Danrie
Program Terms
This Affiliate Agreement is entered into as of [DATE] (the “Effective Date”) between Team Casper LLC d/b/a Danrie, a New York limited liability company with a principal address of 222 Broadway, Floor 19, New York, NY 10038 (“Danrie” or “we”), with a primary website of www.danrie.com (the “Website”), and you (“Affiliate or “you”).
This Agreement, which includes all schedules, exhibits, annexes and attachments incorporated herein, and any Terms of Use, Privacy Policy and other legal documents posted to our Website (this “Agreement”), sets forth the terms and conditions under which Affiliate will provide non-exclusive affiliate marketing and other services (the “Services”) to Danrie for Danrie’s Affiliate Program.
DEFINITIONS.
For purposes of this Agreement (as defined below), the following terms shall have the following meanings:
“Confidential Information” means all non-public proprietary or confidential information of Danrie and its affiliates, in oral, visual, written, electronic, or other tangible or intangible form, that a reasonable person should understand is of a confidential and/or proprietary nature (including: technical information; trade secrets; know-how; financial and budgetary information and forecasts; business, marketing and product information and plans; customer personal data and other customer-related information; employee personal data and other employee-related information; and the like).
“Danrie Property” means any (1) know-how, processes, tools, methodologies, techniques, experience, skill, talent, designs, algorithms, software, code, data, content, documents, files, copy, photographs, drawings, patterns, colorways, graphics, images, audio-visual materials, film, music compositions, images, artwork, sketches, layouts, copy, illustrations, Design Rights, websites, domain names, social media platforms, links and/or other materials and (2) patents, copyrights, moral rights, trademarks, trade names, trade secrets and rights of publicity, in each case in relation to which the Intellectual Property Rights are owned or licensed by Danrie and that are provided to Affiliate by Danrie or by any person or entity at Danrie’s direction in connection with this Agreement.
“Intellectual Property Rights” means all intellectual property rights, whether registerable or not, available under applicable law, including rights with respect to patents, copyrights, moral rights, trademarks, trade names, trade secrets and rights of publicity.
“Products” means any product, merchandise and stock that is offered by Danrie for sale through its Website.
AFFILIATE PROGRAM GUIDELINES; SERVICES; ACCEPTANCE PROCEDURES.
To apply to and register for the Affiliate Program, Affiliate must submit an application to Danrie, as available through the ShareASale.com platform (“ShareASale”). By submitting an application to our Affiliate Program, You warrant that you have read and reviewed this Agreement and that You agree to be bound by it. If Affiliate is a natural person, Affiliate must be at least 18 years of age to join the Affiliate Program. By submitting an application to the Affiliate Program, Affiliate represents and warrants that Affiliate is at least 18 years of age and may legally agree to this Agreement. Affiliate agrees that Affiliate’s use of the Affiliate Program is at Affiliate’s sole and exclusive risk and that any products or services provided by Danrie are on an “As Is” basis.
Submitting an application does not guarantee inclusion in the Affiliate Program. Danrie reserves the right to approve or reject ANY affiliate marketing application in its sole discretion. Affiliate will have no legal recourse against Danrie for the rejection of any application.
If Danrie accepts Affiliate into the Affiliate Program, Affiliate will ensure his/her/its ShareASale account is set up properly, with all required personally identifying information, contact information and payment information details required thereby.
Danrie will provide Affiliate, through the ShareASale platform, with specific trackable link(s), banners and other information advertising that correspond to the Website and/or to certain Products available on the Website (collectively, “Links”). Such Links will be keyed to Affiliate’s identity and will send users to Danrie’s Website. Affiliate will only be permitted to use the Links that are designated for use by Affiliate and provided to Affiliate through the ShareASale Platform. Affiliate hereby agrees to fully cooperate with Danrie regarding the Links and will not modify the Links without Danrie’s consent. Danrie may modify the Links at any time and will notify Affiliate of same. Upon Danrie’s request, Affiliate will immediately (and in any case within 24 hours) remove any Links or other Danrie Property from Affiliate’s email listservs, online social media websites or applications, networks and/or mobile applications (e.g., without limitation, blogs, internet forums, Facebook, Twitter, Instagram, TikTok, Tumblr, Reddit, Vine, etc.) (collectively, the “Platforms”).
Danrie will be responsible for handling all customer inquiries, Product orders, customer billing and collection, and Product shipment relative to customers that enter Danrie’s Website through Links from Affiliate’s Platforms. Pricing of Danrie’s Products and services is totally within its discretion and Danrie reserves the right to change the pricing structure, terminate any special offers, discontinue Products and services, or change the terms under which Products and services are offered at any time, without advance notice to Affiliate.
INVOICING AND PAYMENT.
Transaction Fees. Subject to the terms and conditions of the ShareASale platorm, each time (1) a user clicks through the Link to the Website, as provided to Affiliate by Danrie through the ShareASale platform and posted by Affiliate on an Affiliate Platform accessed by such user, (2) such user completes a non-refundable purchase of Products through the Website, and (3) Danrie determines such purchase and referral qualifies for compensation, Danrie will pay to Affiliate a transaction fee of ten percent (10%) of the gross sale price of such Product, as calculated by Danrie and/or ShareASale in its sole discretion (the “Transaction Fee”). Gross sales price shall not include any shipping and handling, sales tax, special services fees such as gift wrapping or packaging, late charges, collection costs, import/export duties, and any other payment made to Danrie that is not the purchase price for the Product purchased. Transaction Fees will not be calculated or paid based upon amounts that are attributable to credit card fraud, credits given to customers, bad debt write-off and returned or refunded Products. Danrie is not obligated to pay any compensation to Affiliate other than the Transaction Fees payable in accordance with the terms of the Affiliate Program. Other than any Transaction Fees earned and payable to Affiliate in accordance with the terms of the Affiliate Program and this Agreement, Affiliate is fully responsible for all costs and expenses of participating in the Affiliate Program. Danrie makes no representations or warranties regarding potential income that may result from participation in the Affiliate Program.
Payment. Danrie shall pay the undisputed portions of Affiliate’s Transaction Fees in accordance with the terms and conditions set forth on the ShareASale platform. If Danrie has a bona fide dispute with any Transaction Fee, Danrie shall promptly notify Affiliate in writing regarding the dispute and work promptly and in good faith with Affiliate to resolve such dispute. Any amounts withheld in good faith by Danrie on such basis shall not be treated as late or unpaid.
Reports. Affiliate may access reports related to the affiliation through the ShareASale platform in accordance with the terms and conditions thereof. Reports are subject to change prior to payout.
TERM; TERMINATION; SURVIVAL.
The term of this Agreement shall commence on the date on which Affiliate’s application to the Affiliate Program is accepted and shall terminate when terminated in accordance with the terms hereof. Danrie may, in its sole discretion, terminate this Agreement at any time without cause, by providing Affiliate with at least two (2) business days’ prior written notice of termination. The terms of Sections 1 and 5-11 and any other provision which by its intent shall be deemed to survive, shall survive termination of this Agreement.
INTELLECTUAL PROPERTY RIGHTS.
Affiliate acknowledges that, as between Affiliate and Danrie, Danrie will own all right, title and interest (including all Intellectual Property Rights) in and to any Danrie Property, including any modifications or adaptations of such Danrie Property produced in the course of providing the Services. Danrie hereby grants to Affiliate a limited, royalty-free, non-exclusive, non-transferable, revocable worldwide license during the term of this Agreement to use Danrie Property solely to the extent necessary for Affiliate to provide the Services. Affiliate shall not use or alter any Danrie Property, or any confusingly similar variation of the Danrie Property without Danrie’s express prior written permission. Affiliate hereby grants to Danrie and its designees a royalty-free, non-exclusive and irrevocable license and right to use, and to authorize others to use (including by license, sublicense, assignment or otherwise), Affiliate’s name, image, likeness, voice, performance, social media handles, nicknames, biographical materials, statements, testimonials, recordings, and other indicia, and any portion thereof to the extent necessary for Danrie to freely display, publish, photograph, record, modify, edit, reproduce, sublicense, create derivative works from or otherwise use and exploit the Affiliate Program, and Affiliate’s participation therein, in any and all media, channels or platforms (now or hereafter known) for commercial, advertising and/or promotional purposes in connection with Products, subject to the terms of this Agreement, without in each and every instance any additional permissions from and/or compensation or notices to Affiliate.
Notwithstanding the foregoing, neither party, without the express prior written approval of the other party, will publicly announce or disclose the terms of this Agreement, except as required by law.
CONFIDENTIAL INFORMATION.
Protection, Nonuse and Nondisclosure. Affiliate shall protect and safeguard the Confidential Information of Danrie by using the same degree of care, but in no event less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of such Confidential Information, as Affiliate uses to protect its own proprietary information of a like nature. Affiliate shall not use the Confidential Information of Danrie for any purposes other than exercising its rights and/or performing its obligations under this Agreement. Affiliate shall not disclose or otherwise make available Confidential Information of Danrie to any person or entity without the prior written consent of Danrie. Affiliate shall promptly notify Danrie of any unauthorized use or disclosure of any Confidential Information.
Legally Compelled Disclosure. If Affiliate becomes legally compelled to disclose any Confidential Information of Danrie, Affiliate shall provide (a) prompt written notice of such requirement to Danrie so that Danrie may seek, at its sole cost and expense, a protective order or other remedy and (b) reasonable assistance to Danrie, at the Danrie’s sole cost and expense, in seeking or supporting a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Affiliate remains required by law to disclose any such Confidential Information, Affiliate shall disclose no more than that portion of the Confidential Information of Danrie that, on the advice of Affiliate’s legal counsel, Affiliate is legally required to disclose.
Return or Destruction of Confidential Information. Upon the earlier to occur of (a) the written request of Danrie or (b) the termination or expiration of the Agreement, any Confidential Information of Danrie that is or has been furnished to Affiliate, including all copies thereof, will, at Danrie’s option, either be promptly returned to Danrie or destroyed (with Affiliate providing written confirmation of its compliance with the same). Confidential Information of Danrie shall remain the sole property of Danrie.
REPRESENTATIONS AND WARRANTIES; STANDARDS OF CONDUCT.
Mutual Representations and Warranties. Each signatory party hereto represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Affiliate Representations and Warranties. Affiliate represents and warrants to Danrie that (a) the Services and Platforms will be performed and maintained in compliance with all applicable state, federal, and international laws, codes, rules, regulations and guidance as enacted and amended from time to time during the term of this Agreement; (b) Affiliate has the requisite expertise, ability, and legal right to render the Services and will perform such Services with care, skill, and diligence, in accordance with applicable industry standards, and shall be responsible for the professional quality, completeness, and coordination of all documents and other items and Services furnished under this Agreement; and (c) as of the date hereof, there are no pending or threatened material claims, litigation or other proceedings against Affiliate by any person or entity based on an alleged violation of such third party’s Intellectual Property Rights that would be likely to affect Affiliate’s ability to provide the Services. In addition, Affiliate warrants to Danrie that the Services will not infringe the Intellectual Property Rights of any person or entity.
Standards of Conduct. Affiliate acknowledges the following standards of conduct to which Affiliate must adhere to, and therefore agrees: (a) not to post online any obscene, sexually explicit, vulgar, profane, or graphically violent content, or include links to any external sites that contain any such content; or (b) to take any action (including but not limited to the posting of material) that (i) involves moral turpitude; (ii) demeans, ridicules or attacks individuals on the basis of age, color, national origin, race, ethnicity, religion, gender, sexual orientation or disability; (iii) is harmful to children; (iv) promotes tobacco, alcohol, illicit drugs, gambling, or any products or activities that are illegal in any applicable territory; or (v) harasses, abuses or threatens any person or entity or otherwise violates any person or entity’s legal rights. In the event that Danrie determines that Affiliate has violated the foregoing provisions for the protection of Danrie’s reputation, or in the event that Affiliate is engaged in or is charged with a crime during the term of this Agreement, Danrie shall have the right to terminate this Agreement, without further liability or financial obligations hereunder, effective immediately upon giving Affiliate written notice of such termination.
Protection of Danrie’s Reputation. Affiliate acknowledges that its actions may affect Danrie’s reputation or that of Danrie’s Products. If Affiliate: (a) is charged with, indicted for, convicted of, or admits to the commission of any felony or lesser crime involving moral turpitude; (b) is criminally charged or convicted of any offense involving substance abuse; (c) publicly admits that Affiliate has used any controlled substance; (d) commits any act which brings Affiliate into public disrepute, contempt, scandal or ridicule, or that shocks or offends the community or any group or class thereof or that Danrie believes reflects unfavorably or could have a negative impact on Danrie’s reputation or has so conducted him/herself/itself, in the past and information in regard thereto becomes public; or (e) takes any action against Danrie or makes or authorizes any statements in derogation of Danrie’s (regardless of whether it occurred before or during the term of this Agreement), then such commission, involvement or statement constitutes a material breach of this Agreement and Danrie may, at its sole option, terminate this Agreement at any time without further liability or financial obligations hereunder, effective immediately upon giving Affiliate written notice of such termination.
COMPLIANCE WITH LAW AND PLATFORM TERMS OF USE.
Affiliate is responsible for ensuring the operation and maintenance of all of Affiliate’s Platforms where Danrie Materials are posted or made available to the public in connection with the Affiliate Program, including the technical operations, written claims, links and accuracy of materials therein. Affiliate represents and warrants that: (i) Affiliate has reviewed, and agrees to comply with, the U.S. Federal Trade Commission’s (“FTC’s”) Guides Concerning the Use of Endorsements and Testimonials in Advertising (see https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), the FTC’s endorsement disclosure guidelines, FTC FAQs, and “Disclosures 101 for Social Media Affiliates” guide (available at https://www.ftc.gov/influencers), the FTC’s Endorsement Guidelines: What people are asking (see https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking), and the FTC’s .com Disclosures (https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf), including but not limited to, the use of appropriate disclosures on all social media posts such as #ad, #advertisement and/or #sponsored content; and to comply with all applicable local, state, federal, regional and international laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act, in the preparation of all affiliate marketing materials and performance of the Services; and (ii) any endorsements made by will reflect the honest opinions or experiences of the endorser. Any Services performed on Affiliate’s Platforms shall at all times comply with the terms of use (or equivalent terms) posted on such Platforms. Affiliate shall post a conspicuous notice on any Platforms containing affiliate marketing materials regarding the Affiliate Program. Danrie strictly forbids the use of unsolicited commercial email or SPAM campaigns. Affiliate shall not place Links in newsgroups, message boards, unsolicited email and other types of SPAM, banner networks, counters, chat rooms, guest books, IRC channels or through similar resources, and reserves the right to terminate any violating Affiliate account or any part thereof without notice or compensation.
INDEMNIFICATION.
Affiliate shall defend, indemnify and hold harmless Danrie, its representatives and its and their respective current and future directors, officers, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or resulting from any actual or threatened third-party claim, suit, action or proceeding arising out of or resulting from: (a) any willful misconduct, fraud or grossly negligent acts or omissions of Affiliate, its employees or subcontractors, or any other person or entity acting under Affiliate’s direction or control in the performance or delivery of the Services; (b) any uncured material breach by Affiliate of any representation, warranty or obligation set forth in this Agreement; or (c) any breach of applicable law by Affiliate, its employees or subcontractors, or any other person or entity acting under Affiliate’s direction or control in connection with or relating to the performance or delivery of the Services.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO THE OTHER’S REPRESENTATIVES FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF DANRIE ARISING FROM OR RELATING TO THIS AGREEMENT IS LIMITED TO ONE HUNDRED DOLLARS ($100).
MISCELLANEOUS.
This Agreement shall be governed by the laws of the State of New York, without regard to its conflicts of laws principles. Each of the parties hereto shall execute and deliver all such further documents, agreements, and instruments, including tax documentation, and take such other and further actions as may be necessary or appropriate to carry out the purposes and intent of this Agreement. , Danrie makes no, and expressly disclaims, representations or warranties to Affiliate other than the limited representations and warranties set forth herein. Danrie may, from time to time and at any time, modify this Agreement, with full force and effect immediately upon posting to the ShareASale platform. In the event any term or condition of this Agreement is determined to be invalid, prohibited or unenforceable by a court or other body of competent jurisdiction, this Agreement shall be construed as if such invalid, prohibited or unenforceable term or condition has been more narrowly drawn so as not to be invalid, prohibited or unenforceable. This Agreement shall be binding upon each of the parties and their successors and assigns and shall inure to the benefit of each of the parties hereto and each such party's successors and assigns. Neither party shall be an agent or other legal representative of the other party for any reason pursuant to this Agreement, but each shall be an independent contractor, and nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal, agent or master and servant, employer or employee between the parties hereto. Affiliate shall have no power or authority to bind Danrie. Danrie, in its sole discretion, shall determine whether to enter into any agreement or relationship with any person or entity introduced to it by Affiliate. Nothing in this Agreement shall be construed to give any rights to any third parties to enforce the terms of this Agreement, except that each party hereto shall be entitled to enforce the provisions hereof. This Agreement (as may be amended, modified or supplemented from time to time) constitutes the entire and only agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings between them, whether written or oral, as to such subject matter. This Agreement may be executed in any number of counterparts, written or in .pdf or other electronic format, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.
This Agreement, which includes all schedules, exhibits, annexes and attachments incorporated herein, and any Terms of Use, Privacy Policy and other legal documents posted to our Website (this “Agreement”), sets forth the terms and conditions under which Affiliate will provide non-exclusive affiliate marketing and other services (the “Services”) to Danrie for Danrie’s Affiliate Program.
DEFINITIONS.
For purposes of this Agreement (as defined below), the following terms shall have the following meanings:
“Confidential Information” means all non-public proprietary or confidential information of Danrie and its affiliates, in oral, visual, written, electronic, or other tangible or intangible form, that a reasonable person should understand is of a confidential and/or proprietary nature (including: technical information; trade secrets; know-how; financial and budgetary information and forecasts; business, marketing and product information and plans; customer personal data and other customer-related information; employee personal data and other employee-related information; and the like).
“Danrie Property” means any (1) know-how, processes, tools, methodologies, techniques, experience, skill, talent, designs, algorithms, software, code, data, content, documents, files, copy, photographs, drawings, patterns, colorways, graphics, images, audio-visual materials, film, music compositions, images, artwork, sketches, layouts, copy, illustrations, Design Rights, websites, domain names, social media platforms, links and/or other materials and (2) patents, copyrights, moral rights, trademarks, trade names, trade secrets and rights of publicity, in each case in relation to which the Intellectual Property Rights are owned or licensed by Danrie and that are provided to Affiliate by Danrie or by any person or entity at Danrie’s direction in connection with this Agreement.
“Intellectual Property Rights” means all intellectual property rights, whether registerable or not, available under applicable law, including rights with respect to patents, copyrights, moral rights, trademarks, trade names, trade secrets and rights of publicity.
“Products” means any product, merchandise and stock that is offered by Danrie for sale through its Website.
AFFILIATE PROGRAM GUIDELINES; SERVICES; ACCEPTANCE PROCEDURES.
To apply to and register for the Affiliate Program, Affiliate must submit an application to Danrie, as available through the ShareASale.com platform (“ShareASale”). By submitting an application to our Affiliate Program, You warrant that you have read and reviewed this Agreement and that You agree to be bound by it. If Affiliate is a natural person, Affiliate must be at least 18 years of age to join the Affiliate Program. By submitting an application to the Affiliate Program, Affiliate represents and warrants that Affiliate is at least 18 years of age and may legally agree to this Agreement. Affiliate agrees that Affiliate’s use of the Affiliate Program is at Affiliate’s sole and exclusive risk and that any products or services provided by Danrie are on an “As Is” basis.
Submitting an application does not guarantee inclusion in the Affiliate Program. Danrie reserves the right to approve or reject ANY affiliate marketing application in its sole discretion. Affiliate will have no legal recourse against Danrie for the rejection of any application.
If Danrie accepts Affiliate into the Affiliate Program, Affiliate will ensure his/her/its ShareASale account is set up properly, with all required personally identifying information, contact information and payment information details required thereby.
Danrie will provide Affiliate, through the ShareASale platform, with specific trackable link(s), banners and other information advertising that correspond to the Website and/or to certain Products available on the Website (collectively, “Links”). Such Links will be keyed to Affiliate’s identity and will send users to Danrie’s Website. Affiliate will only be permitted to use the Links that are designated for use by Affiliate and provided to Affiliate through the ShareASale Platform. Affiliate hereby agrees to fully cooperate with Danrie regarding the Links and will not modify the Links without Danrie’s consent. Danrie may modify the Links at any time and will notify Affiliate of same. Upon Danrie’s request, Affiliate will immediately (and in any case within 24 hours) remove any Links or other Danrie Property from Affiliate’s email listservs, online social media websites or applications, networks and/or mobile applications (e.g., without limitation, blogs, internet forums, Facebook, Twitter, Instagram, TikTok, Tumblr, Reddit, Vine, etc.) (collectively, the “Platforms”).
Danrie will be responsible for handling all customer inquiries, Product orders, customer billing and collection, and Product shipment relative to customers that enter Danrie’s Website through Links from Affiliate’s Platforms. Pricing of Danrie’s Products and services is totally within its discretion and Danrie reserves the right to change the pricing structure, terminate any special offers, discontinue Products and services, or change the terms under which Products and services are offered at any time, without advance notice to Affiliate.
INVOICING AND PAYMENT.
Transaction Fees. Subject to the terms and conditions of the ShareASale platorm, each time (1) a user clicks through the Link to the Website, as provided to Affiliate by Danrie through the ShareASale platform and posted by Affiliate on an Affiliate Platform accessed by such user, (2) such user completes a non-refundable purchase of Products through the Website, and (3) Danrie determines such purchase and referral qualifies for compensation, Danrie will pay to Affiliate a transaction fee of ten percent (10%) of the gross sale price of such Product, as calculated by Danrie and/or ShareASale in its sole discretion (the “Transaction Fee”). Gross sales price shall not include any shipping and handling, sales tax, special services fees such as gift wrapping or packaging, late charges, collection costs, import/export duties, and any other payment made to Danrie that is not the purchase price for the Product purchased. Transaction Fees will not be calculated or paid based upon amounts that are attributable to credit card fraud, credits given to customers, bad debt write-off and returned or refunded Products. Danrie is not obligated to pay any compensation to Affiliate other than the Transaction Fees payable in accordance with the terms of the Affiliate Program. Other than any Transaction Fees earned and payable to Affiliate in accordance with the terms of the Affiliate Program and this Agreement, Affiliate is fully responsible for all costs and expenses of participating in the Affiliate Program. Danrie makes no representations or warranties regarding potential income that may result from participation in the Affiliate Program.
Payment. Danrie shall pay the undisputed portions of Affiliate’s Transaction Fees in accordance with the terms and conditions set forth on the ShareASale platform. If Danrie has a bona fide dispute with any Transaction Fee, Danrie shall promptly notify Affiliate in writing regarding the dispute and work promptly and in good faith with Affiliate to resolve such dispute. Any amounts withheld in good faith by Danrie on such basis shall not be treated as late or unpaid.
Reports. Affiliate may access reports related to the affiliation through the ShareASale platform in accordance with the terms and conditions thereof. Reports are subject to change prior to payout.
TERM; TERMINATION; SURVIVAL.
The term of this Agreement shall commence on the date on which Affiliate’s application to the Affiliate Program is accepted and shall terminate when terminated in accordance with the terms hereof. Danrie may, in its sole discretion, terminate this Agreement at any time without cause, by providing Affiliate with at least two (2) business days’ prior written notice of termination. The terms of Sections 1 and 5-11 and any other provision which by its intent shall be deemed to survive, shall survive termination of this Agreement.
INTELLECTUAL PROPERTY RIGHTS.
Affiliate acknowledges that, as between Affiliate and Danrie, Danrie will own all right, title and interest (including all Intellectual Property Rights) in and to any Danrie Property, including any modifications or adaptations of such Danrie Property produced in the course of providing the Services. Danrie hereby grants to Affiliate a limited, royalty-free, non-exclusive, non-transferable, revocable worldwide license during the term of this Agreement to use Danrie Property solely to the extent necessary for Affiliate to provide the Services. Affiliate shall not use or alter any Danrie Property, or any confusingly similar variation of the Danrie Property without Danrie’s express prior written permission. Affiliate hereby grants to Danrie and its designees a royalty-free, non-exclusive and irrevocable license and right to use, and to authorize others to use (including by license, sublicense, assignment or otherwise), Affiliate’s name, image, likeness, voice, performance, social media handles, nicknames, biographical materials, statements, testimonials, recordings, and other indicia, and any portion thereof to the extent necessary for Danrie to freely display, publish, photograph, record, modify, edit, reproduce, sublicense, create derivative works from or otherwise use and exploit the Affiliate Program, and Affiliate’s participation therein, in any and all media, channels or platforms (now or hereafter known) for commercial, advertising and/or promotional purposes in connection with Products, subject to the terms of this Agreement, without in each and every instance any additional permissions from and/or compensation or notices to Affiliate.
Notwithstanding the foregoing, neither party, without the express prior written approval of the other party, will publicly announce or disclose the terms of this Agreement, except as required by law.
CONFIDENTIAL INFORMATION.
Protection, Nonuse and Nondisclosure. Affiliate shall protect and safeguard the Confidential Information of Danrie by using the same degree of care, but in no event less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of such Confidential Information, as Affiliate uses to protect its own proprietary information of a like nature. Affiliate shall not use the Confidential Information of Danrie for any purposes other than exercising its rights and/or performing its obligations under this Agreement. Affiliate shall not disclose or otherwise make available Confidential Information of Danrie to any person or entity without the prior written consent of Danrie. Affiliate shall promptly notify Danrie of any unauthorized use or disclosure of any Confidential Information.
Legally Compelled Disclosure. If Affiliate becomes legally compelled to disclose any Confidential Information of Danrie, Affiliate shall provide (a) prompt written notice of such requirement to Danrie so that Danrie may seek, at its sole cost and expense, a protective order or other remedy and (b) reasonable assistance to Danrie, at the Danrie’s sole cost and expense, in seeking or supporting a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Affiliate remains required by law to disclose any such Confidential Information, Affiliate shall disclose no more than that portion of the Confidential Information of Danrie that, on the advice of Affiliate’s legal counsel, Affiliate is legally required to disclose.
Return or Destruction of Confidential Information. Upon the earlier to occur of (a) the written request of Danrie or (b) the termination or expiration of the Agreement, any Confidential Information of Danrie that is or has been furnished to Affiliate, including all copies thereof, will, at Danrie’s option, either be promptly returned to Danrie or destroyed (with Affiliate providing written confirmation of its compliance with the same). Confidential Information of Danrie shall remain the sole property of Danrie.
REPRESENTATIONS AND WARRANTIES; STANDARDS OF CONDUCT.
Mutual Representations and Warranties. Each signatory party hereto represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Affiliate Representations and Warranties. Affiliate represents and warrants to Danrie that (a) the Services and Platforms will be performed and maintained in compliance with all applicable state, federal, and international laws, codes, rules, regulations and guidance as enacted and amended from time to time during the term of this Agreement; (b) Affiliate has the requisite expertise, ability, and legal right to render the Services and will perform such Services with care, skill, and diligence, in accordance with applicable industry standards, and shall be responsible for the professional quality, completeness, and coordination of all documents and other items and Services furnished under this Agreement; and (c) as of the date hereof, there are no pending or threatened material claims, litigation or other proceedings against Affiliate by any person or entity based on an alleged violation of such third party’s Intellectual Property Rights that would be likely to affect Affiliate’s ability to provide the Services. In addition, Affiliate warrants to Danrie that the Services will not infringe the Intellectual Property Rights of any person or entity.
Standards of Conduct. Affiliate acknowledges the following standards of conduct to which Affiliate must adhere to, and therefore agrees: (a) not to post online any obscene, sexually explicit, vulgar, profane, or graphically violent content, or include links to any external sites that contain any such content; or (b) to take any action (including but not limited to the posting of material) that (i) involves moral turpitude; (ii) demeans, ridicules or attacks individuals on the basis of age, color, national origin, race, ethnicity, religion, gender, sexual orientation or disability; (iii) is harmful to children; (iv) promotes tobacco, alcohol, illicit drugs, gambling, or any products or activities that are illegal in any applicable territory; or (v) harasses, abuses or threatens any person or entity or otherwise violates any person or entity’s legal rights. In the event that Danrie determines that Affiliate has violated the foregoing provisions for the protection of Danrie’s reputation, or in the event that Affiliate is engaged in or is charged with a crime during the term of this Agreement, Danrie shall have the right to terminate this Agreement, without further liability or financial obligations hereunder, effective immediately upon giving Affiliate written notice of such termination.
Protection of Danrie’s Reputation. Affiliate acknowledges that its actions may affect Danrie’s reputation or that of Danrie’s Products. If Affiliate: (a) is charged with, indicted for, convicted of, or admits to the commission of any felony or lesser crime involving moral turpitude; (b) is criminally charged or convicted of any offense involving substance abuse; (c) publicly admits that Affiliate has used any controlled substance; (d) commits any act which brings Affiliate into public disrepute, contempt, scandal or ridicule, or that shocks or offends the community or any group or class thereof or that Danrie believes reflects unfavorably or could have a negative impact on Danrie’s reputation or has so conducted him/herself/itself, in the past and information in regard thereto becomes public; or (e) takes any action against Danrie or makes or authorizes any statements in derogation of Danrie’s (regardless of whether it occurred before or during the term of this Agreement), then such commission, involvement or statement constitutes a material breach of this Agreement and Danrie may, at its sole option, terminate this Agreement at any time without further liability or financial obligations hereunder, effective immediately upon giving Affiliate written notice of such termination.
COMPLIANCE WITH LAW AND PLATFORM TERMS OF USE.
Affiliate is responsible for ensuring the operation and maintenance of all of Affiliate’s Platforms where Danrie Materials are posted or made available to the public in connection with the Affiliate Program, including the technical operations, written claims, links and accuracy of materials therein. Affiliate represents and warrants that: (i) Affiliate has reviewed, and agrees to comply with, the U.S. Federal Trade Commission’s (“FTC’s”) Guides Concerning the Use of Endorsements and Testimonials in Advertising (see https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), the FTC’s endorsement disclosure guidelines, FTC FAQs, and “Disclosures 101 for Social Media Affiliates” guide (available at https://www.ftc.gov/influencers), the FTC’s Endorsement Guidelines: What people are asking (see https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking), and the FTC’s .com Disclosures (https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf), including but not limited to, the use of appropriate disclosures on all social media posts such as #ad, #advertisement and/or #sponsored content; and to comply with all applicable local, state, federal, regional and international laws and regulations, including but not limited to Section 5 of the Federal Trade Commission Act, in the preparation of all affiliate marketing materials and performance of the Services; and (ii) any endorsements made by will reflect the honest opinions or experiences of the endorser. Any Services performed on Affiliate’s Platforms shall at all times comply with the terms of use (or equivalent terms) posted on such Platforms. Affiliate shall post a conspicuous notice on any Platforms containing affiliate marketing materials regarding the Affiliate Program. Danrie strictly forbids the use of unsolicited commercial email or SPAM campaigns. Affiliate shall not place Links in newsgroups, message boards, unsolicited email and other types of SPAM, banner networks, counters, chat rooms, guest books, IRC channels or through similar resources, and reserves the right to terminate any violating Affiliate account or any part thereof without notice or compensation.
INDEMNIFICATION.
Affiliate shall defend, indemnify and hold harmless Danrie, its representatives and its and their respective current and future directors, officers, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or resulting from any actual or threatened third-party claim, suit, action or proceeding arising out of or resulting from: (a) any willful misconduct, fraud or grossly negligent acts or omissions of Affiliate, its employees or subcontractors, or any other person or entity acting under Affiliate’s direction or control in the performance or delivery of the Services; (b) any uncured material breach by Affiliate of any representation, warranty or obligation set forth in this Agreement; or (c) any breach of applicable law by Affiliate, its employees or subcontractors, or any other person or entity acting under Affiliate’s direction or control in connection with or relating to the performance or delivery of the Services.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO THE OTHER’S REPRESENTATIVES FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF DANRIE ARISING FROM OR RELATING TO THIS AGREEMENT IS LIMITED TO ONE HUNDRED DOLLARS ($100).
MISCELLANEOUS.
This Agreement shall be governed by the laws of the State of New York, without regard to its conflicts of laws principles. Each of the parties hereto shall execute and deliver all such further documents, agreements, and instruments, including tax documentation, and take such other and further actions as may be necessary or appropriate to carry out the purposes and intent of this Agreement. , Danrie makes no, and expressly disclaims, representations or warranties to Affiliate other than the limited representations and warranties set forth herein. Danrie may, from time to time and at any time, modify this Agreement, with full force and effect immediately upon posting to the ShareASale platform. In the event any term or condition of this Agreement is determined to be invalid, prohibited or unenforceable by a court or other body of competent jurisdiction, this Agreement shall be construed as if such invalid, prohibited or unenforceable term or condition has been more narrowly drawn so as not to be invalid, prohibited or unenforceable. This Agreement shall be binding upon each of the parties and their successors and assigns and shall inure to the benefit of each of the parties hereto and each such party's successors and assigns. Neither party shall be an agent or other legal representative of the other party for any reason pursuant to this Agreement, but each shall be an independent contractor, and nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal, agent or master and servant, employer or employee between the parties hereto. Affiliate shall have no power or authority to bind Danrie. Danrie, in its sole discretion, shall determine whether to enter into any agreement or relationship with any person or entity introduced to it by Affiliate. Nothing in this Agreement shall be construed to give any rights to any third parties to enforce the terms of this Agreement, except that each party hereto shall be entitled to enforce the provisions hereof. This Agreement (as may be amended, modified or supplemented from time to time) constitutes the entire and only agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings between them, whether written or oral, as to such subject matter. This Agreement may be executed in any number of counterparts, written or in .pdf or other electronic format, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.