Affiliate Marketing Agreement

 

This Affiliate Marketing Agreement (“Agreement”), effective on September 7^th, 2023, is entered into between “Affiliate” or “You” and “We” or the “Company”.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1. Term

This Agreement will be effective upon our acceptance of your Affiliate Program application and will end when terminated by either party (the “Term”). Either party may terminate this Agreement at any time, with or without cause, pursuant to the terms outlined below. You are only eligible to earn Commission Fees on Qualified Purchases occurring during the Term.

 

2. Definitions

“Affiliate” or “you” shall mean the business, individual, or entity applying to or participating in the Affiliate Program, or that displays the Company’s products and services and/or promotions on its website, social media, or other means, using an affiliate tracking code in exchange for receiving a commission from the Company for sales directly resulting from such display.

“Affiliate Program” shall mean the automated electronic program by which the Company compensates the Affiliate to generate traffic, leads, or purchases of or to the Company’s Products and Services.

“Affiliate Site” shall mean the Affiliate’s website which displays the Company’s Products and Services and/or promotions.

“Affiliate URL” shall mean the Affiliate’s unique URL link which tracks a Referred Customer to the Company’s Products and Services and/or promotions.

“Products and Services” shall mean products and/or services that are available for purchase from the Company.

“Commission Fees” shall mean the amount you will be paid for each Qualified Purchase by a Referred Customer that you refer to the Company subject to the Commission Threshold and pursuant to the terms of this Agreement.

“Commission Threshold” shall mean the amount of Commission Fees an Affiliate must accrue prior to receiving a payment from the Company.

“Qualified Purchase” or “Eligible Purchase” shall mean a sale of the Company’s Products and Services to a Referred Customer that is not excluded under the terms of this Agreement.

“Referred Customer” shall mean each new and unique customer referred from Affiliate through a Link (as defined in this Agreement) that provides valid account and billing information.

“Registration Form” shall mean any and all order forms or other signup or acceptance form submitted by a customer to purchase the Company’s Products and Services.

 

3. Promotion of Products and Services

Use of Links. If you qualify and agree to participate as an Affiliate, we will make a variety of textual links available to you (each referred to herein as a “Link” or collectively, as the “Links”). The Links will serve to identify you as a member of the Affiliate Program and will establish a link from your Affiliate URL to the Company’s website.

Unless expressly permitted by the Company, the Links are to be used on your website and you shall not distribute the Links to third parties to be posted on websites that you do not own. You agree to cooperate fully with us in order to establish and maintain such Links.

You further agree that your use of the Links must be in compliance with this Agreement at all times. The Company may modify the Links from time to time in its sole discretion. You will not use graphic or textual images (indicating a Link) or text messages to promote the Company that are not approved in advance by the Company.

All Affiliate Sites shall display the Links prominently in relevant sections of their website. Furthermore, you agree not to use cookie stuffing techniques that set the affiliate tracking cookie without the Referred Customer’s knowledge. Any information with respect to the Company that is going to be displayed on the Affiliate Site must be preapproved by the Company in writing.

Limitation of Link Use. Except as permitted herein, you shall not and are not authorized to

• use the Company’s trademark, name or any of our other intellectual property, including without limitation, the links, and the licensed materials (collectively, the “Company IP”) (or any variations or misspellings thereof or other term or terms confusingly similar to any of the foregoing) without the Company’s express prior written permission;
• use Company IP in a domain or website name, in any bids for keywords or Google ads (or similar programs at other search engines), in any search engine advertising (paid or otherwise), in any metatags, Google ads (or similar programs at other search engines), key words, advertising, search terms, code, or otherwise;
• act in any way that causes or creates or could cause or create any “initial interest confusion” over the use of Company IP on the internet or in any search engine advertising.

Your use of Company IP in any manner, other than as expressly permitted hereunder, shall constitute unlawful infringement of the Company’s intellectual property rights, and may subject you to claims for damages (including potential treble damages for knowing or willful infringement), and the obligation to pay the Company’s legal fees and costs in connection with any action or proceeding in which the Company seeks to enforce its rights under this agreement or with regard to any of the Company’s intellectual property rights.

Discounts and Coupons. You may not post any refunds, credits or discounts on the Company’s Products and Services, or other content concerning the Company without the Company’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links.

Each Link connecting users of the Affiliate URL to the pertinent area of the Company website will in no way alter the look, feel, or functionality of the Company website. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the Affiliate Program or the withholding of Commission Fees.

 

4. FTC Endorsement Compliance

We require all Affiliates to comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed. This means that all Affiliate Sites must prominently disclose the fact that you receive compensation for Referred Customers.

You are advised to seek and obtain your own legal advice on how these rules apply to your website or other promotional activities for which you receive compensation.

The Company reserves the right to withhold Commission Fees and cancel the affiliate relationship with you should we determine, at our sole discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations or guides that we deem relevant.

 

5. Data Security

In addition to the obligations set forth above (FTC Endorsement Compliance), Affiliate shall comply with all applicable data protection laws regarding the transmission of data exported to or from the United States or the country in which Affiliate resides, including without limitation, the General Data Protection Regulation 2016/679 of European Parliament and of the Council of 27 April 2016 (the “GDPR”). Affiliate, as a controller under the GDPR, shall also implement appropriate technical measures to ensure a level of security appropriate to the risk, taking into account the nature, scope, context, and purpose of processing any personal data. Affiliate agrees to promptly assist the Company in complying with any data subject rights request under the GDPR that the Company may receive from any individuals referred to the Company by Affiliate. Affiliate further agrees to promptly assist the Company in complying with any duties to cooperate with supervisory authorities under the GDPR or other applicable regulations or statutes.

 

6. Processing of Purchases

The Company will process orders placed by Referred Customers who follow the Links from an Affiliate URL to the Company. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements that we may establish from time to time.

All aspects of order processing and fulfillment, including the Company’s services, cancellation, processing, refunds and payment processing will be our responsibility. We will track the Qualified Purchases generated by your Affiliate URL and will make this information available to you through our website. To permit accurate tracking, reporting, and commission accrual, you must ensure that the Links between your marketing media and our website are properly formatted.

 

7. Commissions and Qualified Purchases

Commissions will be calculated based on the commission rate of 15% for each Qualified Purchase (as defined herein). Affiliates who have a high-performance rate, may be eligible to earn a higher commission rate, as determined by the Company in its sole discretion on a case-by-case basis. A “Qualified Purchase” does NOT include the following:

1. A purchase by a Referred Customer that has transferred from any Company partners or subsidiaries.
2. A purchase by a Referred Customer who is also associated with any Company reseller, referral, or other program.
3. A purchase by a Referred Customer that is not up to date on its payments or is subject to a refund, referral, or other program.
4. A purchase that was completed prior to the Affiliate joining the Affiliate Program or was not tracked properly through an Affiliate Link.
5. A purchase by a Referred Customer that has not been in good standing for a period of at least thirty (30) days or is in violation of the Company’s Terms of Service, Acceptable Use Policy, or other applicable policies at the time the Commission Fees accrue.
6. A purchase that the Company suspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement.
7. A purchase referred by an Affiliate that has an excessive cancellation rate as determined in the Company’s sole discretion.
8. A purchase by a Referred Customer if the Referred Customer was offered or received coupons, refunds, credits or discounts from the Affiliate.
9. A purchase by a Referred Customer if the Affiliate or Referred Customer is in or is promoting a business-opportunity program, as determined by us in our sole discretion.
10. A purchase by a Referred Customer who received a popup with a discounted offer, while leaving the Company’s website during their purchase.
11. A purchase by a Referred Customer 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 the Company 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 the Company, in our sole discretion.

The Company reserves the right to withhold payment of initial Commissions Fees to Affiliates who are new to the Affiliate Program, or who have commissions that are potentially fraudulent as determined by the Company in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.

The Company reserves the right to suspend the payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Affiliate or a Referred Customer. The Company reserves the right to deduct from Affiliate’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled purchases.

The Company reserves the right to immediately cancel or withhold for later review any Commission Fee that fails to meet the criteria of a “Qualified Purchase.” Affiliate is responsible for monitoring the payment, denial, and withholding of Commission Fees; the Company is not obligated to actively notify Affiliates of the status of Commission Fees. If Affiliate has a question about a Commission Fee that has been cancelled or withheld, Affiliate has thirty (30) days from the day the payment would have been due to contact the Company to request that the Commission Fee be paid. Any changes to decisions about cancelled or withheld Commission Fees are strictly made in the Company’s sole discretion.

Commissions for any Referred Customer who is associated with any Company reseller, referral or other program may not be considered a Qualified Purchase.

In the event that the Referred Customers that are referred to the Company by an Affiliate are determined to have an excessive cancellation rate, as determined by the Company in its sole discretion, the Company reserves the right to withhold or decline pending and future Commission Fees to such Affiliate.

Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualified Purchases, or Commission Fees to intentionally defraud the Company or any violation of the terms of this Agreement constitutes immediate grounds for the Company to terminate the Affiliates participation in the Affiliate Program and will result in the forfeiture of any Commission Fees due to the Affiliate.

 

8. Accrual of Commissions

Commissions will accrue and only become payable once you provide PayPal account information, bank account information, and/or tax and address documentation pursuant as required to process payment.

Once a commission has accrued under this section, the amount of such commission (the “Commission Fee”) shall be due and payable to you under the terms of the following section. The Company reserves the right to change the Commission Threshold by amending this Agreement and will notify you for any such amendment pursuant to the terms of this Agreement.

 

9. Commission Payments

Subject to the terms of this Agreement and the accrual of commissions as set forth in the section above, commissions will be calculated according to the specified percentage or dollar amount set forth in this Agreement for each Qualified Purchase that accrues during the period for which such commission fee is being calculated.

Commission Fees will be processed approximately 45 days after the end of the month or other period in which they accrue. The Company will only compensate you for Qualified Purchases made in accordance with this Agreement.

Commission Fees shall be paid based on the current information in your Affiliate profile. You are required to notify us promptly of any change in your information by updating your profile.

The Company is not responsible for paying any third-party fees charged by PayPal or ACH in order for you to receive Affiliate Commission Fees.

The Company, in its sole discretion, reserves the right to modify the available commission payment methods or payment schedule at any time. Such changes shall take effect when posted.

Affiliate agrees to file any disputes within forty-five (45) days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after forty-five (45) days of the date on which the disputed sale or event occurred will not be accepted by the Company and Affiliate forfeits forever any rights to a potential claim.

It is solely your responsibility to provide the Company with accurate tax and payment information that is necessary to issue a Commission Fee to you. If the Company does not receive the necessary tax or payment information within ninety (90) days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Purchase.

Each Affiliate is required to submit applicable payment information and/or required tax forms before any Commission Fees shall accrue. You are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, the Company will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold.

Any address change must be provided to the Company at least two weeks prior to payment of Commission Fees.

 

10. Affiliate Site Obligations

If applicable, you are solely responsible for the development, operation, and maintenance of your Affiliate Site and for all information and materials that appear on your Affiliate Site. Such responsibilities include, but are not limited to, the technical operation of your Affiliate Site and all related equipment; creating and posting product reviews, descriptions, and references on your Affiliate Site and linking those descriptions to our website; the accuracy of materials posted on your Affiliate Site (including, but not limited to, all materials related to the Company’s Products and Services); ensuring that materials posted on your Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters

We have the right in our sole discretion to monitor signups through your Affiliate Site from time to time to determine if you are in compliance with the terms of this Agreement. If you are not in compliance we may terminate your participation in the Affiliate Program effective immediately.

 

11. Company Responsibilities

We will provide all of the information necessary for you to have Affiliate URL Links to our site. The Company will be solely responsible for order processing (including payment processing, cancellations, and refunds) for orders for the Company’s Products and Services placed by a Referred Customer following an Affiliate URL, for tracking the volume and amount of Qualified Purchases generated by your Affiliate URL, and for providing information to Affiliates regarding Qualified Purchase statistics.

 

12. Policies and Pricing

Referred Customers who buy the Company’s Products and Services through our affiliate network are deemed to be the Company’s Customers. The Company’s Terms and Conditions, rules, policies, and operating procedures will apply to such customers. We may change our policies, pricing, and operating procedures at any time. Prices and availability of the Company’s Products and Services may vary from time to time, from affiliate to affiliate, and from region to region. Because price changes may affect products that you refer, you may or may not be able to include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information on our website, but we cannot guarantee the availability or price of any particular Product or Service.

 

13. Licenses and Use of the Company’s IP

Subject to the limitations set forth in this Agreement, we grant you a non-exclusive, non-transferable, revocable license to

• access our website through the Links solely in accordance with the terms of this Agreement and
• solely in connection with such Links, to use the Company’s trademark and logo and similar identifying material provided by us (collectively, the “Licensed Materials”), for the sole purpose of selling the Company’s Products and Services via your marketing materials, including Affiliate Site, and as approved in advance by us.

You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials while you are an Affiliate in good standing and in compliance with all of the terms of this Agreement.

You shall not use the Licensed Materials for any purposes other than selling the Company’s Products and Services, without first submitting a sample to us and obtaining the express prior written consent of the Company in each instance. You shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays the Company, any hosted member of the Company or any Company employee or representative in a negative light.

We reserve all of our rights in the Licensed Materials, and your license to use such material is limited to the manner described herein. We may revoke your license at any time, by giving you written notice. If not previously revoked, this license shall immediately terminate upon the termination of your participation in the Affiliate Program.

You grant to us a non-exclusive license to utilize your name, title, trademarks, and logos (the “Affiliate Trademarks”) in any advertisement or other materials used to promote the Company and the Affiliate Program, provided that the Company’s use of the Affiliate Trademarks is not required and is at its sole discretion. This license shall terminate upon the termination of your participation in the Affiliate Program.

 

14. Termination

Commission Fees earned prior to the date of termination will be eligible for commissions only if the orders for the related Products and Services are not cancelled or refunded within (30) days and comply with all of the terms of this Agreement. We may withhold your final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by the Company in its sole discretion.

Any Affiliate who violates this Agreement, the Company’s Terms and Conditions, or any applicable law will immediately forfeit any right to any and all accrued, but not yet received, Commission Fees and will be immediately removed from the Affiliate Program.

The Company reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in the Company’s sole discretion.

 

15. Representations and Warranties

We make no express or implied warranties or representations with respect to the Affiliate Program or any Company Products and Services sold through the Affiliate Program. In addition, we make no representation that the operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors, including the tracking of information concerning Referred Customers during any period of interruption.

Affiliate represents and warrants that:

• Affiliate has the full and unrestricted right and authority to enter into and perform this Agreement and to grant the rights granted herein;
• Affiliate has complied and will comply with all applicable laws, rules and regulations in rendering the services to be performed under this Agreement, including without limitation, the current FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”) and all related disclosure requirements; and, notwithstanding the termination provisions set forth herein, Company reserves the right to immediately terminate this Agreement if Affiliate fails to make social media or other disclosures in the manner set forth in the FTC Guides, which failure shall be deemed a material breach of the Agreement that is not capable of cure; and the Affiliate’s materials and website will not contain any disparaging, pornographic, defamatory and/or offensive material.

 

16. Confidentiality

A.  Maintenance of Confidentiality

Affiliate hereby acknowledges that, based on Affiliate’s past or current relationship with the Company, Affiliate has had access to and become acquainted with Confidential Information (as defined below). Affiliate hereby covenants and agrees that he or she shall not, in any fashion, form or manner, unless previously and specifically consented to in writing by the Company, either directly or indirectly use, divulge, transmit or otherwise disclose or cause to be used, divulged, transmitted or otherwise disclosed to any person, firm, partnership, corporation or other entity now existing or hereafter created, in any manner whatsoever (other than as required by law), any of the Company’s Confidential Information of any kind, nature or description.

Affiliate hereby further acknowledges and agrees that the sale or unauthorized use, transmission or other disclosure of any of the Company’s Confidential Information which is in his or her possession constitutes unfair competition and Affiliate covenants and agrees that he or she shall not engage in any unfair competition with the Company.

These provisions shall not be construed to prevent Affiliate from making use of or disclosing information that is in the public domain through no fault of Affiliate’s; provided, however, specific information shall not be deemed to be in the public domain merely because it is encompassed by some general information that is published or in the public domain. The foregoing provisions shall also not be construed as preventing Affiliate from reasonable and bona fide efforts to promote the Company and otherwise provide the services hereunder for the benefit of the Company.

 

B.  Definition of Confidential Information.

“Confidential Information” shall mean any information, matter or thing which, as to the business of the Company, is of a secret, confidential or private nature, and which

• is connected with the methods of operation of the business of the Company, and
• Confidential Information shall be limited to:
  1. business matters known or available only to management, such as
     1. information concerning customers, vendors and suppliers, including their names, addresses, credit or financial status, buying or selling habits, practices or requirements;
     2. any arrangements or contracts that the Company has or may have had with such parties;

• the marketing methods, plans and/or strategies of the Company for business development; and

1. the terms of any contracts or agreements the Company has entered into, including this Agreement; and

1. other matters including, but not limited to, product information, trade secrets, know-how, formulae, innovations, inventions, technologies, devices, discoveries, techniques, formats, processes, methods, specifications, designs, patterns, schematics, data, compilation of information, test results and research and/or development projects undertaken by the Company.

For purposes of this Agreement, the term “trade secrets” shall mean the broadest and most inclusive interpretation of trade secrets as defined by applicable law.

Confidential Information shall not include any information in the public domain, provided, however, specific information shall not be deemed to be in the public domain merely because it is encompassed by some general information that is published or in the public domain.

 

17. Independent Contractor

Affiliate’s status hereunder is that of an independent contractor, and nothing herein contained shall be deemed to create the status of employer and employee. Accordingly, Affiliate shall be responsible to timely pay all taxes and other withholdings, deductions and payments required by law, if any, with respect to Affiliate’s services hereunder. Affiliate agrees to indemnify and hold Company harmless from and against any and all claims, lawsuits and/or liabilities incurred by Company as a result of Affiliate’s failure to make such payments.

 

18. Limitation of Liability

The Company will not be liable (whether in contract or based on warranty, negligence, tort, strict liability or otherwise) for indirect, special, exemplary, consequential or incidental damages, or any loss of revenue, profits or data, arising in connection with this Agreement. The Affiliate recognizes, acknowledges and agrees that this limitation of damages is fair and reasonable.

 

19. Indemnification

The Affiliate hereby agrees to indemnify and hold harmless the Company, its affiliates and subsidiaries, and its respective directors, officers, employees, agents, shareholders and members, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including court costs and reasonable attorney’s fees), even if such claims are groundless, fraudulent or false (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of, are based on or connected with

• any breach or alleged breach of any representation, warranty, covenant, or agreement made herein, including claims for unsolicited email (spamming),
• violations of rights of privacy (including without limitation any activities or aspects thereof or commerce conducted thereon),
• misuse, unauthorized modification or unauthorized use of the services, materials, or products provided by the Company, or
• any actual or alleged infringement by the Affiliate of any intellectual property rights or other rights of any person or entity.

 

20. Affiliate Investigation

The Company may at any time (directly or indirectly) solicit affiliate relationships on terms that may differ from those contained in this Agreement. We may also solicit relationships with entities that operate websites that are similar to or compete with your Affiliate Site, if applicable.

You warrant that 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 set forth in this Agreement

 

21. Assignment

You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

 

22. Governing Law

The laws of the State of South Carolina will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought and adjudicated in the federal or state courts located in Greenville County, South Carolina and you irrevocably consent to the jurisdiction of such courts.

 

23. Entire Agreement

This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof and supersedes all prior agreement and understandings, both written and oral.