STANISLAUS FOOD PRODUCTS CO. DBA CORTO OLIVE CO.
AFFILIATE AGREEMENT
This Affiliate Agreement, including all Exhibits hereto (this “Agreement”), is entered into as of the date listed below (the “Effective Date”) between the party whose name is set forth below (the “Affiliate” or “you”) and Stanislaus Food Products Co. dba Corto Olive Co., a California corporation (“Corto”). Each may be referred to as a “Party” and collectively as the “Parties.”
The Agreement is a legal document between you and Corto that describes the “Corto Affiliate Program” and covers the Parties’ responsibilities thereunder. As an affiliate, you have already accepted binding terms with the ShareASale network. This Agreement is specific to your engagement with Corto and supersedes any conflicting or inconsistent terms in your agreement with the ShareASale network. Please ensure you read and understand the entirety of this document, as well as have a lawyer’s assistance if you desire.
1. Definitions. For purposes of this Agreement, the following terms will have the indicated definitions:
“Affiliate’s Site(s)” means one or more websites or web services owned or controlled by Affiliate, or upon which Affiliate has an account or membership, on which Affiliate places a referral link (the “Links”) to Corto’s Site. Affiliate represents and warrants to Corto that it has sufficient right, title, interest, authority or permission, as applicable, to place Links on Affiliate’s Site(s) as described herein.
“Content” means all materials comprising a Party’s Site, including, but not limited to, any articles, images, photographs, illustrations, graphics, audio clips, video clips or text, and Marks.
“Corto’s Site” means the Corto website located at https://corto-olive.com/.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Marks” means all trademarks, service marks, trade names, logos, words or symbols identifying either Party or either Party’s respective products or services.
“Qualified Clicks” means clicks that (a) are arriving to Corto’s Site through properly formatted Links on the Affiliate Site; (b) are arriving to Corto’s Site through the Affiliate’s specifically approved sites only (no other websites or social media pages); (c) are arriving to Corto’s Site which relate to one specific user; and (d) are not sent by a bot or other automated web program.
“Qualified Customers” means persons who purchase any products or services from Corto who are referred to Corto’s Site by Affiliate through a Qualified Click and originated from Affiliate’s Site(s).
2. Affiliate Program Guidelines.
(a) Acceptance of Affiliate Program Guidelines. Affiliate hereby agrees to abide by Corto’s Affiliate Program Guidelines (“Guidelines”) attached hereto as Exhibit 1, which are part of this Agreement.
(b) Fraudulent Commissions. Affiliate agrees it will not conduct any fraudulent activities including but not limited to cookie stuffing, link interception and falsifying orders.
3. License Grant.
(a) Grant to Affiliate. Subject to the terms and conditions of this Agreement, Corto grants to Affiliate a nontransferable, nonexclusive, revocable license to access Corto’s Site and use Corto’s Marks solely for the purpose of fulfilling Affiliate’s obligations hereunder and subject to the Guidelines in Exhibit 1. Corto may revoke this license at any time.
(b) No Other Rights. Except as expressly provided herein, Affiliate agrees to (a) not use Corto’s Marks without its prior written consent, (b) only use Corto’s Marks in accordance with any trademark quality standards and usage guidelines Corto may provide; and (c) upon termination of this Agreement for any reason, immediately cease all use of Corto’s Marks.
4. Compensation.
(a) Commission. For each sale of Corto products, other than Excluded Sales, made to a Qualified Customer during the Term and initiated by a Qualified Click, Corto will pay Affiliate a commission equal to such percentage as set forth on Exhibit 2 of the price actually paid to Corto by such Qualified Customer excluding any refunds and/or taxes (the “Commission”). The Commission may be updated from time to time upon mutual written agreement of the parties (email to suffice).
(b) “Excluded Sale”: means a sale to a Qualified Customer that has (i) followed links to the Corto Site from other Corto affiliates after following Affiliate’s Link and before registering as a user on the Corto Site, (ii) used a different browser or computer to register as a Corto user than was used to follow Affiliate’s link, or (iii) cleared his or her cookies after following a link from Affiliate’s website.
(c) Taxes. Both Parties are responsible for payment of any/all of their respective taxes.
(d) Payment. Payments by Corto required hereunder shall be made on a quarterly basis and within thirty (30) days after the close of each calendar quarter.
5. Non-Exclusivity. This Agreement does not create an exclusive relationship between Corto and Affiliate. Affiliate is free to work with similar affiliate program providers in any category. Corto is free to work with any individual or company in its affiliate program at Corto’s discretion.
6. Ownership; Reservation of Rights. Each Party retains all right, title and interest, including all Intellectual Property Rights, in and to (a) its Marks, Content, products and Site, and (b) any new inventions, developments, derivative works or technology resulting from or in connection with the performance of such Party’s obligations hereunder. Except as expressly set forth in Section 3, each Party reserves all rights and grants the other Party no licenses of any kind hereunder. Corto reserves the right at any time without liability or prior notice to modify or discontinue access to any of its websites, products and services. Neither Party is responsible to the other Party for any customer service support for purchases and fulfillment of the other Party’s products and services.
7. Term and Termination.
(a) Term. The term of this Agreement shall commence on the Effective Date and, except as earlier terminated as set forth herein, shall continue for the period set forth on Exhibit 2 (the “Term”); provided that either Party may terminate this Agreement at any time with thirty (30) days’ prior written notice.
(b) Termination for Cause. If either Party defaults in the performance of any material provision of this Agreement, then the non-defaulting Party may give written notice to the defaulting Party that if the default is not cured within thirty (30) days the Agreement will be terminated. If the non-defaulting Party gives such notice and the default is not cured during the thirty-day period, then the Agreement shall automatically terminate at the end of that period.
(c) Termination for Insolvency and Related Events. This Agreement shall terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such Party’s debts, (ii) upon either Party’s making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
(d) Effect of Termination. Upon termination of this Agreement, Affiliate will discontinue all further promotion of Corto’s products and services pursuant to this Agreement. Without limiting the generality of the foregoing, Affiliate will cease all display, advertising, and use of all of Corto’s Marks and will not thereafter use, advertise, or display any such Marks unless otherwise agreed by Corto in writing.
(e) Survival of Certain Terms. The provisions of Section 1 and Sections 6-10 of this Agreement shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the Parties shall cease upon termination of this Agreement.
8. Warranties; Disclaimer
(a) Affiliate FTC Compliance. Affiliate represents and warrants that Affiliate shall comply with federal, state, and local laws, statutes, ordinances, rules, regulations, orders, and requirements, whether now in force or later enacted, relating to this Agreement or the Corto Affiliate Program, and in a manner that does not, infringe or violate any third party’s personal or property rights. Affiliate shall perform all services and obligations with regard to the Corto Affiliate Program in compliance with laws prohibiting or restricting the delivery of unsolicited electronic communications (also known as SPAM) and any and all consumer disclosure requirements for affiliate programs, endorsements, reviews, and testimonials under federal, state and local laws, statutes, ordinances, rules, regulations, guidance and orders, including without limitation the United States Federal Trade Commission Guides Concerning the Use of Endorsement and Testimonials in Advertising. Corto reserves the right to terminate a relationship for Affiliate’s non-compliance. Affiliate will indemnify and hold Corto harmless from and against any and all losses arising from Affiliate’s breach of this Section 8(a).
(b) Disclaimer by Corto. CORTO’S PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CORTO MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ITS PRODUCTS OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COARTO DISCLAIMS ALL WARRANTIES THAT ITS PRODUCTS OR SERVICES WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, WILL MEET ANY OTHER PARTY’S OR ANY CUSTOMERS’ REQUIREMENTS OR WILL COMPLY WITH APPLICABLE LAWS.
9. Limitation of Liability. IN NO EVENT WILL CORTO BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY, OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR FROM ANY DEFECT OR ERROR IN ITS PRODUCTS OR SERVICES, EVEN IF AFFILIATE HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF CORTO ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID TO AFFILIATE UNDER THIS AGREEMENT. CORTO SHALL HAVE NO LIABILITY FOR AFFILIATE’S ACTIVITIES PURSUANT TO THIS AGREEMENT.
10. General.
(a) Independent Contractor. Neither Party shall be deemed to be an agent of the other Party for any purpose, and the relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
(b) Governing Law and Jurisdiction. This Agreement is governed and interpreted in accordance with the laws of the State of California, U.S.A. without reference to conflicts of laws principles and excluding the United Nations Convention on Contracts for the Sale of Goods. The Parties consent to the exclusive jurisdiction of, and venue in, San Francisco, California, U.S.A. for the adjudication of any disputes arising hereunder.
(c) Assignment. Neither Party shall assign, delegate, or otherwise transfer its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party (to be granted or withheld in its reasonable discretion); except that Corto may assign this Agreement freely in connection with a merger, acquisition, sale of substantially all of its assets or stock, financing, reorganization, or similar transaction. This Agreement will inure to the benefit of the Parties and their permitted successors and assigns.
(d) Merger, Modification and Waiver. This Agreement constitutes the entire agreement between Corto and Affiliate with respect to the subject matter hereof, and merges all prior negotiations and drafts of the Parties with regard thereto. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement shall be effective unless in writing. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
(e) Severability. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute or rule of law, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions shall continue in full force and effect.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
Affiliate Name:
By checking the “I Agree” button, you are acknowledging that you have read and understood the terms and conditions of the Agreement, agree to such terms and conditions, and are authorized by your company, if applicable, to enter into such agreement.
I AGREE
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EXHIBIT 1
AFFILIATE PROGRAM GUIDELINES
Corto is excited to share our brand with the world, and we are happy you can be a part of our message as one of our Affiliates. Corto asks that you follow these Guidelines when spreading the message or discussing Corto’s products and services in any context. Failure to follow these steps may result in Corto discontinuing our relationship.
1. General Guidelines. Affiliate shall not make any false, misleading, or disparaging statements with respect to the Corto Affiliate Program; Corto, its employees, and its customers; Corto products and services; other Corto’s affiliates; or Corto’s competitors.
2. Promotion Platforms. When Affiliate speaks or writes about Corto, Affiliate may do so only using the following platforms or medium:
(a) Websites and blogs that respect the Affiliate Restrictions under Section 3 of these Guidelines;
(b) Organic communication on social media pages;
(c) Organic communication on video-sharing websites such as YouTube or Vimeo; and
(d) Email databases that have been acquired legally and in compliance with applicable laws, including in relation to privacy and consumer protection.
3. Affiliate Restrictions. Affiliate may not promote Corto using the following:
(a) Any paid advertising on any medium or platform, including, but not limited to, social media platforms, search engines, and video-sharing websites. This includes, but is not limited to, the following online places: Facebook, Instagram, Twitter, Snapchat, LinkedIn, Google+, Pinterest, Google (including Google Display Network, Google Shopping, AdWords and any form of retargeting), Bing, Yahoo, Amazon, YouTube, Vimeo.
(b) Any bid on Corto’s competitors trademark terms to promote Corto or its products.
(c) Any online coupons or promotional offers websites.
(d) Any websites that:
i. Promote sexually explicit materials;
ii. Promote violence;
iii. Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
iv. Promote illegal activities;
v. Incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
vi. Include “Corto” or variations or misspellings thereof in its domain name;
vii. Are otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to Corto in its sole discretion.
viii. Contain software downloads that potentially enable diversions of commission from other affiliates participating in the Corto Affiliate Program;
(e) A website that you create, design, or operate and which is designed in a manner which resembles Corto’s website, or which may lead customers to believe they are visiting an official Corto (or Corto affiliate) website or online property.
4. Disclose that you are a paid Affiliate of Corto. As an Affiliate, Affiliate has a responsibility to clearly disclose its connection to Corto every time Affiliate speaks, writes, or conveys a message in any context about Corto’s products. The disclosure must be made at the same time and place as Affiliate’s statement about Corto (in other words, don’t hide the disclosure behind a click-through). Affiliate’s audience must understand that Affiliate could earn commissions if they click Affiliate’s links.
(a) Whenever Affiliate posts about Corto on Affiliate’s social media account(s), include the following:
i. Sponsored, Ad, Paid Ad, Advertisement, Affiliate Post or the hashtag #sponsored, #ad, #paid, #affiliatelink; and
ii. Tag Corto’s account on the applicable social media platform. [Disclosures on Facebook or Instagram must appear on top of the content before the “More” click-through.]
(b) If Affiliate writes about Corto as part of Affiliate’s website or blog, make sure:
i. The disclosure is at the top of the post and above the fold, and
ii. All Affiliate links include a disclaimer about it being an Affiliate link (either prominently at the top, or next to the link if it would not be clear to a reasonable consumer that it is an affiliate link).
(c) When making a statement about Corto (e.g., posting on a website, blog, and social media or making a statement in an interview), make clear that Affiliate is partnered with Corto to promote its products:
i. “We really love working with Corto because they offer high quality products and services.”
(d) If the relationship if not clear from Affiliate’s statements, Affiliate must add “Sponsor,” “Ad,” “PaidAd,” “Affiliate Program,” or something similar to the post.
(e) If Affiliate receives a direct question about Affiliate’s relationship with Corto, Affiliate should answer honestly and truthfully, though Affiliate does not need to disclose the terms of any compensation.
5. Posts should reflect Affiliate’s own opinion or experience. Any statement Affiliate makes about Corto should reflect Affiliate’s own honest opinion and experience, even if Affiliate is using talking points that Corto suggests.
6. Do not make claims that are untrue or unsubstantiated. Do not make factual statements about Corto without first confirming if these statements are correct and obtaining Corto’s permission.
7. Respect intellectual property rights. Only post intellectual property (trademarks, copyrights, logos etc.) that Affiliate owns all rights to or has been granted permission to use by Corto.
8. Use good judgment and be respectful. Do not post materials that are or may be obscene, libelous, hateful or discriminatory, illegal, harmful or in violation of a third party’s rights.
When in doubt, ask a Corto representative.
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EXHIBIT 2
Commission: ___ %
Term: ____ months from the Effective Date.
