Koala Studios
Program Terms
Koala Studios ShareASale Affiliate Marketing PROGRAM Agreement (September 2024)
This Koala Studios ShareASale Affiliate Marketing Program Agreement (the “ Program Agreement”) is entered into between Koala Studios, USA, a division of Tacony Corporation, 1760 Gilsinn Lane, Fenton, MO 63026 (“Koala Studios” or “we” or “us”) and each affiliate of Koala Studios (“Affiliate” or “you”) and governs your participation in the Koala Studios Affiliate Program (the “Program”).
1. Approval or Rejection of the Application
To participate in the Program, you must submit an application to us on our form. We reserve the right to approve or reject ANY application in our sole and absolute discretion. You will have no legal recourse against us for the rejection of your application. You represent and warrant that your application is true, accurate and complete.
After receiving your application, we will review Your Material and notify you of your acceptance or rejection into our Program. Please allow at least five business days for your application to be reviewed. We reserve the right to reject any application; however, we encourage you to contact us if you feel we have made an incorrect decision. Including all of Your Sites in your profile will help us make a good decision. You may not operate more than one account in the Program without our prior written approval.
“Your Sites” refers to your Website, web pages, social media profiles, email channels, app or other online services provided by you and approved by Koala Studios that you control and that will link to Our Website.
2. Affiliate Terms and Conditions
If you apply to be an Affiliate, you are bound by the terms and conditions of this Program Agreement, all applicable Koala Studios policies, including the Koala Studios Privacy Policy, and the affiliate network interface on ShareASale.com (the “Network Website”) (all of the foregoing, this “Agreement”) upon being notified of your acceptance. Please read the entire Agreement, the Koala Studios policies and the terms of the Network Website carefully before submitting an application or taking any action in connection with the Program. You will comply with the terms and conditions of this Agreement. In the event of a conflict between this Agreement, any Koala Studios policy and/or the Network Website, this Agreement, then the Koala Studios policies and then the Network Website shall control. You are responsible for ensuring that your Representatives (as defined below) comply with this Agreement, and any violation of this Agreement or any Koala Studios policy by any of your Representatives shall be considered a violation by you.
3. Services
“Our Website” refers to koalacabinets.com, the pages therein, any other Koala Studios website that may be hosted on a different web domain and any future Koala Studios apps.
You agree that, during the Term (as defined below), you will promote our products through a link to Our Website (the “Koala Studios Link”) in Your Sites in accordance with the terms and conditions of this Agreement. You will provide at least ten (10) days’ prior written notice to Koala Studios of all Your Sites where you provide a Koala Studios Link.
Service Provider retains the right to perform the same or similar type of services for third parties during the Term, and Koala Studios may engage other affiliates to perform similar services.
4. Linking to Our Website
Upon acceptance into the Program, links will be made available to you through the Network Website. Your acceptance in the Program means you agree to and abide by the following:
(a) You will only use linking code obtained from the Network Website without manipulation. You MAY shorten the exact code provided in the Network Website through url shortener services.
(b) All domains that use your affiliate link must be listed in your affiliate profile.
(c) Your Sites will not in any way copy, resemble or mirror the look and feel of Our Website or our social media profiles, email channels, app or other online services (“Our Sites”). You will also not use any means to create the impression that Your Sites are owned or operated by Koala Studios, including, without limitation, framing Our Website in any manner.
(d) You may not engage in cookie stuffing or include pop-ups, false or misleading links on Your Sites. In addition, wherever possible, you will not attempt to mask the referring url information (i.e., the page from where the click is originating).
(e) You will not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain is prohibited.
(f) If you are found redirecting links to hide or manipulate their original source, your Commission level will be set to 0%, voided out and your participation in the Program will be terminated. This does not include using “out” redirects from the same domain where the affiliate link is placed.
(g) You may use graphic and text links both on your website and within your email messages.
(h) You may use the graphics and text provided by us, or you may create your own as long as they are deemed appropriate according to the conditions and not in violation of this Agreement.
5. Restrictions
You shall not create, publish, distribute or permit any written material that makes reference to Koala Studios or Koala Studios branded products or uses any Koala Studios intellectual property rights (including trademarks and copyrights) without first submitting such material to us and receiving our written consent.
None of Your Sites may contain the following:
(i) Any content that infringes on our or any anyone else’s intellectual property, publicity, privacy or other rights;
(j) Any content that violates any law, rule or regulation;
(k) Any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials.
(l) Any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
(m) Any software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate Commissions from another website, including toolbars, browser plug-ins, extensions and add-ons without our prior written approval.
(n) Include the words ”Koala Studios”, “Koala Studios”, “Koala Cabinets” or any other Koala Studios trademark in your domain name, nor will you create publish, distribute or permit any written materials that makes reference to Koala Studios without first receiving our written consent;
(o) Links to any illegal audio/video download sites; or
(p) Links in eBooks or PDFs without our prior written approval.
You will not do any of the following:
(a) engage in (i) inappropriate advertisements (false claims, misleading hyperlinks, etc.), (ii) spamming (mass email, mass newsgroup posting, etc.), (iii) advertising on sites containing or promoting illegal activities, (iv) failure to disclose the affiliate relationship for any promotion that qualifies as an endorsement under existing Federal Trade Commission guidelines and regulations, or any applicable state laws, (v) violation of intellectual property rights, (vi) violation of any applicable law, (vii) offering rebates, coupons, or other forms of promised kick-backs from your Commission as an incentive (other than adding bonuses or bundling other products with Koala Studios), and/or (viii) self-referrals, fraudulent transactions, or suspected Affiliate fraud.
(b) (i) purchase ads that direct to your site(s) or through a link that competes with Koala Studios’s own advertising, including, but not limited to, our branded keywords; (ii) participate in cookie stuffing or pop-ups, false or misleading links, (iii) attempt to mask the referring URL information, (iv) use you’re the Koala Studios Link on Your Sites to purchase Koala Studios products for yourself, (v) use any mechanisms to deliver leads other than through an intended consumer, such as sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage purchases or signups;
(c) engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public; and/or
6. engage in pay-per-click bidding without our prior written permission. Online Advertising
If you participate in online advertising, such as Google AdWords or Facebook, you may not do any of the following without our prior written consent:
(a) Bid on the Koala Studios brand in search engine or social media advertising, such as Google AdWords, Facebook, Instagram, or Yahoo/Bing, including, but not restricted to, our domain name, our company name, and our trademarks or registered urls, including any variations, abbreviations, or misspellings) of Koala Studios.
(b) Use our trademarked or brand terms in sequence with any other keyword (e.g. Koala Studios Coupons), including any misspellings.
(c) Use our trademarked terms in your ad title, ad copy, display name, ad extensions, or as the display URL nor may you CLOAK or MASK these URL’s in online advertising campaigns.
(d) Direct link to our website from any online ad or use redirects that yield the same result (a.k.a. URL hijacking). Affiliates must be directed to an actual page on your website.
(e) Use the same tone, text, or images as our current or past ads. All paid ads need to have a different look and feel than Koala Studios’s current or past ads, and you may not use the word “official” in connection with the Koala Studios owned property’s name in domain names, search ads, or on landing pages.
(f) Engage in PPC advertising.
If you automate your online advertising campaigns, it is your responsibility to exclude our trademarked, brand, or misspelled terms from your program and we strongly suggest you add our trademarked, brand, and misspelled terms as negative keywords. We have a strict no-tolerance policy on online advertising trademark bidding. If you are unsure whether a term is a trademarked, brand, or misspelled, it is your responsibility to reach out to us to find out. You will forfeit all Commissions for a minimum of 30 days and your Commission will be set to 0% without warning if you engage in online advertising trademark bidding that uses our trademarked, brand, or misspelled terms without our prior written consent.
7. Coupon and Deal Sites
Koala Studios occasionally offers coupons to select Affiliates and to our newsletter subscribers. If you’re not pre-approved / assigned a branded coupon, then you’re not allowed to promote the coupon. Below are the terms that apply for any Affiliate who is considering the promotion of our products in relation to a deal or coupon:
(a) You may ONLY advertise coupon codes that are provided to you through the Program.
(b) Posting any information about how to work around the requirements of a coupon/promotion will result in removal from the Program.
(c) Coupons must be displayed in their entirety with the full offer, valid expiration date and code.
(d) You may NOT use any technology that covers up the coupon code and generates the affiliate click by revealing the code(s).
(e) You may NOT advertise coupon codes that you did not obtain from our Network Website, including coupon codes from our marketing emails, paid search or any other non-affiliate advertising campaigns, unless the codes are also provided in our Network Website.
(f) You may NOT give the appearance that any ongoing Koala Studios promotional offer requires clicking from Your Website in order to redeem. For example, buying order results in free shipping at checkout for all customers, you may not turn this into an offer that infers that the customer must click from your site to get this deal.
(g) You must not mislead customers into clicking on an offer or coupon that does not exist or practice similarly deceptive tactics that are generally known as "cookie stuffing or forced clicks." These include, but are not limited to:
(i) Using knowingly expired offers or presenting offers that do not exist or are not Affiliate offers.
(ii) Making claims that a user must click on a link first to activate or receive an offer.
(iii) Presenting a button that claims to show all offers that sets the Affiliate cookie in the background.
(iv) Technology that generates a click or sets the cookie from the action of copying a coupon code or through a pop-under.
(h) Additionally, if your website ranks on the first page of Google for terms related to Our Website or company name combined with the words coupon, coupons, coupon code, promo code, etc. and/or your conversion rate exceeds 0.20%, you may be offered a lower Commission than our standard rate to offset the reduced profitability of orders.
(i) You may not use misleading text on your links, buttons, or images to imply that that any deals apply other than the deals you are currently authorized to offer.
(j) You may not bid on Koala Studios Coupons, Koala Studios Discounts or other phrases implying coupons are available.
(k) You may not generate pop-ups, pop-unders, iframes, frames, or any other seen or unseen actions that set affiliate cookies unless the user has expressed a clear and explicit interest in activating a specific savings by clicking on a clearly marked link, button or image for that particular coupon or deal. Your link must send the visitor to the merchant site.
(l) User must be able to see coupon/deal/savings information and details before an affiliate cookie is set (i.e. “click here to see coupons and open a window to merchant site” is NOT allowed).
(m) Your Sites may not have “Click for (or to see) Deal/Coupon” or any variation, when there are no coupons or deals available, and the click opens the merchant site or sets a cookie. Affiliates with such text on the merchant landing page will be removed from the program immediately.
Affiliates whose primary business is posting coupons, who are viewed by the Program as being a coupon site and/or who are tagged as coupon in our system, will not be paid Commission for any sales generated without a corresponding valid coupon promotion or code. Valid promotions and codes are defined as those that are made available to the Network Website in general, through newsletters or the coupon inclusion list on the Network Website, or to that Affiliate directly/privately. Coupon codes that are not real, expired, or not made available to the Affiliate are not considered valid codes, and the Affiliate will not be given Commission on these orders. These orders will be canceled, zeroing out Commissions for improper use.
8. Social Media
Promotion on Facebook, Twitter, Twitch, YouTube and other social media platforms is permitted under the following provisions:
(a) You ARE allowed to promote affiliate channel approved offers to your own lists; more specifically, you’re welcome to use your affiliate links on your own Facebook, Instagram, YouTube, Twitch, Twitter and Pinterest pages, among other platforms.
(b) You ARE PROHIBITED from posting your affiliate links on Koala Studios’s Facebook, Instagram, YouTube, Twitter, and other company social media pages in an attempt to turn those links into affiliate sales.
(c) You ARE PROHIBITED from running any social media ads such as Facebook, Twitter, Instagram or Pinterest with Koala Studios’s company name or other trademarks without our prior written approval.
(d) You ARE PROHIBITED from creating social media accounts, pages, or posts that in any way copy, resemble, represent, or mirror the look and feel of our social media accounts, pages, or posts. You will also not use any means to create the impression that your accounts, pages, or posts are Koala Studios’s accounts, pages or posts.
9. FTC endorsement guidelines disclosure requirements:
If you are compensated by Koala Studios in any way for a post (including with cash, credit, discounts, product, contest entries, and so on), you must clearly and conspicuously disclose such compensation. This applies across all media channels. For example, on Instagram, Twitter, Facebook, Twitch, or YouTube, if you are promoting Koala Studios, or showing product that was given to you by Koala Studios, you must include #@babylock, or #ad prominently in your caption, before any “break” in the text that is shown to viewers of your content, or otherwise conspicuously indicate that you were or may be compensated by Koala Studios. For more information about FTC guidelines, please review https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf
10. Commissions
[Koala Studios shall pay to Affiliate a commission (the “Commission”) based on agreed upon program terms in the Network Website.]
For all Sales (as defined below), Koala Studios shall pay to you a commission (the “Commission”) equal to ____% times the net invoice price charged by Koala Studios to the applicable Customer (as defined below) for the applicable products (exclusive of sales tax, customs duties, insurance, handling, storage, loading and unloading, and freight/shipping charges and after applying any discounts, returns, credits, rebates or adjustments). Commissions are paid by the last day of the month following the month in which the Sale occurred.
“Customer” means a customer account that remains active for a minimum of 37 days.
“Sales” means sales of Koala Studios products to customers that originate through a Customer accessing the Koala Studios Link through your Affiliate Domain. For the avoidance of doubt, no Sale occurs unless the order is placed during the Term. “Sales” exclude (a) samples, (b) products provided under any advertising or marketing promotion, (c) replacement products for defective products, whether or not provided under warranty and (d) sales to yourself or your accounts. We may accept or reject any lead or Sale in our sole discretion, and you will not be entitled to any Commission on any rejected lead or Sale. A Sale occurs once the order has been placed and accepted by Koala Studios and payment has been received by Koala Studios.
There is a limit of one Commission per referral. If someone clicks the Koala Studios Link from your Affiliate Domain and orders multiple accounts, then you will receive a Commission on the first order only.
Payments will only be sent for transactions that have been successfully completed. Transactions that result in chargebacks, credits or refunds will not be paid out. Koala Studios may withhold payment of any amounts due and payable under this Agreement by reason of any set-off of any claim or dispute with Affiliate, whether relating to Affiliate’s breach, bankruptcy or otherwise.
You will not be entitled to any Commission if (i) the Commission is prohibited or restricted by federal, state or local law; (ii) the Customer objects to or prohibits the Commission or excludes such Commission from its payments to us; (iii) the Customer has paid or will pay such Commissions, referral fees, or other compensation directly to you, (iv) the Commission payment has been obtained by fraudulent means, misuse of the link, in violation of this Agreement or by any other means that we deem to breach the spirit of the Program, or (v) the Customer participates in any of our other programs and is eligible to receive Commission in relation to the transaction under that program.
You shall notify Koala Studios in writing of any dispute regarding any Commission or other payment (along with substantiating documentation and a reasonably detailed description of the dispute) within seven (7) days from your receipt of such payment (or notice from Koala Studios that it shall not make such payment). You will be deemed to have accepted all payments (or non-payments) for which Koala Studios does not receive such notification of dispute within such seven-day period. The parties shall seek to resolve all such disputes expeditiously and in good faith.
COOKIES USED AS PART OF THE PROGRAM HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, WE SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.
11. Reversals & communications
Koala Studios reserves the right to reverse orders (and Commissions) due to order cancellations, duplicate tracking, disputed charges, returns and program violations as outlined in this Agreement and conditions.
Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of our terms and conditions, you will respond in a timely and honest manner. The following are all considered breaches of this Agreement:
(a) You are not forthcoming, intentionally vague or are found to be lying.
(b) You are not responsive within a reasonable time period and after multiple attempts to contact with information listed in your network profile.
(c) You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
(d) If any of the above apply, then we reserve the absolute right to reverse orders, set your Commission to 0% &/or suspend you from the program. We know that many violations are a result of automated processes; however, it is incumbent upon you to ensure that you have the appropriate checks and balances in place to proactively address these issues and adhere to our Program rules.
Koala Studios also reserves the right to withhold or cancel any and all compensation for transactions not in compliance with this Agreement, Koala Studios policies and/or the Network Website terms. If you have questions about the Program, please contact our Affiliate Team at affiliates@koalacabinets.com.
12. Sub-affiliate Networks.
Promoting Koala Studios through a sub-affiliate network is permitted; sub-affiliate networks must ensure that all sub-affiliates promoting the Koala Studios program adhere to this Agreement. This includes restrictions on advertising through toolbars, browser extensions, and through any paid placements such as pay-per-click campaigns. Sub-affiliate networks must also receive approval prior to allowing any type of coupon sub-affiliate to promote the Koala Studios program.
Failure to comply with our sub-affiliate network terms may result in a loss and/or reduction of Commissions from sales made through any sub-affiliate that does not comply with our program terms.
13. Intellectual Property Rights
We are not granting to you any right or license to any of our intellectual property rights by implication, estoppel, or otherwise. You acknowledge that we own all right, title, and interest in, to, and under the our intellectual property rights and the goodwill associated therewith and that you shall not acquire any proprietary rights therein. Any use by you or any of your affiliates, sub-affiliates, contractors, employees, officers, directors, managers, partners, owners, agents, attorneys, third-party advisors, successors or permitted assigns (collectively “Representatives”) of any our intellectual property rights or goodwill and other rights associated therewith shall inure to the benefit of us.
Koala Studios reserves the right to require license agreements from those who employ trademarks of Koala Studios to protect our intellectual property rights.
14. Term Termination
The term of this Agreement and your participation in the Program (the “Term”) shall commence upon notification of your acceptance in the Program and shall continue until terminated in accordance with this Agreement.
Koala Studios may, may in its sole discretion and without notice, suspend your Affiliate status or terminate the Term (including your participation in the Program) for any of the following reasons:
(a) without limiting the rights in subsection (c), you breach this Agreement;
(b) you (i) become insolvent or is generally unable to pay its debts as they become due, (ii) file or have filed against you, a petition for voluntary or involuntary bankruptcy or otherwise become subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) make or seek to make a general assignment for the benefit of its creditors, (iv) apply for or have appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, or (v) are dissolved or liquidated; and/or
(c) engage in any of the actions prohibited by Section 5.
In addition, Koala Studios has the right to suspend or terminate your Affiliate status for no reason upon thirty (30) days’ prior written notice to you. You may terminate the Term at any time upon (30) days’ prior written notice to Koala Studios.
No party shall not be liable to the other party for any damage of any kind (whether direct or indirect) incurred by the other party by reason of the suspension of Affiliate status or termination of the Term. Suspension or termination will not constitute a waiver of any of rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.
Termination of the Term will not affect any rights or obligations that are to survive the expiration or earlier termination of this Agreement and/or were incurred by the parties prior to termination. Sections 1, 2, 9, 13, 14, 15 and 17 through 21 shall survive the termination of the Term as well as any Sections necessary to interpret such Sections.
15. Confidential Information
From time to time during the Term, Koala Studios may disclose or make available to Affiliate information about its business affairs and services, confidential information and materials comprising or relating to intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Affiliate or any of its Representatives; (b) is or becomes available to the Affiliate on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Affiliate or its Representatives prior to being disclosed by or on behalf of the Koala Studios; (d) was or is independently developed by the Affiliate without reference to or use of, in whole or in part, any of the Koala Studios's Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Affiliate shall: (x) protect and safeguard the confidentiality of the Koala Studios’s Confidential Information with at least the same degree of care as the Affiliate would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Koala Studios's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Affiliate's Representatives who need to know the Confidential Information to assist the Affiliate, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Affiliate shall be responsible for any breach of this Section 9 caused by any of its Representatives. At any time during or after the Term, at the Koala Studios's written request, the Affiliate and its Representatives shall promptly return or destroy and certify the destruction of all Confidential Information and copies thereof that it has received under this Agreement.
16. Compliance
You shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of your business, the Program and/or this Agreement and your performance hereunder (including, without limitation, export laws and laws applicable to sending of unsolicited email). You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury and will not directly or indirectly export, re-export, or transfer the products to prohibited countries or individuals or permit use of the products by prohibited countries or individuals.
You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests. You will establish and maintain systems and procedures appropriate to ensure compliance with the foregoing.
You will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Program, including, without limitation, clearly stating that you are a Koala Studios Affiliate on any of Your Sites on which you provide a Koala Studios Link and
17. No Representations or Warranties.
You represent and warranty to Koala Studios that: (a) you have sufficient capacity, power and authority to enter into and perform this Agreement; (b) if you are an entity, you have duly authorized the execution, delivery and performance of this Agreement; (c) this Agreement has been duly executed and delivered and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; (d) no consent, authorization, license, order or approval of, or filing or registration with, any governmental authority or other person or entity is required for the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement by you; (e) the execution, delivery and performance of this Agreement does not violate or constitute a breach of any contract, agreement, license, permit, or organizational document to which you are a party or by which your assets are bound; (f) there is no pending litigation or other proceeding that would materially impact or affect your ability to perform your obligations under this Agreement; and (g) you have sufficient assets, rights and capabilities to enter into this Agreement and to perform your obligations hereunder.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
18. Liability
Koala Studios will not be liable for indirect or accidental damages (loss of revenue, Commissions) due to affiliate tracking failures, loss of database files, or any results of intents of harm to the Program and/or to Our Website(s).
We do not make any expressed or implied warranties with respect to the Program and/or the memberships or products sold by Koala Studios. We make no claim that the operation of the Program and/or Our Website(s) will be error-free and we will not be liable for any interruptions or errors.
IN NO EVENT WILL KOALA STUDIOS BE LIABLE TO ANY PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT KOALA STUDIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
KOALA STUDIOS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO AFFILIATE PURSUANT TO THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
19. Indemnification
Affiliate shall indemnify, defend and hold harmless Koala Studios and its affiliate and subsidiary companies, officers, directors, employees, licensees, licensors, successors and assigns, including those licensed or authorized by Koala Studios to transmit and distribute materials, from any and all liabilities, damages, fines, judgments, claims, actions, settlements, penalties, costs (the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers), losses, and expenses (including reasonable legal fees and costs) arising out of or related to any and all claims arising from any breach of this Agreement by Affiliate or any of its Representatives or the negligence (or more culpable act or omission), misrepresentation, failure to disclose, or intentional misconduct of Affiliate or any of its Represntatives.
20. Governing Law, Jurisdiction, and Attorney Fees
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Missouri, without regard to its conflicts of laws principles. Any dispute arising under or related in any way to this Agreement shall be adjudicated exclusively in the state courts located in St. Louis, Missouri.
The parties hereby irrevocably submit to the exclusive jurisdiction of the Circuit Court of the County of St. Louis, Missouri or, if the federal court has subject matter jurisdiction, the United States District Court of the Eastern District of Missouri, Eastern Division in any action or proceeding arising out of or relating to this Agreement, and the parties hereby irrevocably agree that all claims and counterclaims in respect of such action or proceeding may be heard and determined in any such court. The parties irrevocably waive any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens, which he, she or it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. The parties irrevocably consent to the service of any and all process in any such action or proceeding brought in any such court by the delivery of copies of such process to each such party, at his, her or its address specified for notices to be given hereunder or by certified mail directed to such address.
21. Miscellaneous
This Agreement, including the related policies, constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
The terms and conditions of this agreement may be modified by us at any time upon written notice to you. If any modification to the terms and conditions of this Agreement are unacceptable to you, your only choice is to terminate the Term. Your continuing participation in the Program will constitute your acceptance of any change. You may not amend this Agreement without our prior written consent.
No waiver by either party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
Each party acknowledges and agrees that (a) a breach or threatened breach by Affiliate of any of its obligations under this Agreement would give rise to irreparable harm to Koala Studios for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Affiliate of any such obligations, Koala Studios shall, in addition to any and all other rights and remedies that may be available to Koala Studios at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Affiliate agrees that Affiliate will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this paragraph.
Koala Studios may not assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of Koala Studios. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, the persons and entities entitled to indemnification under this Agreement, and their respective successors and permitted assigns. Other than the persons and entities entitled to indemnification under this Agreement, no other person or entity shall have any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Affiliate is an independent contractor pursuant to this Agreement. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
The Agreement is an electronic contract that sets out the legally binding terms of your participation in the Koala Studios affiliate program. You indicate your acceptance of this Agreement and all the terms and conditions contained or referenced in this Agreement by completing the ShareASale and/or Koala Studios application process. This action creates an electronic signature that has the same legal force and effect as a handwritten signature.
This Koala Studios ShareASale Affiliate Marketing Program Agreement (the “ Program Agreement”) is entered into between Koala Studios, USA, a division of Tacony Corporation, 1760 Gilsinn Lane, Fenton, MO 63026 (“Koala Studios” or “we” or “us”) and each affiliate of Koala Studios (“Affiliate” or “you”) and governs your participation in the Koala Studios Affiliate Program (the “Program”).
1. Approval or Rejection of the Application
To participate in the Program, you must submit an application to us on our form. We reserve the right to approve or reject ANY application in our sole and absolute discretion. You will have no legal recourse against us for the rejection of your application. You represent and warrant that your application is true, accurate and complete.
After receiving your application, we will review Your Material and notify you of your acceptance or rejection into our Program. Please allow at least five business days for your application to be reviewed. We reserve the right to reject any application; however, we encourage you to contact us if you feel we have made an incorrect decision. Including all of Your Sites in your profile will help us make a good decision. You may not operate more than one account in the Program without our prior written approval.
“Your Sites” refers to your Website, web pages, social media profiles, email channels, app or other online services provided by you and approved by Koala Studios that you control and that will link to Our Website.
2. Affiliate Terms and Conditions
If you apply to be an Affiliate, you are bound by the terms and conditions of this Program Agreement, all applicable Koala Studios policies, including the Koala Studios Privacy Policy, and the affiliate network interface on ShareASale.com (the “Network Website”) (all of the foregoing, this “Agreement”) upon being notified of your acceptance. Please read the entire Agreement, the Koala Studios policies and the terms of the Network Website carefully before submitting an application or taking any action in connection with the Program. You will comply with the terms and conditions of this Agreement. In the event of a conflict between this Agreement, any Koala Studios policy and/or the Network Website, this Agreement, then the Koala Studios policies and then the Network Website shall control. You are responsible for ensuring that your Representatives (as defined below) comply with this Agreement, and any violation of this Agreement or any Koala Studios policy by any of your Representatives shall be considered a violation by you.
3. Services
“Our Website” refers to koalacabinets.com, the pages therein, any other Koala Studios website that may be hosted on a different web domain and any future Koala Studios apps.
You agree that, during the Term (as defined below), you will promote our products through a link to Our Website (the “Koala Studios Link”) in Your Sites in accordance with the terms and conditions of this Agreement. You will provide at least ten (10) days’ prior written notice to Koala Studios of all Your Sites where you provide a Koala Studios Link.
Service Provider retains the right to perform the same or similar type of services for third parties during the Term, and Koala Studios may engage other affiliates to perform similar services.
4. Linking to Our Website
Upon acceptance into the Program, links will be made available to you through the Network Website. Your acceptance in the Program means you agree to and abide by the following:
(a) You will only use linking code obtained from the Network Website without manipulation. You MAY shorten the exact code provided in the Network Website through url shortener services.
(b) All domains that use your affiliate link must be listed in your affiliate profile.
(c) Your Sites will not in any way copy, resemble or mirror the look and feel of Our Website or our social media profiles, email channels, app or other online services (“Our Sites”). You will also not use any means to create the impression that Your Sites are owned or operated by Koala Studios, including, without limitation, framing Our Website in any manner.
(d) You may not engage in cookie stuffing or include pop-ups, false or misleading links on Your Sites. In addition, wherever possible, you will not attempt to mask the referring url information (i.e., the page from where the click is originating).
(e) You will not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain is prohibited.
(f) If you are found redirecting links to hide or manipulate their original source, your Commission level will be set to 0%, voided out and your participation in the Program will be terminated. This does not include using “out” redirects from the same domain where the affiliate link is placed.
(g) You may use graphic and text links both on your website and within your email messages.
(h) You may use the graphics and text provided by us, or you may create your own as long as they are deemed appropriate according to the conditions and not in violation of this Agreement.
5. Restrictions
You shall not create, publish, distribute or permit any written material that makes reference to Koala Studios or Koala Studios branded products or uses any Koala Studios intellectual property rights (including trademarks and copyrights) without first submitting such material to us and receiving our written consent.
None of Your Sites may contain the following:
(i) Any content that infringes on our or any anyone else’s intellectual property, publicity, privacy or other rights;
(j) Any content that violates any law, rule or regulation;
(k) Any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials.
(l) Any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
(m) Any software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate Commissions from another website, including toolbars, browser plug-ins, extensions and add-ons without our prior written approval.
(n) Include the words ”Koala Studios”, “Koala Studios”, “Koala Cabinets” or any other Koala Studios trademark in your domain name, nor will you create publish, distribute or permit any written materials that makes reference to Koala Studios without first receiving our written consent;
(o) Links to any illegal audio/video download sites; or
(p) Links in eBooks or PDFs without our prior written approval.
You will not do any of the following:
(a) engage in (i) inappropriate advertisements (false claims, misleading hyperlinks, etc.), (ii) spamming (mass email, mass newsgroup posting, etc.), (iii) advertising on sites containing or promoting illegal activities, (iv) failure to disclose the affiliate relationship for any promotion that qualifies as an endorsement under existing Federal Trade Commission guidelines and regulations, or any applicable state laws, (v) violation of intellectual property rights, (vi) violation of any applicable law, (vii) offering rebates, coupons, or other forms of promised kick-backs from your Commission as an incentive (other than adding bonuses or bundling other products with Koala Studios), and/or (viii) self-referrals, fraudulent transactions, or suspected Affiliate fraud.
(b) (i) purchase ads that direct to your site(s) or through a link that competes with Koala Studios’s own advertising, including, but not limited to, our branded keywords; (ii) participate in cookie stuffing or pop-ups, false or misleading links, (iii) attempt to mask the referring URL information, (iv) use you’re the Koala Studios Link on Your Sites to purchase Koala Studios products for yourself, (v) use any mechanisms to deliver leads other than through an intended consumer, such as sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage purchases or signups;
(c) engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public; and/or
6. engage in pay-per-click bidding without our prior written permission. Online Advertising
If you participate in online advertising, such as Google AdWords or Facebook, you may not do any of the following without our prior written consent:
(a) Bid on the Koala Studios brand in search engine or social media advertising, such as Google AdWords, Facebook, Instagram, or Yahoo/Bing, including, but not restricted to, our domain name, our company name, and our trademarks or registered urls, including any variations, abbreviations, or misspellings) of Koala Studios.
(b) Use our trademarked or brand terms in sequence with any other keyword (e.g. Koala Studios Coupons), including any misspellings.
(c) Use our trademarked terms in your ad title, ad copy, display name, ad extensions, or as the display URL nor may you CLOAK or MASK these URL’s in online advertising campaigns.
(d) Direct link to our website from any online ad or use redirects that yield the same result (a.k.a. URL hijacking). Affiliates must be directed to an actual page on your website.
(e) Use the same tone, text, or images as our current or past ads. All paid ads need to have a different look and feel than Koala Studios’s current or past ads, and you may not use the word “official” in connection with the Koala Studios owned property’s name in domain names, search ads, or on landing pages.
(f) Engage in PPC advertising.
If you automate your online advertising campaigns, it is your responsibility to exclude our trademarked, brand, or misspelled terms from your program and we strongly suggest you add our trademarked, brand, and misspelled terms as negative keywords. We have a strict no-tolerance policy on online advertising trademark bidding. If you are unsure whether a term is a trademarked, brand, or misspelled, it is your responsibility to reach out to us to find out. You will forfeit all Commissions for a minimum of 30 days and your Commission will be set to 0% without warning if you engage in online advertising trademark bidding that uses our trademarked, brand, or misspelled terms without our prior written consent.
7. Coupon and Deal Sites
Koala Studios occasionally offers coupons to select Affiliates and to our newsletter subscribers. If you’re not pre-approved / assigned a branded coupon, then you’re not allowed to promote the coupon. Below are the terms that apply for any Affiliate who is considering the promotion of our products in relation to a deal or coupon:
(a) You may ONLY advertise coupon codes that are provided to you through the Program.
(b) Posting any information about how to work around the requirements of a coupon/promotion will result in removal from the Program.
(c) Coupons must be displayed in their entirety with the full offer, valid expiration date and code.
(d) You may NOT use any technology that covers up the coupon code and generates the affiliate click by revealing the code(s).
(e) You may NOT advertise coupon codes that you did not obtain from our Network Website, including coupon codes from our marketing emails, paid search or any other non-affiliate advertising campaigns, unless the codes are also provided in our Network Website.
(f) You may NOT give the appearance that any ongoing Koala Studios promotional offer requires clicking from Your Website in order to redeem. For example, buying order results in free shipping at checkout for all customers, you may not turn this into an offer that infers that the customer must click from your site to get this deal.
(g) You must not mislead customers into clicking on an offer or coupon that does not exist or practice similarly deceptive tactics that are generally known as "cookie stuffing or forced clicks." These include, but are not limited to:
(i) Using knowingly expired offers or presenting offers that do not exist or are not Affiliate offers.
(ii) Making claims that a user must click on a link first to activate or receive an offer.
(iii) Presenting a button that claims to show all offers that sets the Affiliate cookie in the background.
(iv) Technology that generates a click or sets the cookie from the action of copying a coupon code or through a pop-under.
(h) Additionally, if your website ranks on the first page of Google for terms related to Our Website or company name combined with the words coupon, coupons, coupon code, promo code, etc. and/or your conversion rate exceeds 0.20%, you may be offered a lower Commission than our standard rate to offset the reduced profitability of orders.
(i) You may not use misleading text on your links, buttons, or images to imply that that any deals apply other than the deals you are currently authorized to offer.
(j) You may not bid on Koala Studios Coupons, Koala Studios Discounts or other phrases implying coupons are available.
(k) You may not generate pop-ups, pop-unders, iframes, frames, or any other seen or unseen actions that set affiliate cookies unless the user has expressed a clear and explicit interest in activating a specific savings by clicking on a clearly marked link, button or image for that particular coupon or deal. Your link must send the visitor to the merchant site.
(l) User must be able to see coupon/deal/savings information and details before an affiliate cookie is set (i.e. “click here to see coupons and open a window to merchant site” is NOT allowed).
(m) Your Sites may not have “Click for (or to see) Deal/Coupon” or any variation, when there are no coupons or deals available, and the click opens the merchant site or sets a cookie. Affiliates with such text on the merchant landing page will be removed from the program immediately.
Affiliates whose primary business is posting coupons, who are viewed by the Program as being a coupon site and/or who are tagged as coupon in our system, will not be paid Commission for any sales generated without a corresponding valid coupon promotion or code. Valid promotions and codes are defined as those that are made available to the Network Website in general, through newsletters or the coupon inclusion list on the Network Website, or to that Affiliate directly/privately. Coupon codes that are not real, expired, or not made available to the Affiliate are not considered valid codes, and the Affiliate will not be given Commission on these orders. These orders will be canceled, zeroing out Commissions for improper use.
8. Social Media
Promotion on Facebook, Twitter, Twitch, YouTube and other social media platforms is permitted under the following provisions:
(a) You ARE allowed to promote affiliate channel approved offers to your own lists; more specifically, you’re welcome to use your affiliate links on your own Facebook, Instagram, YouTube, Twitch, Twitter and Pinterest pages, among other platforms.
(b) You ARE PROHIBITED from posting your affiliate links on Koala Studios’s Facebook, Instagram, YouTube, Twitter, and other company social media pages in an attempt to turn those links into affiliate sales.
(c) You ARE PROHIBITED from running any social media ads such as Facebook, Twitter, Instagram or Pinterest with Koala Studios’s company name or other trademarks without our prior written approval.
(d) You ARE PROHIBITED from creating social media accounts, pages, or posts that in any way copy, resemble, represent, or mirror the look and feel of our social media accounts, pages, or posts. You will also not use any means to create the impression that your accounts, pages, or posts are Koala Studios’s accounts, pages or posts.
9. FTC endorsement guidelines disclosure requirements:
If you are compensated by Koala Studios in any way for a post (including with cash, credit, discounts, product, contest entries, and so on), you must clearly and conspicuously disclose such compensation. This applies across all media channels. For example, on Instagram, Twitter, Facebook, Twitch, or YouTube, if you are promoting Koala Studios, or showing product that was given to you by Koala Studios, you must include #@babylock, or #ad prominently in your caption, before any “break” in the text that is shown to viewers of your content, or otherwise conspicuously indicate that you were or may be compensated by Koala Studios. For more information about FTC guidelines, please review https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf
10. Commissions
[Koala Studios shall pay to Affiliate a commission (the “Commission”) based on agreed upon program terms in the Network Website.]
For all Sales (as defined below), Koala Studios shall pay to you a commission (the “Commission”) equal to ____% times the net invoice price charged by Koala Studios to the applicable Customer (as defined below) for the applicable products (exclusive of sales tax, customs duties, insurance, handling, storage, loading and unloading, and freight/shipping charges and after applying any discounts, returns, credits, rebates or adjustments). Commissions are paid by the last day of the month following the month in which the Sale occurred.
“Customer” means a customer account that remains active for a minimum of 37 days.
“Sales” means sales of Koala Studios products to customers that originate through a Customer accessing the Koala Studios Link through your Affiliate Domain. For the avoidance of doubt, no Sale occurs unless the order is placed during the Term. “Sales” exclude (a) samples, (b) products provided under any advertising or marketing promotion, (c) replacement products for defective products, whether or not provided under warranty and (d) sales to yourself or your accounts. We may accept or reject any lead or Sale in our sole discretion, and you will not be entitled to any Commission on any rejected lead or Sale. A Sale occurs once the order has been placed and accepted by Koala Studios and payment has been received by Koala Studios.
There is a limit of one Commission per referral. If someone clicks the Koala Studios Link from your Affiliate Domain and orders multiple accounts, then you will receive a Commission on the first order only.
Payments will only be sent for transactions that have been successfully completed. Transactions that result in chargebacks, credits or refunds will not be paid out. Koala Studios may withhold payment of any amounts due and payable under this Agreement by reason of any set-off of any claim or dispute with Affiliate, whether relating to Affiliate’s breach, bankruptcy or otherwise.
You will not be entitled to any Commission if (i) the Commission is prohibited or restricted by federal, state or local law; (ii) the Customer objects to or prohibits the Commission or excludes such Commission from its payments to us; (iii) the Customer has paid or will pay such Commissions, referral fees, or other compensation directly to you, (iv) the Commission payment has been obtained by fraudulent means, misuse of the link, in violation of this Agreement or by any other means that we deem to breach the spirit of the Program, or (v) the Customer participates in any of our other programs and is eligible to receive Commission in relation to the transaction under that program.
You shall notify Koala Studios in writing of any dispute regarding any Commission or other payment (along with substantiating documentation and a reasonably detailed description of the dispute) within seven (7) days from your receipt of such payment (or notice from Koala Studios that it shall not make such payment). You will be deemed to have accepted all payments (or non-payments) for which Koala Studios does not receive such notification of dispute within such seven-day period. The parties shall seek to resolve all such disputes expeditiously and in good faith.
COOKIES USED AS PART OF THE PROGRAM HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, WE SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.
11. Reversals & communications
Koala Studios reserves the right to reverse orders (and Commissions) due to order cancellations, duplicate tracking, disputed charges, returns and program violations as outlined in this Agreement and conditions.
Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of our terms and conditions, you will respond in a timely and honest manner. The following are all considered breaches of this Agreement:
(a) You are not forthcoming, intentionally vague or are found to be lying.
(b) You are not responsive within a reasonable time period and after multiple attempts to contact with information listed in your network profile.
(c) You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
(d) If any of the above apply, then we reserve the absolute right to reverse orders, set your Commission to 0% &/or suspend you from the program. We know that many violations are a result of automated processes; however, it is incumbent upon you to ensure that you have the appropriate checks and balances in place to proactively address these issues and adhere to our Program rules.
Koala Studios also reserves the right to withhold or cancel any and all compensation for transactions not in compliance with this Agreement, Koala Studios policies and/or the Network Website terms. If you have questions about the Program, please contact our Affiliate Team at affiliates@koalacabinets.com.
12. Sub-affiliate Networks.
Promoting Koala Studios through a sub-affiliate network is permitted; sub-affiliate networks must ensure that all sub-affiliates promoting the Koala Studios program adhere to this Agreement. This includes restrictions on advertising through toolbars, browser extensions, and through any paid placements such as pay-per-click campaigns. Sub-affiliate networks must also receive approval prior to allowing any type of coupon sub-affiliate to promote the Koala Studios program.
Failure to comply with our sub-affiliate network terms may result in a loss and/or reduction of Commissions from sales made through any sub-affiliate that does not comply with our program terms.
13. Intellectual Property Rights
We are not granting to you any right or license to any of our intellectual property rights by implication, estoppel, or otherwise. You acknowledge that we own all right, title, and interest in, to, and under the our intellectual property rights and the goodwill associated therewith and that you shall not acquire any proprietary rights therein. Any use by you or any of your affiliates, sub-affiliates, contractors, employees, officers, directors, managers, partners, owners, agents, attorneys, third-party advisors, successors or permitted assigns (collectively “Representatives”) of any our intellectual property rights or goodwill and other rights associated therewith shall inure to the benefit of us.
Koala Studios reserves the right to require license agreements from those who employ trademarks of Koala Studios to protect our intellectual property rights.
14. Term Termination
The term of this Agreement and your participation in the Program (the “Term”) shall commence upon notification of your acceptance in the Program and shall continue until terminated in accordance with this Agreement.
Koala Studios may, may in its sole discretion and without notice, suspend your Affiliate status or terminate the Term (including your participation in the Program) for any of the following reasons:
(a) without limiting the rights in subsection (c), you breach this Agreement;
(b) you (i) become insolvent or is generally unable to pay its debts as they become due, (ii) file or have filed against you, a petition for voluntary or involuntary bankruptcy or otherwise become subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) make or seek to make a general assignment for the benefit of its creditors, (iv) apply for or have appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, or (v) are dissolved or liquidated; and/or
(c) engage in any of the actions prohibited by Section 5.
In addition, Koala Studios has the right to suspend or terminate your Affiliate status for no reason upon thirty (30) days’ prior written notice to you. You may terminate the Term at any time upon (30) days’ prior written notice to Koala Studios.
No party shall not be liable to the other party for any damage of any kind (whether direct or indirect) incurred by the other party by reason of the suspension of Affiliate status or termination of the Term. Suspension or termination will not constitute a waiver of any of rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.
Termination of the Term will not affect any rights or obligations that are to survive the expiration or earlier termination of this Agreement and/or were incurred by the parties prior to termination. Sections 1, 2, 9, 13, 14, 15 and 17 through 21 shall survive the termination of the Term as well as any Sections necessary to interpret such Sections.
15. Confidential Information
From time to time during the Term, Koala Studios may disclose or make available to Affiliate information about its business affairs and services, confidential information and materials comprising or relating to intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Affiliate or any of its Representatives; (b) is or becomes available to the Affiliate on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Affiliate or its Representatives prior to being disclosed by or on behalf of the Koala Studios; (d) was or is independently developed by the Affiliate without reference to or use of, in whole or in part, any of the Koala Studios's Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Affiliate shall: (x) protect and safeguard the confidentiality of the Koala Studios’s Confidential Information with at least the same degree of care as the Affiliate would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Koala Studios's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Affiliate's Representatives who need to know the Confidential Information to assist the Affiliate, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Affiliate shall be responsible for any breach of this Section 9 caused by any of its Representatives. At any time during or after the Term, at the Koala Studios's written request, the Affiliate and its Representatives shall promptly return or destroy and certify the destruction of all Confidential Information and copies thereof that it has received under this Agreement.
16. Compliance
You shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of your business, the Program and/or this Agreement and your performance hereunder (including, without limitation, export laws and laws applicable to sending of unsolicited email). You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury and will not directly or indirectly export, re-export, or transfer the products to prohibited countries or individuals or permit use of the products by prohibited countries or individuals.
You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests. You will establish and maintain systems and procedures appropriate to ensure compliance with the foregoing.
You will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Program, including, without limitation, clearly stating that you are a Koala Studios Affiliate on any of Your Sites on which you provide a Koala Studios Link and
17. No Representations or Warranties.
You represent and warranty to Koala Studios that: (a) you have sufficient capacity, power and authority to enter into and perform this Agreement; (b) if you are an entity, you have duly authorized the execution, delivery and performance of this Agreement; (c) this Agreement has been duly executed and delivered and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; (d) no consent, authorization, license, order or approval of, or filing or registration with, any governmental authority or other person or entity is required for the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement by you; (e) the execution, delivery and performance of this Agreement does not violate or constitute a breach of any contract, agreement, license, permit, or organizational document to which you are a party or by which your assets are bound; (f) there is no pending litigation or other proceeding that would materially impact or affect your ability to perform your obligations under this Agreement; and (g) you have sufficient assets, rights and capabilities to enter into this Agreement and to perform your obligations hereunder.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
18. Liability
Koala Studios will not be liable for indirect or accidental damages (loss of revenue, Commissions) due to affiliate tracking failures, loss of database files, or any results of intents of harm to the Program and/or to Our Website(s).
We do not make any expressed or implied warranties with respect to the Program and/or the memberships or products sold by Koala Studios. We make no claim that the operation of the Program and/or Our Website(s) will be error-free and we will not be liable for any interruptions or errors.
IN NO EVENT WILL KOALA STUDIOS BE LIABLE TO ANY PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT KOALA STUDIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
KOALA STUDIOS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO AFFILIATE PURSUANT TO THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
19. Indemnification
Affiliate shall indemnify, defend and hold harmless Koala Studios and its affiliate and subsidiary companies, officers, directors, employees, licensees, licensors, successors and assigns, including those licensed or authorized by Koala Studios to transmit and distribute materials, from any and all liabilities, damages, fines, judgments, claims, actions, settlements, penalties, costs (the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers), losses, and expenses (including reasonable legal fees and costs) arising out of or related to any and all claims arising from any breach of this Agreement by Affiliate or any of its Representatives or the negligence (or more culpable act or omission), misrepresentation, failure to disclose, or intentional misconduct of Affiliate or any of its Represntatives.
20. Governing Law, Jurisdiction, and Attorney Fees
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Missouri, without regard to its conflicts of laws principles. Any dispute arising under or related in any way to this Agreement shall be adjudicated exclusively in the state courts located in St. Louis, Missouri.
The parties hereby irrevocably submit to the exclusive jurisdiction of the Circuit Court of the County of St. Louis, Missouri or, if the federal court has subject matter jurisdiction, the United States District Court of the Eastern District of Missouri, Eastern Division in any action or proceeding arising out of or relating to this Agreement, and the parties hereby irrevocably agree that all claims and counterclaims in respect of such action or proceeding may be heard and determined in any such court. The parties irrevocably waive any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens, which he, she or it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. The parties irrevocably consent to the service of any and all process in any such action or proceeding brought in any such court by the delivery of copies of such process to each such party, at his, her or its address specified for notices to be given hereunder or by certified mail directed to such address.
21. Miscellaneous
This Agreement, including the related policies, constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
The terms and conditions of this agreement may be modified by us at any time upon written notice to you. If any modification to the terms and conditions of this Agreement are unacceptable to you, your only choice is to terminate the Term. Your continuing participation in the Program will constitute your acceptance of any change. You may not amend this Agreement without our prior written consent.
No waiver by either party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
Each party acknowledges and agrees that (a) a breach or threatened breach by Affiliate of any of its obligations under this Agreement would give rise to irreparable harm to Koala Studios for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Affiliate of any such obligations, Koala Studios shall, in addition to any and all other rights and remedies that may be available to Koala Studios at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Affiliate agrees that Affiliate will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this paragraph.
Koala Studios may not assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of Koala Studios. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, the persons and entities entitled to indemnification under this Agreement, and their respective successors and permitted assigns. Other than the persons and entities entitled to indemnification under this Agreement, no other person or entity shall have any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Affiliate is an independent contractor pursuant to this Agreement. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
The Agreement is an electronic contract that sets out the legally binding terms of your participation in the Koala Studios affiliate program. You indicate your acceptance of this Agreement and all the terms and conditions contained or referenced in this Agreement by completing the ShareASale and/or Koala Studios application process. This action creates an electronic signature that has the same legal force and effect as a handwritten signature.