Thank you for your interest in becoming a member of Team Toccin! We look forward to working with you and encourage you to read the following Affiliate Agreement (“Agreement”) very carefully before submitting your application to participate in the Toccin Affiliate Program (“Program”). If you do not accept all of the terms and conditions of this Agreement do not submit an Application. By submitting the Application, you are conclusively deemed to have accepted and agreed to be bound by this Agreement. As used in this Agreement, "we" “us” and “Toccin” means [TOCCIN CORPORATE NAME HERE] and “Affiliate” “you” and “your” means the applicant submitting the Application and participating in the Program. Once accepted by us as an Affiliate for a particular program (“Program”), you are agreeing to abide by the terms and conditions of this Agreement. We reserve the right to terminate or revise the Program at any time, including by providing a change notice or revised documentation or training related to the Program. Any such termination or change will be effective immediately.You represent to us that you are over the age of eighteen (18) and that you are lawfully able to enter into this Agreement. You 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 for as long as you are an Affiliate.1.Enrollment.The Program is professionally managed by Shareasale.com, Inc. (“Share-a-Sale”) and this Agreement shall be effective upon Share-a-Sale’s acceptance of your merchant link sign-up request and your linking and/or participation in the Program. 2.Participation.To link to and participate in the Program, you must be registered as an affiliate with Share-a-Sale and request to be linked to Toccin. Your registration request may be rejected for any reason or for no reason at our or Share-a-Sale’s sole discretion. Your request will be rejected if it is determined that your web site includes anything that is, inter alia, unlawful, harmful, threatening, defamatory, obscene, harassing, discriminatory, or otherwise objectionable. We take ethical marketing practices seriously and want to ensure that our Affiliates feel the same way. As part of your enrollment process we may request information about your business to verify your business. We may also verify from time to time that the contact information you provided is complete and up to date. We reserve the right to reject any application. 3.License.Toccin grants you a limited, non-exclusive, non-transferable, revocable right to (i) access our site through the links (“Links”) solely in accordance with, and for the contemplated purpose of, this Agreement, and (ii) to use the branded trademarked terms shown below (only in the form(s) that they appear on the Toccin Affiliate Program Share-a-Sale web pages) solely in connection with such links, (collectively, the “Licensed Materials”), for the sole purpose of promoting Toccin’s products and services on your site. You may not copy, distribute, alter, modify, reverse engineer, or create derivative works from the Licensed Materials. Toccin may revoke your license at any time by giving you notice. Any goodwill arising out of your use of the Licensed Materials shall inure to the benefit of Toccin only. You shall not make any specific use of any Licensed Materials for purposes other than promoting Toccin’s products and services on your site. You agree not to use the Licensed Materials in a manner that is misleading or deceptive or that disparages the Program, Toccin or its affiliates or any of its or their products or services, or that otherwise portrays Toccin, in its sole discretion, in a negative light. Toccin reserves all rights in the Licensed Materials. At no time during the Term or thereafter will you challenge, or assist others in challenging, the validity of the Licensed Materials or the registration thereof or attempt to register any confusingly similar trademarks, service marks, logos, trade names or domain names. Except for the limited license set forth above, no license or other rights to the Licensed Materials will be deemed granted to you hereunder or in connection with the Program, by implication, estoppel or otherwise. Further, You agree that any breach by you of your obligations regarding Licensed Materials during the term or thereafter may result in irreparable injury to Toccin for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of such obligations of yours, Toccin will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction. You grant to Toccin a non-exclusive license to use your names, titles, logos, and trademarks (the “Affiliate Trademarks”), to advertise, market, promote, and publicize in any manner your participation in the Program and/or to further Toccin’s rights hereunder. Notwithstanding, we are not obligated to advertise, market, promote or publicize your participation in our Program or the existence of, or any other aspect of the Program. Any license granted hereunder shall run concurrently with the term of this Agreement.4.Review & Approval.We reserve the right at any time, to review and approve of Your site, the placement and use of our Links and to require that you change or modify portions of Your site and/or the placement or use of our Links to comply with the terms of this Agreement and the guidelines, policies, and restrictions contained herein. If you do not make the requested changes or modifications, we reserve the right to terminate this Agreement effective immediately and subject to the terms herein.5.Representations and Warranties.Each party represents to the other that it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby. Affiliate represents that the contents of Your Site and any domain names associated with Your site do not (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) contain defamatory or libelous material; (c) contain lewd, pornographic, or obscene material; (d) violate any applicable law, statute, ordinance or regulation; (e) violate any laws regarding unfair competition, anti-discrimination, or false advertising; (f) promote violence or contain hate speech; or (g) contain viruses, trojan horses, worms, cancelbots, or other similar harmful or deleterious programming routines. Affiliate represents that it has and complies with a privacy policy consistent with federal and state laws and regulations, which is prominently displayed on its website. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.6.Your Obligations. In consideration for participation in the Program, you agree to:a.insert Links on your site within 30 days of your acceptance into the Program;b.participate in the Program by accessing and using promotional Links via the Share-a-Sale site. c.be solely responsible for all costs and expenses you may incur in connection with your participation on the Program and/or your performance under this Agreement including (i) the development, operation and maintenance of your site; (ii) ensuring that your site and your business practices do not violate this Agreement; all materials that appear on your site and the accuracy and appropriateness of such materials; and (iii) ensuring that any such materials do not violate or infringe upon the rights of any third party, including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights, are not libelous, defamatory, misleading, false or deceptive or otherwise illegal. d.not to participate in spy ware, ad ware or parasite ware techniques for driving traffic; e.to keep your application with the Share-a-Sale Affiliate Network updated with current and accurate information (including WHOIS information) and, at all times, list the web sites you are using to drive traffic to us; f.not to make any representations, either express or implied, or create an appearance or impression, directly or indirectly, that a visitor to your site is visiting our site, that a visitor to our site is visiting your site or that Toccin endorses you or your site or your products and services; 7.Toccin Obligations. Toccin is not obligated to make any representations, warranties or other statements concerning you, your Site, your Site policies or any of your products or services. 8.Publicity.Except for the material made available to you by Share-a-Sale for your participation in the Program, you shall not create, publish, distribute, or permit any material that makes reference to Toccin or the Program without first obtaining our express written consent which may be granted or withheld at our sole discretion.9.Toccin Customers.Customers who buy Toccin’s products and services through the Program are deemed to be customers of Toccin. As such, all of Toccin’s policies and operating procedures concerning customer orders, customer service, and product and service sales shall apply. Toccin shall own and retain all right, title and interest in all names, addresses and other identifying information of customers visiting any Toccin site (“Customer Data”) which is collected by Toccin, including without limitation, customers who access any Toccin site from Your Site, and You shall have no right to use any such Customer Data. You may not include price information in your product descriptions without our explicit consent. You shall refer all questions, requests and queries regarding our products and services to us. You does not have the authority to make or accept any offer on our behalf. 10.Commission Payment. Toccin is neither responsible nor liable for any type of commission payments to you. Share-a-Sale handles and is solely responsible for any and all commission payments. Please visit www.shareasale.com for more information regarding commission payment and timing of payments.11.Modification to this Agreement.Toccin reserves the right to modify, revise, delete or supplement the terms of this Agreement. When we do, we will either publish an updated version on our site or we will send notice to you by email to Your then currently associated email address. By continuing to participate in the program following our notification 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. The terms and conditions of this Agreement may not be amended, waived, or modified by you unless set forth in writing and signed by us. If any modification is unacceptable to you, your only recourse is to terminate this Agreement by notifying us in writing.12.Term.This Agreement shall apply and be effective as of the date your Share-a-Sale merchant link signup request is accepted and shall remain in effect for as long as you continue to participate in the Program, or maintain Links to our site on your site. Either of us may terminate this Agreement at any time, with or without cause, by giving the other party notice of such termination. No commissions shall accrue or be earned by you after the Term. Affiliate is only eligible to earn commissions on sales occurring during the term of this Agreement, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. Toccin may withhold Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid. If Toccin has reason to believe Affiliate’s orders/referrals were obtained fraudulently or through misrepresentation, Toccin shall have the right to withhold payment of commissions pending an investigation of the suspected fraud or misrepresentation. Toccin further reserves the right to withhold Affiliate commissions and/or terminate this Agreement for Affiliates found to be in breach of this Agreement. Upon termination of this Agreement, (a) all licenses hereunder shall terminate and (b) you shall immediately remove all Licensed Materials from Your Site and cease using Toccin’s name, logos, trademarks, service marks, trade dress, and/or proprietary technology.13.Referrals.AFFILATE UNDERSTANDS THAT TOCCIN MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, SOLICIT CUSTOMER REFERRALS AND ENTER INTO SIMILAR AGREEMENTS ON TERMS THAT MAY BE THE SAME, SIMILAR OR DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR ENTER INTO AN AGREEMENT WITH COMPETITORS OF AFFILIATE, OR MAY OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE’S WEB SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE TRANSACTIONS CONTEMPLATED HEREUNDER AND IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT. 14.Indemnification. You agree that we will not be liable 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. To the fullest extent provided by law, You agree to defend, indemnify, and hold harmless us and our affiliates, managers, officers, employees, agents, partners, and licensors from and against any losses, claims, actions, judgements, liabilities, settlements, demands, or costs (including reasonable attorneys’ fees and court costs), alleging or resulting from any activity arising in connection with (i) your participation in the Program, (ii) your performance under this Agreement, (iii) any claim related to Your Site, including without limitation, content therein not attributable to us, or (iv) a breach by you of this Agreement. 15.Confidentiality. Except as otherwise provided herein or with the consent of the other party, each party agrees that all information including, without limitation, business and financial information, customer and vendor lists, and pricing and sales information, concerning Toccin or you, or any other affiliate, provided by or on behalf of any of them shall remain strictly confidential and shall not be used, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process. 16.Limitation of Liability. Toccin makes no express or implied warranties or representations with respect to the Program, our site or any Toccin products or services sold through the Program, including, without limitation, warranties of merchantability, fitness for a particular purpose, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage. Toccin makes no representation that the operation of our site will be uninterrupted or error-free and we shall not be liable for the consequences of any such interruptions or errors. TOCCIN SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAM OR YOUR PARTICIPATION IN THE PROGRAM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY AVAILABLE WITH RESPECT TO THIS AGREEMENT AND/OR THE PROGRAM OR ANY BREACH BY TOCCIN HEREOF SHALL BE TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM.17.Miscellaneous.a.This Agreement shall be governed and construed by the laws of the State of New York applicable to agreements entered into and to be wholly performed therein without giving effect to conflicts of laws rules or principles. The exclusive venue for any disputes arising out of or in connection with this Agreement shall be the state or federal courts located in the State of New York, County of New York. By entering this Agreement, you hereby accept unconditionally the exclusive jurisdiction of the aforesaid courts. b. You may not assign this Agreement without our prior written consent. c.Any notice given under this Agreement to you shall be sufficient if it is in writing and if sent by certified or registered mail return receipt requested to the address in your ShareASale profile. Any notice given under this Agreement to us shall be sufficient if it is in writing and if sent by certified or registered mail return receipt requested to [INSERT ADDRESS ].d.The failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any rights. The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect. e.This Agreement does not create any agency, partnership, or joint venture relationship between the parties. This Agreement is for the sole benefit of the parties (and indemnified parties), and no other persons will have any right or remedy under this Agreement. f.The headings of sections of this Agreement are for reference purposes only and will not affect the meaning or construction of the terms and conditions of this Agreement. g.The provisions contained in this Agreement that by their context are intended to survive termination or expiration will survive, including without limitation, Sections 14 through 16. h.This Agreement, and any terms and conditions related to the Program, are the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes any previous or contemporaneous communications, whether oral or written with respect to such subject matter. Thank you for your attention.
