Tempaper
Program Terms
TEMPAPER AFFILIATE AGREEMENT
We believe that developing honest and open relationships with our affiliates is the best way to maintain a successful affiliate program that benefits both us and our affiliates. Therefore, it is important that we enter into the following standard affiliate agreement (this “Agreement”) with each affiliate, so that both parties clearly understand their respective rights and obligations with respect to our affiliate program. We have striven to write these terms and conditions in as plain language as possible so that they may be clearly understood and adhered to by our affiliates.
If you have any questions or concerns, please contact us at marketing@tempaper.com, via phone at 732-920-2654.
PURPOSE
The purpose of this Agreement is to permit you to act as an affiliate in the Tempaper affiliate program (the “Program”), pursuant to which you may advertise those products sold or distributed by Tempaper as specified by Tempaper from time to time (each, a “Product” and collectively, the “Products”) on your website and earn advertising commissions as a result of Qualifying Purchases (as defined below).
ACCEPTANCE OF THIS AGREEMENT – LEGAL AGREEMENT
Please read this Agreement carefully before you apply to become a Tempaper affiliate. It is a legally binding agreement. This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the Program. By submitting an online application to become an affiliate in the Program, you accept and agree to be bound and abide by all of the terms and conditions of this Agreement, our website privacy policy (the “Privacy Policy”) and our official policies and procedures regarding membership and the Program as published by us from time to time (the “Policies and Procedures”), each of which is incorporated into this Agreement by reference. If you do not agree to this Agreement, the Privacy Policy or the Policies and Procedures, you cannot become a Program affiliate.
DEFINITIONS
When used in this Agreement, the following terms have the following meanings:
• “Agreement” means this Agreement, the Privacy Policy, and the Policies and Procedures;
• “Tempaper,” “we,” “us” or “our” mean Lolliprops Inc.;
• “you,” “your” and “yours” mean you, the Program affiliate, and includes any of your employees, agents, or representatives;
• “our website” means any website controlled by Tempaper, including http://www.tempaper.com/;
• “your website” means any website, web pages, or other online services that you control and may link to our website; and
• “Qualifying Purchases” means purchases made when all of the following requirements are met: (i) a customer (not you) clicks through a special link (supplied by us to you) 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 45 days following the customer’s initial click-through; and (iii) the purchased Product is paid for by the customer and the payment is received by us. To be an Eligible Purchase, the sale must be completed by a customer that is physically located in the United States or Canada.
ENROLLMENT; EFFECTIVE DATE
We use a third-party vendor, ShareASale.com, Inc. (“ShareASale”) to manage the Program, including handling all of the tracking of and payment of commissions related to Qualifying Purchases.
All potential affiliates must be registered with ShareASale and submit the online application at the ShareASale website. ShareASale and Tempaper will review the application and your website and notify you of your acceptance or rejection into the Program. You must agree to and abide by all of the terms and conditions required by ShareASale. We are a “Merchant” or “Advertiser” under the ShareASale terms and conditions and you are an “Affiliate” or “Publisher” under the ShareASale terms and conditions. The terms of this Agreement are subject to the terms and conditions of our agreement with ShareASale.
Upon acceptance by ShareASale and us of all registration requirements and notification to you, this Agreement will become effective and you will become a Program affiliate. Registration requests may be rejected at any time for any reason by either ShareASale or Tempaper, in each party’s sole discretion; however, we encourage you to contact us if you feel we have made an incorrect decision. Including all of your websites in your profile will help us make a better decision.
CHANGES TO THIS AGREEMENT
We may revise and update this Agreement (including the Privacy Policy and Policies and Procedures) from time to time in our sole discretion. Revisions may include changes in the payment procedures and our Program rules. All changes are effective immediately when we first make them available electronically, including by posting them to our website or providing you an email to the email address associated with your affiliate account at the time of sending. Your continued participation in the Program following such notice means that you accept and agree to the revisions. You are expected to check our website frequently, so you are aware of any revisions, as they are binding on you. If any revision is unacceptable to you, your only option is to terminate this Agreement in accordance with the termination provisions below.
We also reserve the right to terminate the Program at any time upon notice to you.
Products pricing and availability may also vary from time to time and may be changed at any time in our sole discretion, and you agree that you have no claim or recourse for any lost or decreased commissions as a result of such changes.
TERMINATION; BREACH
Either you or we may termination this Agreement AT ANY TIME, for any reason or no reason, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately: (a) upon any breach of this Agreement by you; or (b) upon any termination of your agreement with ShareASale or your failure to be an “Affiliate” or “Publisher” in good standing with ShareASale.
Upon any breach of this Agreement by you, we may, in our sole discretion, reverse one or more orders, set your commission to 0%, suspend or terminate you from the Program, and/or terminate this Agreement.
COMMISSIONS; PAYMENT; AFFILIATE ACCOUNT INTERFACE
ShareASale will require you to create a password to enter their secure affiliate account interface. Through such interface you will be able to receive your reports that describe the calculation of the commissions due to you. The current rates of commission shall be set forth in your ShareASale terms and conditions. We reserve the right to modify the commission rate from time to time, in our sole discretion. We are responsible for authorizing commission payments and ShareASale will be solely responsible for fulfilling and transferring all commission payments in accordance with your ShareASale Agreement. We will be entitled to withhold, deduct and set off from any payments to be made to you hereunder any sums owed by you to us, whether in connection with this Agreement (including any breach hereof by you) or otherwise.
For the purposes of commission payments, all sales will remain in a “sales pending period” and will not lock until the 20th day of the month (“lock date”) following the month in which the transaction tracked. At that time, the commission payment will be sent via ShareASale on the lock date (e.g., when a transaction occurs on July 1, it locks on August 20th, and the commission will be paid via ShareASale on August 20th).
LICENSED MATERIALS; LIMITED LICENSE
As an affiliate in good standing, we may make available to you certain proprietary content and materials, including certain images, trademarks, Product names, Product numbers, trade names, slogans, banner advertisements, button links, text links, and/or other graphic or textual material (the “Licensed Materials”). All Licensed Materials and Products are, and shall remain, owned by Tempaper and/or its licensors and are protected by United States and international copyright, trademark, patent, trade dress, trade secret and other intellectual property, unfair competition and proprietary rights laws. This applies to all Licensed Materials, whether registered or unregistered, and regardless of whether a proprietary notice appears on such materials. You must not delete or alter any copyright, trademark or other proprietary rights notices on the Licensed Materials.
Subject to your strict compliance with this Agreement, during the term of this Agreement, Tempaper grants you a limited, non-exclusive, revocable, personal and non-transferable license to use the Licensed Materials solely to display and use on your website solely in connection with the Program and your permitted actions as a Program affiliate. The term of such license expires upon the termination of this Agreement. All uses of the Licensed Materials are subject to the following requirements:
• You may only use the Licensed Materials to promote our website (and the Products), and for linking to our website;
• You shall use only the links to our website as are provided to you by us;
• You shall not alter, add to, subtract from, or otherwise modify the Licensed Materials as they are prepared by us without consent from us. If you wish to alter or otherwise modify the Licensed Materials, you must obtain prior written consent from us for such alteration of modification;
• You shall not use the Licensed Materials in any manner to: (a) communicate or suggest any sponsorship or other connection between us and you other than your participation in the Program, or (b) harm or adversely affect the Licensed Materials or the goodwill associated with the Licensed Materials; and
• You shall not use any of our trademarks as part of the domain or sub-domain for your website.
You shall not subcontract, assign, resell, lease, or sublicense any part of your participation in the Program or run a sub-affiliate program. The foregoing limited license does not give you any ownership of (or any other intellectual property interest in) any Licensed Materials, and may be immediately suspended or terminated upon any breach of this Agreement by you. All uses of the Licensed Materials will be on behalf of Tempaper or its licensors and the goodwill associated therewith will inure to the sole benefit of Tempaper or its licensors. All rights not expressly granted herein are reserved by Tempaper.
YOUR WEBSITE
You agree that you are solely responsible for your website, including its development, operation and maintenance and all data, content and materials that appear on or within it. Tempaper 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.
You agree not to do any of the following, including through or in connection with your website:
• infringe on our or any anyone else’s intellectual property, publicity, privacy or other rights;
• violate any applicable federal, state, local or international law or regulation;
• permit your website to promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
• permit your website to contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, promotes violence, or contains nudity, pornography or sexually explicit materials;
• attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of our website, user accounts, the server on which our website is stored, or any server, computer or database connected to our website;
• permit your website to contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website;
• use your website to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
• use any robot, spider or other automatic device, process or means to access your website for any purpose, including monitoring or copying any of the material on your website;
• engage in phishing, impersonation, data mining or scraping, or any other attempt to interfere with our business, data security, or the operations of our website;
• use any of our trademarks (including any variations or misspellings thereof) in your domain name; or
• otherwise take any action that is inconsistent with any other provision of this Agreement.
We have the right to monitor your website at any time to determine if you are complying with this Agreement. We shall notify you of any changes to your website that we feel should be made or to make sure that your links to our website are appropriate. If you do not promptly make the required changes, we reserve the right to terminate your participation in the Program.
LINKING TO OUR WEBSITE
Upon acceptance into the Program, links will be made available to you through the ShareASale affiliate interface. When linking to our website, you agree:
• You will only use linking code obtained from the ShareASale affiliate interface without manipulation;
• 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;
• Your website will not in any way copy, resemble, or mirror the look and feel of our website. You will not cause your website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site;
• You will not advertise Products on websites that you do not own, including Google Product Search, Amazon, eBay, Shopzilla or Pricegabber;
• You will 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); and
• You will not engage in any deceptive practices, including 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. This does not include using “out” redirects from the same domain where the affiliate link is placed.
ADVERTISING; SOCIAL MEDIA
You are generally free to advertise and promote the Program, subject to the following guidelines (and the other restrictions contained in this Agreement):
• You must not use any of our trademarks without our prior written consent;
• You must not use “spamming,” unsolicited commercial email (UCE), postings to non-commercial newsgroups, cross-posting to multiple newsgroups at once, or other similar forms of advertising that may cause damage to our brand;
• You must comply with all applicable advertising laws, including the CAN-SPAM Act of 2003;
• You must not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address;
• You must only contact recipients that already customers or subscribers of your website or services, and the recipients must have a clear option to remove themselves from future contact; and
• At all times, your advertising must clearly state that you represent yourself and that you are independent from Tempaper.
We may object to how you are presenting or marketing the Licensed Materials. If we object and you do not promptly revise such usage, we may terminate this Agreement. You must also adhere to any of our intellectual property and branding guidelines contained in the Policies and Procedures.
OPERATIONS OUTSIDE OF THE UNITED STATES
You shall not use the Licensed Materials to promote our website (and the products available thereon) to customers who are not physically located in the United States or Canada. If you are conducting business in or taking orders from persons in Canada, you must follow the laws of Canada, including Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA).
PAY PER CLICK GUIDELINES
When participating in Pay Per Click (“PPC”) advertising, you shall adhere to the following PPC guidelines:
• You shall not bid on any of our trademarks, including any variations or misspellings thereof (separately or in combination with other keywords), for search or content based campaigns on advertising networks, search services, or similar services, including Google or Yahoo;
• You shall not use any of our trademarks in sequence with any other keyword (e.g. Tempaper Discounts);
• You shall not use any of our trademarks in your ad title, ad copy, display name or as the display URL;
• You shall 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;
• You shall not bid in any manner appearing higher than Tempaper 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 trademarks from your program and we strongly suggest you add any of our trademarks as negative keywords; and
• You shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited our website (i.e., no page from our website or any of our content or branding is visible on the end-user’s screen). As used herein “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search using any search engine or directory; (c) set commission tracking cookies through loading of our website in IFrames, hidden links and automatic pop ups that open our website; (d) targets text on websites, other than those websites 100% owned by the application owner, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.
COUPON GUIDELINES
If your website promotes coupon codes, you shall adhere to the following coupon guidelines:
• You may only advertise coupon codes that are provided to you through the Program or ShareASale, or that are displayed on our website;
• You may only display coupons in their entirety with the full offer, valid expiration date and code;
• You must 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);
• You must not use any technology or technique that conceals or obscures the coupon code such that only an affiliate click will reveal the codes;
• You must not advertise coupon codes obtained from our non-affiliate advertising materials, e-mail marketing materials, paid search campaigns, or any other marketing or campaign; and
• You must not give the appearance that any offer requires clicking from your website in order to redeem. For example, if we offer free shipping for purchases over a certain amount, you cannot use language that implies that the only way to redeem this offer is to click from your website.
Additionally, if (a) Your Website ranks on the first page of Google ad results for terms related to us combined with the words coupon, coupons, coupon code, promo code, or any similar term, and (b) your conversion rate exceeds our threshold in effect from time to time, then you will be entitled to a lower commission than our standard rate to offset the reduced profitability of orders, which rate is set forth in the ShareASale account interface or in the Policies and Procedures.
REVERSAL POLICY
As stated above, we promote honest and open communication with our affiliates. If we ask you for additional information regarding orders, clicks or other matters that we may believe are in violation of this Agreement, we anticipate that you will provide such information in a prompt, detailed and accurate way. We are proud of our low reversal rate. However, in order to protect our brand, we reserve the right to reverse orders in our sole discretion due to order cancellations, duplicate tracking, returns, disputed charges, your inability to substantiate the source of your traffic to our program, Program violations, and breaches of this Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS
You represent, warrant, and covenant to us that:
• This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
• You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
• You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
• You shall maintain at all times a high standard of professionalism and honesty, demonstrated in a manner that reflects favorably at all times on Tempaper and the Products;
• You shall avoid deceptive, misleading, dishonest, questionable, or unethical practices;
• You shall make no representations, warranties, or other statements with respect to the Products or related services that are different from or in addition to those in this Agreement or the Licensed Materials;
• In connection with your participation in the Program, you shall comply with all applicable federal, state, local and foreign laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions and other requirements of any governmental authority that has jurisdiction over you, including those that govern marketing e-mail, telephone calls and text messages, including all FTC guidance and regulations related to advertising disclosure requirements. In connection with such FTC disclosure requirements:
o Disclosures must be located as close as possible to the claims.
o 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).
o Pop-up disclosures are prohibited.
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.
DISCLAIMER OF WARRANTIES
THE PROGRAM, OUR WEBSITE, THE LICENSED MATERIALS AND THE PRODUCTS (COLLECTIVELY, THE “MATERIALS”), ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER TEMPAPER NOR ANY PERSON ASSOCIATED WITH TEMPAPER MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE MATERIALS. WITHOUT LIMITING THE FOREGOING, NEITHER TEMPAPER NOR ANYONE ASSOCIATED WITH TEMPAPER REPRESENTS OR WARRANTS THAT OUR WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT OUR WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TEMPAPER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE MATERIALS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
IN NO EVENT WILL TEMPAPER, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, OWNERS, AGENTS, OFFICERS OR DIRECTORS (COLLECTIVELY, WITH TEMPAPER, THE “TEMPAPER PARTIES”) BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE MATERIALS OR YOUR USE OF (OR INABILITY TO USE) THE MATERIALS, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING ANY PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL THE TEMPAPER PARTIES’ 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.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
INDEMNIFICATION
You agree to defend and indemnify the Tempaper Parties from and against any claims, causes of action, demands, losses, damages, or other costs (including reasonable legal and accounting fees) arising out of or relating to: (a) your violation of this Agreement or your use of the Materials; (b) your actions or inactions, including the use, development, design, advertising and promotion of your website.
CLASS ACTION WAIVER
ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR WE WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS.
CONFIDENTIALITY
Each party acknowledges that the other party may have access to certain information related to the disclosing party’s business, including, plans, practices, operations, methods, technology, and customer information (collectively, “Confidential Information”), which is confidential, proprietary and of substantial value to the disclosing party. The receiving party shall not disclose the disclosing party’s Confidential Information to any party who does not have a need to know for purposes of performing the receiving party’s obligations under this Agreement, will use such Confidential Information only to perform its obligations under this Agreement, and will take reasonable precautions to prevent the disclosure of such Confidential Information. This provision will not apply to information which is in the public domain, is previously known to the receiving party without obligation of confidentiality, is independently developed by the receiving party or is obtained by the receiving party from a third party that does not have an obligation to keep the information confidential, or information required to be disclosed pursuant to a valid court order or subpoena, at which time the receiving party will give prior written notification of such order or subpoena to the disclosing party and an opportunity to challenge such disclosure. Upon termination, the receiving party shall return (or at the disclosing party’s request, destroy) all Confidential Information (including, with respect to you as the receiving party, the Licensed Materials).
MISCELLANEOUS TERMS AND CONDITIONS
Independent Contractor. This Agreement does not create a fiduciary, franchise, dealership or business opportunity relationship between the parties to this Agreement. You are an independent contractor. Nothing in this Agreement is intended to constitute either party an agent, legal representative, subsidiary, joint venture, partner, employee, affiliate or servant of the other party for any purpose whatsoever. Nothing in this Agreement authorizes you to make any contract, agreement, warranty, or representation on our behalf.
You agree that you are not entitled to any benefits that Tempaper may make available to its employees. You shall not be treated as an employee of Tempaper for any purpose, including, for federal, state or local tax purposes. Tempaper will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation insurance on your behalf. You are solely responsible for all income tax returns and payments required to be filed with or made to any tax authority with respect to your activities. Tempaper will regularly report amounts paid to you with the IRS and other governmental entities as may be required by law.
You will use your own resources and shall exercise independent judgment as to when and how you will refer new customers to Tempaper to purchase Products. You are solely responsible for all decisions made by you, and all costs incurred by you, and will assume all entrepreneurial and business risk as an affiliate of the Program.
You agree and acknowledge there is no guarantee that there is a market for the Products, or any guarantee that you will earn or will not lose money as a Program affiliate.
Non-Disparagement. During the Term and all times thereafter, neither party shall directly or indirectly disparage, by any means or via any medium, any of the other party, its affiliates or any of their respective owners, officers, directors, managers, employees, contractors, representatives, or agents, or any aspect of their existing or prospective business; provided, that the foregoing will not prevent either party from exercise any rights required or permitted by applicable law.
Entire Agreement. This Agreement (as well as the documents referenced herein, including the Program Policies and Procedures) represents the entire understanding and agreement between the parties with respect to the subject matter of this Agreement, and supersedes all other negotiations, understandings, and representations, if any, made by and between the parties. No representation, inducement, promise, or agreement, oral or otherwise, if any, not embodied in this Agreement, its exhibits, or any other written agreement related to this Agreement and expressly referenced herein is of any force and effect.
Severability; Waiver. If a court or other competent legal authority finds that any individual portion of this Agreement is not enforceable, this will not affect the enforceability of any other terms. Waiver by either party of a breach or violation of any provision of this Agreement may be made only in writing and does not constitute a waiver of any subsequent breach or violation of the same or other provisions.
Assignment; Amendment. Neither party may assign this Agreement or delegate any of its duties without the consent of the other party, except that such consent shall not be required in connection with a change of control or a sale of substantially all of the assets of a party. You shall not amend or waive any provision of this Agreement unless in writing and signed by both parties.
Survival. Notwithstanding anything to the contrary contained in this Agreement, the terms of the following sections shall survive the expiration or earlier termination of this Agreement: Definitions; Disclaimer of Warranties; Limitation of Liability; Indemnification; Confidentiality; and Miscellaneous Terms and Conditions.
Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of New Jersey without giving effect to the choice of law provisions thereof and all parties to this Agreement expressly agree to be subject to the jurisdiction of courts in the County of Ocean, State of New Jersey.
Equitable Relief. Because of the difficulty in calculating damages for breaches of this Agreement by you, we have the right and remedy, in addition to any others that may be available, at law or in equity, to have all of the provisions of this Agreement specifically enforced through injunctive or other relief. Accordingly, we may, without notice to you and with no requirement to establish any actual or irreparable damage or to post any bond or other security (or, if a bond is required, the amount of $1,000 shall be deemed reasonable), seek immediate equitable and injunctive relief as may be proper, which relief shall not prejudice our right to seek monetary relief as well, as applicable. Accordingly, we may institute an action or other proceeding against you to obtain injunctive or declaratory relief while pursuing claims for damages based on the same set of facts.
Construction. For the purposes of this Agreement: “including (include)” means “including (include), without limitation;” “or,” as in “A or B,” means “A or B or both.”
Force and Effect. You acknowledge that you have read and understood this Agreement, and that this Agreement has the same force and effect as a signed agreement. All rights not expressly granted herein are hereby reserved.
We believe that developing honest and open relationships with our affiliates is the best way to maintain a successful affiliate program that benefits both us and our affiliates. Therefore, it is important that we enter into the following standard affiliate agreement (this “Agreement”) with each affiliate, so that both parties clearly understand their respective rights and obligations with respect to our affiliate program. We have striven to write these terms and conditions in as plain language as possible so that they may be clearly understood and adhered to by our affiliates.
If you have any questions or concerns, please contact us at marketing@tempaper.com, via phone at 732-920-2654.
PURPOSE
The purpose of this Agreement is to permit you to act as an affiliate in the Tempaper affiliate program (the “Program”), pursuant to which you may advertise those products sold or distributed by Tempaper as specified by Tempaper from time to time (each, a “Product” and collectively, the “Products”) on your website and earn advertising commissions as a result of Qualifying Purchases (as defined below).
ACCEPTANCE OF THIS AGREEMENT – LEGAL AGREEMENT
Please read this Agreement carefully before you apply to become a Tempaper affiliate. It is a legally binding agreement. This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the Program. By submitting an online application to become an affiliate in the Program, you accept and agree to be bound and abide by all of the terms and conditions of this Agreement, our website privacy policy (the “Privacy Policy”) and our official policies and procedures regarding membership and the Program as published by us from time to time (the “Policies and Procedures”), each of which is incorporated into this Agreement by reference. If you do not agree to this Agreement, the Privacy Policy or the Policies and Procedures, you cannot become a Program affiliate.
DEFINITIONS
When used in this Agreement, the following terms have the following meanings:
• “Agreement” means this Agreement, the Privacy Policy, and the Policies and Procedures;
• “Tempaper,” “we,” “us” or “our” mean Lolliprops Inc.;
• “you,” “your” and “yours” mean you, the Program affiliate, and includes any of your employees, agents, or representatives;
• “our website” means any website controlled by Tempaper, including http://www.tempaper.com/;
• “your website” means any website, web pages, or other online services that you control and may link to our website; and
• “Qualifying Purchases” means purchases made when all of the following requirements are met: (i) a customer (not you) clicks through a special link (supplied by us to you) 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 45 days following the customer’s initial click-through; and (iii) the purchased Product is paid for by the customer and the payment is received by us. To be an Eligible Purchase, the sale must be completed by a customer that is physically located in the United States or Canada.
ENROLLMENT; EFFECTIVE DATE
We use a third-party vendor, ShareASale.com, Inc. (“ShareASale”) to manage the Program, including handling all of the tracking of and payment of commissions related to Qualifying Purchases.
All potential affiliates must be registered with ShareASale and submit the online application at the ShareASale website. ShareASale and Tempaper will review the application and your website and notify you of your acceptance or rejection into the Program. You must agree to and abide by all of the terms and conditions required by ShareASale. We are a “Merchant” or “Advertiser” under the ShareASale terms and conditions and you are an “Affiliate” or “Publisher” under the ShareASale terms and conditions. The terms of this Agreement are subject to the terms and conditions of our agreement with ShareASale.
Upon acceptance by ShareASale and us of all registration requirements and notification to you, this Agreement will become effective and you will become a Program affiliate. Registration requests may be rejected at any time for any reason by either ShareASale or Tempaper, in each party’s sole discretion; however, we encourage you to contact us if you feel we have made an incorrect decision. Including all of your websites in your profile will help us make a better decision.
CHANGES TO THIS AGREEMENT
We may revise and update this Agreement (including the Privacy Policy and Policies and Procedures) from time to time in our sole discretion. Revisions may include changes in the payment procedures and our Program rules. All changes are effective immediately when we first make them available electronically, including by posting them to our website or providing you an email to the email address associated with your affiliate account at the time of sending. Your continued participation in the Program following such notice means that you accept and agree to the revisions. You are expected to check our website frequently, so you are aware of any revisions, as they are binding on you. If any revision is unacceptable to you, your only option is to terminate this Agreement in accordance with the termination provisions below.
We also reserve the right to terminate the Program at any time upon notice to you.
Products pricing and availability may also vary from time to time and may be changed at any time in our sole discretion, and you agree that you have no claim or recourse for any lost or decreased commissions as a result of such changes.
TERMINATION; BREACH
Either you or we may termination this Agreement AT ANY TIME, for any reason or no reason, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately: (a) upon any breach of this Agreement by you; or (b) upon any termination of your agreement with ShareASale or your failure to be an “Affiliate” or “Publisher” in good standing with ShareASale.
Upon any breach of this Agreement by you, we may, in our sole discretion, reverse one or more orders, set your commission to 0%, suspend or terminate you from the Program, and/or terminate this Agreement.
COMMISSIONS; PAYMENT; AFFILIATE ACCOUNT INTERFACE
ShareASale will require you to create a password to enter their secure affiliate account interface. Through such interface you will be able to receive your reports that describe the calculation of the commissions due to you. The current rates of commission shall be set forth in your ShareASale terms and conditions. We reserve the right to modify the commission rate from time to time, in our sole discretion. We are responsible for authorizing commission payments and ShareASale will be solely responsible for fulfilling and transferring all commission payments in accordance with your ShareASale Agreement. We will be entitled to withhold, deduct and set off from any payments to be made to you hereunder any sums owed by you to us, whether in connection with this Agreement (including any breach hereof by you) or otherwise.
For the purposes of commission payments, all sales will remain in a “sales pending period” and will not lock until the 20th day of the month (“lock date”) following the month in which the transaction tracked. At that time, the commission payment will be sent via ShareASale on the lock date (e.g., when a transaction occurs on July 1, it locks on August 20th, and the commission will be paid via ShareASale on August 20th).
LICENSED MATERIALS; LIMITED LICENSE
As an affiliate in good standing, we may make available to you certain proprietary content and materials, including certain images, trademarks, Product names, Product numbers, trade names, slogans, banner advertisements, button links, text links, and/or other graphic or textual material (the “Licensed Materials”). All Licensed Materials and Products are, and shall remain, owned by Tempaper and/or its licensors and are protected by United States and international copyright, trademark, patent, trade dress, trade secret and other intellectual property, unfair competition and proprietary rights laws. This applies to all Licensed Materials, whether registered or unregistered, and regardless of whether a proprietary notice appears on such materials. You must not delete or alter any copyright, trademark or other proprietary rights notices on the Licensed Materials.
Subject to your strict compliance with this Agreement, during the term of this Agreement, Tempaper grants you a limited, non-exclusive, revocable, personal and non-transferable license to use the Licensed Materials solely to display and use on your website solely in connection with the Program and your permitted actions as a Program affiliate. The term of such license expires upon the termination of this Agreement. All uses of the Licensed Materials are subject to the following requirements:
• You may only use the Licensed Materials to promote our website (and the Products), and for linking to our website;
• You shall use only the links to our website as are provided to you by us;
• You shall not alter, add to, subtract from, or otherwise modify the Licensed Materials as they are prepared by us without consent from us. If you wish to alter or otherwise modify the Licensed Materials, you must obtain prior written consent from us for such alteration of modification;
• You shall not use the Licensed Materials in any manner to: (a) communicate or suggest any sponsorship or other connection between us and you other than your participation in the Program, or (b) harm or adversely affect the Licensed Materials or the goodwill associated with the Licensed Materials; and
• You shall not use any of our trademarks as part of the domain or sub-domain for your website.
You shall not subcontract, assign, resell, lease, or sublicense any part of your participation in the Program or run a sub-affiliate program. The foregoing limited license does not give you any ownership of (or any other intellectual property interest in) any Licensed Materials, and may be immediately suspended or terminated upon any breach of this Agreement by you. All uses of the Licensed Materials will be on behalf of Tempaper or its licensors and the goodwill associated therewith will inure to the sole benefit of Tempaper or its licensors. All rights not expressly granted herein are reserved by Tempaper.
YOUR WEBSITE
You agree that you are solely responsible for your website, including its development, operation and maintenance and all data, content and materials that appear on or within it. Tempaper 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.
You agree not to do any of the following, including through or in connection with your website:
• infringe on our or any anyone else’s intellectual property, publicity, privacy or other rights;
• violate any applicable federal, state, local or international law or regulation;
• permit your website to promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
• permit your website to contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, promotes violence, or contains nudity, pornography or sexually explicit materials;
• attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of our website, user accounts, the server on which our website is stored, or any server, computer or database connected to our website;
• permit your website to contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website;
• use your website to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
• use any robot, spider or other automatic device, process or means to access your website for any purpose, including monitoring or copying any of the material on your website;
• engage in phishing, impersonation, data mining or scraping, or any other attempt to interfere with our business, data security, or the operations of our website;
• use any of our trademarks (including any variations or misspellings thereof) in your domain name; or
• otherwise take any action that is inconsistent with any other provision of this Agreement.
We have the right to monitor your website at any time to determine if you are complying with this Agreement. We shall notify you of any changes to your website that we feel should be made or to make sure that your links to our website are appropriate. If you do not promptly make the required changes, we reserve the right to terminate your participation in the Program.
LINKING TO OUR WEBSITE
Upon acceptance into the Program, links will be made available to you through the ShareASale affiliate interface. When linking to our website, you agree:
• You will only use linking code obtained from the ShareASale affiliate interface without manipulation;
• 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;
• Your website will not in any way copy, resemble, or mirror the look and feel of our website. You will not cause your website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site;
• You will not advertise Products on websites that you do not own, including Google Product Search, Amazon, eBay, Shopzilla or Pricegabber;
• You will 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); and
• You will not engage in any deceptive practices, including 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. This does not include using “out” redirects from the same domain where the affiliate link is placed.
ADVERTISING; SOCIAL MEDIA
You are generally free to advertise and promote the Program, subject to the following guidelines (and the other restrictions contained in this Agreement):
• You must not use any of our trademarks without our prior written consent;
• You must not use “spamming,” unsolicited commercial email (UCE), postings to non-commercial newsgroups, cross-posting to multiple newsgroups at once, or other similar forms of advertising that may cause damage to our brand;
• You must comply with all applicable advertising laws, including the CAN-SPAM Act of 2003;
• You must not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address;
• You must only contact recipients that already customers or subscribers of your website or services, and the recipients must have a clear option to remove themselves from future contact; and
• At all times, your advertising must clearly state that you represent yourself and that you are independent from Tempaper.
We may object to how you are presenting or marketing the Licensed Materials. If we object and you do not promptly revise such usage, we may terminate this Agreement. You must also adhere to any of our intellectual property and branding guidelines contained in the Policies and Procedures.
OPERATIONS OUTSIDE OF THE UNITED STATES
You shall not use the Licensed Materials to promote our website (and the products available thereon) to customers who are not physically located in the United States or Canada. If you are conducting business in or taking orders from persons in Canada, you must follow the laws of Canada, including Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA).
PAY PER CLICK GUIDELINES
When participating in Pay Per Click (“PPC”) advertising, you shall adhere to the following PPC guidelines:
• You shall not bid on any of our trademarks, including any variations or misspellings thereof (separately or in combination with other keywords), for search or content based campaigns on advertising networks, search services, or similar services, including Google or Yahoo;
• You shall not use any of our trademarks in sequence with any other keyword (e.g. Tempaper Discounts);
• You shall not use any of our trademarks in your ad title, ad copy, display name or as the display URL;
• You shall 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;
• You shall not bid in any manner appearing higher than Tempaper 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 trademarks from your program and we strongly suggest you add any of our trademarks as negative keywords; and
• You shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited our website (i.e., no page from our website or any of our content or branding is visible on the end-user’s screen). As used herein “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search using any search engine or directory; (c) set commission tracking cookies through loading of our website in IFrames, hidden links and automatic pop ups that open our website; (d) targets text on websites, other than those websites 100% owned by the application owner, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.
COUPON GUIDELINES
If your website promotes coupon codes, you shall adhere to the following coupon guidelines:
• You may only advertise coupon codes that are provided to you through the Program or ShareASale, or that are displayed on our website;
• You may only display coupons in their entirety with the full offer, valid expiration date and code;
• You must 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);
• You must not use any technology or technique that conceals or obscures the coupon code such that only an affiliate click will reveal the codes;
• You must not advertise coupon codes obtained from our non-affiliate advertising materials, e-mail marketing materials, paid search campaigns, or any other marketing or campaign; and
• You must not give the appearance that any offer requires clicking from your website in order to redeem. For example, if we offer free shipping for purchases over a certain amount, you cannot use language that implies that the only way to redeem this offer is to click from your website.
Additionally, if (a) Your Website ranks on the first page of Google ad results for terms related to us combined with the words coupon, coupons, coupon code, promo code, or any similar term, and (b) your conversion rate exceeds our threshold in effect from time to time, then you will be entitled to a lower commission than our standard rate to offset the reduced profitability of orders, which rate is set forth in the ShareASale account interface or in the Policies and Procedures.
REVERSAL POLICY
As stated above, we promote honest and open communication with our affiliates. If we ask you for additional information regarding orders, clicks or other matters that we may believe are in violation of this Agreement, we anticipate that you will provide such information in a prompt, detailed and accurate way. We are proud of our low reversal rate. However, in order to protect our brand, we reserve the right to reverse orders in our sole discretion due to order cancellations, duplicate tracking, returns, disputed charges, your inability to substantiate the source of your traffic to our program, Program violations, and breaches of this Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS
You represent, warrant, and covenant to us that:
• This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
• You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
• You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
• You shall maintain at all times a high standard of professionalism and honesty, demonstrated in a manner that reflects favorably at all times on Tempaper and the Products;
• You shall avoid deceptive, misleading, dishonest, questionable, or unethical practices;
• You shall make no representations, warranties, or other statements with respect to the Products or related services that are different from or in addition to those in this Agreement or the Licensed Materials;
• In connection with your participation in the Program, you shall comply with all applicable federal, state, local and foreign laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions and other requirements of any governmental authority that has jurisdiction over you, including those that govern marketing e-mail, telephone calls and text messages, including all FTC guidance and regulations related to advertising disclosure requirements. In connection with such FTC disclosure requirements:
o Disclosures must be located as close as possible to the claims.
o 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).
o Pop-up disclosures are prohibited.
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.
DISCLAIMER OF WARRANTIES
THE PROGRAM, OUR WEBSITE, THE LICENSED MATERIALS AND THE PRODUCTS (COLLECTIVELY, THE “MATERIALS”), ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER TEMPAPER NOR ANY PERSON ASSOCIATED WITH TEMPAPER MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE MATERIALS. WITHOUT LIMITING THE FOREGOING, NEITHER TEMPAPER NOR ANYONE ASSOCIATED WITH TEMPAPER REPRESENTS OR WARRANTS THAT OUR WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT OUR WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TEMPAPER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE MATERIALS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
IN NO EVENT WILL TEMPAPER, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, OWNERS, AGENTS, OFFICERS OR DIRECTORS (COLLECTIVELY, WITH TEMPAPER, THE “TEMPAPER PARTIES”) BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE MATERIALS OR YOUR USE OF (OR INABILITY TO USE) THE MATERIALS, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING ANY PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL THE TEMPAPER PARTIES’ 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.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
INDEMNIFICATION
You agree to defend and indemnify the Tempaper Parties from and against any claims, causes of action, demands, losses, damages, or other costs (including reasonable legal and accounting fees) arising out of or relating to: (a) your violation of this Agreement or your use of the Materials; (b) your actions or inactions, including the use, development, design, advertising and promotion of your website.
CLASS ACTION WAIVER
ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR WE WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS.
CONFIDENTIALITY
Each party acknowledges that the other party may have access to certain information related to the disclosing party’s business, including, plans, practices, operations, methods, technology, and customer information (collectively, “Confidential Information”), which is confidential, proprietary and of substantial value to the disclosing party. The receiving party shall not disclose the disclosing party’s Confidential Information to any party who does not have a need to know for purposes of performing the receiving party’s obligations under this Agreement, will use such Confidential Information only to perform its obligations under this Agreement, and will take reasonable precautions to prevent the disclosure of such Confidential Information. This provision will not apply to information which is in the public domain, is previously known to the receiving party without obligation of confidentiality, is independently developed by the receiving party or is obtained by the receiving party from a third party that does not have an obligation to keep the information confidential, or information required to be disclosed pursuant to a valid court order or subpoena, at which time the receiving party will give prior written notification of such order or subpoena to the disclosing party and an opportunity to challenge such disclosure. Upon termination, the receiving party shall return (or at the disclosing party’s request, destroy) all Confidential Information (including, with respect to you as the receiving party, the Licensed Materials).
MISCELLANEOUS TERMS AND CONDITIONS
Independent Contractor. This Agreement does not create a fiduciary, franchise, dealership or business opportunity relationship between the parties to this Agreement. You are an independent contractor. Nothing in this Agreement is intended to constitute either party an agent, legal representative, subsidiary, joint venture, partner, employee, affiliate or servant of the other party for any purpose whatsoever. Nothing in this Agreement authorizes you to make any contract, agreement, warranty, or representation on our behalf.
You agree that you are not entitled to any benefits that Tempaper may make available to its employees. You shall not be treated as an employee of Tempaper for any purpose, including, for federal, state or local tax purposes. Tempaper will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation insurance on your behalf. You are solely responsible for all income tax returns and payments required to be filed with or made to any tax authority with respect to your activities. Tempaper will regularly report amounts paid to you with the IRS and other governmental entities as may be required by law.
You will use your own resources and shall exercise independent judgment as to when and how you will refer new customers to Tempaper to purchase Products. You are solely responsible for all decisions made by you, and all costs incurred by you, and will assume all entrepreneurial and business risk as an affiliate of the Program.
You agree and acknowledge there is no guarantee that there is a market for the Products, or any guarantee that you will earn or will not lose money as a Program affiliate.
Non-Disparagement. During the Term and all times thereafter, neither party shall directly or indirectly disparage, by any means or via any medium, any of the other party, its affiliates or any of their respective owners, officers, directors, managers, employees, contractors, representatives, or agents, or any aspect of their existing or prospective business; provided, that the foregoing will not prevent either party from exercise any rights required or permitted by applicable law.
Entire Agreement. This Agreement (as well as the documents referenced herein, including the Program Policies and Procedures) represents the entire understanding and agreement between the parties with respect to the subject matter of this Agreement, and supersedes all other negotiations, understandings, and representations, if any, made by and between the parties. No representation, inducement, promise, or agreement, oral or otherwise, if any, not embodied in this Agreement, its exhibits, or any other written agreement related to this Agreement and expressly referenced herein is of any force and effect.
Severability; Waiver. If a court or other competent legal authority finds that any individual portion of this Agreement is not enforceable, this will not affect the enforceability of any other terms. Waiver by either party of a breach or violation of any provision of this Agreement may be made only in writing and does not constitute a waiver of any subsequent breach or violation of the same or other provisions.
Assignment; Amendment. Neither party may assign this Agreement or delegate any of its duties without the consent of the other party, except that such consent shall not be required in connection with a change of control or a sale of substantially all of the assets of a party. You shall not amend or waive any provision of this Agreement unless in writing and signed by both parties.
Survival. Notwithstanding anything to the contrary contained in this Agreement, the terms of the following sections shall survive the expiration or earlier termination of this Agreement: Definitions; Disclaimer of Warranties; Limitation of Liability; Indemnification; Confidentiality; and Miscellaneous Terms and Conditions.
Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of New Jersey without giving effect to the choice of law provisions thereof and all parties to this Agreement expressly agree to be subject to the jurisdiction of courts in the County of Ocean, State of New Jersey.
Equitable Relief. Because of the difficulty in calculating damages for breaches of this Agreement by you, we have the right and remedy, in addition to any others that may be available, at law or in equity, to have all of the provisions of this Agreement specifically enforced through injunctive or other relief. Accordingly, we may, without notice to you and with no requirement to establish any actual or irreparable damage or to post any bond or other security (or, if a bond is required, the amount of $1,000 shall be deemed reasonable), seek immediate equitable and injunctive relief as may be proper, which relief shall not prejudice our right to seek monetary relief as well, as applicable. Accordingly, we may institute an action or other proceeding against you to obtain injunctive or declaratory relief while pursuing claims for damages based on the same set of facts.
Construction. For the purposes of this Agreement: “including (include)” means “including (include), without limitation;” “or,” as in “A or B,” means “A or B or both.”
Force and Effect. You acknowledge that you have read and understood this Agreement, and that this Agreement has the same force and effect as a signed agreement. All rights not expressly granted herein are hereby reserved.