Affiliate ProgramOperating Agreement
Updated: May, 2023
This AffiliateProgram Operating Agreement (“ Operating Agreement”) contains the terms and conditions that govern your participation in the Affiliate Program (the “Program”). “We,” “us,” or “our” means de.xtool.com, xtool.eu and Partner Website. “You” or “your” means the applicant. A “site” means a website.“Partner Site” means the e-commerce/retail partner using the xTool affiliatetracking software. “Your site” means any site(s), any software application(s) and any Mobile Application (as defined hereinafter) that you link to the partner site. "Advertising Fees" means commissions earned for a successful and verified sale of producton the Partner Site by a customerusing your referrallink.
BY CHECKING THE BOX INDICATING THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS OPERATING AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAMFOLLOWING OUR POSTINGOF A CHANGE NOTICE, REVISEDOPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE PARTNER WEBSITE, YOU (A) AGREETO BE BOUND BY THIS OPERATINGAGREEMENT;
(B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS OPERATING AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS OPERATING AGREEMENT. IN ADDITION, IF THIS OPERATING AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS OPERATING AGREEMENTON BEHALF OF THAT COMPANY OR ENTITY HEREBYREPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANYOR ENTITY TO THISOPERATING AGREEMENT.
- Description of the Program
The purpose of the Program is to permit you to advertise Products on your site and to earn advertising fees OR commissions for Qualifying Purchases (defined in Section 7) made by your end users. A “Product” is any item sold on the Partner Website, other than any products that are explicitly defined as excluded products here (collectively, “Excluded Products”). Product may also include certain services, if any, expressly included on the Affiliate ProgramCommissions Schedule. In order to facilitate your advertisement of Products, we may make available to you data, images, text, link formats, widgets, links, and other linking tools, and other information in connection with the Program ("Content"). Content specifically excludes any data, images, text, or other information or content relating to products offeredon any site other than the PartnerSite.
2. Enrollment
To begin the enrollment process, you must submit a complete and accurate Program application. You must identify your site in your application. We will evaluate your application and notify you of its acceptance or rejection. We may reject your application in our sole discretion includingif we determine that your site is unsuitable. Unsuitable sites include those that:
- promote or contain sexuallyexplicit materials;
- promote violenceor contain violentmaterials;
- promote or contain libelousor defamatory materials;
- promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
- promote or undertake illegalactivities;
- include any trademark of xTool, its Partner Sites or its affiliates, or a variant or misspelling of a trademark of xTool, its Partner Sites or its affiliates, in any domain name, subdomain name, or in any username, group name, or other identifier on any socialnetworking site; or
- otherwise violateintellectual property rights.
If we reject your application, you are welcome to reapply at any time. However, if we accept your application and we later determine that your site is unsuitable, we may terminate this Operating Agreement at any time in our sole discretion.
3. Links on Your Site
After you have been notified that you have been accepted into the Program, you may display Special Links on your site. “Special Links” are links to the Partner Site that you place on your site in accordance with this Operating Agreement, that properly utilize the special “tagged” link formats we provide, and that comply with the Affiliate Program Linking Requirements Special Links permit accurate tracking, reporting, and accrual of advertising fees.
You may earn advertising fees only as described in Section 7 and only with respect to activity on the Partner Site occurring directlythrough Special Links. We will have no obligation to pay you advertising fees if you fail to properly formatthe links on your site to the Partner Site as SpecialLinks, including to the extent that such failure may result in any reduction of advertising fee amounts that would otherwise be paid to you underthis Operating Agreement.
4. Program Requirements
By participating in the Program, you agree that you will comply with the AffiliateProgram Participation Requirements and all pages, schedules, policies, guidelines, and other documents and materials referenced in this OperatingAgreement (collectively, “Operational Documentation”).
You will provideus with any information that we requestto verify your compliance with this Operating Agreement or any Operational Documentation. If we determine that you have not complied with any requirement or restriction described on the Associates Program Participation Requirements page or any other Operational Documentation or that you have otherwise violated this Operating Agreement, we may (in addition to any other rights or remedies available to us): (a) withhold any advertising fees payable to you under this Operating Agreement,; (b) close any other accounts you may have or may open in the future, without payment of any advertising fees; (c) terminate this Operating Agreement, ; or (d) undertake all of the above actions.. In addition, you hereby consent to us:
- sending you emails relatingto the Program from time to time;
- monitoring, recording, using, and disclosing information about your site and visitors to your site that we obtain in connection with your display of Special Links (e.g., that a particular customer clicked through a Special Link from your site before buying a Product on the Partner Site) in accordance with the Privacy Notice;and
- monitoring, crawling,and otherwise investigating your site to verify compliance with this Operating Agreement and the Operational Documentation.
5. Order Processing
We will process Product orders placed by customers who follow Special Links from your site to the Partner Site. We reserve the right to reject orders that do not comply with any requirements on the Partner Site, as they may be updated from time to time. We will track Qualifying Purchases (defined in Section 7) for reporting and advertising fee accrual purposes and will make available to you reports summarizing those Qualifying Purchases.
6. Advertising Fees
We will pay you advertising fees on Qualifying Purchases in accordance with Section 8 and the Affiliate Program Commissions Schedule. In the event any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent advertising fees payable to you under this Operating Agreement. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when (a) a customer clicks through a Special Link on your site to the Partner Site; (b) during a single Session that the customer adds a Product to his or her shopping cart and places the order for that Product no later than 89 days following the customer’s initialclick-through; or (c) the Productis shipped to, and paid for by, the customer.
A “Session” begins when a customer clicks through a Special Link on your site to the Partner Site and ends upon the first to occur of the following: (x) 24 hours elapses from that click; (y) the customer places an order for a Product; or (z) the customer follows a Special Link to the Partner Site that is not your Special Link.
Qualifying Purchasesexclude, and we will not pay advertising fees on any of, the following:
- any Product that, after expiration of the applicable Session, is added to a customer’s Shopping Cart, or is streamed or downloaded by a customer, even if the customer previously followed a Special Link from your site to the Partner Site;
- any Product purchase that is not correctly tracked or reported because the links from your site to the Partner Site are not properly formatted;
- any Product purchased through a Special Link by you or on your behalf, including Products you purchase through Special Links for yourself, friends, relatives, or associates (e.g., personal orders, orders for your own use, and orders placed by you for or on behalf of any other personor entity);
- any Productpurchased for resaleor commercial use of any kind;
- any Productpurchased after termination of this OperatingAgreement;
- any Productorder where a cancellation, return,or refund has been initiated; and
- any Productpurchased by a customer who is referredto the Partner Site throughany of the following:
- a Prohibited Paid Search Placement; or
- a link to the Partner Site, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic,or unpaid search results), whether those links appear throughyour submission of data to that site or otherwise.
- any Qualifying Purchase wherein you have offered any person or entity any consideration or incentive(including any money, rebate, discount,points, donation to charity or other organization, or other benefit) for using Special Links (e.g., by implementing any “rewards” or loyalty program that incentivizes persons or entities to visit the Partner Site via your Special Links).
- any Productpurchased through a Special Link in a Mobile Application that was not an Approved Mobile Application or where the Special Link in an Approved Mobile Application was not served by the AMA API, Product Advertising API or other linking tools that we make available to you.
- any Qualifying Purchase, which takes place in India, made through a mobile device or tablet wherein:
- Pay-Per-Click advertising is strictly prohibited.
- any Qualifyingpurchase wherein the affiliate has posted links or their coupon code on "coupon website" are strictlyprohibited. For definition of a couponwebsite see below
- Posting coupon offers on your websitewith "reveal the coupon code" or similar phrase that stimulates visitor to click to reveala coupon code and go to the Partner's site is prohibited.
- the mobile application of the Partner Site is pre-loaded by the originalequipment manufacturer ("OEM") on the deviceor tablet; or
- the mobile application of the Partner Site is installed through a maintenance release or firmwareupdate or firmwarebased notifications sent by the OEM or the notification partner; or
- the mobile application of the Partner Site is installed from a source other than Google Play store or iOS App Store
“Prohibited Paid Search Placement” means an advertisement that you purchasedthrough bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions.“Proprietary Term” means keywords, search terms, or other identifiers that include the word “xTool”or any other trademark of xTool or its affiliates, or variations or misspellings of any of those words (e.g., "xtol", "XTool"). “Redirecting Link” means a link that sends users indirectly to the PartnerSite via an intermediate site or webpageand without requiringthe user to click on a link or take some other affirmative action on that intermediate site or webpage. “Search Engine” means Google, Yahoo, Bing, or any other search engine, portal,sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks.
7. Policies and Pricing
Customers who buy products through this Program are customers of the Partner Site with respect to all activities they undertake in connection with the Partner Site. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Partner Site will apply to those customers, and the same may be changed at any time.
8. Limited License
- Subject to the terms of this Operating Agreement and solely for the limited purposesof advertising Products on, and directing end users to, the Partner Site in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non- exclusive, royalty-free license to (a) copy and display the Content solely on your site; and (b) use only those of our trademarks and logos that we may make availableto you as part of Content (those trademarks and logos, collectively, “xTool Marks”) solely on your site and in accordance with the Affiliate ProgramTrademark Guidelines
- All licenses set forth in this Section 11 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Operating Agreement or any Operational Documentation, or otherwise upon termination of this Operating Agreement. In addition, we may terminate the license set forth in this Section 11 in whole or in part upon written notice to you. You will promptly remove from your site and delete or otherwise destroy all of the Content and xTool Marks with respect to which the license set forth in this Section 11 is terminated or as we may otherwise request from time to time.
9. Reservation of Rights;Submissions
Other than the limited licenses expressly set forth in Section 11, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Operating Agreement or the License hereunder otherwise, acquire any ownershipinterest or rights in or to, the Program, Special Links, link formats, Content, PA API, Data Feeds, Product Advertising Content, any domain name owned or operated by us, information and materials on any Partner Site or the Associates Site, our and our affiliates’ trademarks and logos (including the xTool Marks), and any other intellectual property and technology that we provide or use in connection with the Program (including any application program interfaces, software development kits, libraries, sample code, and relatedmaterials).
If you provide us or any of our affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Operating Agreement, any Content, or your participation in the Program, or if you modify any Content in any way, (collectively, “Your Submission”), you hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display,and distribute Your Submission in any manner;(b) adapt, modify,re- format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d)sublicense the foregoing rights to any other person or entity.Additionally, you herebywarrant that: (y) Your Submission is your original work, oryou obtained Your Submission in a lawful manner; and (z) our and our sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights,including any copyright rights. You agreeto provide us such assistance as we may require to document, perfect,or maintain our rights in and to Your Submission.
10. Compliance with Laws
In connection with your participation in the Program you will comply with all applicable laws of India including but not limitedto ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you.
11. Modification
We may modify any of the terms and conditions contained in this Operating Agreement (and any Operational Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Operational Documentation on the Partner Site or by sending notice of such modification to you by email to the email address then-currently associated with your Associates account (any such change by email will be effective on the date specified in such email and will in no event be less than two business days after the date the email is sent).
12. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, THE PARTNER SITE, THE xTool SITE OR THE SERVICEOFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, THE PARTNER SITE, THE xTool SITE AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS OPERATING AGREEMENT IN THE TWELVEMONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVINGRISE TO THE MOST RECENTCLAIM OF LIABILITYOCCURRED.
13. Disclaimers
THE PROGRAM, THE xTool SITE, THE PARTNER SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE PARTNER SITE, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONALDOCUMENTATION, CONTENT, xTool.COMDOMAIN NAME AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING THE xTool MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES,TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." NEITHER WE NOR ANY OF OURAFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIMALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESSFOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME IN OUR SOLE DISCRETION. NEITHER WE NOR ANYOF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED,WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER,OR WILL BE UNINTERRUPTED, ACCURATE,ERROR FREE, OR
FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORSWILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION,DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES,TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US ORFROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT,OPERATIONAL DOCUMENTATION, THE xTool SITE, OR THE AFFILIATE-PROGRAM SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS OPERATING AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISINGIN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITSOR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS,(Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.