Aday
Program Terms
AFFILIATE PROGRAM AGREEMENT
This Affiliate Program Agreement (the “Agreement”), is by and between the affiliate (the “Recipient”) and Ecstase Limited, a private limited company organized under the laws of England and doing business as “ADAY” (the “Owner”).
By submitting the online application you are agreeing that you have read and understand the terms and conditions of this agreement and that you agree to be legally responsible for each and every term and condition.
1. DEFINITIONS
‘Affiliate’ means the Recipient, to the extent (a) the Owner has accepted such Person as a member of its Affiliate Program, (b) such Person is a member of the Affiliate Program and (c) such Person has not withdrawn itself or been terminated by the Owner from the Affiliate Program, in each case, pursuant to this Agreement.
“Affiliate Program Application” shall have the meaning set forth in Section 2 of this Agreement.
“Merchandise” means all products, merchandise and stock that is offered by the Owner for sale through the Owner’s Website.
“Owner” means the sponsor of the Affiliate Program.
“Owner’s Website” refers to the website that the Owner maintains at www.thisisaday.com.
“Person” means any individual, limited liability company, limited liability partnership, corporation, partnership, incorporated or unincorporated association, sole proprietorship, joint stock company, or any other legal or commercial entity.
“Recipient” means the Person specified in the first paragraph of this Agreement.
“Recipient’s Website” means the website specified in the Recipient’s Affiliate Program Application on which the Recipient agrees to place a link to the Owner’s Website. For the avoidance of doubt, unless otherwise agreed to by the Owner in writing, the Recipient shall only be permitted to specify one website in its Affiliate Program Application.
Please note that throughout this Agreement, the terms "we," "us," and "our" refer to the Owner, and the terms "you," "your," and "yours" refer to the Affiliate.
2. AFFILIATE PROGRAM REGISTRATION
To begin the enrollment process, you will complete and submit the online application for the Affiliate Program (the “Affiliate Program Application”) through the ShareASale.com server located at www.shareasale.com. Notwithstanding that we automatically approve Affiliate Program Applications, we reserve the right to re-evaluate your Affiliate Program Application at any time.
a. Approval or rejection of Affiliate Program Application.
The Owner reserves the right to approve or reject ANY Affiliate Program Application in its sole and absolute discretion. The Recipient will have no legal recourse against the Owner for the rejection of the Recipient Affiliate Program Application.
b. Reasons for rejection.
Without limiting Owner’s right to reject any Affiliate Program Application (or Recipient’s participation in the Affiliate Program) for any reason whatsoever in the Owner’s absolute discretion, the Owner will reject the Recipient’s Affiliate Program Application if:
i. the Recipient’s Affiliate Program Application is incomplete, inaccurate or misstates or omits any information;
ii. the Recipient’s Website contains images or content that is not acceptable to Owner or is inconsistent with the image that the Owner wishes to create in association with the Recipient’s Website;
iii. the Recipient’s Website contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, or racially, ethnically or gender insensitive or objectionable materials, or depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability or religious preference; or
iv. the Recipient’s Website contains any material that violates or appears to the Owner to violate any patent, trademark, copyright, trade secret, confidential information or other property rights of any other party.
c. Termination after acceptance.
Even after the Owner has accepted the Recipient as an Affiliate, the Owner reserves the absolute right to rescind or terminate the Recipient’s status as an Affiliate and its participation in the Affiliate Program for any reason in its sole and absolute discretion, including but not limited to:
i. the reasons set forth above in Section 2.b,
ii. The Recipient’s violation of any of the provisions of this Agreement [or the terms and conditions of the Affiliate Program]
iii. fraud, negligence, willful misconduct or violation of law by the Recipient.
d. Financial responsibilities.
The Recipient will be fully responsible for all costs and expenses of maintaining and marketing its participation in the Affiliate Program.
3. RESPONSIBILITY TO LINK TO THE OWNER’S WEBSITE
a. As an Affiliate, the Recipient agrees, and shall be obligated, to place hypertext or other electronic links on the Recipient’s Website directing users and other visitors to the Owner’s Website. The Owner will make available to the Recipient product links, text links, and banner advertisements to be placed on the Recipient’s Website that will direct users and other visitors to the Owner’s Website via hypertext or other electronic link. During the term of the Recipient’s active participation as an Affiliate, the Recipient is allowed to utilize the Owner’s logo, trademarks and product images, provided to the Recipient on the ShareASale.com server located at www.shareasale.com that the Recipient designates in the Recipient’s Affiliate Program Application.
b. The Owner makes available to its Affiliates, links, banners, and other information advertising its site to be used subject to the terms of this Agreement. These product links, text links, and banner advertisements will consist of, feature, contain and/or include the Owner’s trademarks and other proprietary intellectual property. The Recipient may display these product links, text links, and banner advertisements on the Recipient’s Website for the purpose of promoting the Owner’s Website and participating in this Affiliate Program. If the Recipient discontinues its participation in the Affiliate Program or if the Recipient’s participation is terminated for any reason, the Recipient will immediately cease using these product links, text links, and banner advertisements and will delete all such materials from the Recipient’s Website. The Recipient must obtain the Owner’s prior written approval (which may be by provided email) for all links to the Owner’s Website that the Recipient places or otherwise includes on Recipient’s Website. The Recipient will cooperate with the Owner in the establishment and placement of any links to the owner’s website on the Recipient’s Website.
c. This Agreement shall only permit the Affiliate to place links to the Owner’s Website and to include the Owner’s IP on the Recipient’s Website specified in the Recipient’s Affiliate Program Application. Any additional websites or entities whether controlled by, under common control with or affiliated with the Affiliate shall require the submission of a separate Affiliate Program Application and approval thereupon by the Owner.
d. The Recipient will not modify the product links, text links, and banner advertisements that the Owner provided to the Recipient. The Recipient consents to the Owner’s monitoring of the Recipient’s Website to determine Recipient’s compliance with this Agreement.
e. The Recipient consents to the Owner including information relative to traffic from the Recipient’s Website in the Owner reports on the ShareASale.com server located at www.shareasale.com. This information may be provided to outside parties the Owner.
4. SALES; CUSTOMER SERVICE
a. The Owner will be responsible for handling all customer inquiries, product orders, customer billing and collection, product shipment relative to customers that enter the Owner’s Website through the links from the Recipient’s Website. Owner shall have sole and absolute discretion to determine the pricing of all of the Owner’s products and the Owner reserves the right to change the pricing structure, terminate any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to the Recipient or any users or visitors accessing the Owner’s Website (whether via a link on the Recipient’s Website or otherwise).
b. The Owner’s sole responsibilities to the Recipient with respect to sales of the Owner’s products or services shall be to:
i. track sales of the Owner’s products or services via the Owner’s Website that are generated through the selection of a link to the Owner’s Website placed on the Recipient’s Website (“Affiliate Generated Sales”) and
ii. generate and provide reports to the Recipient of the commissions due to the Recipient as a result of any Affiliate Generated Sales. All such reports shall be unaudited. The Owner shall not be obligated hereunder or otherwise to provide the Recipient with any specific information relating to any customer (including, but not limited to, such customer’s name, address or other personal or personally identifiable information), regardless of whether any such customer accessed the Owner’s Website through a link placed on the Recipient’s Website.
c. The Owner is not responsible for the failure to assign any sale or commissions to the Recipient if the
same results from the improper formatting of the link from the Recipient’s Website. The Recipient shall assure at all times that all links to the Owner’s Website placed on the Recipient’s Website are appropriately formatted and shall report any problems that the Recipient may have with the same to the Owner immediately.
5. COMPENSATION
The Owner uses a third party to handle all of the tracking of sales and payment of affiliate commissions. The third party is the ShareASale.com affiliate network. Kindly review the network’s payment terms and conditions.
6. TRADEMARKS AND COPYRIGHTS
a. The Recipient grants to the Owner a non-exclusive right and license to use the Recipient’s trademarks, trade names, service marks, business names, web page titles, slogans, logos, and copyrighted materials for the purposes of promoting, advertising, announcing, or marketing the Recipient participation in the Owner Affiliate Program. The Recipient represents and warrants to the Owner that no other party has any rights in and to any of these materials and that these materials do not infringe upon or otherwise interfere with the rights of any other party. The Recipient represents and warrants to be the absolute, sole and exclusive owner of all such materials and the owner of all trademark rights, copyrights, and other proprietary rights in and to the same. The Recipient represents to have the right, power, and authority to license said materials to the Owner as aforesaid and that the Recipient is not under any legal or contractually limitation on the right to so license these materials. The Owner has no obligation to announce, advertise, market, or promote the Recipient participation in the Owner Affiliate Program, but reserves the right to do the same at its sole discretion.
b. The Recipient will have a non-exclusive, temporary license to use the trademarks, logos, and copyrighted material that the Owner provided to the Recipient for use solely on the Recipient’s Website. The Recipient may only use the images that the Owner specifically makes available on the ShareASale.com affiliate network that are specifically designated as approved images for the Affiliate. The Recipient may not distribute, reproduce, modify, amend, these trademarks, logos, and copyrighted material in any way. The Recipient may use these trademarks, logos, and copyrighted material only for the purposes of promoting the Owner’s Website and the Owner’s products on the Recipient’s Website in compliance with the terms of this Agreement.
c. The Recipient will only use the trademarks, logos, and copyrighted material in the form, size, content, and appearance that the Owner provided them to the Recipient. The Recipient is not permitted to modify the trademarks, logos, and copyrighted material. Trademarks, logos, and copyrighted material may only be used if they contain a hypertext link to the Owner’s Website. This license to use trademarks, logos, and copyrighted material shall immediately terminate upon the termination from the Affiliate Program.
d. The Recipient agrees that the Owner retains all right, title and interest in and to all such trademarks, logos, and copyrighted material. The Owner will retain all goodwill and other value associated with any of these trademarks, logos, and copyrighted material. The Recipient will not gain any trademark, copyright or other proprietary rights to such materials. The Recipient agrees not to take any action that is contrary to or inconsistent with the Owner’s rights to these materials trademarks, logos, and copyrighted material. The Recipient will not use these trademarks, logos, and copyrighted material in any way that is damaging, defamatory, disparaging, derogatory, harmful or negative to the Owner or that paints the Owner in a false, misleading, inaccurate or negative light. The Owner may revoke the limited license granted hereunder at any time in writing to the Recipient. Upon termination or revocation, the Recipient will immediately cease from using any and all of the trademarks, logos, and copyrighted material.
e. The Recipient is not permitted to use in any form any of the Owner’s other proprietary materials, including but not limited to trademarks, copyrights, logos, copy, text, and any other materials or property that are the property of, are licensed or otherwise granted or belong to, the Owner or to any other party, regardless of whether or not they appear on the Owner’s Website.
7. PROMOTION RESTRICTIONS
a. The Recipient is free to promote the Recipient’s Website, provided that any promotion which mentions the Owner could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by the Owner. For example, advertising commonly referred to as "spamming" is unacceptable and could cause damage. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, the Recipient may not advertise in any way that effectively conceals or misrepresents its identity, domain name, or return email address. The Recipient may use mailings to customers to promote the Owner so long as the person is already a customer or subscriber of the services or website, and has the option to remove themselves from future mailings. At all times, the Recipient must clearly represent yourself and your websites as independent from the Owner.
b. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as ADAY, thisisADAY, www.thisisaday.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords should not direct the traffic from such campaigns to their own website prior to re-directing it to the owner’s. Such behavior will be considered trademark violators, and will be banned from the Affiliate Program. The Owner will contact the affiliate prior to 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. RESPONSIBILITIES
The Recipient is responsible for all matters pertaining to the Recipient’s Website including its development, maintenance, operation and placing links to the Owner’s Website on the Recipient’s Website in compliance with the terms of the Affiliate Program. The Recipient is completely responsible for all items that appear on the Recipient’s Website and assuring that such items do not infringe upon or violate the rights of any other party. The Owner is not responsible for any matter pertaining to the Recipient’s Website or the content thereof and the Recipient holds the Owner harmless and indemnifies the Owner from any and all claims, suits, threats, demands, liabilities, actions, causes of action related in any way to the Recipient’s Website and business. Such indemnity includes the Owner’s costs and attorney fees in defending any such matter. The Recipient represents and warrants to the Owner that the Recipient’s Website does not and will not contain any materials that are illegal and that the Recipient’s Website is not operated for an illegal purpose or in an illegal manner.
9. REPRESENTATIONS AND WARRANTIES
The Recipient hereby represents and warrants to the Owner to have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry of this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. The Recipient’s entry of this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court or administrative order.
10. TERM
The effectiveness of this Agreement shall not commence until the Recipient Affiliate Program Application is accepted by the Owner. The effectiveness hereof and binding effect shall occur upon the Owner’s acceptance of the Recipient’s Affiliate Program Application. This Agreement shall remain in full force and effect until terminated by the Recipient or by the Owner. Either the Owner or the Recipient may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via ShareASale.com server.
11. TERMINATION
a. The Recipient will forfeit all right to receive past commissions that may have accrued to the Recipient if this Agreement is terminated as a result of the Recipient’s failure to comply with the terms of this Agreement or any policies and procedures of Affiliate Program that may be established and amended by the Owner in its discretion.
b. If this Agreement is terminated for any other reason other than as set forth in Section 11.a, the Recipient will have a right to receive its accrued commissions through the effective date of termination. The Owner has the right to withhold final commission payments for a sufficient period of time in order to assure that the amount paid to the Recipient is accurate and not subject to later adjustment for returns or any other reason. If, following final payment, the Owner determines that the amount of commissions that Owner paid the Recipient was too high as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from the Recipient to the Owner and the Owner shall have all legal right to receive a refund of such overpaid commission from the Recipient.
12. MODIFICATIONS
The Owner reserves the right in its sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement upon notice to the Recipient. Notice of any changes may be given via ShareASale.com server. The Recipient may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to the Recipient and such termination shall be the Recipient’s sole and exclusive remedy. In the event that the Recipient continues to participate in the Affiliate Program following such modifications, the Recipient will be deemed by the Recipient’s continued participation to accept any and all such changes.
13. LIABILITIES
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 THE OWNER 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 TO YOU UNDER THIS AGREEMENT.
14. CONFIDENTIALITY
In the event that any information is disclosed to the Recipient through the Recipient participation in the Affiliate Program related in any way to the Owner company and business which the Owner deem to be confidential and proprietary, the Recipient agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Recipient own purposes. Confidential information will include any information regarding the Owner changes or modifications to this Agreement or this Affiliate Program or any special treatment that the Recipient may receive. Confidential information shall also include any and all information related to the Owner’s business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which the Owner considers to be confidential and proprietary.
15. INDEMNIFICATION
The Recipient hereby indemnifies and holds the Owner, and all of the Owner’s stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Owner may incur and which are based in whole or in part upon the Recipient’s participation in the Affiliate Program, any claims that any of the Recipient’s trademarks and other proprietary material infringe upon the rights of any other party, the Recipient’s breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Recipient’s use, operation or the content of the Recipient’s Website.
16. GOVERNING LAW; JURISDICTION
a. This Agreement is governed by and shall be construed in accordance with the laws of the State of New York, United States of America, without regard to its conflict of law principles.
b. With respect to any suit, action or proceeding arising out of or relating to this Agreement, each party hereto irrevocably and unconditionally submits, for itself and its property and assets, to the exclusive jurisdiction of the Supreme Court of the State of New York and of the United States District Court of the Southern District of New York, in each case sitting in New York County, and any appellate court from any thereof.
This Affiliate Program Agreement (the “Agreement”), is by and between the affiliate (the “Recipient”) and Ecstase Limited, a private limited company organized under the laws of England and doing business as “ADAY” (the “Owner”).
By submitting the online application you are agreeing that you have read and understand the terms and conditions of this agreement and that you agree to be legally responsible for each and every term and condition.
1. DEFINITIONS
‘Affiliate’ means the Recipient, to the extent (a) the Owner has accepted such Person as a member of its Affiliate Program, (b) such Person is a member of the Affiliate Program and (c) such Person has not withdrawn itself or been terminated by the Owner from the Affiliate Program, in each case, pursuant to this Agreement.
“Affiliate Program Application” shall have the meaning set forth in Section 2 of this Agreement.
“Merchandise” means all products, merchandise and stock that is offered by the Owner for sale through the Owner’s Website.
“Owner” means the sponsor of the Affiliate Program.
“Owner’s Website” refers to the website that the Owner maintains at www.thisisaday.com.
“Person” means any individual, limited liability company, limited liability partnership, corporation, partnership, incorporated or unincorporated association, sole proprietorship, joint stock company, or any other legal or commercial entity.
“Recipient” means the Person specified in the first paragraph of this Agreement.
“Recipient’s Website” means the website specified in the Recipient’s Affiliate Program Application on which the Recipient agrees to place a link to the Owner’s Website. For the avoidance of doubt, unless otherwise agreed to by the Owner in writing, the Recipient shall only be permitted to specify one website in its Affiliate Program Application.
Please note that throughout this Agreement, the terms "we," "us," and "our" refer to the Owner, and the terms "you," "your," and "yours" refer to the Affiliate.
2. AFFILIATE PROGRAM REGISTRATION
To begin the enrollment process, you will complete and submit the online application for the Affiliate Program (the “Affiliate Program Application”) through the ShareASale.com server located at www.shareasale.com. Notwithstanding that we automatically approve Affiliate Program Applications, we reserve the right to re-evaluate your Affiliate Program Application at any time.
a. Approval or rejection of Affiliate Program Application.
The Owner reserves the right to approve or reject ANY Affiliate Program Application in its sole and absolute discretion. The Recipient will have no legal recourse against the Owner for the rejection of the Recipient Affiliate Program Application.
b. Reasons for rejection.
Without limiting Owner’s right to reject any Affiliate Program Application (or Recipient’s participation in the Affiliate Program) for any reason whatsoever in the Owner’s absolute discretion, the Owner will reject the Recipient’s Affiliate Program Application if:
i. the Recipient’s Affiliate Program Application is incomplete, inaccurate or misstates or omits any information;
ii. the Recipient’s Website contains images or content that is not acceptable to Owner or is inconsistent with the image that the Owner wishes to create in association with the Recipient’s Website;
iii. the Recipient’s Website contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, or racially, ethnically or gender insensitive or objectionable materials, or depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability or religious preference; or
iv. the Recipient’s Website contains any material that violates or appears to the Owner to violate any patent, trademark, copyright, trade secret, confidential information or other property rights of any other party.
c. Termination after acceptance.
Even after the Owner has accepted the Recipient as an Affiliate, the Owner reserves the absolute right to rescind or terminate the Recipient’s status as an Affiliate and its participation in the Affiliate Program for any reason in its sole and absolute discretion, including but not limited to:
i. the reasons set forth above in Section 2.b,
ii. The Recipient’s violation of any of the provisions of this Agreement [or the terms and conditions of the Affiliate Program]
iii. fraud, negligence, willful misconduct or violation of law by the Recipient.
d. Financial responsibilities.
The Recipient will be fully responsible for all costs and expenses of maintaining and marketing its participation in the Affiliate Program.
3. RESPONSIBILITY TO LINK TO THE OWNER’S WEBSITE
a. As an Affiliate, the Recipient agrees, and shall be obligated, to place hypertext or other electronic links on the Recipient’s Website directing users and other visitors to the Owner’s Website. The Owner will make available to the Recipient product links, text links, and banner advertisements to be placed on the Recipient’s Website that will direct users and other visitors to the Owner’s Website via hypertext or other electronic link. During the term of the Recipient’s active participation as an Affiliate, the Recipient is allowed to utilize the Owner’s logo, trademarks and product images, provided to the Recipient on the ShareASale.com server located at www.shareasale.com that the Recipient designates in the Recipient’s Affiliate Program Application.
b. The Owner makes available to its Affiliates, links, banners, and other information advertising its site to be used subject to the terms of this Agreement. These product links, text links, and banner advertisements will consist of, feature, contain and/or include the Owner’s trademarks and other proprietary intellectual property. The Recipient may display these product links, text links, and banner advertisements on the Recipient’s Website for the purpose of promoting the Owner’s Website and participating in this Affiliate Program. If the Recipient discontinues its participation in the Affiliate Program or if the Recipient’s participation is terminated for any reason, the Recipient will immediately cease using these product links, text links, and banner advertisements and will delete all such materials from the Recipient’s Website. The Recipient must obtain the Owner’s prior written approval (which may be by provided email) for all links to the Owner’s Website that the Recipient places or otherwise includes on Recipient’s Website. The Recipient will cooperate with the Owner in the establishment and placement of any links to the owner’s website on the Recipient’s Website.
c. This Agreement shall only permit the Affiliate to place links to the Owner’s Website and to include the Owner’s IP on the Recipient’s Website specified in the Recipient’s Affiliate Program Application. Any additional websites or entities whether controlled by, under common control with or affiliated with the Affiliate shall require the submission of a separate Affiliate Program Application and approval thereupon by the Owner.
d. The Recipient will not modify the product links, text links, and banner advertisements that the Owner provided to the Recipient. The Recipient consents to the Owner’s monitoring of the Recipient’s Website to determine Recipient’s compliance with this Agreement.
e. The Recipient consents to the Owner including information relative to traffic from the Recipient’s Website in the Owner reports on the ShareASale.com server located at www.shareasale.com. This information may be provided to outside parties the Owner.
4. SALES; CUSTOMER SERVICE
a. The Owner will be responsible for handling all customer inquiries, product orders, customer billing and collection, product shipment relative to customers that enter the Owner’s Website through the links from the Recipient’s Website. Owner shall have sole and absolute discretion to determine the pricing of all of the Owner’s products and the Owner reserves the right to change the pricing structure, terminate any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to the Recipient or any users or visitors accessing the Owner’s Website (whether via a link on the Recipient’s Website or otherwise).
b. The Owner’s sole responsibilities to the Recipient with respect to sales of the Owner’s products or services shall be to:
i. track sales of the Owner’s products or services via the Owner’s Website that are generated through the selection of a link to the Owner’s Website placed on the Recipient’s Website (“Affiliate Generated Sales”) and
ii. generate and provide reports to the Recipient of the commissions due to the Recipient as a result of any Affiliate Generated Sales. All such reports shall be unaudited. The Owner shall not be obligated hereunder or otherwise to provide the Recipient with any specific information relating to any customer (including, but not limited to, such customer’s name, address or other personal or personally identifiable information), regardless of whether any such customer accessed the Owner’s Website through a link placed on the Recipient’s Website.
c. The Owner is not responsible for the failure to assign any sale or commissions to the Recipient if the
same results from the improper formatting of the link from the Recipient’s Website. The Recipient shall assure at all times that all links to the Owner’s Website placed on the Recipient’s Website are appropriately formatted and shall report any problems that the Recipient may have with the same to the Owner immediately.
5. COMPENSATION
The Owner uses a third party to handle all of the tracking of sales and payment of affiliate commissions. The third party is the ShareASale.com affiliate network. Kindly review the network’s payment terms and conditions.
6. TRADEMARKS AND COPYRIGHTS
a. The Recipient grants to the Owner a non-exclusive right and license to use the Recipient’s trademarks, trade names, service marks, business names, web page titles, slogans, logos, and copyrighted materials for the purposes of promoting, advertising, announcing, or marketing the Recipient participation in the Owner Affiliate Program. The Recipient represents and warrants to the Owner that no other party has any rights in and to any of these materials and that these materials do not infringe upon or otherwise interfere with the rights of any other party. The Recipient represents and warrants to be the absolute, sole and exclusive owner of all such materials and the owner of all trademark rights, copyrights, and other proprietary rights in and to the same. The Recipient represents to have the right, power, and authority to license said materials to the Owner as aforesaid and that the Recipient is not under any legal or contractually limitation on the right to so license these materials. The Owner has no obligation to announce, advertise, market, or promote the Recipient participation in the Owner Affiliate Program, but reserves the right to do the same at its sole discretion.
b. The Recipient will have a non-exclusive, temporary license to use the trademarks, logos, and copyrighted material that the Owner provided to the Recipient for use solely on the Recipient’s Website. The Recipient may only use the images that the Owner specifically makes available on the ShareASale.com affiliate network that are specifically designated as approved images for the Affiliate. The Recipient may not distribute, reproduce, modify, amend, these trademarks, logos, and copyrighted material in any way. The Recipient may use these trademarks, logos, and copyrighted material only for the purposes of promoting the Owner’s Website and the Owner’s products on the Recipient’s Website in compliance with the terms of this Agreement.
c. The Recipient will only use the trademarks, logos, and copyrighted material in the form, size, content, and appearance that the Owner provided them to the Recipient. The Recipient is not permitted to modify the trademarks, logos, and copyrighted material. Trademarks, logos, and copyrighted material may only be used if they contain a hypertext link to the Owner’s Website. This license to use trademarks, logos, and copyrighted material shall immediately terminate upon the termination from the Affiliate Program.
d. The Recipient agrees that the Owner retains all right, title and interest in and to all such trademarks, logos, and copyrighted material. The Owner will retain all goodwill and other value associated with any of these trademarks, logos, and copyrighted material. The Recipient will not gain any trademark, copyright or other proprietary rights to such materials. The Recipient agrees not to take any action that is contrary to or inconsistent with the Owner’s rights to these materials trademarks, logos, and copyrighted material. The Recipient will not use these trademarks, logos, and copyrighted material in any way that is damaging, defamatory, disparaging, derogatory, harmful or negative to the Owner or that paints the Owner in a false, misleading, inaccurate or negative light. The Owner may revoke the limited license granted hereunder at any time in writing to the Recipient. Upon termination or revocation, the Recipient will immediately cease from using any and all of the trademarks, logos, and copyrighted material.
e. The Recipient is not permitted to use in any form any of the Owner’s other proprietary materials, including but not limited to trademarks, copyrights, logos, copy, text, and any other materials or property that are the property of, are licensed or otherwise granted or belong to, the Owner or to any other party, regardless of whether or not they appear on the Owner’s Website.
7. PROMOTION RESTRICTIONS
a. The Recipient is free to promote the Recipient’s Website, provided that any promotion which mentions the Owner could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by the Owner. For example, advertising commonly referred to as "spamming" is unacceptable and could cause damage. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, the Recipient may not advertise in any way that effectively conceals or misrepresents its identity, domain name, or return email address. The Recipient may use mailings to customers to promote the Owner so long as the person is already a customer or subscriber of the services or website, and has the option to remove themselves from future mailings. At all times, the Recipient must clearly represent yourself and your websites as independent from the Owner.
b. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as ADAY, thisisADAY, www.thisisaday.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords should not direct the traffic from such campaigns to their own website prior to re-directing it to the owner’s. Such behavior will be considered trademark violators, and will be banned from the Affiliate Program. The Owner will contact the affiliate prior to 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. RESPONSIBILITIES
The Recipient is responsible for all matters pertaining to the Recipient’s Website including its development, maintenance, operation and placing links to the Owner’s Website on the Recipient’s Website in compliance with the terms of the Affiliate Program. The Recipient is completely responsible for all items that appear on the Recipient’s Website and assuring that such items do not infringe upon or violate the rights of any other party. The Owner is not responsible for any matter pertaining to the Recipient’s Website or the content thereof and the Recipient holds the Owner harmless and indemnifies the Owner from any and all claims, suits, threats, demands, liabilities, actions, causes of action related in any way to the Recipient’s Website and business. Such indemnity includes the Owner’s costs and attorney fees in defending any such matter. The Recipient represents and warrants to the Owner that the Recipient’s Website does not and will not contain any materials that are illegal and that the Recipient’s Website is not operated for an illegal purpose or in an illegal manner.
9. REPRESENTATIONS AND WARRANTIES
The Recipient hereby represents and warrants to the Owner to have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry of this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. The Recipient’s entry of this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court or administrative order.
10. TERM
The effectiveness of this Agreement shall not commence until the Recipient Affiliate Program Application is accepted by the Owner. The effectiveness hereof and binding effect shall occur upon the Owner’s acceptance of the Recipient’s Affiliate Program Application. This Agreement shall remain in full force and effect until terminated by the Recipient or by the Owner. Either the Owner or the Recipient may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via ShareASale.com server.
11. TERMINATION
a. The Recipient will forfeit all right to receive past commissions that may have accrued to the Recipient if this Agreement is terminated as a result of the Recipient’s failure to comply with the terms of this Agreement or any policies and procedures of Affiliate Program that may be established and amended by the Owner in its discretion.
b. If this Agreement is terminated for any other reason other than as set forth in Section 11.a, the Recipient will have a right to receive its accrued commissions through the effective date of termination. The Owner has the right to withhold final commission payments for a sufficient period of time in order to assure that the amount paid to the Recipient is accurate and not subject to later adjustment for returns or any other reason. If, following final payment, the Owner determines that the amount of commissions that Owner paid the Recipient was too high as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from the Recipient to the Owner and the Owner shall have all legal right to receive a refund of such overpaid commission from the Recipient.
12. MODIFICATIONS
The Owner reserves the right in its sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement upon notice to the Recipient. Notice of any changes may be given via ShareASale.com server. The Recipient may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to the Recipient and such termination shall be the Recipient’s sole and exclusive remedy. In the event that the Recipient continues to participate in the Affiliate Program following such modifications, the Recipient will be deemed by the Recipient’s continued participation to accept any and all such changes.
13. LIABILITIES
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 THE OWNER 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 TO YOU UNDER THIS AGREEMENT.
14. CONFIDENTIALITY
In the event that any information is disclosed to the Recipient through the Recipient participation in the Affiliate Program related in any way to the Owner company and business which the Owner deem to be confidential and proprietary, the Recipient agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Recipient own purposes. Confidential information will include any information regarding the Owner changes or modifications to this Agreement or this Affiliate Program or any special treatment that the Recipient may receive. Confidential information shall also include any and all information related to the Owner’s business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which the Owner considers to be confidential and proprietary.
15. INDEMNIFICATION
The Recipient hereby indemnifies and holds the Owner, and all of the Owner’s stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Owner may incur and which are based in whole or in part upon the Recipient’s participation in the Affiliate Program, any claims that any of the Recipient’s trademarks and other proprietary material infringe upon the rights of any other party, the Recipient’s breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Recipient’s use, operation or the content of the Recipient’s Website.
16. GOVERNING LAW; JURISDICTION
a. This Agreement is governed by and shall be construed in accordance with the laws of the State of New York, United States of America, without regard to its conflict of law principles.
b. With respect to any suit, action or proceeding arising out of or relating to this Agreement, each party hereto irrevocably and unconditionally submits, for itself and its property and assets, to the exclusive jurisdiction of the Supreme Court of the State of New York and of the United States District Court of the Southern District of New York, in each case sitting in New York County, and any appellate court from any thereof.