AFFILIATE AGREEMENT
In consideration of NEELY PHELAN maintaining an Affiliate Program and , it is agreed as follows:
USE OF PROMOTIONAL MATERIALS
Company shall make available to Affiliate certain graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”).
The Affiliate’s use and display of the Promotional Materials on the Affiliate’s website shall conform to the following terms, conditions and specifications:
1. Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials provided by Company, unless Company approved such other materials in writing prior to their display.
2. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products and services available thereon), and for linking to Company’s website.
3. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from the Company for such alteration or modification.
4. The Promotional Materials will be used to link only to Company’s website, to the specific web site page specified by Company.
5. Affiliate may not create or design website, make claims, or operate in a manner which leads customers to believe they are Company.
LIMITED LICENSE TO USE INTELLECTUAL PROPERTY
Upon acceptance into the Affiliate Program, Company grants the Affiliate a revocable, non-exclusive, worldwide, royalty-free license to use the Promotional Materials provided by Company during the term of this Agreement. The Affiliate may display these materials on the Affiliate’s website for the sole purpose of participating in the Affiliate Program. The Affiliate is prohibited from distributing, reproducing, modifying, amending, or creating derivative works of the Promotional Materials. Upon cancellation by either party, Affiliate’s limited license to use the Promotional Materials for the purpose of promoting the products and/or services offered through the Affiliate Program, will cease as of the cancellation date. Upon the cancellation date, Affiliate must immediately cease any use of the Promotional Material. The Affiliate is not granted a license to use any of the Company’s intellectual property or proprietary material, other than the Promotional Materials discussed above.
AFFILIATE’S DUTIES
Affiliate is responsible for disclosing that the Links provided on its website or marketed to potential customers by other means are affiliate links in accordance with the Federal Trade Commission Act.
Affiliate is responsible for all materials that appear on Affiliate’s website and for ensuring that such items do not infringe upon the rights of any third party including, but not limited to, copyright, trademark, privacy or other proprietary rights.
COMMISSION
Affiliate will be paid a referral fee of 10 % (“Commission”), for each customer who completes a purchase on the Company website using the unique affiliate link assigned to Affiliate (“Link”). We reserve the right to reject any orders for any reasons. The Affiliate shall be paid Commissions only on sales that are tracked through the Company’s online tracking system and indicate the Link as the source. Affiliate will not be paid a commission on purchases made by Affiliate or Affiliate’s business representatives.
Company reserves the right to change and amend the commission rate structure at any time, in the Company’s sole discretion.
Commissions will be paid to the Affiliate on a MONTHLY basis. Commissions will be adjusted for orders that are cancelled, returned, or where payment is otherwise refunded to the purchaser. All payments will be made by PAYPAL unless other arrangements are approved by the Company.
CUSTOMER SERVICE
The Company will handle all aspects of customer service for customers who purchase through the Affiliate’s Link including customer inquiries, product orders, customer billing and collection, and product shipment/delivery. Company reserves the right to change the Company’s policies and procedures, pricing structure, add or cancel 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 Affiliate or customers purchasing through the Affiliate’s Link. Affiliate shall not reach out to Company’s customers directly.
CANCELLATION
Company or Affiliate may cancel this Agreement for any reason by providing written notice to the other party; the date this notice is sent will be the Cancellation Date. Failure to comply with the terms of this Agreement will result in immediate cancellation of this Agreement by the Company and forfeiture by Affiliate of any accrued, unpaid commissions. Company shall pay any pending commissions owed to Affiliate through the Cancellation Date, if a cancellation of this Agreement occurs for any reason other than a violation of this Agreement on the part of the Affiliate. Upon cancellation by either party, Affiliate’s limited license to use the intellectual property of Company for the purpose of promoting the products and/or services offered through the Affiliate Program, will cease as of the Cancellation Date.
WARRANTIES
The Affiliate represents, warrants and covenants that its website does not and will not contain any materials that are illegal and that the Affiliate’s site is not operated for an illegal purpose or in an illegal manner.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.
LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO AFFILIATE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND IN NO EVENT SHALL THE COMPANY’S LIABILITY EXCEED THE FEES PAID UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.
INDEMNIFICATION
The Affiliate hereby indemnifies and holds harmless the Company, its officers, directors, employees, contractors, affiliates, agents, successors and assigns 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 Company may incur and which are based in whole or in part upon the Affiliate’s participation in the Affiliate Program, any claims that any of the Affiliate trademarks and other intellectual property and proprietary material infringe upon the rights of any third party, the Affiliate 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 Affiliate use, operation or the content of the Affiliate’s website.
ENTIRE AGREEMENT; MODIFICATION; WAIVER
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
ASSIGNMENT
This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns; provided, however, that Affiliate may not assign any of its rights under this Agreement, except to a wholly owned subsidiary entity of Affiliate. No such assignment by Affiliate to its wholly owned subsidiary shall relieve Affiliate of any of its obligations or duties under this Agreement.
GOVERNING LAW
This Agreement shall be construed in accordance with, and governed by, the laws of the State of ARKANSAS.
The parties have executed this Agreement as of the date below.
