AFFILIATE AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND DIRTY LABS INC. BY APPLYING TO BE A PART OF DIRTY LABS’S AFFILIATE PROGRAM YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
1. Overview
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Company's Affiliate Program. The purpose of this Agreement is to allow HTML linking between your Web site and the Company Web site. Please note that throughout this Agreement, "we," "us," and "our" will mean Company, and "you," "your," and "yours" will mean you, the affiliate.
2. As an Affiliate: What You Have to Do:
(a) Link to Our Site:
(i) As a member of Company's Affiliate Program, you will have access to the Affiliate Center, located at shareasale.com. At this site you will be able to download HTML code that allows you to link your Web site to particular pages within the Company Web site ("Link Code") and graphics that we have made available for use in your Web site ("Link Graphics")]. You are only allowed to link to those specific web pages that we designate in the Link Code. Plus, in order for us to accurately keep track of guest visits from your site to ours, you must use the Link Code that we provide.
(ii) We have the right to monitor your Web site as we feel necessary to make sure that your links to our Web site are appropriate and to notify you of any changes that we feel should be made. Any failure by you to use our Link Code or Link Graphics, or to follow our instructions in their use, or attempt to modify the Link Code or Link Graphics will be a violation of this Agreement and grounds for termination.
(b) Give Us Your Full Cooperation: You agree to cooperate with us fully to establish and maintain any links between the Company Web site and your Web site. You also agree that any graphic images that you display pertaining to Company or its Web site, for use as a link or otherwise, will only be the Graphic Code that we provide to you. If we update the Graphic code or the Link Code, you will need to download the updated versions and replace the old graphics and links respectively with the new ones.
(c) Maintain Your Site: The maintenance and the updating of your Web site will be your responsibility. Because you are a member of Company's Affiliate Program and the information within Company is updated often, it will be necessary for you to update the content of your site on a regular basis to maintain consistency and accuracy between the Company Web site and your Web site. We may monitor your Web site as we feel necessary to make sure it is up-to-date and to notify you of any changes we feel should be made.
(d) Follow All Copyright Laws: It is entirely your responsibility to follow all applicable copyright and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible if you use another person's copyrighted material in violation of the law.
3. As an Affiliate: What You Need to Know and Understand
(a) We Can Monitor Your Site: You give us the right to monitor your Web site at any time to determine if you are following the terms and conditions of this Agreement, and to notify you of any changes we feel you should make to remain in compliance. Failure to comply is a violation of this Agreement and grounds for termination.
(b) We Determine the Policies for the Purchases: Customers who purchase products through Company's Affiliate Program (and Company's Customer Service Center) will be considered customers of Company. All our rules, policies, and operating procedures concerning customer orders and customer service will apply to those customers. We may change our policies and operating procedures at any time.
(c) You Cannot Send Out Publicity Without Our Consent: You may not create, publish, distribute, or permit any written or electronically transmitted publicity material that makes reference to us without first submitting the material to us and receiving our consent. We agree that the consent will not be withheld unreasonably.
(d) Starting Date of this Agreement: This Agreement will begin upon our acceptance of your Affiliate application.
(e) How this Agreement can be Ended: Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax.
(f) We Can Modify this Agreement: We may modify any of the terms and conditions in this Agreement, at any time in our sole discretion. You will be notified by email and a change notice will be posted on shareasale.com. Modifications may include, but are not limited to, changes in the scope of Advertising Fees, payment procedures, and Company's Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Company's Affiliate Program following the posting of the change notice or new agreement on our site will indicate your agreement to the changes.
4. As an Affiliate: What You Receive
(a) You Earn Advertising Fees: Except in states in which such a transaction is not permitted, you are eligible to earn Advertising Fees during the term of this Agreement. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. The exact amount of Advertising Fee due to you in any given quarter will be calculated in the following manner:
(i) The Advertising Fee will be calculated as a percentage of all sales made by us to any end-user linking from your Web site through the Link Code] less taxes, returns, credits, and shipping. Only sales made during the same session in which an end-user links through the Link Code from your Web site will qualify. Final determination as to whether to accept an end-user as a customer is at our sole determination.
(ii) Payment of your Advertising Fee will be made on a quarterly calendar basis, but only if your unpaid, cumulative quarterly Advertising Fee earnings exceed $50. If your unpaid, cumulative quarterly Advertising Fee earnings are less than $50, they will be rolled to the following quarter. If this Agreement terminates, any Advertising Fee due at the time of termination will be paid at the end of the quarter following termination.
(iii) If we determine that payment of Advertising Fees to you in any jurisdiction is illegal under any laws, then we may reserve the right to not pay Advertising Fees for any sales made in that jurisdiction.
(b) You Will Be Given a Password to Access Specific Affiliate Information: You will be given a password so that you may enter our secure Affiliate Center. From this Web site you will be able to download the Link Code and Link Graphics and receive your reports that will describe our calculation of the Advertising Fee due to you.
5. Grant of Licenses
(a) Subject to all the terms and conditions of this Agreement, we grant to you a non-exclusive, non-transferable, revocable right to: (i) grant your end-users access to our site solely through the Link Code and Link Graphics and (ii) solely in connection with such activities, to use the Link Code and Link Graphics. You may not alter, modify, or change the Link Code or Link Graphics in any way. You are only entitled to use the Link Code and Link Graphics to the extent that you are a member in good standing of Company's Affiliate Program.
(b) You grant to us a non-exclusive, non-transferable, revocable right to use your names, titles, and logos in the advertising, marketing, promoting, and publicizing in any manner of our rights under this Agreement. However, we are under no obligation to so advertise, market, promote, or publicize.
(c) Each party agrees not to use the other's proprietary materials in any manner that is disparaging or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Either party may revoke this license at any time by giving the other party written notice. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
6. As An Affiliate: More Things You Need To Know and Understand
(a) Disclaimer: WE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING COMPANY. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEB SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
(b) Representations and Warranties: You represent and warrant to us that:
(i) 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;
(ii) 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;
(iii) You have sufficient right, title, and interest in and to the rights granted to us in this Agreement; and,
(iv) You agree not to promote any products or services offered by us on our Web site to your end-users or target during the term of this Agreement.
(c) Limitations of Liability: WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL OUR 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 ADVERTISING FEES PAID TO YOU UNDER THIS AGREEMENT.
(d) Indemnification: You agree to indemnify and hold harmless Company and its employees, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against Company based on or arising from any claim resulting from your breach of this Agreement. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by Company in connection with or arising from any such claim, suit, action, or proceeding.
(e) Miscellaneous:
(i) Each party shall be deemed to be independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement shall be deemed or construed in any manner as creating any partnership, joint venture, employment, agency, fiduciary, or other similar relationship.
(ii) You may not assign your rights or obligations under this Agreement to any party, and any attempt to do so will be void and without effect. We are free to assign this Agreement.
(iii) This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws and principles thereof.
(iv) You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
(v) This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
(vi) The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
(vii) If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
(viii) YOU HAVE READ AND TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIM PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT.
