GRINDWORX AFFILIATE AGREEMENT
Updated: January 28, 2014
1. Legal Agreement. Please read the terms of this Affiliate Agreement (“Agreement”) carefully. Your submission of an application to become a third-party affiliate under the terms of this Agreement constitutes your acceptance of the terms of this Agreement, and our later written approval of your application creates a binding legal agreement between Grindworx, LLC, a Utah limited liability company (“Grindworx”) and you (“you” and “your”). If you choose to accept these terms, you must do so as written, without modification. If you do not accept these terms, you will not be allowed the rights of an affiliate. You acknowledge and agree that Grindworx is in the business of selling knives and other products (“Products”) through retail outlets and Internet sales through www.grindworx.com (“Website”); that Internet sales may come through marketing, promotional, and advertising services of third-party affiliates; and that you desire to provide such services in accordance with the terms of this Agreement. You warrant and represent that you have the legal authority to enter into this Agreement as an individual, or on behalf of the entity for which you are acting.
2. Application. By submitting your application to become an affiliate, you agree to provide the information requested on the application form of the Website completely and accurately, and to update your information. You are responsible for keeping your information current. You are responsible for selecting and keeping confidential your user name and password. You may not share or disclose your user name and password to anyone other than Grindworx. You understand that you are responsible for all uses of the Website through your user name and password. You must notify Grindworx immediately if you know of or suspect unauthorized use of your user name and password for this Website.
3. Services. By entering into this Agreement you agree to provide the following services (“Services”) [check the box that applies]:
Option 1: At your sole expense, you shall provide marketing, promotional, and advertising services within the United States of America, by posting comments about the Products and embedding a link to the Website on a blog or other website that you create and maintain. The goal is to drive Internet traffic to the Website to increase sales of the Products. We may sometimes refer to this as Blogger Services.
Option 2: At your sole expense, you shall provide marketing, promotional, and advertising services within the United States of America, by obtaining rights from Internet search engines (such as Google) to certain search terms and create advertisements associated with such search terms that contain an embedded link to the Website. You may not bid on, and therefore will not receive any commission for sales based upon, the following search terms: grindworx, grindworx knives, grind worx, grind worx knives, grindworx coupon, grindworx coupon code, grindworx discount, grindworx discount code, and any variations of the foregoing taking into account, without limitation, capital letters, spaces, and punctuation. The goal is to drive Internet traffic to the Website to increase sales of the Products. We may sometimes refer to this as Pay-Per-Click Services.
4. Limited License. Grindworx hereby grants to you a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited license (“License”) to use Grindworx’s trademarks, service marks, logos, copyrights, Website, web banners, and other intellectual property (“Intellectual Property”), to the extent of and in the form provided to you by Grindworx. You shall display all notices for the Intellectual Property that we require. You shall not alter the Intellectual Property Grindworx provides to you, except with its prior approval. You may only use the Intellectual Property that Grindworx provides to you for the purposes expressed in this Agreement. You may also create materials, such as web banners and advertisements, by using the Intellectual Property but only with Grindworx’s prior written consent, and subject to the understanding that Grindworx shall own all right, title, and interest in and to whatever materials you create, including derivative works of the Intellectual Property. Without limiting the generality of the foregoing, any and all materials you create with the use of Intellectual Property shall be considered works made for hire and shall be and remain at all times the exclusive property of Grindworx.
5. Restrictions. You agree that the Products, Intellectual Property, and this Website contain proprietary content, components, and information that are owned by Grindworx and its licensors, and are protected by intellectual property and other laws, including patent, copyright, and trademark, and that you will not use such proprietary content, components, and information except as expressly permitted by this Agreement. Except as expressly stated in this Agreement, Grindworx does not grant you any license or ownership rights, including in the Products, Intellectual Property, or the Website and all rights not expressly granted by Grindworx to you under this Agreement are expressly reserved to Grindworx. Additionally, you may not directly or indirectly, or attempt to, copy, create derivative works of, decompile, derive the source code of, disassemble, modify, reverse engineer, the Products, Intellectual Property, or this Website, in whole or in part, except as and only to the extent any of the foregoing restrictions are prohibited by applicable law. You may not rent, lease, loan, sublicense, sell, or distribute the License or Intellectual Property, except as expressly provided in this Agreement.
6. Additional Restrictions. You agree not to use the Intellectual Property in any manner that would cause harm or embarrassment to Grindworx and its reputation and good will. Without limiting the generality of the foregoing, you shall not make any false or misleading comments or advertising concerning Grindworx or the Products, that any comments you posts about the Products and Grindworx are your opinions, and you shall not use the Intellectual Property on any blog, website, or any other media that contains or promotes pornography, offensive activities, illegal drug use, or any illegal activity. You may not use the License, Products, Intellectual Property, or the Website to: cause harm to Grindworx or any third party, including by transmitting viruses, worms, trojan horses, malware, or by hacking or intentionally overloading a network, or to abuse, defame, harass, stalk, threaten, or an illegal manner, or otherwise violate the rights of Grindworx or any third party. Grindworx reserves the right to review your advertising materials upon demand and require your immediate removal of such materials that do not conform with this Agreement.
7. Third Party Registration. As a condition of your entering into this Agreement, and to assist Grinxworx with tracking your commissions, you must register with ShareASale.com, Inc., a third-party company that licenses to Grindworx he use of sales tracking software and various services, including paying affiliates, and which operates a website at www.shareasale.com (“ShareASale”). ShareASale’s registration requirements are found at www.shareasale.com/agreement.cfm. You understand that your registration with ShareASale is an agreement between you and ShareASale, and not between you and Grindworx and that Grindworx shall not be liable to you under the ShareASale agreement. Upon your registration with ShareASale, you will be assigned a unique referral code (“Referral Code”) that will allow Grindworx to track payments due to you under this Agreement. You agree to use ShareASale at your own risk, and further agree that Grindworx shall not be liable for the acts or omissions of any third parties or their affiliates, including ShareASale.
8. Payment. For every sale of Products that come to Grindworx on the Website directly from a link from your Referral Code, Grindworx will pay you a commission of FIVE PERCENT (5%) of the advertised price, less discounts, promotions, rebates, specials, and the like. Grindworx will not pay you for clicks of the Referral Code that do not result in a sale of Products. The commission shall not apply to taxes, government charges, shipping, handling, surcharges, and other charges. The commission shall not apply towards sales that are made then later cancelled, refunded, or returned, declined credit or debit cards, sales that are determined to be unauthorized or the result of fraud or identity theft, sales that are not permitted by law, sales that cannot be fulfilled due to out-of-stock or back-order issues, replaced or repaired Products, or other reasons. Each monthGrindworx will authorize ShareASale to make payments that are due under this Agreement. You assume responsibility for updating such registration information, and Grindworx assumes no liability for delays in payment under this Agreement caused by your failure to update your registration information. Additionally, while Grindworx makes reasonable efforts to ensure its advertised prices are accurate, Grindworx reserves the right to decline an order based on an erroneous advertised price. If you receive a payment that you should not have received, Grindworx reserves the right to offset your future payments or request that you reimburse Grindworx. Grindworx reserves the right to add, remove, modify, or discontinue any Products from time to time and without prior notice in its discretion. Grindworx may, but is not obligated to, offer upgrades, updates, and improvements to the Products and Website. Grindworx reserves the right to modify the terms on the Website from time to time.
9. Taxes. Grindworx will require you to complete a United States Internal Revenue Service Form W-9 or other required form. You are responsible for computing, reporting, and paying of all applicable income, employment and other taxes in connection with payments you receive under this Agreement.
10. Termination. You may terminate this Agreement anytime by delivering written notice to Grindworx to questions@grindworx.com. Grindworx may immediately terminate this Agreement as required by law, due to your breach of any provision of this Agreement in Grindworx's determination, or no material sales (defined as less than a calendar monthly average of $500) from your Referral Code in any six month period. Termination will become effective immediately. Grindworx may also terminate this Agreement upon 30 days’ prior written notice by delivering to you an email to the last known email address you provided to Blade Play. Upon termination or expiration of this Agreement for any reason, the License shall terminate immediately and you shall immediately use using the Intellectual Property, you shall remove all Intellectual Property and Referral Codes from your blogs and websites, and you shall immediately return to Grindworx any and all copies of the Intellectual Property. All provisions of this Agreement that by their nature should survive such termination or expiration shall survive such termination or expiration, including our payment obligations to you, Intellectual Property, disclaimers, indemnification, limitations of liability, venue, choice of law, and attorneys’ fees provisions.
11. Independent Contractor. Your relationship with Grindworx is and shall be for all purposes of this Agreement as an independent contractor, and not as an employee, partner, joint venturer or agent of Grindworx. You shall have no authority or power to bind Grindworx to any obligation of any kind or incur debt on behalf of Grindworx.
12. Indemnification. You shall defend, indemnify, and hold Grindworx harmless from and against all costs, fees, expenses, and losses (including reasonable attorneys’ costs, fees, and expenses) incurred through claims, losses, liabilities, damages, and judgments arising out of your breach of this Agreement.
13. Disclaimer of Warranty. GRINDWORX'S SOLE AND EXCLUSIVE LIABILITY FOR PRODUCTS PURCHASED BY CUSTOMERS THROUGH YOUR REFERRAL CODE ARE DESCRIBED IN THIS AGREEMENT AND THE WEBSITE, AND THE MATERIALS ACCOMPANYING PRODUCTS. GRINDWORX RESERVES THE RIGHT TO MODIFY THE WEBSITE, IN ITS DISCRETION FROM TIME TO TIME. YOU ARE RESPONSIBLE FOR MONITORING SUCH WEBSITE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE LICENSE, PRODUCTS, INTELLECTUAL PROPERTY, AND REFERRAL CODE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” AND GRINDWORX MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT THERETO, AND GRINDWORX SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. GRINDWORX DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION THEREOF SHALL BE FREE OF ERROR (INCLUDING REGARDING MEDIA STREAMING, SERVICE LEVELS, DOWNLOAD SPEED, AND WI-FI, HOTSPOT, INTERNET CONNECTIVITY, OR WEBSITE ACCESSABILITY), OR THAT DEFECTS THEREIN SHALL BE CORRECTED. GRINDWORXDOES NOT MAKE ANY REPRESENTATIONS REGARDING SALES LEVELS YOU MAY ACHIEVE UNDER THIS AGREEMENT, AND DOES NOT GUARANTEE THAT YOU WILL MAKE ANY MINIMUM AMOUNT OF SALES UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL BE IN EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
14. Limitations of Liability. GRINDWORX SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GRINDWORX'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE MONTHLY AMOUNT DUE TO YOU IN THE MONTH IN WHICH A CLAIM GIVING RISE TO LIABILITY HEREUNDER OCCURS. THE PROVISIONS OF THIS SECTION SHALL BE IN EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
15. Compliance with Applicable Law. You shall comply with all applicable international, federal, state, and local laws, rules, and regulations in your use of License, Products, Intellectual Property, Referral Code, and the Website, and in your performance of your obligations under this Agreement.
16. Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without regard to any applicable choice of law or conflicts of law provisions. The parties hereto irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts of competent jurisdiction located in Salt Lake City, State of Utah, and the parties hereby waive any objection that venue in such courts is inconvenient. Neither the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) nor the Uniform Computer Information Transactions Act (“UCITA”) shall apply. In any action at law or in equity to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to collect from the non-prevailing party, in addition to any damages and injunctive relief, whether at law or in equity, all reasonable costs, fees, and expenses, including, without limitation, attorneys’ fees, court costs, and expenses, expert witness fees, deposition transcript fees, postage, long-distance telephone charges, and travel costs.
17. Complete Agreement. This Agreement contains the entire agreement of the parties and supersedes any and all other agreements, whether oral or in writing, between the parties concerning the subject matter hereof. Any modification of this Agreement shall be effective only if in a writing signed by the parties.
18. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.
19. Assignment. You may not assign or sublicense any part of this Agreement, in whole or in part, without the prior written consent of Blade Play.
