Wesper
Program Terms
FOREWORD
Our affiliates are very important to us. We do our best to treat you with the fairness and respect you deserve. We simply ask the same consideration of you. We have written the following affiliate agreement with you in mind to protect our company's good name. So please bear with us as we take you through this legal formality.
AFFILIATE AGREEMENT
PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU AND WESPER, INC.
BY SUBMITTING THE ONLINE APPLICATION, YOU AGREE YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN AND BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION. YOU ACKNOWLEDGE AND AGREE THAT YOUR PARTICIPATION IN THE WESPER AFFILIATE PROGRAM IS ALSO SUBJECT TO WESPER’S PRIVACY POLICY, AND OTHER POLICIES, STANDARD OPERATING PROCEDURES, OR GUIDELINES PROVIDED TO YOU FROM TIME TO TIME.
1. Overview
This Agreement contains the complete terms and conditions for you becoming an affiliate in Wesper’s Affiliate Program (“Program”). The purpose of this Agreement is to allow HTML linking between your website (“Linked Site”) and the wesper.co website using a unique link that Wesper provides to you (“Link”). Please note that throughout this Agreement, "we," "us," and "our" refer to Wesper, and "you," "your," and "yours" refer to the affiliate identified on the application submitted.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application at the ShareASale.com server. To apply to participate in the Program, you must be twenty-one (21) years of age or older and in good standing with the Federal Trade Commission (“FTC”). We may change or add eligibility criteria from time to time in our sole discretion. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application and/or terminate your participation in the Program if we determine that your site is unsuitable for our Program, including if your application or website (including any content thereon):
2.1.1. Promotes sexually explicit materials;
2.1.2. Promotes violence;
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
2.1.4. Promotes illegal activities;
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
2.1.6. Includes "Wesper" or variations or misspellings thereof in its domain name;
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable to us ain our sole discretion;
2.1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program; or
2.1.9. is designed to resemble our website or is designed in a manner that leads customers to believe you are Wesper or any other affiliated business.
2.2. Wesper reserves the right, at any time, to review your placement and approve the use of your affiliate Links and require that you change the placement or use it to comply with the guidelines provided to you.
2.3. The maintenance and updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.4. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site and activities hereunder. You must have express permission to use any person's copyrighted material, whether it be writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third-party rights.
3. Wesper Rights and Obligations
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made or to make sure that your Links to our website are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Program.
3.2. Wesper reserves the right to terminate this Agreement and your participation in the Program immediately and without notice should you commit fraud in your use of the Program or should you abuse the Program in any way. If such fraud or abuse is detected, Wesper shall not be liable to you for any commissions for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your Affiliate application and will continue unless terminated hereunder.
4. Termination
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon written notice in the event of any breach of this Agreement by you.
5. Modification
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. Where we make material changes to the Agreement, you will be notified by email at the email address you provided to us in your Program application (or any subsequent primary email address you have provided to us through your Program account). Modifications may include but are not limited to, changes in the payment procedures and Program rules. Please check this Agreement from time to time for any modifications. If any modification is unacceptable, your only remedy is to terminate this Agreement and your participation in the Program. Your continued participation in Program after posting the change notice or new Agreement on our site or after we have provided you with email notification will indicate your agreement to the changes. We may require that you accept the updated Agreement upon your next sign-in to your Program account.
6. Payment
If you participate in the Program, we will pay certain commissions to you, in amounts determined by Wesper's then-current generally applicable commission rates as published on the Wesper site, with respect to Net Attributable Revenues from all Referral Transactions, as such terms are defined below. The parties acknowledge and agree that the compensation provided under this Agreement is fair market value in an arm’s length transaction.
For purposes of this Agreement, a "Referral Transaction" means a sale of Wesper’s products or services by Wesper to any customer of the Wesper site who accesses the Wesper site directly from a Link on your Linked Site, if such sale occurs within thirty (30) days following the date of such direct access from your Linked Site. You understand and agree that Wesper will not have any obligation to pay you any amounts with respect any transactions other than Referral Transactions, including, without limitation, any sales to an Wesper customer occurring more than thirty (30) days after that customer accessed the Wesper site from your Linked Site. For purposes of this Agreement, “Net Attributable Revenues” mean amounts actually received by Wesper while this Agreement remains in effect from Referral Transactions, less applicable taxes, credit card processing fees, transaction fees, and less amounts refunded, credited or rebated to such customers of Wesper.
Wesper's commission rates and the terms applicable to payment of commissions to you may be modified from time to time in Wesper's sole discretion, provided that any such modifications will not change the amount of commissions payable to you with respect to Referral Transactions occurring prior to the effective date of such modification. If we modify terms or rates applicable to commission payments under the Program, we will notify you of such changes.
You acknowledge that it is your responsibility to maintain the then-current Links on your Linked Site at all times while this Agreement remains in effect. In the event that Wesper cannot determine whether or not a customer has linked to the Wesper site from your Linked Site, because you have failed to maintain the Links, or because you have modified the Links in any way, Wesper will have no obligation to pay you commissions for such customer's transactions on the Wesper site occurring before you remedy such failures.
Wesper uses a third party to handle all of the tracking and payment of commissions. The third party is ShareASale.com. By accepting commissions, you acknowledge and agree that you are bound by ShareASale.com’s terms of use and privacy policy.
7. Access to Affiliate Account Interface
You will create a password to enter ShareASale’s secure affiliate account interface. From their site, you will be able to receive reports that will describe our calculation of the commissions due to you.
8. Promotion Restrictions
8.1. You will ensure that your website and any promotion of Wesper meets the following requirements:
Your website and promotion of Wesper must comply with the FTC Guides Concerning Endorsements and Testimonials (“Endorsement Guidelines”) and Wesper’s “Standards of Conduct” attached hereto as Exhibit A (incorporated by reference herein), including by making: (1) statements that reflect your honest beliefs, opinions, and experiences; and (2) clear and conspicuous disclosure about your connection to us.
You must clearly and conspicuously disclose your “material connection” with us, making it clear that you are a paid affiliate, including by disclosing yourself as a “Wesper affiliate” on each piece of promotional content. You must place the disclosure in plain sight in close proximity to any audio or visual communications that you make about us, our brands, and our products/services. You may not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures. We require this disclosure regardless of any space limitations of the applicable platform.
Although your content must be authentic and based on your own opinions, beliefs, and experiences, your content must also accurately describe our products accurately. Your content should only make factual statements about us and our products which you know for certain are true and can be proven or verified.
Your content will be original and created solely by you.
Your content will not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans.
Your content will not include any person, or personally identifiable information about anyone, other than you.
Your content will comply with all applicable laws, rules, and regulations.
8.2. You agree that you will not: (i) engage in any conduct that violates the CAN-SPAM Act of 2003, as amended, or any privacy or data protection law of any jurisdiction, (ii) enable any sales that are not in good faith, such as using any device, public coupon site, robot, hidden frame or redirect, (iii) use any device or technology that replaces, intercepts, interferes with, disrupts or otherwise alters in any manner any user’s access, view or usage of, our website, (iv) promote any products or services to children under the age of twenty-one (21), (v) create fake followers or engagement on social media platforms, such as by: (1) buying followers; (2) using bots to grow audience size by automating account creation, following, commenting, and liking; or (3) post fake sponsored content; or (vi) make any representations or warranties on behalf of Wesper other than those contained in Wesper’s marketing and promotional information. You agree that you will comply with the posted policies, guidelines, and terms of use on any platform on which you post content on behalf of us, understanding that any of these platforms’ disclosure requirements about your connection to us do not necessarily satisfy FTC disclosure requirements. You also agree to comply with our Standards of Conduct and any other policies or additional guidelines provided by us.
8.3 Affiliates that exclusively bid in their Pay-Per-Click campaigns on keywords such as wesper.co, wesper, www.wesper, www.wesper.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – will be considered trademark violators, and will be banned from the Program. We will do everything possible to contact the affiliate before the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice and on the first occurrence of such PPC bidding behavior.
8.4. You shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Applications,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Wesper’s site (i.e., no page from our site or any Wesper’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open Wesper’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
8.5. You agree that we have the right to address any content that you make that does not comply with this Agreement or any actions that you take in violation of this Section 8 or the Standards of Conduct by taking any of the following actions alone or in combination: (a) requiring you to immediately fix or remove content, (b) withholding payment of any commissions, or (c) suspending or terminating this Agreement and your participation in the Program.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Program. You agree that all uses of the Licensed Materials will be on behalf of Wesper and the goodwill associated therewith will inure to the sole benefit of Wesper. Wesper may require removal of any use of such Licensed Materials at any time for any reason and you are required to remove such Licensed Materials upon request.
9.2. You hereby grant to us the right to use your name, image, likeness, and biographical, professional, and other identifying information (including information you provide to us and any other information about you that is publicly available) (collectively, “Likeness”) during your participation in the Program, in connection with the Program, the content you create, and our products/services, including to advertise and promote the same or any product/service that features or includes the content you create or a derivative work of any such content, in whole or in part. Further, you hereby grant to us the right to re-post, reproduce, publicly display, publicly perform, and otherwise re-publish your content on any Wesper-owned or controlled websites, social media platforms, or otherwise in any media, now known or hereafter devised, in connection with the advertising and promotion of Wesper, the Program, and Wesper’s products and services. Notwithstanding the foregoing, following the conclusion of your participation in the Program for any reason, you agree that we are not obligated to remove any content containing your Likeness that was previously posted or published, provided that we will not have the right to make any new posts or content incorporating or otherwise using your Likeness without your prior written consent. You waive the right to inspect or approve any use of your Likeness as contemplated in this Agreement. In the event of a breach of the foregoing, we reserve the right to terminate your participation in the Program immediately upon notice to you.
9.3 Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene, or that otherwise portrays the party in a negative light. Each party reserves its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all rights, titles, and interests to its respective rights, and no right, title, or interest is transferred to the other.
10. Disclaimer
WESPER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING WESPER’S SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF WESPER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL WESPER’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
13. Indemnification
You hereby agree to indemnify and hold harmless Wesper, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of your trademarks or content infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, (iii) any claim related to your site, including, without limitation, content therein not attributable to us, or (iv) your violation of applicable laws, rules, and regulations, including the FTC Endorsement Guidelines, and (v) any claim related to your website or social media pages or profiles, including any content that resides on your website or profile but that was not provided by us.
14. Confidentiality
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," or which you reasonably should know is confidential, based on the nature of the information and context of disclosure, will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15. Miscellaneous
15.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Wesper. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or any other of your site or otherwise, that reasonably would contradict anything in this Section.
15.2. You may not assign or transfer any of your rights or obligations under this Agreement to any party.
15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws and principles thereof. Each party agrees to institute any legal suit, action, or proceeding arising out of this Agreement in the federal or state courts located in New York, New York and consents to the exclusive jurisdiction and venue of such courts.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
EXHIBIT A
STANDARDS OF CONDUCT
With respect to content made by you about us, our products and our brands:
You represent and warrant that you have reviewed, and you agree that you will comply with:
The FTC’s Endorsement Guidelines (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf).
The FTC’s Endorsement Guides: What People Are Asking (https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking).
FTC: The Do’s and Don’ts for Social Media Influencers (https://www.ftc.gov/news-events/press-releases/2017/09/csgo-lotto-owners-settle-ftcs-first-ever-complaint-against).
FTC: Disclosures 101 for Social Media Influencers (https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf).
FTC: Do you endorse things on social media? (https://www.ftc.gov/news-events/audio-video/video/advice-social-media-influencers).
You agree that you will not:
post content that promotes discrimination based on race, sex, gender, religion, nationality, disability, sexual orientation, or age;
post content that promotes violence, hate, illegal activities or display sexually explicit materials;
defame us or violate the intellectual property rights of us or others;
make deceptive or misleading claims about our products/services or our competitors’ products or services;
make any claims about our products/services or our competitors’ products/services that are not backed up by evidence;
disparage us or our brands, products or services; or
make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving our consumers or other individuals.
Our affiliates are very important to us. We do our best to treat you with the fairness and respect you deserve. We simply ask the same consideration of you. We have written the following affiliate agreement with you in mind to protect our company's good name. So please bear with us as we take you through this legal formality.
AFFILIATE AGREEMENT
PLEASE READ THE ENTIRE AGREEMENT.
YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.
THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU AND WESPER, INC.
BY SUBMITTING THE ONLINE APPLICATION, YOU AGREE YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN AND BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION. YOU ACKNOWLEDGE AND AGREE THAT YOUR PARTICIPATION IN THE WESPER AFFILIATE PROGRAM IS ALSO SUBJECT TO WESPER’S PRIVACY POLICY, AND OTHER POLICIES, STANDARD OPERATING PROCEDURES, OR GUIDELINES PROVIDED TO YOU FROM TIME TO TIME.
1. Overview
This Agreement contains the complete terms and conditions for you becoming an affiliate in Wesper’s Affiliate Program (“Program”). The purpose of this Agreement is to allow HTML linking between your website (“Linked Site”) and the wesper.co website using a unique link that Wesper provides to you (“Link”). Please note that throughout this Agreement, "we," "us," and "our" refer to Wesper, and "you," "your," and "yours" refer to the affiliate identified on the application submitted.
2. Affiliate Obligations
2.1. To begin the enrollment process, you will complete and submit the online application at the ShareASale.com server. To apply to participate in the Program, you must be twenty-one (21) years of age or older and in good standing with the Federal Trade Commission (“FTC”). We may change or add eligibility criteria from time to time in our sole discretion. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion. We may cancel your application and/or terminate your participation in the Program if we determine that your site is unsuitable for our Program, including if your application or website (including any content thereon):
2.1.1. Promotes sexually explicit materials;
2.1.2. Promotes violence;
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
2.1.4. Promotes illegal activities;
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
2.1.6. Includes "Wesper" or variations or misspellings thereof in its domain name;
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable to us ain our sole discretion;
2.1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program; or
2.1.9. is designed to resemble our website or is designed in a manner that leads customers to believe you are Wesper or any other affiliated business.
2.2. Wesper reserves the right, at any time, to review your placement and approve the use of your affiliate Links and require that you change the placement or use it to comply with the guidelines provided to you.
2.3. The maintenance and updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
2.4. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site and activities hereunder. You must have express permission to use any person's copyrighted material, whether it be writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third-party rights.
3. Wesper Rights and Obligations
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made or to make sure that your Links to our website are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Program.
3.2. Wesper reserves the right to terminate this Agreement and your participation in the Program immediately and without notice should you commit fraud in your use of the Program or should you abuse the Program in any way. If such fraud or abuse is detected, Wesper shall not be liable to you for any commissions for such fraudulent sales.
3.3. This Agreement will begin upon our acceptance of your Affiliate application and will continue unless terminated hereunder.
4. Termination
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon written notice in the event of any breach of this Agreement by you.
5. Modification
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. Where we make material changes to the Agreement, you will be notified by email at the email address you provided to us in your Program application (or any subsequent primary email address you have provided to us through your Program account). Modifications may include but are not limited to, changes in the payment procedures and Program rules. Please check this Agreement from time to time for any modifications. If any modification is unacceptable, your only remedy is to terminate this Agreement and your participation in the Program. Your continued participation in Program after posting the change notice or new Agreement on our site or after we have provided you with email notification will indicate your agreement to the changes. We may require that you accept the updated Agreement upon your next sign-in to your Program account.
6. Payment
If you participate in the Program, we will pay certain commissions to you, in amounts determined by Wesper's then-current generally applicable commission rates as published on the Wesper site, with respect to Net Attributable Revenues from all Referral Transactions, as such terms are defined below. The parties acknowledge and agree that the compensation provided under this Agreement is fair market value in an arm’s length transaction.
For purposes of this Agreement, a "Referral Transaction" means a sale of Wesper’s products or services by Wesper to any customer of the Wesper site who accesses the Wesper site directly from a Link on your Linked Site, if such sale occurs within thirty (30) days following the date of such direct access from your Linked Site. You understand and agree that Wesper will not have any obligation to pay you any amounts with respect any transactions other than Referral Transactions, including, without limitation, any sales to an Wesper customer occurring more than thirty (30) days after that customer accessed the Wesper site from your Linked Site. For purposes of this Agreement, “Net Attributable Revenues” mean amounts actually received by Wesper while this Agreement remains in effect from Referral Transactions, less applicable taxes, credit card processing fees, transaction fees, and less amounts refunded, credited or rebated to such customers of Wesper.
Wesper's commission rates and the terms applicable to payment of commissions to you may be modified from time to time in Wesper's sole discretion, provided that any such modifications will not change the amount of commissions payable to you with respect to Referral Transactions occurring prior to the effective date of such modification. If we modify terms or rates applicable to commission payments under the Program, we will notify you of such changes.
You acknowledge that it is your responsibility to maintain the then-current Links on your Linked Site at all times while this Agreement remains in effect. In the event that Wesper cannot determine whether or not a customer has linked to the Wesper site from your Linked Site, because you have failed to maintain the Links, or because you have modified the Links in any way, Wesper will have no obligation to pay you commissions for such customer's transactions on the Wesper site occurring before you remedy such failures.
Wesper uses a third party to handle all of the tracking and payment of commissions. The third party is ShareASale.com. By accepting commissions, you acknowledge and agree that you are bound by ShareASale.com’s terms of use and privacy policy.
7. Access to Affiliate Account Interface
You will create a password to enter ShareASale’s secure affiliate account interface. From their site, you will be able to receive reports that will describe our calculation of the commissions due to you.
8. Promotion Restrictions
8.1. You will ensure that your website and any promotion of Wesper meets the following requirements:
Your website and promotion of Wesper must comply with the FTC Guides Concerning Endorsements and Testimonials (“Endorsement Guidelines”) and Wesper’s “Standards of Conduct” attached hereto as Exhibit A (incorporated by reference herein), including by making: (1) statements that reflect your honest beliefs, opinions, and experiences; and (2) clear and conspicuous disclosure about your connection to us.
You must clearly and conspicuously disclose your “material connection” with us, making it clear that you are a paid affiliate, including by disclosing yourself as a “Wesper affiliate” on each piece of promotional content. You must place the disclosure in plain sight in close proximity to any audio or visual communications that you make about us, our brands, and our products/services. You may not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures. We require this disclosure regardless of any space limitations of the applicable platform.
Although your content must be authentic and based on your own opinions, beliefs, and experiences, your content must also accurately describe our products accurately. Your content should only make factual statements about us and our products which you know for certain are true and can be proven or verified.
Your content will be original and created solely by you.
Your content will not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans.
Your content will not include any person, or personally identifiable information about anyone, other than you.
Your content will comply with all applicable laws, rules, and regulations.
8.2. You agree that you will not: (i) engage in any conduct that violates the CAN-SPAM Act of 2003, as amended, or any privacy or data protection law of any jurisdiction, (ii) enable any sales that are not in good faith, such as using any device, public coupon site, robot, hidden frame or redirect, (iii) use any device or technology that replaces, intercepts, interferes with, disrupts or otherwise alters in any manner any user’s access, view or usage of, our website, (iv) promote any products or services to children under the age of twenty-one (21), (v) create fake followers or engagement on social media platforms, such as by: (1) buying followers; (2) using bots to grow audience size by automating account creation, following, commenting, and liking; or (3) post fake sponsored content; or (vi) make any representations or warranties on behalf of Wesper other than those contained in Wesper’s marketing and promotional information. You agree that you will comply with the posted policies, guidelines, and terms of use on any platform on which you post content on behalf of us, understanding that any of these platforms’ disclosure requirements about your connection to us do not necessarily satisfy FTC disclosure requirements. You also agree to comply with our Standards of Conduct and any other policies or additional guidelines provided by us.
8.3 Affiliates that exclusively bid in their Pay-Per-Click campaigns on keywords such as wesper.co, wesper, www.wesper, www.wesper.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – will be considered trademark violators, and will be banned from the Program. We will do everything possible to contact the affiliate before the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice and on the first occurrence of such PPC bidding behavior.
8.4. You shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Applications,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Wesper’s site (i.e., no page from our site or any Wesper’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open Wesper’s site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
8.5. You agree that we have the right to address any content that you make that does not comply with this Agreement or any actions that you take in violation of this Section 8 or the Standards of Conduct by taking any of the following actions alone or in combination: (a) requiring you to immediately fix or remove content, (b) withholding payment of any commissions, or (c) suspending or terminating this Agreement and your participation in the Program.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Program. You agree that all uses of the Licensed Materials will be on behalf of Wesper and the goodwill associated therewith will inure to the sole benefit of Wesper. Wesper may require removal of any use of such Licensed Materials at any time for any reason and you are required to remove such Licensed Materials upon request.
9.2. You hereby grant to us the right to use your name, image, likeness, and biographical, professional, and other identifying information (including information you provide to us and any other information about you that is publicly available) (collectively, “Likeness”) during your participation in the Program, in connection with the Program, the content you create, and our products/services, including to advertise and promote the same or any product/service that features or includes the content you create or a derivative work of any such content, in whole or in part. Further, you hereby grant to us the right to re-post, reproduce, publicly display, publicly perform, and otherwise re-publish your content on any Wesper-owned or controlled websites, social media platforms, or otherwise in any media, now known or hereafter devised, in connection with the advertising and promotion of Wesper, the Program, and Wesper’s products and services. Notwithstanding the foregoing, following the conclusion of your participation in the Program for any reason, you agree that we are not obligated to remove any content containing your Likeness that was previously posted or published, provided that we will not have the right to make any new posts or content incorporating or otherwise using your Likeness without your prior written consent. You waive the right to inspect or approve any use of your Likeness as contemplated in this Agreement. In the event of a breach of the foregoing, we reserve the right to terminate your participation in the Program immediately upon notice to you.
9.3 Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene, or that otherwise portrays the party in a negative light. Each party reserves its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all rights, titles, and interests to its respective rights, and no right, title, or interest is transferred to the other.
10. Disclaimer
WESPER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING WESPER’S SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF WESPER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL WESPER’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
13. Indemnification
You hereby agree to indemnify and hold harmless Wesper, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of your trademarks or content infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, (iii) any claim related to your site, including, without limitation, content therein not attributable to us, or (iv) your violation of applicable laws, rules, and regulations, including the FTC Endorsement Guidelines, and (v) any claim related to your website or social media pages or profiles, including any content that resides on your website or profile but that was not provided by us.
14. Confidentiality
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," or which you reasonably should know is confidential, based on the nature of the information and context of disclosure, will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15. Miscellaneous
15.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Wesper. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or any other of your site or otherwise, that reasonably would contradict anything in this Section.
15.2. You may not assign or transfer any of your rights or obligations under this Agreement to any party.
15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws and principles thereof. Each party agrees to institute any legal suit, action, or proceeding arising out of this Agreement in the federal or state courts located in New York, New York and consents to the exclusive jurisdiction and venue of such courts.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
EXHIBIT A
STANDARDS OF CONDUCT
With respect to content made by you about us, our products and our brands:
You represent and warrant that you have reviewed, and you agree that you will comply with:
The FTC’s Endorsement Guidelines (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf).
The FTC’s Endorsement Guides: What People Are Asking (https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking).
FTC: The Do’s and Don’ts for Social Media Influencers (https://www.ftc.gov/news-events/press-releases/2017/09/csgo-lotto-owners-settle-ftcs-first-ever-complaint-against).
FTC: Disclosures 101 for Social Media Influencers (https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf).
FTC: Do you endorse things on social media? (https://www.ftc.gov/news-events/audio-video/video/advice-social-media-influencers).
You agree that you will not:
post content that promotes discrimination based on race, sex, gender, religion, nationality, disability, sexual orientation, or age;
post content that promotes violence, hate, illegal activities or display sexually explicit materials;
defame us or violate the intellectual property rights of us or others;
make deceptive or misleading claims about our products/services or our competitors’ products or services;
make any claims about our products/services or our competitors’ products/services that are not backed up by evidence;
disparage us or our brands, products or services; or
make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving our consumers or other individuals.