applicable Local, State and Federal laws, rules and regulations also prohibit unfair trade practices and false, misleading or deceptive advertising. The Affiliate shall therefore substantiate his/her/its advertising claims prior to dissemination and to state in clear language that these claims are both true and not misleading. In marketing activities, the Affiliate agrees to comply strictly with all applicable laws, rules and regulations.
The Affiliate is requested and directed to refer to the following FTC publication for https://www.ftc.gov/tips-advice/business-center/advertising-and-marketing/online-advertising-and-marketing. If the links are not operational or they have changed, you may contact the FTC or our program director for assistance.
Affiliate Compensation Disclosure:
The Affiliate is informed that the FTC classifies the Affiliate as an "endorser" for the Company’s products or services that are marketed by the Affiliate. Accordingly, the Affiliate shall disclose the Affiliate’s "material connections" with the Company in his/her/its capacity as an Affiliate by making a clear and conspicuous disclosure in all online advertisements by stating the fact that the Affiliate is compensated for promoting the Company’s products and services. The Affiliate shall in Affiliate’s advertisements, website pages and at the bottom of all commercial emails, satisfy the said requirement of disclosing the Affiliate’s "material connection" with the Company by adding a notice or statement, one similar in form and substance, as follows:
“From time to time, we promote, endorse, or suggest products or services of others. In most cases, we will be compensated or receive free product for our review or use. Our recommendations are always based on (i) our personal belief in the high quality and value of the product or service, and (ii) our review of the product or service, or a prior relationship or positive experience with the sponsoring person or organization.”
“This is an affiliate ad supported website. If you buy something from a link or ad on this website, based on my/our recommendation, either expressed or implied, I/we may be paid a commission by the company from which you have made the purchase or receive free products from the company for our review or use.”
The Affiliate shall in all promotional posts on social media, disclose his/her/its "material relationship" by adding the following as a prominent disclosure: #ad, or such other notation as may be recommended by the FTC and other applicable laws, rules and regulations.
The Affiliate is requested and directed to refer to the following FTC publication for guidance: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking . If the links are not operational or they have changed, you may contact the FTC or our program director for assistance.
The Affiliate should consult his/her/its own legal counsel for the appropriate language and compliance with all applicable laws, rules and regulations affecting its operation.
Commissions & Payments:
The Affiliate shall receive Sales Commissions for sending the Company authorized sales via links, tracking cookies, and/or coupon/voucher code usage, in compliance with the terms and conditions of this Agreement. The Affiliate Program platform uses browser cookies to verify qualifying sales. The cookies are valid for thirty (30) days (the “Cookie Period”). Commissions are paid on qualifying sales made during the Cookie Period.
Commissions are computed and paid based on the net sales of the Affiliate’s Referrals that the Company is able to track and credit to the Affiliate. The term "Referrals" means users who access this site through tracking URL(s) that the Company provides to the Affiliate.
Sales commissions will be computed by multiplying the “Net Amount of the Qualifying Purchases” (“Net Sales”) by the relevant Sales Commission Rate.
The Sales Commission Rate shall be determined and announced by the Company. The current commission rate shall be reflected under “Program Summary” appearing on the Program Registration page. The commission rate may be changed by the Company at any time, by providing a ten (10) day notice by email or other written means to the Affiliate. The Company may, at its sole discretion, designate different rates. All commissions are in US dollars.
A "Qualifying Purchase" occurs when a customer clicks through a Link on the Affiliate’s site to the Company's website and/or a customer uses a Coupon Code at checkout which has been directly assigned to the Affiliate and linked to the Affiliate account for tracking purposes, and that customer both: (i) adds a product to his/her shopping cart and places the order for that product, and (ii) the product is paid for by the customer, and shipped, and the product is not returned or purchase price is not refunded.
A Qualifying Purchase could occur during the visit by the customer or if the sale was made within thirty days of the user clicking the Affiliate Link, as long as the Affiliate was the last referral. If a user clicks multiple Affiliate Links, the last Affiliate Link to be clicked prior to a qualifying sale will receive the commission. If the user’s last click prior to making the purchase was any channel or method other than the Affiliate link, the purchase will not be a qualifying sale and the Affiliate will not receive a commission.
For the purpose of commissions, the term “Net Sales” means the total invoice price at which the sale is invoiced to the customer and actually paid to the Company, excluding any returns, markdowns, temporary price reductions, rebates, refunds, discounts, charge-backs, cost of bundling outside third-party products, any shipping and handling charges, local and foreign taxes, miscellaneous fees, and/or any other losses, reductions, allowances or discounts granted to the customer at the time of order or subsequent to the order. The Company, at its sole discretion, shall determine all matters pertaining to customer refunds, returns and collectability of accounts, without incurring any liability for its actions. Such determination by the Company shall be binding upon the Affiliate.
Qualifying Purchases exclude, and the Affiliate will not be paid Sales Commissions on any product that: (a) is purchased by a customer without using an assigned Affiliate link or specific custom coupon code; (b) is not correctly tracked or reported because the links from the Affiliate site to the Company's web sites are not properly formatted (c) is purchased for resale or commercial use of any kind; (d) is purchased after expiration of the link, promotion, coupon code or termination of this Agreement; or (e) is purchased by a customer who is referred to the Company's site through any prohibited method or means.
Use of Voucher Codes: Affiliates may only promote the coupon/voucher codes that are provided through the Affiliates Program platform. Any expiration dates should be clearly displayed next to the voucher codes, and codes should be removed or explicitly marked as expired after the expiration date. The Affiliate will not be paid Sales Commissions on any internally created codes by the Affiliate.
Commissions are computed and paid based on the net sales of the Affiliate’s Referrals that the Company is able to track and credit to the Affiliate. In no event shall the Company be held liable for more than a single referral fee for a single referral sale, and in the event of a dispute between competing affiliates for credit for a sale, the Company’s determination will be final. Commissions for orders that are disputed (returns, etc.) will be withheld until such matters are fully resolved.
All orders through an Affiliate’s custom Link shall be tracked through a third party or an intermediary, and such data alone shall be the basis for computing all commissions. The Affiliate shall be responsible for retrieving the sales commission information from the Company’s web site or a third party website, designated by the Company, including any changes to the sales commission or the payout structure.
An Affiliate is only permitted to have one (1) account, and shall list all his/her/its platforms under this account.
Becoming a customer of the Affiliate’s own account is strictly prohibited and Sales Commission generated in violation of this paragraph will not be paid.
Except as may be expressly authorized in writing by the Company, the appointment of sub-affiliates is not permitted and will not be recognized by the Company.
In the event a referral of an Affiliate who visited the Company's Web site via the Affiliate site later becomes the Company’s customer through any other channel of commerce, a participant in the Affiliate Program or otherwise becomes a promoter, salesperson, wholesaler, distributor or retailer of the Company’s products, the Affiliate will not be entitled to any further commission whatsoever for sales to that customer.
Sales commission payments on Net Sales of Qualifying Purchases are computed on a monthly basis. Commissions earned by the Affiliate in a calendar month will be paid 36 days after the close of the month, to allow for returns.
The Payments shall be processed by PayPal and paid to the Affiliate’s PayPal account. The Company may change the payment processor at any time.
The Affiliate must notify and keep current his/her/its contact details and PayPal email address to ensure accurate disbursement of commissions. The Affiliate shall promptly comply with and complete all forms and formalities required in connection with the disbursement of commissions.
In the event the Affiliate’s commission balance for any month is under $100 USD, it will be credited toward the next monthly billing cycle. Commissions credited to the Affiliate Account do not accrue interest.
Any discrepancy in the amount owed by the Company must be brought by the Affiliate to the attention of the Company within thirty (30) days following the date of payment.
Order Processing and Fulfillment:
The Company will be solely responsible for all aspects of processing and fulfillment of orders placed by Affiliate Referrals. All orders are subject to pricing, terms of sale, rules, policies, and operating procedures concerning customer orders set forth on the Company's website. The Company reserves the right to reject orders that do not comply with its requirements. The Affiliate is not authorized to accept orders or to enter into contracts or to create any obligation in the Company’s name, or to transact any business on behalf of the Company.
The Company reserves the right in its sole discretion, to include, delete, modify, alter, change, improve, limit the supply or discontinue any or all of its products, and to establish, change, alter, or amend the prices for any or all of its products. The Company also reserves the right to offer its products at different prices, discounts and terms in different channels of commerce. The Company will not be held liable for any loss, damages or penalties for failure or delay in furnishing products for any cause whatsoever.
Product Warranty: The Affiliate shall not make any representation or warranty regarding the Company’s site, products or services. The Affiliate does not have any authority, express or implied, directly or indirectly, to alter, change, enlarge, limit, or otherwise modify the representations or warranties made by the Company in connection with the Products beyond those expressly contained in the Company's written product warranty, product website and literature. The Affiliate will indemnify and hold the Company harmless from any expenses, claims, damages, liability of any nature and character, including court costs and attorneys' fees, arising from or related to any such unauthorized representations, warranties, or guarantees, or from any inconsistent promises.
Warranty Disclaimer: Although the Company reserves the right to make a limited warranty to the end-user, it makes no warranty to the Affiliate. Neither the Company nor any of its suppliers or resellers make any warranty of any kind, express or implied, to the Affiliate. The Company and its suppliers specifically disclaim the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, system integration and data accuracy. This disclaimer of warranty constitutes an essential part of this agreement. No marketing of the Company services or product(s) is authorized hereunder except under this disclaimer.
Errors and Interruptions: The Company makes no representation that the operation of its site will be uninterrupted or error-free, and the Company will not be held liable for the consequences of any interruptions, errors and omissions.
Indemnification. The Affiliate agrees to defend, indemnify and hold harmless the Company, its directors, officers, partners, affiliates, agents, assigns, licensees, subsidiaries, successors, subcontractors and service or contents providers against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, attorneys' fees, costs and expenses that are directly or indirectly premised upon or connected with the Affiliate’s (i) breach of any representation, warranty, or covenant made by the Affiliate in this Agreement, (ii) errors, omission or negligence in performance of this Agreement, (iii) breach of any duty or obligation under this Agreement, (iv) operation, use, development, design, manufacture, production, advertising, promotion, or marketing of the Affiliate site, (v) violation of any law, rule or regulation, including claims of infringement of intellectual property rights of any party and/or (vi) failure to fully or timely assume and satisfy any responsibility or obligation under this Agreement.
Limitation of Liability & Cap:
In any claim or controversy premised on any theory of law or equity, including contract, torts, strict liability, the Company, its licensors, service or content providers, affiliates and agents shall not be held liable for any direct, indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or character, even if the Company had been previously advised of the possibility of such occurrence, loss or damage.
The Affiliate’s sole recourse and remedy against the Company for any and all disputes and claims, regardless of how characterized, shall be to seek a payment of referral fees or commissions from the Company. However, notwithstanding the other provisions of this Agreement, if the Company is held liable for any damages, the total aggregate liability of the Company, its officers, directors, licensors, service or content providers, affiliates, agents, contractors and sub-contractors, regardless of how alleged or characterized, shall be limited to the lesser of (a) the average monthly commission fee payable to the Affiliate by the Company under this Program based on the commissions for the preceding three (3) month period prior to any such action giving rise to the claim, or (b) Five hundred ($500.00) U.S. Dollars.
Non-Disclosure of Confidential Information:
During the course of his/her/its Agreement with the Company, the Affiliate may receive and be entrusted with certain confidential business information from the Company. It is acknowledged by the Affiliate that confidential information is a valuable trade resource of the Company, and that any disclosure or unauthorized use thereof will cause irreparable harm, competitive disadvantage, expenses, financial loss or loss of goodwill to the Company. Confidential information includes proprietary and protected information in any tangible and intangible form and format, covering all internal workings of the business and its operations, including pricing, sales, promotions and marketing plans. The Affiliate agrees to use the said confidential information only for the purposes of the Affiliate’s performance under this Agreement, and he/she/it shall not use or disclose the said confidential information for any other purpose during the operation of this Agreement or at any time thereafter.
Customer Transactional Information. The Affiliate shall hold in strictest confidence any personal information that the Company may disclose to the Affiliate regarding a referred transaction or customer and shall use such information only for the purposes of monitoring that specific transaction.
Internal Communication & Announcements: The Affiliate shall not disclose any internal communication directed by the Company to the Affiliate to any other party. Such communication, without limitation, includes any emails, newsletters, new product announcements, marketing plans, surveys, opinions, and endorsements. The Affiliate shall not disclose or make public any marketing plans, media or promotions prior to the date of announcement set by the Company.
The Affiliate shall not make any public statement, press release or announcement relating to this Agreement and the Affiliate’s performance under this Agreement without prior written approval from the Company. The Affiliate shall not use this Agreement as suggesting or implying an endorsement by the Company of the Affiliate.
The Affiliate shall not disparage the Company, its business, brands, products and policies.
Submissions and Suggestions:
The Company does not pay for any unsolicited suggestions, ideas, concepts, plans, proposals, discussion, feedback and like ("submissions"), conveyed, offered, or sent by the Affiliate to the Company, with respect to any aspect of the Company’s business operations, products and services, unless such submissions are specifically authorized and requested in writing by the Company’s management through its legal department under a separate agreement. All submissions shall be deemed to be non-confidential and non-proprietary, and the Company shall have no obligation of any kind with respect to such submissions. The Affiliate will not be compensated in any manner for such submissions. To avoid any false expectations and misunderstandings, the Affiliate is requested not to send to the Company any ideas, suggestions, plans or proposals for the Company’s business for which the Affiliate expects to be recognized, rewarded or compensated by the Company in any form or manner.
The Company shall be under no obligation to respond to or use any submission. Further, by submitting any suggestion, the Affiliate grants to the Company and its licensees a worldwide, perpetual, non-exclusive, fully-paid, royalty-free, transferable right and license, with the right to sublicense, reproduce, publicly display, distribute, transmit, edit, modify, create derivatives, sell, commercially exploit, use, and disclose the submissions for any purpose and in all forms and all media whether now known or to become known in the future.
Term and Termination:
The term of this Agreement will begin upon the Company’s approval of the Affiliate’s application and will end when terminated by either party. Either the Affiliate or the Company may terminate this Agreement at any time, with or without cause, by giving the non-terminating party written notice of termination. Upon the termination of this Agreement for any reason, the Affiliate will immediately cease use of, and remove from the Affiliate’s site(s), all links to the Company’s websites, including materials provided by or on behalf of the Company to the Affiliate in connection with the Program. The Company may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid.
The Company may terminate the Agreement immediately for cause if the Company in its sole discretion determines that the Affiliate has violated the terms of this Agreement and/or any applicable laws, rules or regulations. If the Company terminates the Affiliate for cause, the Company will immediately halt the processing of any payments or charges for sales generated by the Affiliate, and the Affiliate will forfeit any unpaid commissions.
Communication & Notices:
The parties agree to conduct all communication electronically. The Company shall provide all communication and notices to the Affiliate by emailing the same to the Affiliate’s primary email address provided on the Company’s records and/or by posting them on the Company’s Affiliate Programs Section, Newsletters and other areas to be designated by the Company. The Affiliate may send all communication and notices to the Company by email at email@example.com or other email address the Company may specify.
All notices, requests, approvals, authorizations, consents, demands, or other communication required or permitted to be given or made pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (i) on the 3rd day following the date of transmission if sent via email, as date stamped by the sending Party's system; (ii) on the 3rd day following the actual delivery date if sent by express mail or any courier service; or (iii) on the tenth (10th) day after mailing by registered or certified United States mail, postage prepaid and addressed to the last address provided by the party.
Failure of the Affiliate to keep his/her/its contact details current shall result in loss of participation and forfeiture of commissions. In the event the Affiliate fails or neglects to timely respond to any communication requiring a timely response on his/her/its part, such failure shall be conclusively presumed to be a waiver of any objection by the Affiliate to any action proposed by the Company in such communication.
The Company may use, disclose and share the Affiliate’s personal information with any party for any purpose reasonably related to the operation of the Program and for the purpose of conducting any investigation to determine if the Affiliate has violated any provision of this Agreement.
The Affiliate acknowledges and agrees that his/her/its personal data may be transferred or stored outside the United States.
Disclosure of the Affiliate’s Name & Business Relationship: Nothing in this Agreement shall prevent the Company from making any public or private statements about the Affiliate’s business relationship with the Company and participation in the Program. The Affiliate agrees that the Company may refer to or disclose the Affiliate’s name in connection with the Program performance or provision of any promotions, including in communications sent to actual or prospective participants in the Program.
Continuing Obligations. The following obligations shall survive the expiration or termination of this Agreement: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any monetary obligations hereunder.
Governing Law, Jurisdiction and Venue: The construction and enforceability of this Agreement shall be solely governed in all respects by the laws of the State of California, excluding its rules regarding conflicts of law. The jurisdiction and forum for any arbitration and/or legal action shall be in Orange County, California, and in no other jurisdiction. The venue of all Arbitrations shall be exclusively in Orange County, California. The Affiliate expressly consents to the jurisdiction of State and Federal Courts situated in Orange County, California.
Resolution of All Disputes:
Except for actions to protect intellectual property rights, seek injunctive relief and enforce an arbitrator's decision hereunder, any controversy, dispute or claim arising out of or relating to this Agreement or a breach thereof shall be submitted to and resolved by arbitration, by an arbitration firm selected by the Company, using a single arbitrator, pursuant to its procedures and then prevailing comprehensive rules. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All proceedings will be governed in all respects by the laws of the State of California, and conducted in English language. The arbitration shall take place in the City of Orange, California, or any other city to be designated by the Company and may be conducted by telephone or online. The findings of the arbitrator shall be final and binding on the parties, and a judgment premised thereon may be entered in any court of competent jurisdiction in Orange County, California. Enforcement of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs not to exceed $1,000.00.
The arbitrator shall not have the power to alter the terms of the Agreement or rights reserved by the Company under this Agreement. In any arbitration of a dispute, the arbitrator shall only have the power to award individual relief and shall not have the power to award any class, collective, or representative relief.
Each party gives up and waives the right to a trial by jury, and agrees that all such matters shall be resolved by binding arbitration. Each party also waives and gives up his/her/its right to participate or join in any class, collective or other representative action.
Limitation on Actions: The Affiliate agrees that any claim, arbitration or legal action to resolve any claim or controversy arising under this agreement or breach thereof must be brought within six months from the date of the event leading to the claim and not thereafter, and any such claim or cause of action shall be forever barred thereafter.
Attorney Fees. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reimbursement of reasonable attorney's fees in addition to any other relief to which the party may be entitled. However, such reimbursement of legal fees and expenses shall be limited to one thousand dollars ($1,000.00).
Amendments & Modifications: The Company reserves the right, at its sole discretion, to unilaterally change, alter, modify and/or amend any of the terms and conditions contained in this Agreement at any time without prior notice, and without incurring any liability for the same. A notice of any change sent by e-mail to the Affiliate’s then-current address on the Company’s records, newsletter or the posting on the Company’s site of a change notice of a new agreement or amendment, will be considered sufficient notice for notifying the Affiliate of a modification to the terms and conditions of this Agreement. The amendments or modifications may include any aspect, including without limitation, changes in the scope of available commission rate, commission schedules, payment procedures, policies and Affiliate Program rules. All such modifications shall take effect 48 hours after the Company serves notice as provided herein, unless the Company indicates otherwise. If any modification is unacceptable to the Affiliate, the only recourse of the Affiliate will be to terminate this Agreement and the Affiliate’s participation in the Program. The Affiliate’s continued participation in the Affiliate Program, following the posting of a change notice or new agreement on the Company’s site, will constitute binding acceptance of the change by the Affiliate.
The Headings: The Heading of any section or sub-section in this Agreement does not limit its application and will not be used for interpretation or construction thereof.
References: (i) The reference to the word “person” herein is broadly construed and includes any person, party and entity and vice versa, (ii) The male, female and neutral genders refer to the other gender and the plural reference includes singular reference and vice versa, as the context so requires, (iii) The reference to the Company, without limitation, collectively refers to and includes, the Company, its directors, officers, partners, affiliates, agents, assigns, licensees, subsidiaries, successors, subcontractors and service or contents providers, (iv) The words "include," and "including" shall be deemed to imply “including without limitation", and (v) The words such as “the Affiliate is not permitted to” or “the Affiliate is prohibited from” shall be deemed to imply that the Affiliate shall absolutely refrain from and shall not engage in the activity to which the reference is being made.
Waiver or Breach: Any waiver or breach of any provision of this Agreement shall not be construed as a waiver of any prior, continuing or later breach of such provision or a waiver or modification of that provision.
Severability: If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions of this Agreement will not be affected, impaired or invalidated in any way and will continue to be in full force and effect.
Assignment: The Affiliate may not assign this Agreement or any rights and duties hereunder without the prior written consent of the Company; however, the Company may freely assign its rights under this Agreement at any time. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Entire Agreement: Subject to the Company's right to unilaterally amend this Agreement, this Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior proposals, understandings and all other prior agreements, oral and written, between the parties relating to this subject matter.
Effective Date: June 1, 2016.
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