Affiliate Service Agreement
Introduction
This Agreement (hereinafter the “Agreement”) is made by and agreed to between Kemaan Enterprises, Inc., dba. Organic Wine Exchange. (“O.W.E.“), and the Person named in the Application Form (“You”). As an application service provider, O.W.E. facilitates an “Affiliate Marketing Program” (or “Program”) where a person, entity, publisher or its agent operating one or more “Web site(s)” (domain or portion of a domain within the Internet and/or subscription email list(s) (“Publisher”) may earn financial compensation (“Payouts”) for “Transactions” made from such Publisher’s Web site or subscription emails through a click made by a “Visitor” (any person or entity that is not the Publisher or the Publisher’s agent) through an Internet connection (“Link). O.W.E. compensates the Publisher, in accordance with this Agreement and the Program Payout specifications.
1 Relationship.
O.W.E. may deem your promotional activities inappropriate and a material breach of this Agreement based upon the foregoing, and/or on reasonable Internet business standards as they may evolve. If You are in breach of this Section 1, O.W.E. shall provide You with notice and the opportunity to cure (in accordance with Section 5 below), except that no opportunity to cure shall be provided if You are in breach of Section 1(b). Any suspected fraudulent, abusive or otherwise illegal content or activity by You on Your Web site or in Your subscription emails, or that is perpetrated through use of the Network Service, is grounds for immediate termination of this Agreement or deactivation of “Your Account”, without prior notice by O.W.E. and may include referral to the appropriate law enforcement agencies (as O.W.E. deems appropriate). You shall remain solely responsible for Your Web site and subscription email content. O.W.E. is, under no circumstances, responsible for the practices of any Publisher, Publisher’s Web site(s), and/or the content of Publishers’ subscription emails.
2.1 Use of Links.
You may not place Links in unsolicited emails and other types of spam.
You must place Links such that it is unlikely that the Links will mislead the Visitor, and such that it is reasonably likely that the Links will deliver bona fide Transactions by the Visitor from the Link.
None of Your promotional activities may infringe an Advertiser’s intellectual property rights (including but not limited to trademark rights), or O.W.E.’s intellectual property rights, this includes pay-per-click campaigns utilizing the term “Organic Wine Exchange” or any misspellings of the term.
You may not place Links on “coupon websites” or websites whose primary purpose is to aggregate promotional codes or coupons.
2.2 Applicable Links, Codes and Code Maintenance.
In order for O.W.E. to record the tracking of Visitors’ Transactions resulting from clicks from Links on Your Web sites and/or subscription emails, you must apply your O.W.E. affiliate link and or banners code. All Codes and Links are available in the Dashboard of your O.W.E. account. You are responsible for maintaining the links and banners on your web site to make sure they are in proper working order. All links will have a 30 Day cookie duration.
2.3 Payout Rate.
Level 1: Your Account will be credited with each Payout in accordance with the Payout rate of 10% commission, of the gross sale excluding tax and shipping, per each Visitor purchase resulting directly from your Affiliate Link.
Level 2: In addition to the Payout for your account, You are also eligible to receive a 5% commission per each Visitor purchase from Affiliate accounts, that are referred to O.W.E.’s Affiliate Program via Your affiliate link.
2.4 Payment.
Your commissions will Payout on the 1st every month your account exceeds $100 (one hundred) in commission. If your account does not reach $100 in a given month, the balance will roll over to the following month.
2.5 Charge-backs.
An Advertiser may request that O.W.E., or O.W.E. may on its own initiative, debit Your Account with an amount equal to a Payout previously credited to Your Account in circumstances of: product returns and duplicate entry or other clear error. O.W.E. may apply at any time Charge-backs for all Transactions from Publisher’s Web site(s) and/or subscription emails for Publisher’s failure to comply with this Agreement.
3.1 Proprietary Rights and Licenses.
O.W.E. grants to You a revocable, non-transferable, royalty free, international sublicense to display O.W.E’s trademark to your Web site or Web site content, and all trademarks, service marks, tradenames, and/or copyrighted material (“Content”), for each of Your Web Sites and/or subscription emails for the limited purposes of Promoting the O.W.E.’s Affiliate Program and subject to the terms and conditions of this Agreement.
When authorized by O.W.E. in writing, You may add an affiliate link to a banner or image that is specific to your company’s needs.
3.2 No Challenge to Intellectual Property.
O.W.E. acknowledges that it obtains no proprietary rights in Your Content, and agrees not to challenge Your proprietary rights to the Content, if at all, unless and until this Agreement is terminated.
You acknowledge that You obtain no proprietary rights in O.W.E.’s Content, patents, and patent applications, and agree not to challenge O.W.E.’s proprietary rights in O.W.E.’s patents and patent applications, and, with respect to the Content, if at all, until this Agreement is terminated. This Agreement may be terminated upon notice if the other party begins proceedings to challenge the party’s intellectual property rights during the Term in violation of the foregoing provisions.
You shall not adopt any names, trademarks, service marks or domain names that are confusingly similar to, or in combination with any of licensor’s tradenames, trademarks, service marks and/or domain names.
3.3 Terminating Licenses.
The Advertiser may terminate any sublicense granted to You and/or a Sub-Publisher under this Agreement immediately upon written notice to You if the Advertiser has reasonable concerns that You and/or the Sub-Publisher is diluting, tarnishing or blurring the value of the Advertiser’s trademarks, service marks, and/or tradenames, and/or breach of the Advertiser’s other intellectual property rights. O.W.E. may terminate this Agreement immediately upon written notice if O.W.E. has reasonable concerns that You or Your Sub-Publisher may be diluting, tarnishing or blurring the value of O.W.E.’s trademarks, service marks, and/or tradenames, and/or breach of O.W.E.’s other intellectual property rights.
4.1 Privacy and Confidentiality.
The information that You supply to establish and maintain Your Account shall be Your Confidential Information. Your are obligated to provide your username, email address(es), physical address, phone, Web site name (if applicable), and paypal account information. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password. You shall provide O.W.E. with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
4.2 Collection and Use of Visitors Data.
O.W.E. reserves the right to be able to utilize this data, which may include information about Your performance statistics, to analyze trends, monitor efficiencies, maintain the integrity of the tracking code, and promote You and Your Web site or subscription email. Notwithstanding the foregoing, You represent and warrant that You shall not enable the Tracking Code to collect personally identifiable information of Visitors that use the O.W.E affiliate link.
5 Temporary Deactivation and Termination.
This Agreement may be permanently terminated immediately upon notice for Your breach of Section 1, or by either party if the other party challenges the party’s intellectual property rights during the Term. Your Account may be temporarily or permanently deactivated in accordance Your breach of this Agreement. If this Agreement is terminated for Your breach, You shall not be eligible to enter into a new Affiliate Agreement with O.W.E., and any attempt to do so shall be null and void.
O.W.E. may terminate this Agreement in accordance with the terms of this Agreement, or if Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 90 day period.
Upon termination of this Agreement, an outstanding debit balance shall be paid by You to O.W.E. within 30 days of termination of this Agreement, subject to amounts equivalent to pending for Charge-backs or returns (that shall be paid promptly if and when O.W.E. has been able to verify that no Charge-back is applicable). An outstanding credit balance shall be paid by O.W.E. to You within 90 days of the termination date, and Upon termination of this Agreement, any license or sublicense granted under this Agreement will terminate, and the licensee/sub-licensee must immediately destroy or delete all physical and electronic copies of the Intellectual Property and the Confidential Information, and cause all Links to Advertisers (or applicable Advertiser) to be removed, and, in the case of termination, Links to O.W.E. to be removed. Upon termination of this Agreement, or in case of deactivation of Your Account pursuant to the terms of this Agreement, You shall no longer accrue Payouts in Your Account for Visitors’ click-throughs
6 Changes to O.W.E’s Affiliate Program.
This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a “click through” acknowledgement of assent. Notwithstanding the foregoing, O.W.E. shall have the right to change, modify or amend (“Change”) this Agreement, in whole or in part, by notifying You of such Change, by email, at least 14 days prior to the effective date of such Change; provided however that either party shall have the right to terminate this Agreement pursuant to Section 5.2 in the event that You do not agree to such Change.
7.1 Business Operations.
Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other liable for any of the consequences of such interruptions.
7.2 Authority and Compliance with Laws.
Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party’s behalf. Each party is responsible for compliance with the applicable local laws in the jurisdiction from which it operates and represents and warrants such compliance. Each party represents and warrants that the party shall have all appropriate authority and rights to grant the licenses hereunder, and that to the party’s knowledge the licenses, and in the case of O.W.E., the technology that O.W.E. utilizes for the Affiliate Program, do(es) not infringe a third party’s (or the other party’s) intellectual property rights.
7.3 Limitation of Liabilities.
With the exception of a party’s indemnification obligations, any liability of a party under this agreement shall be limited to the total of your payouts paid and payable to you by O.W.E and interest paid and payable by you to O.W.E. during the term of this agreement.
With the exception of the party’s indemnification obligations,, neither party shall be liable to the other party, for any consequential, exemplary, special, incidental, or punitive damages, including, but not limited to, loss of goodwill, lost profits, business interruption, loss of programs or other data, even if advided of the possibility of such damages or claim.
7.4 Disclaimer of Warranties.
To the fullest extent permissible pursuant to applicable law, both parties disclaim all warranties implied, including, but not limited to, (a) merchantability or fitness for a particular purpose, (b) that there are not viruses or other harmful components, (c) that a party’s security methods employed will be sufficient, (d) regarding correctness, accuracy, or reliability, or (d) against interference with enjoyment of party’s “information” (website). All ‘information’ and ‘computer programs’ provided n the course of the agreement are provided with all faults, and the
8.1 O.W.E.’s Indemnification Obligations.
O.W.E. shall defend, indemnify and hold Publisher harmless against all claims, suits, demands, damages, liabilities, losses, penalties interest, settlements and judgments costs and expenses (including attorneys fees) incurred, claimed or sustained by third parties, for O.W.E.’s breach of Section 7.2 (“Claims”).
Should any Claim give rise to a duty of indemnification under the provisions of this Agreement, then Publisher shall promptly notify O.W.E., and Publisher shall be entitled, at its own expense, and upon reasonable notice to O.W.E., to participate in, control the defense, compromise and to defend of such Claim. Participation nor control in the defense shall not waive or reduce any of O.W.E.’s obligations to indemnify or hold Publisher harmless.
8.2 Publisher’s Indemnification Obligations.
Publisher shall defend, indemnify and hold O.W.E. harmless against all claims, suits, demands, damages, liabilities, losses, penalties interest, settlements and judgments costs and expenses (including attorneys fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher’s breach of or non-compliance with this Agreement, (b) Publisher’s violation of any law or alleged violation of law by O.W.E. that is a direct of indirect result of Publisher’s use of the Affiliate service (other than due to O.W.E.’s knowing and intentional violation), (c)Publisher’s use of the Affiliate Service, (d) Publisher’s participation in any Program, (d) any content, goods or services offered, sold or otherwise made available by Publisher to any person, (e) Publisher’s acts of omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, (f) any claim that O.W.E. is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement, (g) any violation or alleged violation by Publisher of anyrights of another, including breach of a person’s or entity’s intellectual property rights, (h) Publisher’s use of any content (“Claim(s)”).
Should any Claim give rise to a duty of indemnification under this Section 8.2, O.W.E. shall promptly notify Publisher, and O.W.E. shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher’s obligations to indemnify or hold O.W.E. harmless. Publisher shall not settle any Claim without O.W.E.’s prior written consent. Publisher shall indemnify O.W.E. for any reasonable attorneys’ fees or other costs incurred by O.W.E. in investigating or enforcing its rights under this Agreement. In the context of this Section8.2 only, the term “O.W.E.” shall include officers, directors, employees, corporate publishers, subsidiaries, agents, and subcontractors.
9.1 Relationships of Parties/Third Party Rights.
The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement
or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor.
9.2 Dispute Resolution.
The parties will attempt in good faith to resolve through negotiation any dispute, claim, or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Section 9.2 (“Dispute”).
If the Dispute is not resolved through verbal and written communications, the matter will be submitted to JAMS, or its successor, for arbitration. Any Dispute submitted to arbitration shall be determined by arbitration in Riverside County, California, USA before a sole arbitrator, in accordance with the laws of the State of California for agreements made in and to be performed in that State. The language of the arbitration shall be English. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator will have no authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. Judgment on the arbitration award (“Award”) may be entered in any court having jurisdiction. The arbitrator shall, in the Award, allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the party that primarily prevails, against the party who that did not primarily prevail.
9.3 Choice of Law/Attorneys’ Fees.
This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. Each party may apply to the state courts in Riverside, California, and, to the extent that federal courts have exclusive jurisdiction, in Riverside County, California for injunctive relief until such time as the Award is rendered or the Dispute is otherwise resolved, and the parties agree that those courts and JAMS arbitration (in accordance with Section 9.2) shall be the exclusive for a for any such actions related to this Agreement. You consent to such venue and jurisdiction. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. O.W.E. controls and operates its Web site from its offices in the U.S.A. and access or use where illegal is prohibited.
9.4 Force Majeure.
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
9.5 Severability/Waiver.
If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
9.6 Assignment and Acknowledgement.
Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, consent of the other party shall not be required for assignment or transfer made by (a) operation of law, or (b) to an entity that acquires substantially all of the party’s stock, assets or business; notice of assignment or transfer is required. Your use of the Affiliate “Program” is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement.
10.1 Survival.
The provisions of this Section and Sections 1, 2.4, 2.5, 4.1, 4.2, 5., 5.2, 9, 8, 9.2, 9.3, and 9.5 shall survive the termination of this Agreement.
10.2 Term and Notices.
You represent and warrant that you were at least 18 years of age on the effective date of this Agreement.
This Agreement shall commence upon Your indication that You have accepted this Agreement by ‘clicking through’ the acceptance button on the O.W.E. Web site.
Contact Information:
Wine@organicwineexchange.com
760-565-9463 (WINE)
