QUA VINO (TOV) AFFILIATE AGREEMENT
Please read this Affiliate Agreement carefully before you join our Affiliate Program or begin marketing our Affiliate Program. By applying to be a TOV affiliate ("Affiliate"), you (a) agree to abide by these terms and conditions and our Privacy Policy if you are accepted into the Affiliate Program, (b) acknowledge and agree that these terms and conditions and our Privacy Policy constitute an agreement between us and you upon your acceptance into the Program (the "Agreement"); (c) represent and warrant that you are lawfully able to enter into this Agreement; and (d) acknowledge and agree that you are and will remain in compliance (and will be responsible for assuring that your employees, agents and contractors comply) with the terms and conditions of this Agreement. This Agreement is written in plain language intentionally avoiding legalese to ensure that this Agreement may be clearly understood and followed by Affiliates.
DEFINITIONS
As used in this Agreement:
1. "QUA VINO", "TOV", "we", "us" or "our" refers to QUA VINO, TOV and our website.
2. "you" or "your" refers to the Affiliate.
3. "our website" refers to the TOV properties located at http://www.quavino.com/.
4. "your website" refers to any website, web pages, or other online services that you control and will link to our website.
5. "Program" and "Affiliate Program" refer to the QUA VINO Affiliate Program.
6. "Products" refers to any products sold or distributed by TOV's Brands.
7. "Qualifying Purchases" refers to purchases made when all of the following requirements are made:
1. (i) a customer clicks through a special link on your website to our website; (ii) during a single session that the customer adds a Product to his/her shopping cart and places the order for that Product no later than 30 days following the customer’s initial click-through; and (iii) the purchased Product is paid for by the customer; or
2. (i) a prospective Independent Stylist clicks through a special link on your website to our website; (ii) during a single session that prospective Independent Stylist adds a Starter Kit to his/her shopping cart and places the order for that Starter Kit no later than 30 days following the prospective Independent Stylist initial click-through; and (iii) the purchased Starter Kit is paid for by the customer.
8. "Trademarked Terms" refers to the TOV's registered trademarks.
PURPOSE
The purpose of this Program is to permit you to advertise Products on your website and to earn advertising commissions for Qualifying Purchases.
ENROLLMENT
After receiving your application, we will review your website and notify you of your acceptance or rejection into our Program. In order to be eligible for the Program, you must also agree to the Terms of Use of ShareASale, our payment processor for the Program.
Please allow up to 48 hours for your application to be reviewed. We reserve the right to reject any application; however, we encourage you to contact us if you feel we have made an incorrect decision. Your inclusion of all of your websites that you plan to use in your profile will help us make a better decision.
COMMISSIONS
For more information on the commissions you may be eligible to earn for Qualifying Purchases, please visit our Commission Guidelines, which are incorporated by referenced in their entirety in this Agreement.
RESPONSIBILITY FOR YOUR WEBSITE
You hereby represent and warrant that you will be solely responsible for your website, including its development, operation and maintenance and all data, content and materials that appear on or within it. TOV will have no liability for any claims, damages, losses, liabilities, fines, penalties, costs and expenses relating to (a) your website or any data, content or materials that appear on your website; (b) the use, development, design, manufacture, production, advertising, promotion or marketing of your website; (c) your use of any content; and (d) your violation of any term or condition of this Agreement.
LINKING TO OUR WEBSITE
Upon acceptance into the Program, links will be made available to you through the Affiliate interface. When linking to our website, you agree:
1. You will only use linking code obtained from the Affiliate interface without manipulation.
2. All domains that use your Affiliate link must be listed in your Affiliate profile, which can be found on the My Settings page in your ShareASale account.
3. Your website will not in any way copy, resemble, or mirror the look and feel of our website. You will also not use any means to create the impression that your website is our website or any part of our website including, without limitation, framing of our website in any manner.
4. You may not engage in cookie stuffing or include pop-ups or false or misleading links on your website. In addition, wherever possible, you will not attempt to mask the referring URL information (i.e. the page from where the click is originating).
5. Your website may not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain is prohibited.
SUB-AFFILIATE NETWORKS
Promoting QUA VINO through a sub-affiliate network is permitted, however you must be completely transparent with regards to where traffic from your sub-affiliates originated. Sub-affiliate networks must ensure that all sub-affiliates promoting the TOV program adhere to our program terms and conditions. This includes restrictions on advertising through toolbars, browser extensions, and through any paid placements such as a pay-per-click campaigns. Sub-affiliate networks must also receive approval prior to allowing any type of coupon sub-affiliate to promote the TOV program.
Failure to comply with our sub-affiliate network terms may result in a loss and/or reduction of commission from sales made through any sub-affiliate that does not comply with our program terms.
NO DECEPTIVE PRACTICES
If you engage in deceptive practices, such as redirecting links by sending users indirectly to our website via an intermediate site or website and without requiring a user to click on a link or take some other affirmative action on that intermediate site or website, we may in our sole discretion void your current and past commissions or set your commission level to 0%.This does not include using "out" redirects from the same domain where the Affiliate link is placed.
PAY PER CLICK GUIDELINES
When participating in Pay Per Click ("PPC") advertising, you must adhere to our PPC guidelines as follows:
1. You may not bid on any of our Trademarked Terms (which are identified below), including any variations or misspellings thereof, for search or content based campaigns on advertising networks, search services, or similar services, including but not limited to Google, MSN or Yahoo.
2. You may not use our Trademarked Terms in sequence with any other keyword (i.e. QUA VINO Coupons).
3. You may not use our Trademarked Terms in your ad title, ad copy, display name or as the display URL.
4. You may not directly link to our website from any PPC ad or use redirects that yield the same result. Visitors must be directed to an actual page on your website.
5. You may not bid in any manner appearing higher than QUA VINO for any search term in position 1-5 in any auction style PPC advertising program.
If you automate your PPC campaigns, it is your responsibility to exclude our Trademarked Terms from your program and we strongly suggest you add our Trademarked Terms as negative keywords. We have a strict no-tolerance policy on PPC trademark bidding. You will forfeit, at minimum, all commissions from the past 30 days and your commission will be set to 0% without warning if you engage in PPC bidding that uses our Trademarked Terms. We reserve the right to add additional terms to our Trademarked Terms at any time, and this Agreement applies to the use of any such additional Trademarked Terms.
COUPON GUIDELINES
If your website promotes coupon codes, you must adhere to our Coupon Guidelines as follows or you will be subject to removal from the Program:
1. You may ONLY advertise coupon codes that are provided to you through the Affiliate Program or our Affiliate Network, (i.e. ShareASale) or that are displayed on our public website(s).
2. You may ONLY display coupons in their entirety with the full offer, valid expiration date and code.
3. You may NOT post any information about how to work around the terms and conditions of a coupon/promotion (e.g., describing how existing customers can qualify as a first time customer to benefit from an offer to first time customers only).
4. You may NOT use any technology or technique that conceals or obscures the coupon code such that only an Affiliate click will reveal the code(s).
5. You may NOT advertise coupon codes obtained from our non-Affiliate advertising materials, e-mail marketing materials, paid search campaigns, or any other marketing or campaign.
6. You may NOT give the appearance that any offer requires clicking from your website in order to redeem. For example, if all items over $100 on our website have free shipping, you may not turn this into an offer that implies that the customer must click from your website to get this deal.
If your website ranks on the first page of Google search results for Trademarked Terms combined with words such as coupon, coupons, coupon code, promo code, etc. and/or your conversion rate exceeds 25%, you may be offered a lower commission than our standard rate to offset the reduced profitability of orders. The current rate we offer in these situations is 2%.
COMPLIANCE WITH LAWS
In connection with your participation in the Program, you agree to comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions and other requirements of any governmental authority that has jurisdiction over you, including without limitation laws (federal, state or otherwise) that govern marketing e-mail, telephone calls and text messages.
FTC's ADVERTISING DISCLOSURE REQUIREMENTS
• Disclosures must be located as close as possible to the claims.
• Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g., the disclosure should be visible before the jump).
• Pop-up disclosures are prohibited.
You shall comply with all FTC guidance and regulations related to advertising disclosure requirements. For more information about FTC disclosure requirements, please review the FTC's "Dot Com Disclosures" Guidelines at www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf; and the FTC's Endorsement Guidelines at business.ftc.gov/advertising-and-marketing/endorsements
RELATIONSHIP OF PARTIES
As an Affiliate, you are serving as an independent contractor, and nothing in this Agreement or the Affiliate Program in general creates an agency, franchise, partnership, sales representative or employment relationship between you and QUA VINO. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement that will reasonably contradict anything in this section.
TERMINATION OR REVISION OF THE AFFILIATE PROGRAM
We reserve the right to terminate or revise the Program at any time, including by providing a change notice, a revised Agreement, or revised documentation of the Program.
LIMITATION OF LIABILITY
YOU AGREE THAT WE AND OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE, PROFITS, GOODWILL, USE OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM, THE DOCUMENTATION, OUR WEBSITE, OR THE SERVICE OFFERINGS (AS DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES; FURTHER, TO THE FULLEST EXTENT POSSIBLE BY LAW, OUR AGGREGATE MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
INDEMNIFICATION
You agree to defend, indemnify, and hold harmless us and our affiliates, managers, officers, employees, agents, partners, and licensors from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from any activity arising in connection with your use of our website or service offerings or that constitutes your breach of this Agreement. We shall provide notice to you promptly of any such claim, suit, or proceeding.
DISCLAIMERS
THE PROGRAM, OUR WEBSITE, ANY PRODUCTS AND SERVICES OFFERED ON OUR WEBSITE, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, QUAVINO.COM DOMAIN NAME, OUR AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING THE TRADEMARKED TERMS), 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" AND "AS AVAILABLE." NEITHER WE NOR ANY OF OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE PRODUCTS OR SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR 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. NEITHER WE NOR ANY OF OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND 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, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL 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 OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, THIS AGREEMENT, PROGRAM CONTENT, OPERATIONAL DOCUMENTATION, OR OUR WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR MODIFICATION OF THE PROGRAM, THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
ARBITRATION, CLASS WAIVER, AND WAIVER OF JURY TRIAL
You and QUA VINO mutually agree to resolve any justiciable disputes between you and QUA VINO, including any disputes involving your use of the Services, exclusively through final and binding arbitration before a single arbitrator instead of filing a lawsuit in court. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by you must be delivered to #506 TOV, Miliana 1st Building, Songpa-daero 28-gil 12, Songpa-gu, Seoul, Republic of Korea, Attn: Legal Department.
MISCELLANEOUS
QUA VINO MAY UPDATE THE TERMS OF THIS AGREEMENT FROM TIME TO TIME BY PUBLISHING A NEW VERSION ON WEBSITE OR BY SENDING NOTICE OF ANY MODIFICATIONS TO YOU VIA EMAIL TO THE THEN EMAIL ADDRESS CURRENTLY ASSOCIATED WITH YOUR AFFILIATE ACCOUNT (AND SUCH CHANGE BY EMAIL WILL BE EFFECTIVE ON THE DATE SPECIFIED IN SUCH EMAIL AND WILL IN NO EVENT BE LESS THAN TWO DAYS AFTER THE DATE THE EMAIL IS SENT). BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF ANY CHANGE NOTICE, REVISED AGREEMENT, OR REVISED DOCUMENTATION, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT, AS AMENDED BY ANY SUCH CHANGE NOTICE, REVISED AGREEMENT, OR REVISED DOCUMENTATION, AND YOU 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 AGREEMENT, AND HEREBY REPRESENT AND WARRANT THAT YOU WILL REMAIN IN COMPLIANCE WITH THIS AGREEMENT. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT BY NOTIFYING QUA VINO.
IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM TIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
NO WAIVER OF ANY PROVISION OF THIS AGREEMENT BY US SHALL BE DEEMED A FURTHER OR CONTINUING WAIVER OF SUCH PROVISION OR ANY OTHER PROVISION, AND OUR FAILURE TO ASSERT ANY RIGHT OR PROVISION UNDER THIS AGREEMENT SHALL NOT CONSTITUTE A WAIVER OF SUCH RIGHT OR PROVISION.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN YOU AND QUA VINO WITH RESPECT TO THE SUBJECT MATTER HEREIN AND SUPERSEDES ALL PRIOR WRITTEN AND ORAL AGREEMENTS, DISCUSSIONS OR REPRESENTATIONS BETWEEN US.
