TONA Activewear
Program Terms
This Affiliate Partnership Marketing and Sales Agreement ("Agreement"), dated as the date this Affiliate Program Form is completed (the "Effective Date"), is between TONA Activewear LLC, a Delaware Limited Liability Corporation, ("TONA") located at 609 Greenwich St., NY, New York and signor (“Affiliate”). TONA and Affiliate are sometimes individually referred to as "Party" and collectively referred to as the "Parties."
WHEREAS, TONA is engaged in the business of designing, manufacturing, marketing and selling activewear and performance wear.
WHEREAS, Affiliate is the owner of Affiliate’s database of customers and one or more email or SMS lists of customers of Affiliate ("Affiliate Email List" or “Affiliate SMS List”).
WHEREAS, TONA and Affiliate desire to engage on a non-exclusive basis for the purpose of generating revenue for TONA and commissions for Affiliate by promoting TONA’s products and services available for purchase on the TONA Website www.tonaactive.com, ("TONA Website"), and increasing awareness of TONA’s mental health mission for the prevention of teen suicide and self-harm.
WHEREAS, Affiliate desires to direct Affiliate’s customers from their Affiliate Email List and/or Affiliate SMS List to TONA’s Website using a unique URL, ("Affiliate Link"), and the Parties desire for the Affiliate to receive compensation for each and every purchase made by Affiliate customers ("Affiliate Customers"), who make purchases of TONA Products and/or services via clicking on the Affiliate Link ("Affiliate Program").
Now therefore, the Parties in consideration of the mutual covenants set forth herein, agree as follows:
1. COMPENSATION.
(a) Paid Order Fees: TONA shall pay Affiliate a commission of twenty percent (20%) on net Product sales revenue on any Paid Order made by Affiliate Customers that Affiliate refers to TONA through the Affiliate Link during the Term of this Agreement.
(i) "Paid Order" means an order for which TONA has received and processed payment, less the cost of returns and chargebacks TONA incurs on any of Affiliate's referred customer orders.
(b) The term “Net Revenue” shall mean “Gross Revenue” less “Chargeable Costs” which include but are not limited to: Affiliate Customer price discounts, administrative fees, cost of returns, chargebacks, exchange fees, and refunds.
(c) Calculation of Commission. TONA shall pay Affiliate twenty percent (20%) of Net Revenue generated by Paid Orders for the purchase of TONA Product(s) by Affiliate Customers.
(d) Cookie Duration. Affiliate will be paid Commission from TONA for all Product sales revenue on any Paid Order made by Affiliate Customers for sixty (60) days from the date on which Affiliate Customer clicks on Affiliate Link. Each time Affiliate Customer clicks on Affiliate Link, the sixty (60) day Cookie Duration will renew, and Affiliate will be paid Commission from TONA for all Product sales revenue on any Paid Order made by Affiliate Customers for sixty (60) days from the date on which Affiliate Customer clicks on Affiliate Link.
(e) Timing of Commissions. Commissions will be credited forty-five (45) days after the date of sale and shall be paid by the tenth (10th) day of the month following the month in which the commission was credited.
(f) Paid Orders shall exclude and TONA shall not owe Affiliate any compensation hereunder and TONA at its sole discretion may deduct such charges from Affiliate’s account and/or withhold such from the commission payment on any of, the following:
(i) For any and all initiated returns, refunds, chargebacks, cancellations and/or fraudulent payments of Paid Orders;
(ii) Any Product purchase that is not correctly tracked or reported because the links from Affiliate to TONA Website are not properly formatted;
(iii) Any Product purchased through Affiliate Link by Affiliate and/or on Affiliates behalf, ds“Strawman Purchases” including but not limited to Products purchased through Affiliate Links for Affiliate, friends, relatives, or associates (e.g., personal orders, orders for your own use and/or orders placed by Affiliate for or on behalf of any other person or entity);
(i) Any Product purchased for resale or commercial use of any kind;
(v) Any Product purchased after termination of this Agreement;
(vi) Any Product purchased by a customer who is referred to the TONA Website through any of the following: a Prohibited Paid Search Placement; or a link to Affiliate Website, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through Affiliate submission of data to that site or otherwise.
(vii) Any Paid Order wherein you have offered any person or entity any consideration or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using “Special Links” (e.g., by implementing any “rewards” or loyalty program that incentivizes persons or entities to visit the Affiliate Website via Special Links);
(viii) Any Paid Order through an Affiliate Link in a Mobile Application not owned and controlled by Affiliate;
(ix) Any Paid Order where Affiliate has posted links or their coupon code on "coupon website" are expressly prohibited.
(xi) Posting coupon offers on Affiliate Website with "reveal the coupon code" or similar phrase that stimulates visitor to click to reveal a coupon code and go to the TONA's site is expressly prohibited.
(g) In the event TONA makes any excess payment (“over payment”) to Affiliate for any reason whatsoever, TONA reserves the right to adjust or offset the over payment against any subsequent compensation which may be owed to Affiliate under this Agreement.
(h) TONA reserves the right to reject orders that do not comply with any requirements on the TONA Website. Requirements may be updated from time to time in TONA’s sole discretion.
(i) Statements. TONA shall issue a monthly statement detailing its computations of the commission. Statement shall be provided to Affiliate via electronic email (set forth on the signature page of this Agreement) by the tenth (10th) day of the month in which commissions are to be paid from TONA to Affiliate.
(j) In the event that Affiliate disputes the amount of the commissions paid to it by TONA, upon Affiliates reasonable written request, TONA shall provide the records and data used to determine the commission. Affiliate at its sole cost and expense can conduct an audit of such records and data solely relating to the Gross and Net Revenues for which commissions are owed to Affiliate hereunder (but not those relating to the manufacture of Products or internal company operations) solely for the purpose of determining the accuracy of the commission statements and payments to Affiliate, provided that such audit shall be conducted only: (1) with not less than thirty (30) days prior written notice to Company, (2) once with respect to any statement, (3) within one (1) year after such commission statement is rendered, (4) by a certified public accountant not then engaged in an audit of TONA or engaged on a contingency basis, (5) during normal/usual business hours, (6) at the place where such books and records are kept, (7) in the event Affiliate believes that there are any discrepancies between TONA's records and a commission paid to Affiliate, TONA shall have the right to cure the discrepancy by issuing payment to Affiliate within forty-five (45) days of receiving written notification of that discrepancy from the Affiliate. TONA shall not be deemed in breach of this Agreement.
(k) Affiliate shall be deemed to have consented to each statement and payment rendered by TONA unless Affiliate makes specific objection in writing, within sixty (60) days after the date rendered. Affiliate shall be precluded from maintaining any action against TONA on the basis of TONA’s failure to account or pay commissions correctly if Affiliate does not institute an action against TONA within six (6) months from the date of such notice. Notwithstanding anything contained in this paragraph, TONA shall be entitled to rely upon statements from its affiliate software, and such statements shall be deemed conclusive and binding upon Affiliate.
(l) TONA shall issue payment (if any is due and payable) to Affiliate via check sent to the address set forth on page one (1) or via bank wire transfer to the banking routing and account coordinates issued in writing by Affiliate and such writing and information actually confirmed received by TONA, in Exhibit A. Affiliate shall be solely responsible for the costs of any such wires which shall be deducted from the amount of the commission.
2. RESPONSIBILITIES of AFFILIATE, Affiliate shall:
(c) Refer new, unique and, legitimate customers (i.e., customers not current and/or previously existing to the TONA) to the TONA Website via the Affiliate Link;
(d) Only post, place, display Affiliate Link on Affiliate Websites, Social Media, Emails, SMS Messages and Applications (“Apps” mobile or otherwise) that are solely owned, operated and controlled by Affiliate.
(e) Adhere to the following "Keyword Buys & Commissions Policy":
i. "Keyword Buy" means any advertisement that appears when certain words are purchased and that matches a given keyword search query, and "Search Engine" means software that acts as a service by searching an index or database and that returns relevant matches based on information typed into a query.
(f) Agree that TONA owns the rights to certain intellectual property, trademarks and service marks (“Marks”), including but not limited to those that are listed below and Mark applications that have been filed. Affiliate is prohibited from bidding on TONA trademark terms (including marks on all Search Engines). Any such actions shall constitute a trademark infringement of TONA's trademarks and a breach of this Agreement.
(i) This includes but is not limited to: any variations, combinations, and lower case variants of these terms with or without the "www" prefix or ".com" suffix. TONA shall not owe Affiliate and will not pay a commission on any transactions derived from bidding on any of the following protected trademarked/brand-related keywords, and TONA may change these terms without notice to Affiliate.
(ii) Affiliate may not make Keyword Buys that are confusingly similar to or a derivation of, TONA's name or other trademarks, including any misspellings or "typo squatting" variants of the TONA's terms.
(g) Affiliate may not use links that automatically redirect the user to TONA Website in the Affiliate's search ads. The Affiliate may not use the TONA Website (including all lower or uppercase variations) for any display or destination URL listings used in paid search campaigns, or cloak or mask the TONA Website URL in Search Engines.
(h) Affiliate warrants that: (1) Affiliate Website is content based, (2) Affiliate website is not simply a list of links or advertisements, (3) has a top-level domain name and (4) does not promote or contain sexually explicit materials, (5) does not promote violence or contain violent material, (6) does not promote or contain libelous or defamatory materials, (7) does not promote discrimination, or (8) employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, sexual identity or age. In the event Affiliate violates any of these restrictions, TONA may at its sole discretion withhold any and all commissions earned under this Agreement, and/or immediately suspend or terminate this Agreement and Affiliate's status as an affiliate.
(ii) Affiliate hereby permits and authorizes TONA to track users linking from Affiliate’s Site to TONA’s Site (“Users”) and the purchasing of any and all TONA Products.
(iii) Any and all User information/data captured on a TONA website shall be the sole and exclusive property of TONA.
3. RESPONSIILITES OF TONA, TONA shall:
(a) Provide all assistance to Affiliate to enable the Affiliate to post the Affiliate Link on the Affiliate Website or in the Affiliate Email or SMS;
(b) Provide initial information and deliver the materials comprising the Affiliate Link within five (5) business days of the effective date of this Agreement; and
(c) Maintain accurate records of the data used to determine the commissions earned by the Affiliate.
TERMS &.CONDITIONS
1. TERM AND TERMINATION.
(a) The term of this Agreement shall become effective as of the date set forth in the opening paragraph of page one (1) of this Agreement, the Effective Date and continue for an initial term of twelve (12) months, (the "Term"). Unless either Party gives written notice to the other at least thirty (30) days before the end of the Term, this Agreement will renew automatically for an additional year term.
(i) This automatic extension will continue to apply at the end of each extended period until the Agreement is terminated.
(ii) Notwithstanding the foregoing, this Agreement shall not remain effective for more than two (2) years from the Effective Date.
(b) Termination Procedures. This Agreement may be terminated:
(ii) By either Party, by issuing thirty (30) days' written notice before the end of a Term;
(iii) By the non-breaching Party for a breach of any provision of this Agreement if the alleged breaching Party's breach is not cured within thirty (30) days of receipt of written notice.
(iii) By TONA at any time and without prior notice, if Affiliate violates the terms of this Agreement including but not limited to: Affiliate improperly uses the TONA's intellectual property, trade secrets, name, logo, and/or graphics (other than the proper use of the TONA Marks provided under this Agreement) or includes a link to TONA’s Website in any form of unsolicited communication such as spam.
(c) Effects of Termination. After the termination of this Agreement, any and all licenses granted under this Agreement shall terminate without further TONA notice or action.
(i) The Parties shall promptly remove all marks of the other Party from any website, emails or SMS that Party controls.
(d) TONA shall within thirty (45) days of the termination of this Agreement issue payment to Affiliate for outstanding commissions owed (if any) to the Affiliate for services rendered before the effective date of the termination.
2. LICENSE.
(a) License. TONA grants the Affiliate a limited, nonexclusive, non-transferable, non-sublicensable right to maintain the Affiliate Link on Affiliate Website or in Affiliate Emails or SMS referring to TONA’s Website, in accordance with the terms of this Agreement, from which the Affiliate's website visitors can order TONA Products. TONA also grants Affiliate a non-exclusive, non-transferable license to use certain TONA trade names, trademarks, service marks, trade dress, logos, and other intellectual property used by TONA in identifying its business (collectively, the "TONA Marks") for the sole purpose of selling TONA Products on the Affiliate Website or in Affiliate Emails or SMS.
(b) TONA shall directly provide the TONA Marks to Affiliate.
(c) Affiliate may not use any other TONA intellectual property without TONA's prior written consent and approval. TONA reserves all proprietary rights to the TONA Marks and may immediately revoke or adjust the Affiliate's license at any time on written notice.
(d) No Other Use: Affiliate may not use TONA Marks for any purpose or on any other media except as stated in this Agreement or as TONA expressly approves, or has approved, in writing.
(e) Modification. TONA may submit written requests to modify or exclude any TONA Mark from Affiliate Website and Affiliate shall promptly accommodate the request.
(f) Affiliate Intellectual Property. Affiliate grants TONA a non-exclusive license to utilize the Affiliate's trade names, trademarks, service marks, trade dress, logos, and other intellectual property used by Affiliate in identifying its business (collectively, the "Affiliate IP") and website, including design, computer software, and other components, authorized by Affiliate in writing (including by email), for the sole purpose of advertising, marketing, and promoting the Affiliate Program. At any time, Affiliate may in writing, revoke or modify the licenses it has granted to TONA and TONA will use reasonable efforts to comply with that revocation or modification.
(g) Representations About Affiliate IP. The Affiliate represents that:
(i) It has all necessary rights, licenses, permits, and clearances to use Affiliate IP and to offer, sell, or license the goods and services offered through Affiliate IP and this will not violate any applicable laws or regulations or any third-party rights;
(ii) Affiliate IP does not violate or infringe any right of privacy, personality, or publicity, trade secrets, patents, copyrights, or trademarks under the laws of any governmental authority, domestic or foreign, or any other right of any third party; and
(iii) Affiliate IP will not misdirect or mislead Internet users.
3. AFFILIATE’S OBLIGATIONS. Affiliate shall not:
(a) Use TONA’s IP, including but not limited to: trademarks, trade names, service marks, or logos except for TONA Marks as expressly authorized (in writing) by TONA;
(b) Create, publish, distribute, or permit any written material that makes reference to TONA without first obtaining its written consent and approval. In the event that Affiliate uses any TONA IP and/or content without permission, TONA may, without limiting other forms of recourse, terminate this Agreement and/or the Affiliate's status in the Affiliate Program;
(c) Create, publish, distribute, or permit any advertising referencing TONA, except as has been agreed in writing between the Parties;
(d) Use the TONA's name, logo, graphics or include a link to TONA Website in any form of unsolicited communication, including unsolicited email (spam). Affiliate must maintain strict compliance with the CAN-SPAM Act of 2003 and all amendments and modifications to that law;
(e) Frame, minimize, remove, cause to create a new window, or otherwise inhibit the full and complete display of each website, mirror, cobranded or derivative website belonging to the TONA and its affiliates;
(f) Alter Affiliate Link in any manner including modification of the design, color, format, specification, or content of the Link;
(g) Provide incentivized traffic, where offers with incentives or the appearance of incentives including points, lottery, coupon, coupon sites, social media, emails, SMS, contest entries or rewards, are used to generate revenue for Affiliate Customers. This includes but is not limited to placing misleading statements near the ad creative (e.g.,"you will win $100") unless such discount or incentive receives prior written approval by the TONA;
(h) Serve ad creative, or drive Affiliate Customers to this ad creative, using any downloadable applications or software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable), and serving ad creative that are not initiated by the affirmative action of the Affiliate Customer without the prior written approval of TONA.
(i) Affiliate may not use links that automatically redirect the user to TONA Website in the Affiliate's search ads.
(j) The Affiliate may not use the TONA Website (including all lower or uppercase variations) for any display or destination URL listings used in paid search campaigns, or cloak or mask the TONA Website URL in Search Engines.
(k) "Coupon Website" Whether Affiliates are classified as a “Coupon Affiliate” shall be determined by TONA in its sole discretion. Factors that may lead to classification as "Coupon Affiliate" include, but are not limited
(i) The presence of coupon offerings, especially from many different merchants, on the Affiliate's website, especially if such coupons represent many different merchants and/or are indexed or are organized in a directory;
(ii) The presence of certain words (or variations or misspellings thereof) in the website's URL or prominently featured in the website's content, such as "coupons," "deals" or "savings";
(iii) A website that is focused on other merchants and the discounts or promotions offered by them, rather than on products, and that features limited original, human-generated content.
(l) “Prohibited Paid Search Placement” means an advertisement that Affiliate purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. “Proprietary Term” means keywords, search terms, or other identifiers that include the word “TONA,” or any other trademark of TONA or its affiliates, or variations or misspellings of any of those words (e.g., "TOONA").
(i) “Redirecting Link” means a link that sends users indirectly to the TONA Website via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage.
(ii) “Search Engine” means Google, Yahoo, Bing, Duck Duck Go and/or any and all other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks that exits now or is hereafter devised, developed and/or created in the future.
4. TONA’S RIGHTS.
(a) Right to Monitor Affiliate Website and Affiliate Emails and SMS. TONA has the right, but not the duty or obligation, to monitor Affiliate Website and Affiliate Emails and SMS. TONA shall notify Affiliate of any modification that TONA reasonably requests be made to Affiliate Website or Affiliate Emails or SMS in connection with posting the Affiliate Link. If Affiliate fails to make said change, TONA at its sole discretion, can elect to immediately terminate this Agreement upon written notice, including by email.
(b) Right to Remove Link. TONA may direct Affiliate to remove, and Affiliate shall remove the Affiliate Link from the Affiliate Website and Affiliate Emails and SMS at any time and for any reason.
(c) Right to Disclaimer. TONA may direct Affiliate to post the disclaimer on Affiliate Website or in Affiliate Emails or SMS.
(d) Policies and Pricing: Customers who purchase Products under this Agreement are customers of TONA with respect to all activities they undertake in connection with the TONA Website. Accordingly, TONA has the sole and exclusive right, power, authority and discretion regarding all: pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales which may be changed at any time.
5. CONFIDENTIAL INFORMATION.
(a) For the purposes of this Agreement, "Confidential Information" (“CI”) means any and all non-public and/or proprietary information and/or materials that a Party (the “Recipient”) acquires or learns from the other Party (the “Provider”). CI includes information about a Party and/or a Party’s business, without limitation: clients, financiers’, suppliers', contacts, investors, distributors, formulas, products, trade secrets, know how, records, data, its business and/or activities that are proprietary and confidential. Notwithstanding anything to the contrary contained herein, the term “Confidential Information” does not include information which:
(i) Is or becomes generally available to the public other than as a result of a breach of this Agreement by Recipient and/or its affiliates and/or including but not limited to: its or their respective agents, consultants, representatives, attorneys, accountants, financial advisors, directors or employees (collectively, “Representatives”),
(ii) Was known, as shown be written evidence, by Recipient/Representatives prior to disclosure by or
on behalf of the Provider,
(iii) As shown by written evidence, was developed by Recipient/Representatives without the use of
Confidential Information or,
(iv) Is by writing, approved for disclosure and/or release by the Provider.
(b) Non-Disclosure: Recipient shall hold the Confidential Information of the Provider in trust and confidence, and shall not disclose such Confidential Information to any third party except,
(i) As expressly authorized in writing by Provider,
(ii) To those of its Representatives who are participating in the Relationship or who have a need to know such information, provided that such Representatives have been informed by Recipient of the confidential nature of such information and shall each be bound by a duty of confidentiality to Recipient.
(iii) Recipient shall protect such Confidential Information by using the same degree of care as it uses to protect its own Confidential Information of similar value and sensitivity, but not less than reasonable care. Each Party shall take all reasonable precautions to ensure that its Representatives comply with the provisions of this Agreement.
(c) Legal/Regulatory Disclosure: In the event that Recipient or any of its Representatives receives a request or is required by law, regulation or governmental, regulatory or self-regulatory body (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Confidential Information, Recipient agrees, to the extent practicable and permitted by law, regulation and such body, if any, making the request, to:
(i) Promptly notify the Provider of such request, and
(ii) Consult with the Provider on the advisability of the Provider taking legally available steps to resist or narrow such request, including seeking a protective order or other appropriate remedy at the Provider’s sole cost and expense.
(d) Destruction of Documents. Upon the Provider’s written request, Recipient shall promptly destroy and, if so requested in writing, certify the destruction of all Confidential Information that Recipient has in any manner, medium or mode including but limited to physical and digital formats, furnished to Recipient by the Provider and will not retain any copies, extracts, or other reproductions thereof; provided, however, that Recipient and its Representatives may retain copies of Confidential Information, subject to the confidentiality terms of this Agreement, in accordance with their respective internal record retention policies for legal, compliance or regulatory purposes.
6. INDEMNIFICATION.
(a) Affiliate hereby indemnifies TONA, TONA's directors, officers, shareholders, employees, representatives, and successors, assigns and licensees against any award, charge, claim, compensatory damages, costs, damages, exemplary damages, diminution in value, expenses, fees, fines, interest, judgments, liabilities, settlement payments, penalties, or other losses (a "Loss") and/or any attorney's and/or other expert and/or professional's fees and disbursements, court filing fees, court costs, arbitration fees, arbitration costs, witness fees, and each other fees and costs of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of and/or resulting from any breach or alleged breach of Affiliate’s representations, warranties, obligations, performance under this Agreement.
(b) TONA shall indemnify Affiliate against a Loss or Litigation Expense caused by any breach of any of TONA’s representations in this Agreement, providing Affiliate provides written notice of alleged breach according to the terms of this Agreement and TONA does not cure breach within thirty (30) days of receipt of written notice of alleged breach.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF DAMAGES AND LIABILITY.
(a) Each Party represents and warrants to the other that:
(i) It has the full right and authority to enter into this Agreement and to perform the acts and
obligations required of it hereunder;
(ii) The execution of this Agreement by such Party and the performance by such Party of its obligations and duties hereunder do not and shall not violate any other third-party agreements to which such Party is a Party to and/or by which it is otherwise bound;
(iii) When executed and delivered by such Party, this Agreement shall constitute the legal, valid and binding obligation of such Party, enforceable against such Party according to its terms;
(iv) Such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly specified in this Agreement.
(c) TONA shall abide by all warranties as are expressed on TONA Website and under this Agreement.
(d) Notwithstanding the foregoing: TONA makes no, and expressly disclaims all, warranties or representations with respect to TONA's products and services provided to Affiliate Customers through the Affiliate Program and any services provided by TONA under this Agreement including any implied warranties or warranties of merchantability or fitness for a particular purpose.
(e) Additionally, TONA makes no representations that the operation of the TONA Website or services will be uninterrupted or error free and it shall not be liable for the consequences of any interruptions or errors. Neither TONA nor any of its agents, employees, officers, or directors shall be liable for consequential, incidental or special damages, including lost profits, even if it has knowledge of the potential loss or damage.
(e) TONA's liability shall not exceed the total commission paid or payable to Affiliate under the Agreement.
8. NATURE OF RELATIONSHIP.
(a) Nothing in this Agreement creates any employment, independent contractor, partnership, joint venture and/or agency relationship between Affiliate and TONA. Neither Party may negotiate, represent, enter into contracts, assume and/or create any liability or make agreements of any kind for, in the name of, or on behalf of, the other Party.
(b) Any Affiliate Customer that follows the Affiliate Link to the TONA Website, upon arrival and use of the TONA Website, shall thereby become a customer and sole proprietary property of TONA.
(c) TONA will be responsible for all aspects of order processing and fulfillment of TONA Products. All TONA rules, prices, policies, and operating procedures will apply to sales of TONA Products made under this Agreement.
(d) TONA expressly reserves the right to add, delete, or modify its products and services and prices at any time.
(e) TONA also expressly reserves the right to reject any order.
(f) TONA is not responsible for the operation or contents of Affiliate Website, Affiliate Email or SMS or any third-party website not directly controlled by TONA. Affiliate is solely responsible for and must pay all expenses that are incidental to its activities and responsibilities under this Agreement, including but not limited to: employees' and subcontractors' compensation; costs of developing, maintaining, and operating Affiliate Website, Affiliate Email and Affiliate SMS; programming costs; and creating, producing or revising any marketing materials.
(i) Affiliate shall assume sole responsibility for any liabilities that may be incurred by the Affiliate in operating its business and fulfilling the terms of this Agreement.
9. NOTICES.
(a) All notices hereunder shall be given in writing by addressing same to the addresses of the respective parties set forth on page one (1) hereof. Notices shall be sent by certified mail, return receipt requested, or by national overnight courier with signed receipt of delivery, the date of mailing or delivery to such overnight courier to be deemed the date of such notice. A copy of all notices sent to TONA shall be sent to: TONA Activewear, LLC 609 Greenwich St., NY, N.Y. 10014.
(b) Effectiveness. A notice is effective only if the Party giving notice complies with subsections (a) and (b) and if the recipient actually receives the notice.
10. GENERAL PROVISIONS:
(a) Governing Law and Arbitration: This Agreement, its validity, construction and effect shall be solely governed by the laws and judicial decisions of the State of Delaware applicable to contracts wholly performed therein except with respect to the choice of law statutes without giving effect to principles of conflicts of law. In the event of any dispute under or relating to the terms of this Agreement, or the breach, validity or legality hereof it is agreed that the same shall be submitted to arbitration to the American Arbitration Association in Davidson County, Tennessee in accordance with the rules of said association and shall be subject to Delaware rules of discovery and any such discovery act enacted by Delaware. Such arbitration shall be binding on the Parties, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(i) No Equitable Relief: Affiliate shall not be entitled to seek legal and equitable relief by way of
injunction or otherwise against TONA. Affiliates remedy, if any, is solely limited to money damages for breach of Agreement and shall not be greater than any Commissions paid from TONA to Affiliate during the term of this Agreement.
(ii) Attorney’s Fees and Costs: In the event of litigation or arbitration, the prevailing party shall be
entitled to recover any and all reasonable attorneys’ fees and other costs incurred in the enforcement of the terms of this Agreement, or from the breach hereof. The arbitration provision shall remain in full force and effect notwithstanding the nature of any claim or defense hereunder.
(c) Integration Clause: This Agreement constitutes the entire agreement between the Parties with reference to the subject matter hereof, and supersedes all prior agreements or understandings, whether written or oral. No custom or course of dealing shall cause a modification of this Agreement. This Agreement may not be modified except by a written amendment signed and dated by all the Parties.
(d) In the event that any of the provisions of this Agreement shall be held by an Arbitrator, court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
(e) Assignment/Delegation: No Party may delegate and/or assign any duties or obligations contained in this Agreement without the prior written consent and approval of the other Party. Any purported delegation and/or assignment or other transfer of any such duties or obligations will be void and without affect in the event that prior written consent and approval has not been conveyed by the non-delegating/assigning Party.
(f) Waiver: No failure or delay by a Party to exercise any right, power or privilege under this Agreement shall be construed to be a waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the Party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
(g) Cure: Neither Party shall be deemed in breach of this Agreement unless a Party hereto does not cure the alleged breach within thirty (30) days after receipt of written notice from the other Party hereto of such alleged breach.
(g) Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Each of the Parties hereto agrees that a photographic, electronic or facsimile copy of the signature evidencing a Party's execution of this Agreement shall be effective as an original signature and may be used in lieu of the original for any purpose.
(h) Electronic Signatures. This Agreement, related agreements and documents entered into in connection with this Agreement are signed when a Party's signature is delivered by facsimile, email, or other electronic medium. These signatures shall be treated in all respects as having the same force and effect as original signatures.
(i) Headings: The descriptive headings of the sections and subsections of this Agreement are for convenience only, and do not affect this Agreement's construction or interpretation.
(j) Independent Counsel: Affiliate acknowledges and agrees that TONA has advised Affiliate to seek legal counsel experienced in website affiliated contracts of this sort and that Affiliate has had sufficient opportunity to seek legal counsel in connection with this matter or has intentionally decided not to seek such counsel. Affiliate's signature below indicates Affiliates complete assent to and understanding of all terms and conditions contained herein.
(k) Taxes: Affiliate shall be solely responsible for reporting, making and paying any and all taxes required under any foreign, local, state and federal laws as a result of services rendered for TONA in connection with this Agreement.
WHEREAS, TONA is engaged in the business of designing, manufacturing, marketing and selling activewear and performance wear.
WHEREAS, Affiliate is the owner of Affiliate’s database of customers and one or more email or SMS lists of customers of Affiliate ("Affiliate Email List" or “Affiliate SMS List”).
WHEREAS, TONA and Affiliate desire to engage on a non-exclusive basis for the purpose of generating revenue for TONA and commissions for Affiliate by promoting TONA’s products and services available for purchase on the TONA Website www.tonaactive.com, ("TONA Website"), and increasing awareness of TONA’s mental health mission for the prevention of teen suicide and self-harm.
WHEREAS, Affiliate desires to direct Affiliate’s customers from their Affiliate Email List and/or Affiliate SMS List to TONA’s Website using a unique URL, ("Affiliate Link"), and the Parties desire for the Affiliate to receive compensation for each and every purchase made by Affiliate customers ("Affiliate Customers"), who make purchases of TONA Products and/or services via clicking on the Affiliate Link ("Affiliate Program").
Now therefore, the Parties in consideration of the mutual covenants set forth herein, agree as follows:
1. COMPENSATION.
(a) Paid Order Fees: TONA shall pay Affiliate a commission of twenty percent (20%) on net Product sales revenue on any Paid Order made by Affiliate Customers that Affiliate refers to TONA through the Affiliate Link during the Term of this Agreement.
(i) "Paid Order" means an order for which TONA has received and processed payment, less the cost of returns and chargebacks TONA incurs on any of Affiliate's referred customer orders.
(b) The term “Net Revenue” shall mean “Gross Revenue” less “Chargeable Costs” which include but are not limited to: Affiliate Customer price discounts, administrative fees, cost of returns, chargebacks, exchange fees, and refunds.
(c) Calculation of Commission. TONA shall pay Affiliate twenty percent (20%) of Net Revenue generated by Paid Orders for the purchase of TONA Product(s) by Affiliate Customers.
(d) Cookie Duration. Affiliate will be paid Commission from TONA for all Product sales revenue on any Paid Order made by Affiliate Customers for sixty (60) days from the date on which Affiliate Customer clicks on Affiliate Link. Each time Affiliate Customer clicks on Affiliate Link, the sixty (60) day Cookie Duration will renew, and Affiliate will be paid Commission from TONA for all Product sales revenue on any Paid Order made by Affiliate Customers for sixty (60) days from the date on which Affiliate Customer clicks on Affiliate Link.
(e) Timing of Commissions. Commissions will be credited forty-five (45) days after the date of sale and shall be paid by the tenth (10th) day of the month following the month in which the commission was credited.
(f) Paid Orders shall exclude and TONA shall not owe Affiliate any compensation hereunder and TONA at its sole discretion may deduct such charges from Affiliate’s account and/or withhold such from the commission payment on any of, the following:
(i) For any and all initiated returns, refunds, chargebacks, cancellations and/or fraudulent payments of Paid Orders;
(ii) Any Product purchase that is not correctly tracked or reported because the links from Affiliate to TONA Website are not properly formatted;
(iii) Any Product purchased through Affiliate Link by Affiliate and/or on Affiliates behalf, ds“Strawman Purchases” including but not limited to Products purchased through Affiliate Links for Affiliate, friends, relatives, or associates (e.g., personal orders, orders for your own use and/or orders placed by Affiliate for or on behalf of any other person or entity);
(i) Any Product purchased for resale or commercial use of any kind;
(v) Any Product purchased after termination of this Agreement;
(vi) Any Product purchased by a customer who is referred to the TONA Website through any of the following: a Prohibited Paid Search Placement; or a link to Affiliate Website, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through Affiliate submission of data to that site or otherwise.
(vii) Any Paid Order wherein you have offered any person or entity any consideration or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using “Special Links” (e.g., by implementing any “rewards” or loyalty program that incentivizes persons or entities to visit the Affiliate Website via Special Links);
(viii) Any Paid Order through an Affiliate Link in a Mobile Application not owned and controlled by Affiliate;
(ix) Any Paid Order where Affiliate has posted links or their coupon code on "coupon website" are expressly prohibited.
(xi) Posting coupon offers on Affiliate Website with "reveal the coupon code" or similar phrase that stimulates visitor to click to reveal a coupon code and go to the TONA's site is expressly prohibited.
(g) In the event TONA makes any excess payment (“over payment”) to Affiliate for any reason whatsoever, TONA reserves the right to adjust or offset the over payment against any subsequent compensation which may be owed to Affiliate under this Agreement.
(h) TONA reserves the right to reject orders that do not comply with any requirements on the TONA Website. Requirements may be updated from time to time in TONA’s sole discretion.
(i) Statements. TONA shall issue a monthly statement detailing its computations of the commission. Statement shall be provided to Affiliate via electronic email (set forth on the signature page of this Agreement) by the tenth (10th) day of the month in which commissions are to be paid from TONA to Affiliate.
(j) In the event that Affiliate disputes the amount of the commissions paid to it by TONA, upon Affiliates reasonable written request, TONA shall provide the records and data used to determine the commission. Affiliate at its sole cost and expense can conduct an audit of such records and data solely relating to the Gross and Net Revenues for which commissions are owed to Affiliate hereunder (but not those relating to the manufacture of Products or internal company operations) solely for the purpose of determining the accuracy of the commission statements and payments to Affiliate, provided that such audit shall be conducted only: (1) with not less than thirty (30) days prior written notice to Company, (2) once with respect to any statement, (3) within one (1) year after such commission statement is rendered, (4) by a certified public accountant not then engaged in an audit of TONA or engaged on a contingency basis, (5) during normal/usual business hours, (6) at the place where such books and records are kept, (7) in the event Affiliate believes that there are any discrepancies between TONA's records and a commission paid to Affiliate, TONA shall have the right to cure the discrepancy by issuing payment to Affiliate within forty-five (45) days of receiving written notification of that discrepancy from the Affiliate. TONA shall not be deemed in breach of this Agreement.
(k) Affiliate shall be deemed to have consented to each statement and payment rendered by TONA unless Affiliate makes specific objection in writing, within sixty (60) days after the date rendered. Affiliate shall be precluded from maintaining any action against TONA on the basis of TONA’s failure to account or pay commissions correctly if Affiliate does not institute an action against TONA within six (6) months from the date of such notice. Notwithstanding anything contained in this paragraph, TONA shall be entitled to rely upon statements from its affiliate software, and such statements shall be deemed conclusive and binding upon Affiliate.
(l) TONA shall issue payment (if any is due and payable) to Affiliate via check sent to the address set forth on page one (1) or via bank wire transfer to the banking routing and account coordinates issued in writing by Affiliate and such writing and information actually confirmed received by TONA, in Exhibit A. Affiliate shall be solely responsible for the costs of any such wires which shall be deducted from the amount of the commission.
2. RESPONSIBILITIES of AFFILIATE, Affiliate shall:
(c) Refer new, unique and, legitimate customers (i.e., customers not current and/or previously existing to the TONA) to the TONA Website via the Affiliate Link;
(d) Only post, place, display Affiliate Link on Affiliate Websites, Social Media, Emails, SMS Messages and Applications (“Apps” mobile or otherwise) that are solely owned, operated and controlled by Affiliate.
(e) Adhere to the following "Keyword Buys & Commissions Policy":
i. "Keyword Buy" means any advertisement that appears when certain words are purchased and that matches a given keyword search query, and "Search Engine" means software that acts as a service by searching an index or database and that returns relevant matches based on information typed into a query.
(f) Agree that TONA owns the rights to certain intellectual property, trademarks and service marks (“Marks”), including but not limited to those that are listed below and Mark applications that have been filed. Affiliate is prohibited from bidding on TONA trademark terms (including marks on all Search Engines). Any such actions shall constitute a trademark infringement of TONA's trademarks and a breach of this Agreement.
(i) This includes but is not limited to: any variations, combinations, and lower case variants of these terms with or without the "www" prefix or ".com" suffix. TONA shall not owe Affiliate and will not pay a commission on any transactions derived from bidding on any of the following protected trademarked/brand-related keywords, and TONA may change these terms without notice to Affiliate.
(ii) Affiliate may not make Keyword Buys that are confusingly similar to or a derivation of, TONA's name or other trademarks, including any misspellings or "typo squatting" variants of the TONA's terms.
(g) Affiliate may not use links that automatically redirect the user to TONA Website in the Affiliate's search ads. The Affiliate may not use the TONA Website (including all lower or uppercase variations) for any display or destination URL listings used in paid search campaigns, or cloak or mask the TONA Website URL in Search Engines.
(h) Affiliate warrants that: (1) Affiliate Website is content based, (2) Affiliate website is not simply a list of links or advertisements, (3) has a top-level domain name and (4) does not promote or contain sexually explicit materials, (5) does not promote violence or contain violent material, (6) does not promote or contain libelous or defamatory materials, (7) does not promote discrimination, or (8) employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, sexual identity or age. In the event Affiliate violates any of these restrictions, TONA may at its sole discretion withhold any and all commissions earned under this Agreement, and/or immediately suspend or terminate this Agreement and Affiliate's status as an affiliate.
(ii) Affiliate hereby permits and authorizes TONA to track users linking from Affiliate’s Site to TONA’s Site (“Users”) and the purchasing of any and all TONA Products.
(iii) Any and all User information/data captured on a TONA website shall be the sole and exclusive property of TONA.
3. RESPONSIILITES OF TONA, TONA shall:
(a) Provide all assistance to Affiliate to enable the Affiliate to post the Affiliate Link on the Affiliate Website or in the Affiliate Email or SMS;
(b) Provide initial information and deliver the materials comprising the Affiliate Link within five (5) business days of the effective date of this Agreement; and
(c) Maintain accurate records of the data used to determine the commissions earned by the Affiliate.
TERMS &.CONDITIONS
1. TERM AND TERMINATION.
(a) The term of this Agreement shall become effective as of the date set forth in the opening paragraph of page one (1) of this Agreement, the Effective Date and continue for an initial term of twelve (12) months, (the "Term"). Unless either Party gives written notice to the other at least thirty (30) days before the end of the Term, this Agreement will renew automatically for an additional year term.
(i) This automatic extension will continue to apply at the end of each extended period until the Agreement is terminated.
(ii) Notwithstanding the foregoing, this Agreement shall not remain effective for more than two (2) years from the Effective Date.
(b) Termination Procedures. This Agreement may be terminated:
(ii) By either Party, by issuing thirty (30) days' written notice before the end of a Term;
(iii) By the non-breaching Party for a breach of any provision of this Agreement if the alleged breaching Party's breach is not cured within thirty (30) days of receipt of written notice.
(iii) By TONA at any time and without prior notice, if Affiliate violates the terms of this Agreement including but not limited to: Affiliate improperly uses the TONA's intellectual property, trade secrets, name, logo, and/or graphics (other than the proper use of the TONA Marks provided under this Agreement) or includes a link to TONA’s Website in any form of unsolicited communication such as spam.
(c) Effects of Termination. After the termination of this Agreement, any and all licenses granted under this Agreement shall terminate without further TONA notice or action.
(i) The Parties shall promptly remove all marks of the other Party from any website, emails or SMS that Party controls.
(d) TONA shall within thirty (45) days of the termination of this Agreement issue payment to Affiliate for outstanding commissions owed (if any) to the Affiliate for services rendered before the effective date of the termination.
2. LICENSE.
(a) License. TONA grants the Affiliate a limited, nonexclusive, non-transferable, non-sublicensable right to maintain the Affiliate Link on Affiliate Website or in Affiliate Emails or SMS referring to TONA’s Website, in accordance with the terms of this Agreement, from which the Affiliate's website visitors can order TONA Products. TONA also grants Affiliate a non-exclusive, non-transferable license to use certain TONA trade names, trademarks, service marks, trade dress, logos, and other intellectual property used by TONA in identifying its business (collectively, the "TONA Marks") for the sole purpose of selling TONA Products on the Affiliate Website or in Affiliate Emails or SMS.
(b) TONA shall directly provide the TONA Marks to Affiliate.
(c) Affiliate may not use any other TONA intellectual property without TONA's prior written consent and approval. TONA reserves all proprietary rights to the TONA Marks and may immediately revoke or adjust the Affiliate's license at any time on written notice.
(d) No Other Use: Affiliate may not use TONA Marks for any purpose or on any other media except as stated in this Agreement or as TONA expressly approves, or has approved, in writing.
(e) Modification. TONA may submit written requests to modify or exclude any TONA Mark from Affiliate Website and Affiliate shall promptly accommodate the request.
(f) Affiliate Intellectual Property. Affiliate grants TONA a non-exclusive license to utilize the Affiliate's trade names, trademarks, service marks, trade dress, logos, and other intellectual property used by Affiliate in identifying its business (collectively, the "Affiliate IP") and website, including design, computer software, and other components, authorized by Affiliate in writing (including by email), for the sole purpose of advertising, marketing, and promoting the Affiliate Program. At any time, Affiliate may in writing, revoke or modify the licenses it has granted to TONA and TONA will use reasonable efforts to comply with that revocation or modification.
(g) Representations About Affiliate IP. The Affiliate represents that:
(i) It has all necessary rights, licenses, permits, and clearances to use Affiliate IP and to offer, sell, or license the goods and services offered through Affiliate IP and this will not violate any applicable laws or regulations or any third-party rights;
(ii) Affiliate IP does not violate or infringe any right of privacy, personality, or publicity, trade secrets, patents, copyrights, or trademarks under the laws of any governmental authority, domestic or foreign, or any other right of any third party; and
(iii) Affiliate IP will not misdirect or mislead Internet users.
3. AFFILIATE’S OBLIGATIONS. Affiliate shall not:
(a) Use TONA’s IP, including but not limited to: trademarks, trade names, service marks, or logos except for TONA Marks as expressly authorized (in writing) by TONA;
(b) Create, publish, distribute, or permit any written material that makes reference to TONA without first obtaining its written consent and approval. In the event that Affiliate uses any TONA IP and/or content without permission, TONA may, without limiting other forms of recourse, terminate this Agreement and/or the Affiliate's status in the Affiliate Program;
(c) Create, publish, distribute, or permit any advertising referencing TONA, except as has been agreed in writing between the Parties;
(d) Use the TONA's name, logo, graphics or include a link to TONA Website in any form of unsolicited communication, including unsolicited email (spam). Affiliate must maintain strict compliance with the CAN-SPAM Act of 2003 and all amendments and modifications to that law;
(e) Frame, minimize, remove, cause to create a new window, or otherwise inhibit the full and complete display of each website, mirror, cobranded or derivative website belonging to the TONA and its affiliates;
(f) Alter Affiliate Link in any manner including modification of the design, color, format, specification, or content of the Link;
(g) Provide incentivized traffic, where offers with incentives or the appearance of incentives including points, lottery, coupon, coupon sites, social media, emails, SMS, contest entries or rewards, are used to generate revenue for Affiliate Customers. This includes but is not limited to placing misleading statements near the ad creative (e.g.,"you will win $100") unless such discount or incentive receives prior written approval by the TONA;
(h) Serve ad creative, or drive Affiliate Customers to this ad creative, using any downloadable applications or software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable), and serving ad creative that are not initiated by the affirmative action of the Affiliate Customer without the prior written approval of TONA.
(i) Affiliate may not use links that automatically redirect the user to TONA Website in the Affiliate's search ads.
(j) The Affiliate may not use the TONA Website (including all lower or uppercase variations) for any display or destination URL listings used in paid search campaigns, or cloak or mask the TONA Website URL in Search Engines.
(k) "Coupon Website" Whether Affiliates are classified as a “Coupon Affiliate” shall be determined by TONA in its sole discretion. Factors that may lead to classification as "Coupon Affiliate" include, but are not limited
(i) The presence of coupon offerings, especially from many different merchants, on the Affiliate's website, especially if such coupons represent many different merchants and/or are indexed or are organized in a directory;
(ii) The presence of certain words (or variations or misspellings thereof) in the website's URL or prominently featured in the website's content, such as "coupons," "deals" or "savings";
(iii) A website that is focused on other merchants and the discounts or promotions offered by them, rather than on products, and that features limited original, human-generated content.
(l) “Prohibited Paid Search Placement” means an advertisement that Affiliate purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. “Proprietary Term” means keywords, search terms, or other identifiers that include the word “TONA,” or any other trademark of TONA or its affiliates, or variations or misspellings of any of those words (e.g., "TOONA").
(i) “Redirecting Link” means a link that sends users indirectly to the TONA Website via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage.
(ii) “Search Engine” means Google, Yahoo, Bing, Duck Duck Go and/or any and all other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks that exits now or is hereafter devised, developed and/or created in the future.
4. TONA’S RIGHTS.
(a) Right to Monitor Affiliate Website and Affiliate Emails and SMS. TONA has the right, but not the duty or obligation, to monitor Affiliate Website and Affiliate Emails and SMS. TONA shall notify Affiliate of any modification that TONA reasonably requests be made to Affiliate Website or Affiliate Emails or SMS in connection with posting the Affiliate Link. If Affiliate fails to make said change, TONA at its sole discretion, can elect to immediately terminate this Agreement upon written notice, including by email.
(b) Right to Remove Link. TONA may direct Affiliate to remove, and Affiliate shall remove the Affiliate Link from the Affiliate Website and Affiliate Emails and SMS at any time and for any reason.
(c) Right to Disclaimer. TONA may direct Affiliate to post the disclaimer on Affiliate Website or in Affiliate Emails or SMS.
(d) Policies and Pricing: Customers who purchase Products under this Agreement are customers of TONA with respect to all activities they undertake in connection with the TONA Website. Accordingly, TONA has the sole and exclusive right, power, authority and discretion regarding all: pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales which may be changed at any time.
5. CONFIDENTIAL INFORMATION.
(a) For the purposes of this Agreement, "Confidential Information" (“CI”) means any and all non-public and/or proprietary information and/or materials that a Party (the “Recipient”) acquires or learns from the other Party (the “Provider”). CI includes information about a Party and/or a Party’s business, without limitation: clients, financiers’, suppliers', contacts, investors, distributors, formulas, products, trade secrets, know how, records, data, its business and/or activities that are proprietary and confidential. Notwithstanding anything to the contrary contained herein, the term “Confidential Information” does not include information which:
(i) Is or becomes generally available to the public other than as a result of a breach of this Agreement by Recipient and/or its affiliates and/or including but not limited to: its or their respective agents, consultants, representatives, attorneys, accountants, financial advisors, directors or employees (collectively, “Representatives”),
(ii) Was known, as shown be written evidence, by Recipient/Representatives prior to disclosure by or
on behalf of the Provider,
(iii) As shown by written evidence, was developed by Recipient/Representatives without the use of
Confidential Information or,
(iv) Is by writing, approved for disclosure and/or release by the Provider.
(b) Non-Disclosure: Recipient shall hold the Confidential Information of the Provider in trust and confidence, and shall not disclose such Confidential Information to any third party except,
(i) As expressly authorized in writing by Provider,
(ii) To those of its Representatives who are participating in the Relationship or who have a need to know such information, provided that such Representatives have been informed by Recipient of the confidential nature of such information and shall each be bound by a duty of confidentiality to Recipient.
(iii) Recipient shall protect such Confidential Information by using the same degree of care as it uses to protect its own Confidential Information of similar value and sensitivity, but not less than reasonable care. Each Party shall take all reasonable precautions to ensure that its Representatives comply with the provisions of this Agreement.
(c) Legal/Regulatory Disclosure: In the event that Recipient or any of its Representatives receives a request or is required by law, regulation or governmental, regulatory or self-regulatory body (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Confidential Information, Recipient agrees, to the extent practicable and permitted by law, regulation and such body, if any, making the request, to:
(i) Promptly notify the Provider of such request, and
(ii) Consult with the Provider on the advisability of the Provider taking legally available steps to resist or narrow such request, including seeking a protective order or other appropriate remedy at the Provider’s sole cost and expense.
(d) Destruction of Documents. Upon the Provider’s written request, Recipient shall promptly destroy and, if so requested in writing, certify the destruction of all Confidential Information that Recipient has in any manner, medium or mode including but limited to physical and digital formats, furnished to Recipient by the Provider and will not retain any copies, extracts, or other reproductions thereof; provided, however, that Recipient and its Representatives may retain copies of Confidential Information, subject to the confidentiality terms of this Agreement, in accordance with their respective internal record retention policies for legal, compliance or regulatory purposes.
6. INDEMNIFICATION.
(a) Affiliate hereby indemnifies TONA, TONA's directors, officers, shareholders, employees, representatives, and successors, assigns and licensees against any award, charge, claim, compensatory damages, costs, damages, exemplary damages, diminution in value, expenses, fees, fines, interest, judgments, liabilities, settlement payments, penalties, or other losses (a "Loss") and/or any attorney's and/or other expert and/or professional's fees and disbursements, court filing fees, court costs, arbitration fees, arbitration costs, witness fees, and each other fees and costs of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of and/or resulting from any breach or alleged breach of Affiliate’s representations, warranties, obligations, performance under this Agreement.
(b) TONA shall indemnify Affiliate against a Loss or Litigation Expense caused by any breach of any of TONA’s representations in this Agreement, providing Affiliate provides written notice of alleged breach according to the terms of this Agreement and TONA does not cure breach within thirty (30) days of receipt of written notice of alleged breach.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF DAMAGES AND LIABILITY.
(a) Each Party represents and warrants to the other that:
(i) It has the full right and authority to enter into this Agreement and to perform the acts and
obligations required of it hereunder;
(ii) The execution of this Agreement by such Party and the performance by such Party of its obligations and duties hereunder do not and shall not violate any other third-party agreements to which such Party is a Party to and/or by which it is otherwise bound;
(iii) When executed and delivered by such Party, this Agreement shall constitute the legal, valid and binding obligation of such Party, enforceable against such Party according to its terms;
(iv) Such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly specified in this Agreement.
(c) TONA shall abide by all warranties as are expressed on TONA Website and under this Agreement.
(d) Notwithstanding the foregoing: TONA makes no, and expressly disclaims all, warranties or representations with respect to TONA's products and services provided to Affiliate Customers through the Affiliate Program and any services provided by TONA under this Agreement including any implied warranties or warranties of merchantability or fitness for a particular purpose.
(e) Additionally, TONA makes no representations that the operation of the TONA Website or services will be uninterrupted or error free and it shall not be liable for the consequences of any interruptions or errors. Neither TONA nor any of its agents, employees, officers, or directors shall be liable for consequential, incidental or special damages, including lost profits, even if it has knowledge of the potential loss or damage.
(e) TONA's liability shall not exceed the total commission paid or payable to Affiliate under the Agreement.
8. NATURE OF RELATIONSHIP.
(a) Nothing in this Agreement creates any employment, independent contractor, partnership, joint venture and/or agency relationship between Affiliate and TONA. Neither Party may negotiate, represent, enter into contracts, assume and/or create any liability or make agreements of any kind for, in the name of, or on behalf of, the other Party.
(b) Any Affiliate Customer that follows the Affiliate Link to the TONA Website, upon arrival and use of the TONA Website, shall thereby become a customer and sole proprietary property of TONA.
(c) TONA will be responsible for all aspects of order processing and fulfillment of TONA Products. All TONA rules, prices, policies, and operating procedures will apply to sales of TONA Products made under this Agreement.
(d) TONA expressly reserves the right to add, delete, or modify its products and services and prices at any time.
(e) TONA also expressly reserves the right to reject any order.
(f) TONA is not responsible for the operation or contents of Affiliate Website, Affiliate Email or SMS or any third-party website not directly controlled by TONA. Affiliate is solely responsible for and must pay all expenses that are incidental to its activities and responsibilities under this Agreement, including but not limited to: employees' and subcontractors' compensation; costs of developing, maintaining, and operating Affiliate Website, Affiliate Email and Affiliate SMS; programming costs; and creating, producing or revising any marketing materials.
(i) Affiliate shall assume sole responsibility for any liabilities that may be incurred by the Affiliate in operating its business and fulfilling the terms of this Agreement.
9. NOTICES.
(a) All notices hereunder shall be given in writing by addressing same to the addresses of the respective parties set forth on page one (1) hereof. Notices shall be sent by certified mail, return receipt requested, or by national overnight courier with signed receipt of delivery, the date of mailing or delivery to such overnight courier to be deemed the date of such notice. A copy of all notices sent to TONA shall be sent to: TONA Activewear, LLC 609 Greenwich St., NY, N.Y. 10014.
(b) Effectiveness. A notice is effective only if the Party giving notice complies with subsections (a) and (b) and if the recipient actually receives the notice.
10. GENERAL PROVISIONS:
(a) Governing Law and Arbitration: This Agreement, its validity, construction and effect shall be solely governed by the laws and judicial decisions of the State of Delaware applicable to contracts wholly performed therein except with respect to the choice of law statutes without giving effect to principles of conflicts of law. In the event of any dispute under or relating to the terms of this Agreement, or the breach, validity or legality hereof it is agreed that the same shall be submitted to arbitration to the American Arbitration Association in Davidson County, Tennessee in accordance with the rules of said association and shall be subject to Delaware rules of discovery and any such discovery act enacted by Delaware. Such arbitration shall be binding on the Parties, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
(i) No Equitable Relief: Affiliate shall not be entitled to seek legal and equitable relief by way of
injunction or otherwise against TONA. Affiliates remedy, if any, is solely limited to money damages for breach of Agreement and shall not be greater than any Commissions paid from TONA to Affiliate during the term of this Agreement.
(ii) Attorney’s Fees and Costs: In the event of litigation or arbitration, the prevailing party shall be
entitled to recover any and all reasonable attorneys’ fees and other costs incurred in the enforcement of the terms of this Agreement, or from the breach hereof. The arbitration provision shall remain in full force and effect notwithstanding the nature of any claim or defense hereunder.
(c) Integration Clause: This Agreement constitutes the entire agreement between the Parties with reference to the subject matter hereof, and supersedes all prior agreements or understandings, whether written or oral. No custom or course of dealing shall cause a modification of this Agreement. This Agreement may not be modified except by a written amendment signed and dated by all the Parties.
(d) In the event that any of the provisions of this Agreement shall be held by an Arbitrator, court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
(e) Assignment/Delegation: No Party may delegate and/or assign any duties or obligations contained in this Agreement without the prior written consent and approval of the other Party. Any purported delegation and/or assignment or other transfer of any such duties or obligations will be void and without affect in the event that prior written consent and approval has not been conveyed by the non-delegating/assigning Party.
(f) Waiver: No failure or delay by a Party to exercise any right, power or privilege under this Agreement shall be construed to be a waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the Party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
(g) Cure: Neither Party shall be deemed in breach of this Agreement unless a Party hereto does not cure the alleged breach within thirty (30) days after receipt of written notice from the other Party hereto of such alleged breach.
(g) Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Each of the Parties hereto agrees that a photographic, electronic or facsimile copy of the signature evidencing a Party's execution of this Agreement shall be effective as an original signature and may be used in lieu of the original for any purpose.
(h) Electronic Signatures. This Agreement, related agreements and documents entered into in connection with this Agreement are signed when a Party's signature is delivered by facsimile, email, or other electronic medium. These signatures shall be treated in all respects as having the same force and effect as original signatures.
(i) Headings: The descriptive headings of the sections and subsections of this Agreement are for convenience only, and do not affect this Agreement's construction or interpretation.
(j) Independent Counsel: Affiliate acknowledges and agrees that TONA has advised Affiliate to seek legal counsel experienced in website affiliated contracts of this sort and that Affiliate has had sufficient opportunity to seek legal counsel in connection with this matter or has intentionally decided not to seek such counsel. Affiliate's signature below indicates Affiliates complete assent to and understanding of all terms and conditions contained herein.
(k) Taxes: Affiliate shall be solely responsible for reporting, making and paying any and all taxes required under any foreign, local, state and federal laws as a result of services rendered for TONA in connection with this Agreement.