AFFILIATE AGREEMENT
Our affiliates are very important to us. We have written the following affiliate agreement with you in mind, as well as to protect our company. This Agreement contains the overall terms and conditions that apply to you becoming an affiliate in TWENTYNINE PALMS Affiliate Program.
1. AFFILIATION SERVICES BY PARTNER
1.1. The Partner shall use its best commercial efforts to promote, market and expose the TWENTYNINE PALMS products (the "Products") to its customers interested in TWENTYNINE PALMS. Ads will be displayed on Partner's website/newsletter, its Services, and Platform.
1.2. Partner's customers clicking on an Ad (a "Lead") will be redirected to TWENTYNINE PALMS’s website at: www.twentyninepalms.com using a referral link provided by TWENTYNINE PALMS which shall remain active for a period of time from the initial click of the Partner’s customers on an Ad. For avoidance of doubt, only Partner's customers that have been referred to TWENTYNINE PALMS by the Partner Platform shall be considered a Lead. Upon an acquisition by a Lead of a Product, such acquisition shall be deemed an "Acquisition".
2. PAYMENT
2.1. Subject to Section 3 below, for every Acquisition made by a Lead during the Term (as defined below), TWENTYNINE PALMS will pay Partner a percentage of the Acquisition / initial transaction amount of such purchase actually received by TWENTYNINE PALMS from such Lead, which percentage shall be agreed upon with the Partner in advance (the “Referral Fee”). To remove any doubt, if a Lead purchases a Product and undertakes to a monthly subscription plan, the Referral Fee shall apply only to the first month’s fee transaction amount to be received from the Lead. It is hereby further agreed that Partner shall not be entitled to any compensation with respect to subsequent agreements and/or transactions between TWENTYNINE PALMS and the Lead, including without limitations, extensions, renewals, and/or with respect to any change in the scope of the Acquisition.
2.2. Partner will issue an invoice with respect to the Acquisitions for the preceding month, all subject and pursuant to Section 2.1 above.
2.3. TWENTYNINE PALMS will issue a payment to Partner on net + 30 days basis from the receipt of such invoice.
2.4. TWENTYNINE PALMS shall issue the payment as shall be determined by the parties.
3. PARTNER'S UNDERTAKINGS
Partner hereby undertakes that:
3.1. It shall display the Ads solely on its websites and to market and promote the Products during the Term, or until such earlier time as TWENTYNINE PALMS may instruct the Partner to cease such display.
3.2. It shall not alter, amend, adapt or translate the Ads without TWENTYNINE PALMS’s prior written consent.
3.3. It shall not (a) engage in any transmission and/or any offline marketing methods with respect to TWENTYNINE PALMS’s and/or the services provided by Partner pursuant to this Agreement; (b) use malware and/or spyware techniques or use any other aggressive advertising or marketing methods in any of its dealings relating to TWENTYNINE PALMS, TWENTYNINE PALMS’s affiliates and/or the Services; (c) make any false, misleading or disparaging representations or statements with respect to TWENTYNINE PALMS, TWENTYNINE PALMS’s related entities or the Services; (d) misrepresent such TWENTYNINE PALMS’s relationship with the Partner; (e) engage in any other practices which may affect adversely TWENTYNINE PALMS, TWENTYNINE PALMS’s related entities or the Services, including but not limited to, using any website in any manner, or having any content on any website, that (i) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or (ii) violates any intellectual property or other proprietary rights of any third party; (f) bind TWENTYNINE PALMS to any undertaking or performance with regard to the Product, other than as expressly approved hereunder; or (g) make any statements or representations concerning the Products that exceed or are inconsistent with the Marks provided to Partner by TWENTYNINE PALMS.
3.4. Partner shall not purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names, or trademarks, trade names or symbols that use or which are similar to the Marks or variations and misspellings thereof. Partner shall not purchase search engine or other pay-per-click keywords that compete with TWENTYNINE PALMS’s core business activities. Partner further warrants that save for the specific purpose of this Agreement, it shall not use the Creatives in any manner whatsoever.
4. DISCLAIMER OF ANY WARRANTY
TWENTYNINE PALMS makes no warranties hereunder, and TWENTYNINE PALMS expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. TWENTYNINE PALMS’s Services on the TWENTYNINE PALMS Website are provided “AS IS” and “AS AVAILABLE,” and Partner is solely responsible for any damage to its computer system or other device or loss of data that results from such use. Without limiting the foregoing, TWENTYNINE PALMS further disclaims all representations and warranties, express or implied, that the platforms do not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction. Partner understands and agrees that the platforms may not satisfy all of the users’ requirements and may not be uninterrupted or error-free. Partner agrees that it is solely responsible for, and that TWENTYNINE PALMS has no responsibility to Partner or any third party for, any breach of Partner’s obligations under this Agreement, any applicable third party contracts or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which TWENTYNINE PALMS or any third party may suffer) of any such breach.
5. COMPLIANCE WITH LAWS
In addition to, and without limiting the provisions of this Agreement, each party shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations relating to, without limitation, user privacy, consent to share information, access by minor etc. Partner will ensure none of Partner's readers or leads are residents outside of these markets: USA, Canada, EU and UK. In addition Partner commits it is in full compliance with all GDPR regulations.
The FTC (Federal Trade Commission) mandates that affiliates within their programs promote a brand within guidelines set by the FTC, namely with regard to disclosing that they are being compensated by the brand. Therefore, affiliates must include disclosure statements within any and all pages, blog/posts, or social media posts where they post an endorsement or review. TWENTYNINE PALMS reserves the right to terminate its relationship with affiliates who do not comply with FTC guidelines.
6. PARTNER DUTY TO INFORM
Partner shall promptly inform TWENTYNINE PALMS of any information known to Partner related to any current or prospective users or partners that could reasonably lead to a claim, demand or liability of or against TWENTYNINE PALMS and any of TWENTYNINE PALMS's related entities by any third party.
7. CONFIDENTIALITY
This Agreement, the terms of any document incorporated by reference or attached hereto, and any information, financials, data, or knowledge that is provided to the other Party in connection with the negotiation or performance of this Agreement and that by its nature ought to be considered confidential shall be considered Confidential Information and are strictly for the exclusive use of the Parties. The Parties agree to keep confidential all Confidential Information unless required to disclose such information due to court order or subpoena.
8. LIABILITY
EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS AND BREACHES OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PROFITS LOST BY THE OTHER PARTY OR FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES SUFFERED BY THE OTHER PARTY, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING GROSS NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER FOR DIRECT DAMAGES CAUSED FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE SUMS PAID BY PARTNER TO TWENTYNINE PALMS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
9. INDEMNIFICATION
Each Party agrees to indemnify, defend and hold harmless the other Party, its officers, directors, agents, employees, successors, and assigns, (the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings, (whether legal or administrative), judgments, and costs and expenses (including reasonable attorneys’ fees and expenses) incurred by any Indemnified Party to the extend arising out of, or directly or indirectly relating to (a) the negligence or willful misconduct of the Indemnifying Party in connection with the performance of this Agreement; or (b) the Indemnifying Party’s breach of any of its representations or warranties as set forth in this Agreement or any exhibits or schedules attached hereto.
10. TAXES
Partner shall bear any and all taxes, costs, levies, payments and duties imposed in connection with the Services and/or the payments pursuant to this Agreement. TWENTYNINE PALMS shall be entitled to withhold from any payments made hereunder any and all amounts as may be required under applicable law. Partner shall forward to TWENTYNINE PALMS a copy of the necessary approvals from Israeli Tax authorities, including confirmations with respect to bookkeeping and deduction of taxes at source
11. TERMINATION; SURVIVAL
11.1. TWENTYNINE PALMS may terminate this Agreement at any time with immediate effect, with or without cause, and without any prior notice. Partner may terminate this Agreement at any time, with or without cause, by giving TWENTYNINE PALMS at least thirty (30) days prior written notice. The period during which this Agreement is in effect shall be referred to herein as the "Term".
11.2. The following sections will survive any termination of this Agreement: Disclaimer of Any Warranty; Confidentiality; Liability; Indemnification; Intellectual Property; Proprietary Rights; and (Miscellaneous).
12. INTELLECTUAL PROPERTY
Each Party to this Agreement owns all right, title and interest in and to its Intellectual Property. The Creative shall at all times be the sole and exclusive property of TWENTYNINE PALMS and no rights of ownership shall at any time vest with the Partner, even in such instances where Partner has been authorized by TWENTYNINE PALMS to make changes or modifications to the Creative.
13. PROPRIETARY RIGHTS OF TWENTYNINE PALMS
As between Partner and TWENTYNINE PALMS, the Ads, products names and stills, all demographic and other information relating to prospective and current partners, the platforms and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of TWENTYNINE PALMS or otherwise related to TWENTYNINE PALMS, together with all copyrights, Marks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “TWENTYNINE PALMS Property”) shall be and remain the sole and exclusive property of TWENTYNINE PALMS. To the extent, if any, that ownership of any TWENTYNINE PALMS Property does not automatically vest in TWENTYNINE PALMS by virtue of this Agreement, or otherwise, Partner hereby transfers and assigns to TWENTYNINE PALMS, upon the creation thereof, all rights, title and interest Partner may have in and to such TWENTYNINE PALMS Property, including the right to sue and recover for past, present and future violations thereof.
14. ASSIGNMENT
Neither this Agreement nor any portion hereof shall be assigned, sublicensed or otherwise transferred by any Party, except to any parent or subsidiary, without the other Party’s prior written consent, which consent shall not be unreasonably withheld.
15. MARKS
During the term of this Agreement, TWENTYNINE PALMS grants Partner a limited, revocable, non-exclusive and non-transferable license to display the TWENTYNINE PALMS Marks, solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use Marks only as permitted hereunder; (b) it will use Marks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed in any guidelines provided by the owning Party; (c) the Marks are and shall remain the sole property of TWENTYNINE PALMS; (d) nothing in this Agreement shall confer in the Partner any right of ownership in Marks and all use thereof by the Partner shall inure to the benefit of TWENTYNINE PALMS; and (e) Partner shall not, now or in the future, contest the validity of any Marks of TWENTYNINE PALMS or use any term or mark confusingly similar to any Mark of TWENTYNINE PALMS Party.
16. PUBLICITY
TWENTYNINE PALMS hereby grants Partner a limited, revocable, non-exclusive, personal, non-transferable license to use TWENTYNINE PALMS’s logo and Creatives solely in connection with activities related to the promotion of the Products. Partner shall not remove, alter, obscure or obliterate TWENTYNINE PALMS’s logo, or other proprietary notices incorporated in, marked or affixed to the Products and the Creatives provided by TWENTYNINE PALMS to Partner. Partner agrees not to attach or apply to the Creatives any label, marking or other information which has not been approved by TWENTYNINE PALMS in writing and in advance. Partner shall remove any publicity of a logo, Creative or Product(s) of TWENTYNINE PALMS, upon termination of this Agreement for any reason.
17. Relationship of the Parties
The Parties are independent contractors and nothing herein shall be construed to create a partnership, joint venture, agency or employment relations between the parties. This Agreement is NOT an employment agreement. The business relations between Partner and TWENTYNINE PALMS will not constitute and/or establish any employer-employee relationship between the undersigned parties.
18. MISCELLANEOUS
18.1. This Agreement embodies the entire understanding between the Parties and supersedes any and all prior agreements, oral or written, relating thereto. Any amendment to this Agreement must be in writing and signed by all Parties. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court of law, the validity and enforceability of the other provisions shall not be affected thereby. Failure of any Party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision, nor of the right to enforce such provision or any other provision..
18.2. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Delaware. Each party agrees that any legal action, proceeding, controversy or claim between the Parties arising of or relating to this Agreement may be brought and prosecuted only in a court of law in Delaware, and by execution of this Agreement each party hereto submits to the exclusive jurisdiction of such court and waives any objection it might have based upon improper venue or inconvenient forum.
