This Agreement contains the complete terms and conditions that apply to Affiliate’s participation in the Shareasale Network of The Underwear Expert, Inc. (the “Program”). Carefully read these terms and conditions, which represent a legally binding agreement between The Underwear Expert, Inc. (“we” or “Underwear Expert”) and you (“you” or “Affiliate”). As used in this Agreement, “Site” means, depending on the context, either www.underwearexpert.com or the website owned or controlled by Affiliate, on which Affiliate will place Links (as defined below) to underwearexpert.com. Affiliate acknowledges that its participation in the Program will require Affiliate to use the Shareasale Network™, and that Shareasale may require Affiliate to agree to certain terms and conditions prior to Affiliate’s use of the Shareasale Network.
1. Enrollment in the Program
Affiliate shall submit a completed Program application through the Shareasale Network to begin the enrollment process. Underwear Expert will evaluate your application and notify you if the application is accepted or rejected. Underwear Expert may reject Affiliate’s application for any reason, in Underwear Expert’s sole discretion, including if Underwear Expert determines that Affiliate’s Site is unsuitable for the Program. Unsuitable sites include, without limitation, those that contain illegal, offensive, infringing content or content that Underwear Expert otherwise deems offensive. If Affiliate is accepted into the Program, Affiliate shall notify Underwear Expert in writing of any significant changes to the content or structure of Affiliate’s Site within ten (10) days of such change(s).
2. Links
For the purposes of this Agreement, “Link(s)” means the code that Underwear Expert makes available to Affiliate that is used for linking from your Site to web pages on underwearexpert.com, and may include banners, text, search boxes, buttons, or other graphics or devices. All Links used in the Program shall be served by the Shareasale Network. Underwear Expert may, in its sole discretion, consider written requests to use other serving mechanisms, on a case by case basis. Affiliate shall not modify the Links in any way. Underwear Expert will not be responsible for errors that occur in the tracking of transactions if Affiliate has made or caused any such modification.
3. General Links to underwearexpert.com
Affiliate shall only post Links approved by Underwear Expert Approved Links will be made available to Affiliate through the Shareasale Network upon Affiliate’s acceptance into the Program. Affiliate may also post on its Site links obtained directly from e-mails and quarterly newsletter received from Underwear Expert Any deviations from the guidelines and treatment described in this Agreement must be approved in advance and in writing by Underwear Expert Underwear Expert may at any time, without prior notice, remove the Links described above, require Affiliate to remove the Links, or dynamically replace the Underwear Expert creative or text with creative or text suitable to Underwear Expert in Underwear Expert’s sole discretion.
4. E-mail Links
Affiliate may use Links within e-mails that Affiliate sends to registered users of the Affiliate Site. Use of such Links is subject to all of the requirements and restrictions respecting Links generally as set forth in this Agreement. E-mails making reference to Underwear Expert, that include Links, or that concern any other aspect of the Program, may be sent only to individuals who have elected to receive such e-mails. “Spamming,” including the sending of unsolicited electronic communications, will not be tolerated and may lead to termination of this Agreement. You will not be entitled to any Referral Fees generated through Spamming tactics. Affiliate shall comply with any and all regulations, statutes and applicable laws of the United States or any other state, country or jurisdiction related to e-mail, and/or electronic communications. It is Affiliate’s responsibility to be aware of all such regulations, statutes and laws.
5. Transaction Processing
Underwear Expert will process transactions placed by customers who follow Links from Affiliate’s Site to the Underwear Expert Site. Underwear Expert reserves the right to reject transactions that do not comply with any reasonable requirements that Underwear Expert may periodically establish. Underwear Expert will be responsible for all aspects of transactions processing and fulfillment. Among other things, Underwear Expert will prepare order forms; process payments, cancellations, and handle customer service. Underwear Expert will track transactions made with customers who purchase products using Links and generate reports summarizing this sales activity which will be available to Affiliate through the Shareasale Network. The form, content, and frequency of the reports are limited to those reports and capabilities available through the Shareasale system. Underwear Expert is not responsible for any changes that Shareasale may make in their reporting format, timing, or types of reports available to members of Shareasale and the Program. To permit accurate tracking, reporting, and fee accrual, Affiliate shall ensure that Links are properly formatted. Underwear Expert will not be responsible for improperly formatted Links.
6. Qualified Transactions
Underwear Expert will pay Referral Fees (as defined below) to Affiliate for tickets purchased in Qualified Transactions (as defined below). For the purposes of this Agreement, a “Qualified Transaction” means a transaction whereby a customer: (i) uses a Link to enter the Underwear Expert Site; (ii) purchases one or more Underwear Expert tickets using Underwear Expert’s automated purchase system; and (iii) remits full payment to Underwear Expert If a customer initially visits the Underwear Expert Site using a Link, any transaction completed by that customer on the Underwear Expert Site within the return day period specified, whether or not via a Link, will count as a Qualified Transaction if it otherwise meets the requirements of this Section and the Agreement.
Underwear Expert does not accept responsibility for customers who may delete or otherwise not accept cookies used to track return visits to the Underwear Expert Site and cannot be held to honor Referral Fees for such untracked return visits. Underwear Expert will not pay Referral Fees for any items other tickets purchased in Qualified Transactions (as defined in this Agreement). This means that Underwear Expert will not pay you for transactions that, among other things, result from a link directly to Underwearexpert.com from any Internet site other than your Site, such as from a Sponsored Link as set forth in Section 14 of this Agreement. This also means that you will not be entitled to Referral Fees for tickets sold that are ultimately returned or refunded.
7. Referral Fees
Referral Fees means the fees Underwear Expert will pay Affiliate based on the number of Qualified Transactions generated by the Affiliate Site, in accordance with the fee schedule set forth below.
Underwear Expert will pay Affiliate the appropriate fees listed in the Shareasale portal as part of a Qualified Transaction.
Referral Fees will not be paid for any Qualified Transaction during the first 48 hours a Underwear Expert ticket is available to the public through the Underwear Expert automated purchase system.
8. Fee Payment
Underwear Expert will pay Affiliate the Referral Fees on a rolling basis through the Shareasale Network, on the 20th of each month following a qualified transaction. Underwear Expert pays Shareasale for the Referral Fees earned on Qualified Transactions that were purchased during the month, less any taxes that Underwear Expert is required by law to withhold. Shareasale disburses the Affiliate’s commission payments. Affiliate may track the number of Qualified Transactions and associate Referral Fees through Shareasale’s Affiliate Reporting interface. Underwear Expert does not make any guarantee of a minimum amount of business or that Affiliate will earn any amount of Referral Fees under this Agreement.
9. Policies and Pricing
Customers who buy products through the Program will be deemed to be customers of Underwear Expert Accordingly, all Underwearexpert.com rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to such customers with respect to their transactions at Underwearexpert.com. We may change our policies and operating procedures at any time consistent with applicable laws. Since prices and availability may vary from time to time, Affiliate may not display Underwear Expert price information on Affiliate’s Site. Underwear Expert will use commercially reasonable efforts to present current and accurate information, but cannot guarantee the availability or price of any particular event.
10. Restriction on Client-Owned Events
While Underwear Expert clients may enroll in the Program, they may not earn commissions on sales of tickets to their own events. Attempts to violate this policy constitute a breach of this Agreement and may subject the affiliate to termination.
11. Promotion of Affiliation with Underwear Expert
Affiliate may not in any manner misrepresent or embellish the relationship between the parties. While Underwear Expert requests that Affiliate identify itself on its Site as a member of the Underwear Expert Affiliate Network, Affiliate shall not otherwise engage in any promotions which name Underwear Expert or imply any relationship or affiliation between the parties including, but not limited to, press releases, marketing materials, offline print advertising or marketing campaigns, media kits, screen shots, graphics altered for co-branding or any other format or media. Any such promotion will be considered grounds for immediate termination of this Agreement and may invoke further legal action.
12. Limited License for the term of this Agreement
Underwear Expert hereby grants to Affiliate a limited, non-exclusive, non-transferable, revocable license to use and display the Links and to access the Underwear Expert Site through the Links solely in accordance with the terms of this Agreement, and for the term of this Agreement.
13. Ownership
As between Affiliate and Underwear Expert, Underwear Expert shall own all right, title and interest, including all Intellectual Property Rights, in and to the Underwear Expert Site, the Program and the Links. For the purposes of this Agreement “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction.
14. Underwear Expert’s Marketing and Publicity
Underwear Expert may publicly refer to you, orally or in writing, as an Affiliate and we may publish your name and/or logo (with or without a link to your Application) on our Website, in press releases, and in promotional materials without your prior consent.
15. Responsibility for Affiliate’s Site
Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate’s Site and for all content that appears on such Site. Such responsibility includes, without limitation: (i) the technical operation of Affiliate’s Site and all related equipment; (ii) the accuracy, timeliness and appropriateness of content posted on Affiliate’s Site; (iii) ensuring that posted materials do not violate or infringe upon the rights of any third party; (iv) ensuring that posted content is not libelous or otherwise illegal. Affiliate shall not use any Underwear Expert proprietary materials in a manner that is disparaging or that otherwise portrays Underwear Expert in a negative light.
16. Sponsored Links
Affiliate shall not use, procure, bid on, or otherwise arrange for a Sponsored Link (defined below) on any Internet search engine, portal, sponsored advertising service or other search or referral service (a “Service”) which Sponsored Link uses or includes the terms “Underwear Expert,” “Underwearexpert.com,” or any other trademarks, trade names, service marks, corporate names, or other similar general intellectual property right owned or licensed by Underwear Expert or any parent, subsidiary, or other affiliate of Underwear Expert.
17. Indemnity
Affiliate shall defend, indemnify and hold Underwear Expert harmless from all claims, damages, and expenses (including, without limitation, reasonable attorneys’ fees) relating to: (i) the development, operation, maintenance, and content of Affiliate’s Site; or (ii) breach of this Agreement.
18. Term and Termination
Affiliate’s acceptance of the terms and conditions of this Agreement shall be evidenced by Affiliate’s submission of a completed Program application, provided, however, that this Agreement shall not be effective unless and until Underwear Expert has accepted Affiliate into the Program. The term of this Agreement will begin upon Underwear Expert’s acceptance of Affiliate into the Program and will end when terminated by either party (the “Term”). Either party may terminate this Agreement at any time, with or without cause, by giving the other party prior written notice. Upon termination, Affiliate shall promptly remove all Links and Program-related content from Affiliate’s Site. Affiliate is only eligible to earn Referral Fees on Qualified Transactions occurring during the Term (including all steps required for a transaction to be a Qualified Transaction under this Agreement. In the event that an overpayment is made by Underwear Expert, Affiliate agrees to promptly remit such excess payment upon notification by Underwear Expert Underwear Expert may withhold Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid. The definitions contained in this Agreement and sections 12 through 22, shall survive the termination of this Agreement, along with any other provisions that by their express terms do, or by their nature should, survive.
19. Modification
Underwear Expert may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Underwear Expert Site or on the Shareasale Network. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this agreement. Affiliate’s continued participation in the Program following our posting of a change notice or new agreement on the Underwear Expert Site or the Shareasale site and/or sending you the change notice via e-mail will constitute binding acceptance of the change.
20. Relationship of Parties
The parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on our behalf. Affiliate will not make any statement, whether on the Affiliate Site or otherwise, that reasonably would contradict anything in this Section.
21. Limitation of Liability
Underwear Expert SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER ARISING, AND REGARDLESS OF THE THEORY OF RECOVERY). Underwear Expert’S TOTAL LIABILITY TO AFFILIATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE GREATER OF FIVE HUNDRED DOLLARS ($500) OR THE AMOUNTS PAID BY Underwear Expert TO AFFILIATE DURING THE TWELVE (12) MONTHS IMMEDIATELY BEFORE THE FIRST REOCCURRENCE OF EVENTS GIVING RISE TO THE IMPOSITION OF LIABILITY UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS, SO THEY MAY NOT APPLY TO AFFILIATE.
22. Disclaimers
Underwear Expert makes no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, Underwear Expert makes no representation that the operation of the Underwear Expert Site will be uninterrupted or error-free, and we will not be liable for any such interruptions or errors.
23. Independent Investigation
Affiliate acknowledges that it has read this Agreement and agrees to all its terms and conditions. Affiliate understands that Underwear Expert may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with Affiliate’s site. Affiliate has independently evaluated the desirability of participating in the Program and is not relying on any representations or statements other than as set forth in this Agreement.
24. Miscellaneous
All rights not expressly granted herein by Underwear Expert to Affiliate are reserved by Underwear Expert There are no implied rights.
Any notice provided for or permitted under this Agreement will be treated as having been given when (i) delivered personally, (ii) sent by confirmed telex or fax; (iii) sent by nationally recognized commercial overnight courier with written verification or receipt; or (iv) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the address set forth on Affiliates applicable registration form, in the case of Affiliate, and the address set forth below for Underwear Expert This provision shall not apply to Section 17, “Modifications.”
The Underwear Expert, Inc.
142 N. 6th Street, Suite 4B
Brooklyn, NY 11249
Except as set forth in Section 17, “Modifications,” this Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of Underwear Expert No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
This Agreement shall be governed by and construed under the laws of the State of New York, without regards to its conflict of laws principals.
Underwear Expert may assign this Agreement without restriction, provided that assignee agrees in writing to be bound by the terms of this Agreement. Affiliate may not assign this Agreement or any rights, duties, or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Underwear Expert and any attempt to do so without such consent will be void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole.
Except as may be otherwise specifically provided in this Agreement, this Agreement is not intended to and shall not confer upon any other person or business entity, other than the parties hereto, any rights or remedies with respect to the subject matter hereof.
This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations and agreement, whether written or oral.
