LoveScotch
Program Terms
Case Liquors, Inc. LoveScotch Website Affiliate Agreement
This Affiliate Agreement (here after called the “Agreement”) is provided by Case Liquors, Inc (here after referred to as “Case”). Our primary website is located at LoveScotch.com. The Agreement is a legal document between Case and Affiliate Partner (here after referred to as “Affiliate”) that defines the affiliate relationship both parties are entering into. This Agreement covers the Affiliate’s responsibilities to Case and Case’s responsibilities to the Affiliate.
1. Definitions
1.1 The following terms shall be defined as follows throughout this agreement:
Case: As described above, Case Liquors, Inc. be referred to as Case. Us, we our, ours, and other first-person pronouns will also refer to the Case, as well as all employees or legal agents of Case.
Affiliate, You: You will be referred to as the Affiliate. You’ll also be referred to throughout this Agreement with second-person pronouns such as you, your, or yours.
Parties: Collectively, the parties to this Agreement (Case and Affiliate) will be referred to as Parties or Party.
Customer: Any person or party who purchases goods or services on the Website after connecting to the Website from the Affiliate Site.
Case Indemnitees: Collectively, Case and its affiliates, owners, principals, officers, employees and agents
Affiliate Program: The program we’ve set up for our affiliates as described in this Agreement.
Affiliate Application: The fully completed form which must be provided to us for consideration of your inclusion of the Affiliate Program.
Website: The primary website LoveScotch.com will be referred to as Website.
Completed Transaction: The goods or services of Case ordered by a Customer have been delivered, the return period has expired, and thirty (30) days has elapsed since the goods or services were paid for in full.
Links: The banner, buttons, coding or other manner in which a Customer is referred by one site to the Website for the purpose of promoting the sale of goods or services on the Website. The Links are prepared so as to track Customers who are directed from the Affiliate to the Website and make a purchase which results in a Completed Transaction.
Fees: The agreed upon compensation for referred transactions originating from the Links. Fees shall be paid once an order has reached Completed Transactions status.
Net Sale Price: The total received in US Dollars (after conversion from non-US currency to US Dollars, if necessary) from the Customer less (i) any tax collected by the Company for or on behalf of any governmental or taxing authority (such as a sales tax or VAT), (ii) shipping and handling charges, (iii) restocking fees, (iv) credit card or other charges by attributable to the payment method used by the Customer, (v) currency conversion fees, or (vi) discounts, credit or allowances granted by the Company in its sole and absolute discretion.
2. Affiliate Site & Content
2.1 You have sole and exclusive responsibility and liability for the development, operation, maintenance and all materials and content that appear on the Affiliate Site. You shall operate and maintain the Affiliate Site in accordance with all applicable laws, rules, and regulations. The Affiliate Site shall not advertise the product or services to persons under the age of twenty-one years old. The Affiliate shall not advertise the product or services in an unfavorable manner, promote over consumption of alcoholic beverages, or drunkenness.
2.2 In consideration of the Fees, you agree to place one or more of the Links on the Affiliate Site in accordance with the terms and conditions of this Agreement.
2.3 We reserve the right to monitor the Affiliate Site to determine if you are in compliance with this Agreement.
2.4 The Company is not responsible to pay any Fees in the event you do not use the Links provided to you by the Company without modification or you do not properly install those Links, meaning the traffic will not be properly tracked to reflect that a Customer came from the Affiliate Site.
3. Compensation for Referred Traffic
3.1 Subject to your proper installation and use of the Links, you will be compensated based upon the Net Sale Price from Completed Transactions. Your compensation (the “Fee”) shall be in accordance with the agreed upon Schedule of Fees.
3.2 Case reserves the right to refuse an attempted purchase by any person, in the Case's sole and absolute discretion. You shall have no claim to any Fee based on the Company's decision to not complete transaction with any person who accesses the Site through a Link on the Affiliate Site.
3.3 The Fee relative to Completed Transaction shall be payable only to the Affiliate. There is no minimum payout limit.
3.4 All Fees are payable in U.S. Dollars only.
4. Fulfillment and Customer Information
4.1 Case is solely responsible for processing and fulfillment of all orders of goods and services on the Website, which shall be governed by the terms and conditions established by the Case in its sole and absolute discretion. All information about such orders and the Customers are the sole and exclusive property of the Case.
4.2 You agree that the Company may collect, process, and sell certain information about you for marketing purposes.
5. Limited License Rights
5.1 You agree to place one or more of the Links on the Affiliate Site. Links may contain logos, trademarks, service marks (collectively, “Marks”). Pursuant to this Agreement, Case grants you a limited, non-exclusive, non-transferable, and revocable license to display the Links on the Affiliate Site, and nowhere else, subject to the terms and conditions of this Agreement. You may not use the Links or the Marks for any other purpose absent the express written consent of the Case. You may not change, add to or delete from the Links or Marks. You may not use the Marks independently of the Links for any purpose without the Case's express written consent; and you may not use or present the Links in any manner that suggests the endorsement of or by any other goods, services, persons or entities without the express written consent of the Case. In addition, you agree to not (a) acquire or attempt to acquire, register or attempt to register, make a claim to or in any way use domain names, trademarks, service marks, keywords, handles, screen names or other forms of identification incorporating the Marks; or (b) not to use the Marks in a way that suggests that the source of the Affiliate Site is the Case.
5.2 All intellectual property rights in and to the Marks, and any goodwill generated by your use of the Marks shall inure solely to the benefit of the Case.
5.3 Upon suspension of this Agreement, the rights granted herein may, in the Case's sole discretion, be suspended. Upon termination of this Agreement, the rights granted in this section shall automatically terminate.
6. Representations and Warranties
6.1 You represent and warrant that you are legally capable and authorized to enter into this Agreement. If you represent an entity, you have taken all necessary actions to authorize you to enter into this Agreement.
6.2 The Affiliate Site does not and shall not:
Depict anyone less than twenty-one (21) years of age.
Contain material subject to 18 USC §2257.
Contain information which you know or reasonably should is false or misleading.
Promote the use of illicit drugs, underage drinking, drinking while pregnant, or unhealthy lifestyle choices.
Contain or transmit any apps or programs that are or can be installed or downloaded to a Customer’s computer or other device without the Customer’s express and knowing consent as to the exact nature, purpose, and function of such apps or programs.
Use Case’s name or the Marks in any form of unsolicited communications, including but no exclusive to email (spam), text messages, or phone calls.
7. Disclaimers
7.1 The Company makes no representations or warranties as to the Site. To the maximum extent of the law, the Company disclaims all representations, warranties and conditions, express and implied, including the warranties of merchantability, title and non-infringement. The Site is provided “as is.”
8. Limitation of Liability
8.1 In no event will Case be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages including but not limited to the loss of profits or business opportunities.
8.2 In no event shall the liability of Case arising out of or in connection with this agreement exceed the fees paid to you by Case. This limitation applies to any liability arising from any cause of action whatsoever in connection with this agreement.
9. Term and Termination
9.1 This Agreement shall commence upon the last signing by a Party and may be terminated by either Party upon written notice to the other.
9.2 If Case terminates this Agreement due to a breach by the Affiliate, no further Fees shall be paid to the Affiliate and Case may seek such other relief, equitable and legal, as may be available.
9.3 If the Affiliate terminates, the Fees due and owing to them shall be paid by Case.
9.4 Regardless of who terminates, upon termination, any and all rights and licenses granted by Case to the Affiliate shall immediately cease and the Affiliate shall immediately stop using and remove the Links and the Marks from the Affiliate Website.
10. Relationship
10.1 You are an independent contractor with respect to the Case. Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between you and the Case. You shall not, in any manner or respect, represent, suggest or convey the impression that you are an employee or agent of the Case, or that the Case has endorsed you and/or the Affiliate site or that you represent the Case in any manner or capacity. You have no authority to and shall not enter into any agreements or obligations purporting to be binding upon the Case.
10.2 As an independent contractor, you are solely and exclusively responsible for all taxes payable with respect to income earned through the Website; to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that you are not covered by or eligible for any insurance from the Case; and for ensuring that you comply with any Licensing Authority’s rules or practices.
11. Confidentiality
11.1 You promise and agree to hold Confidential Information in strict confidence and in trust for the sole benefit of the Case, both during the term of this Agreement and at all times thereafter, and shall not use such Confidential Information for any purpose, whether or not for consideration, business or personal, other than as may be reasonably necessary for the performance of its duties pursuant to this Agreement, without Case's prior written consent. You shall not disclose any Confidential Information to any person or entity, other than to such of its employees or consultants as may be reasonably necessary for purposes of performing its duties hereunder and have executed agreements of confidentiality no less protective than this Agreement, without the Case's prior written consent. You shall use not less than the same degree of care it uses to protect its own Confidential Information, but in any event not less than a reasonable degree of care. For purposes of clarity, your obligations hereunder include taking all actions necessary to ensure that your affiliates, employees, contractors and agents and any other person or party who obtains Confidential Information from or as a result of provider abide by the terms of this section in their entirety.
11.2 Confidential Information does not include information that (a) is or becomes publicly known through lawful means; (b) was rightfully in provider’s possession or part of your general knowledge prior to the effective date of this Agreement; or (c) is disclosed to you without confidential restriction by a third party who rightfully possesses the information (without confidential restriction) and did not learn of it, directly or indirectly, from the Case.
11.3 If you are required to disclose Confidential Information by virtue of a lawful court order, subpoena, or similar legal request, you will promptly notify the Case in writing of such requirement and cooperate so that the Company may seek an appropriate protective order. You will not use, copy, publish, distribute, or summarize any Confidential Information except as necessary to carry out the activities contemplated herein.
12. Waiver
12.1 You expressly and unconditionally waive any and all claims against the Case, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions:
The Website is partially or totally inoperative or inaccessible.
There are bugs, errors, glitches, or inaccuracies in the Website.
A suspension, termination or other action was taken with respect to your account by Case, even if such suspension, termination, or other action resulted in a loss of profits to you.
Any claim relating to a change in this Agreement by the Company.
Withholdings, deductions, or offset in connection with payment of Fees due to applicable tax or currency control restrictions.
12.2 You are solely responsible for the security of your Account, and the username and password associated with your Account. You hereby waive and dismiss any claims against us and agree to indemnify, defend, and hold us harmless against any unauthorized use of or access to your Account by an unauthorized person using your username and password.
12.3 You agree that any dispute you raise shall be as an individual only, not as a class or with or behalf of anyone else. You expressly waive any right to bring a class or collective action, or be a member in a class or collective proceeding. Case may take any and all actions necessary to dismiss a class or collective actions or claims thereunder.
13. Indemnification
13.1 You agree to and shall indemnify, defend (with legal counsel reasonably acceptable to Case Indemnitees) and hold Case Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from:
Any misrepresentation by, or breach of any covenant or warranty of yours contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by you hereunder.
Any non-fulfillment of any agreement by you under this Agreement.
Any suit, action, proceeding, claim, or investigation against Case Indemnitees which arises from or which is based upon or pertaining to your acts or omissions or conduct of business.
Failure to comply with the terms of this Agreement by you or your employees and agents.
Defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegation thereof to the extent caused by you or your employees and agents.
Failure to pay appropriate taxes for yourself or your employees and agents, including withholding taxes.
The Affiliate Site contains or promotes materials that infringe or violate the copyright or other intellectual property rights of any third party.
13.2 If any lawsuit, enforcement action or any attempt to collect on an alleged liability is filed against Case Indemnitees, written notice thereof shall be given to you within ten (10) business days after receipt of notice or other date by which action must be taken; provided, however, that the failure of Case Indemnitees to give timely notice shall not affect its rights to indemnification hereunder except to the extent that you demonstrate damage caused by such failure. After such notice, you shall be entitled, if it so elects, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at your reasonable cost and expense. Case Indemnitees shall cooperate in all reasonable respects, at your cost and expense, with you and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. You shall not, without the prior written consent of Case Indemnitees, effect any settlement of any proceeding in respect of which Case Indemnitees is/are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by you and includes an unconditional release of Case Indemnitees from all liability on claims that are the subject matter of such proceeding.
13.3 If you shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then the Company Indemnitees shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as Case Indemnitees, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by you upon demand by Case Indemnitees.
13.4 Case may deduct or offset or withhold your Fees if the Company, in its sole and absolute discretion, determines that you have committed some act that is likely to result in disputes, chargebacks or damages to Case to which Case would be entitled to indemnification by you.
14. Choice of Law
14.1 This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws, rules, or principles.
15. Dispute Resolution
15.1 To the fullest extent permitted by law, all disputes arising out of and related to this Agreement (“Disputes”) shall be resolved through mediation then arbitration. Any Dispute(s) shall be submitted to mediation conducted in accordance with the rules of the American Arbitration Association. Either Party may initiate mediation by filing a request for mediation with a copy served on the other Party. Neither the attorney-client nor work product privilege shall be deemed to have been waived by any statement or disclosure made in the proceedings. If the Parties have not settled the Dispute by mediation the Dispute shall be settled exclusively by arbitration. The arbitration shall be initiated and conducted pursuant to the arbitration rules of the American Arbitration Association in effect at the time the request for arbitration is made. Arbitration shall be final and binding upon the Parties. Any Party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise, no Party shall initiate or prosecute any lawsuit or administrative action in any way related to any Dispute. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. The Parties shall maintain the confidential nature of the arbitration proceeding and the award, except as may be necessary in connection with a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. Notwithstanding anything herein to the contrary, either Party shall be entitled to seek to obtain any provisional remedy, including injunctive or similar relief, from any court of competent jurisdiction as may be necessary to protect such Party’s rights and interests. Affiliate hereby consents to exclusive jurisdiction in and venue in State of California for all proceedings arising out of this Agreement.
16. Waiver of Jury Trail
16.1 Each of the Parties knowingly, voluntarily, and irrevocably waives, to the fullest extent permitted by law, all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of any Party in negotiation, administration, performance or enforcement of this Agreement.
17. Force Majeure
17.1 Case shall not be responsible or liable for any delay or failure to fulfill any provision of this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot, insurrection, embargoes, acts of civil or military authorities, fires, floods, explosions, accidents, or any other cause beyond the reasonable control of the Case.
18. Interpretation
18.1 You acknowledge and agree that you had sufficient time and opportunity to review this Agreement. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any party as drafter.
18.2 This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.
18.3 The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
19. Amendments
19.1 Case may modify or amend the terms of this Agreement at any time by posting such changes on the Site and/or notifying you by email. No such amendment shall be effective until at least thirty (30) days after the posting or email notice, whichever occurs first. Notwithstanding any modification, the rights and obligations of the Parties relating to the consideration to be received hereunder and any fees to be charged as between Parties as to any occurrence prior to the effective date of such modification shall remain unchanged by any such modification.
20. Notices
20.1 Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered in Person or sent by registered or certified mail (return receipt requested) or nationally recognized overnight delivery service, postage pre-paid, or delivered via telecopier or facsimile transmission addressed as follows, or to such other address has such Party may notify to the other Parties in writing:
To Case:
Name: Andrew Faour
Address: 16938 Saticoy St, Van Nuys, CA 91406
Email: andrew@wineandliquordepot.com or scareltt@wineandliquordepot.com
To the Affiliate:
Name: ____________________________________________________________
Address: __________________________________________________________
Email: ____________________________________________________________
21. Entire Agreement, Inurement
11.1 It is hereby acknowledged that this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent may not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either party in connection with a merger, consolidation, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Agreement relates. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
[SIGNATURE PAGE FOLLOWS]
ACCEPTED AND AGREED:
Case Liquors, Inc.
Signature ________________________________________________________
Signee Name ________________________________________________________
Signee Title ________________________________________________________
Date ________________________________________________________
Affiliate
Signature ________________________________________________________
Signee Name ________________________________________________________
Signee Title ________________________________________________________
Date ________________________________________________________
This Affiliate Agreement (here after called the “Agreement”) is provided by Case Liquors, Inc (here after referred to as “Case”). Our primary website is located at LoveScotch.com. The Agreement is a legal document between Case and Affiliate Partner (here after referred to as “Affiliate”) that defines the affiliate relationship both parties are entering into. This Agreement covers the Affiliate’s responsibilities to Case and Case’s responsibilities to the Affiliate.
1. Definitions
1.1 The following terms shall be defined as follows throughout this agreement:
Case: As described above, Case Liquors, Inc. be referred to as Case. Us, we our, ours, and other first-person pronouns will also refer to the Case, as well as all employees or legal agents of Case.
Affiliate, You: You will be referred to as the Affiliate. You’ll also be referred to throughout this Agreement with second-person pronouns such as you, your, or yours.
Parties: Collectively, the parties to this Agreement (Case and Affiliate) will be referred to as Parties or Party.
Customer: Any person or party who purchases goods or services on the Website after connecting to the Website from the Affiliate Site.
Case Indemnitees: Collectively, Case and its affiliates, owners, principals, officers, employees and agents
Affiliate Program: The program we’ve set up for our affiliates as described in this Agreement.
Affiliate Application: The fully completed form which must be provided to us for consideration of your inclusion of the Affiliate Program.
Website: The primary website LoveScotch.com will be referred to as Website.
Completed Transaction: The goods or services of Case ordered by a Customer have been delivered, the return period has expired, and thirty (30) days has elapsed since the goods or services were paid for in full.
Links: The banner, buttons, coding or other manner in which a Customer is referred by one site to the Website for the purpose of promoting the sale of goods or services on the Website. The Links are prepared so as to track Customers who are directed from the Affiliate to the Website and make a purchase which results in a Completed Transaction.
Fees: The agreed upon compensation for referred transactions originating from the Links. Fees shall be paid once an order has reached Completed Transactions status.
Net Sale Price: The total received in US Dollars (after conversion from non-US currency to US Dollars, if necessary) from the Customer less (i) any tax collected by the Company for or on behalf of any governmental or taxing authority (such as a sales tax or VAT), (ii) shipping and handling charges, (iii) restocking fees, (iv) credit card or other charges by attributable to the payment method used by the Customer, (v) currency conversion fees, or (vi) discounts, credit or allowances granted by the Company in its sole and absolute discretion.
2. Affiliate Site & Content
2.1 You have sole and exclusive responsibility and liability for the development, operation, maintenance and all materials and content that appear on the Affiliate Site. You shall operate and maintain the Affiliate Site in accordance with all applicable laws, rules, and regulations. The Affiliate Site shall not advertise the product or services to persons under the age of twenty-one years old. The Affiliate shall not advertise the product or services in an unfavorable manner, promote over consumption of alcoholic beverages, or drunkenness.
2.2 In consideration of the Fees, you agree to place one or more of the Links on the Affiliate Site in accordance with the terms and conditions of this Agreement.
2.3 We reserve the right to monitor the Affiliate Site to determine if you are in compliance with this Agreement.
2.4 The Company is not responsible to pay any Fees in the event you do not use the Links provided to you by the Company without modification or you do not properly install those Links, meaning the traffic will not be properly tracked to reflect that a Customer came from the Affiliate Site.
3. Compensation for Referred Traffic
3.1 Subject to your proper installation and use of the Links, you will be compensated based upon the Net Sale Price from Completed Transactions. Your compensation (the “Fee”) shall be in accordance with the agreed upon Schedule of Fees.
3.2 Case reserves the right to refuse an attempted purchase by any person, in the Case's sole and absolute discretion. You shall have no claim to any Fee based on the Company's decision to not complete transaction with any person who accesses the Site through a Link on the Affiliate Site.
3.3 The Fee relative to Completed Transaction shall be payable only to the Affiliate. There is no minimum payout limit.
3.4 All Fees are payable in U.S. Dollars only.
4. Fulfillment and Customer Information
4.1 Case is solely responsible for processing and fulfillment of all orders of goods and services on the Website, which shall be governed by the terms and conditions established by the Case in its sole and absolute discretion. All information about such orders and the Customers are the sole and exclusive property of the Case.
4.2 You agree that the Company may collect, process, and sell certain information about you for marketing purposes.
5. Limited License Rights
5.1 You agree to place one or more of the Links on the Affiliate Site. Links may contain logos, trademarks, service marks (collectively, “Marks”). Pursuant to this Agreement, Case grants you a limited, non-exclusive, non-transferable, and revocable license to display the Links on the Affiliate Site, and nowhere else, subject to the terms and conditions of this Agreement. You may not use the Links or the Marks for any other purpose absent the express written consent of the Case. You may not change, add to or delete from the Links or Marks. You may not use the Marks independently of the Links for any purpose without the Case's express written consent; and you may not use or present the Links in any manner that suggests the endorsement of or by any other goods, services, persons or entities without the express written consent of the Case. In addition, you agree to not (a) acquire or attempt to acquire, register or attempt to register, make a claim to or in any way use domain names, trademarks, service marks, keywords, handles, screen names or other forms of identification incorporating the Marks; or (b) not to use the Marks in a way that suggests that the source of the Affiliate Site is the Case.
5.2 All intellectual property rights in and to the Marks, and any goodwill generated by your use of the Marks shall inure solely to the benefit of the Case.
5.3 Upon suspension of this Agreement, the rights granted herein may, in the Case's sole discretion, be suspended. Upon termination of this Agreement, the rights granted in this section shall automatically terminate.
6. Representations and Warranties
6.1 You represent and warrant that you are legally capable and authorized to enter into this Agreement. If you represent an entity, you have taken all necessary actions to authorize you to enter into this Agreement.
6.2 The Affiliate Site does not and shall not:
Depict anyone less than twenty-one (21) years of age.
Contain material subject to 18 USC §2257.
Contain information which you know or reasonably should is false or misleading.
Promote the use of illicit drugs, underage drinking, drinking while pregnant, or unhealthy lifestyle choices.
Contain or transmit any apps or programs that are or can be installed or downloaded to a Customer’s computer or other device without the Customer’s express and knowing consent as to the exact nature, purpose, and function of such apps or programs.
Use Case’s name or the Marks in any form of unsolicited communications, including but no exclusive to email (spam), text messages, or phone calls.
7. Disclaimers
7.1 The Company makes no representations or warranties as to the Site. To the maximum extent of the law, the Company disclaims all representations, warranties and conditions, express and implied, including the warranties of merchantability, title and non-infringement. The Site is provided “as is.”
8. Limitation of Liability
8.1 In no event will Case be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages including but not limited to the loss of profits or business opportunities.
8.2 In no event shall the liability of Case arising out of or in connection with this agreement exceed the fees paid to you by Case. This limitation applies to any liability arising from any cause of action whatsoever in connection with this agreement.
9. Term and Termination
9.1 This Agreement shall commence upon the last signing by a Party and may be terminated by either Party upon written notice to the other.
9.2 If Case terminates this Agreement due to a breach by the Affiliate, no further Fees shall be paid to the Affiliate and Case may seek such other relief, equitable and legal, as may be available.
9.3 If the Affiliate terminates, the Fees due and owing to them shall be paid by Case.
9.4 Regardless of who terminates, upon termination, any and all rights and licenses granted by Case to the Affiliate shall immediately cease and the Affiliate shall immediately stop using and remove the Links and the Marks from the Affiliate Website.
10. Relationship
10.1 You are an independent contractor with respect to the Case. Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between you and the Case. You shall not, in any manner or respect, represent, suggest or convey the impression that you are an employee or agent of the Case, or that the Case has endorsed you and/or the Affiliate site or that you represent the Case in any manner or capacity. You have no authority to and shall not enter into any agreements or obligations purporting to be binding upon the Case.
10.2 As an independent contractor, you are solely and exclusively responsible for all taxes payable with respect to income earned through the Website; to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that you are not covered by or eligible for any insurance from the Case; and for ensuring that you comply with any Licensing Authority’s rules or practices.
11. Confidentiality
11.1 You promise and agree to hold Confidential Information in strict confidence and in trust for the sole benefit of the Case, both during the term of this Agreement and at all times thereafter, and shall not use such Confidential Information for any purpose, whether or not for consideration, business or personal, other than as may be reasonably necessary for the performance of its duties pursuant to this Agreement, without Case's prior written consent. You shall not disclose any Confidential Information to any person or entity, other than to such of its employees or consultants as may be reasonably necessary for purposes of performing its duties hereunder and have executed agreements of confidentiality no less protective than this Agreement, without the Case's prior written consent. You shall use not less than the same degree of care it uses to protect its own Confidential Information, but in any event not less than a reasonable degree of care. For purposes of clarity, your obligations hereunder include taking all actions necessary to ensure that your affiliates, employees, contractors and agents and any other person or party who obtains Confidential Information from or as a result of provider abide by the terms of this section in their entirety.
11.2 Confidential Information does not include information that (a) is or becomes publicly known through lawful means; (b) was rightfully in provider’s possession or part of your general knowledge prior to the effective date of this Agreement; or (c) is disclosed to you without confidential restriction by a third party who rightfully possesses the information (without confidential restriction) and did not learn of it, directly or indirectly, from the Case.
11.3 If you are required to disclose Confidential Information by virtue of a lawful court order, subpoena, or similar legal request, you will promptly notify the Case in writing of such requirement and cooperate so that the Company may seek an appropriate protective order. You will not use, copy, publish, distribute, or summarize any Confidential Information except as necessary to carry out the activities contemplated herein.
12. Waiver
12.1 You expressly and unconditionally waive any and all claims against the Case, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions:
The Website is partially or totally inoperative or inaccessible.
There are bugs, errors, glitches, or inaccuracies in the Website.
A suspension, termination or other action was taken with respect to your account by Case, even if such suspension, termination, or other action resulted in a loss of profits to you.
Any claim relating to a change in this Agreement by the Company.
Withholdings, deductions, or offset in connection with payment of Fees due to applicable tax or currency control restrictions.
12.2 You are solely responsible for the security of your Account, and the username and password associated with your Account. You hereby waive and dismiss any claims against us and agree to indemnify, defend, and hold us harmless against any unauthorized use of or access to your Account by an unauthorized person using your username and password.
12.3 You agree that any dispute you raise shall be as an individual only, not as a class or with or behalf of anyone else. You expressly waive any right to bring a class or collective action, or be a member in a class or collective proceeding. Case may take any and all actions necessary to dismiss a class or collective actions or claims thereunder.
13. Indemnification
13.1 You agree to and shall indemnify, defend (with legal counsel reasonably acceptable to Case Indemnitees) and hold Case Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from:
Any misrepresentation by, or breach of any covenant or warranty of yours contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by you hereunder.
Any non-fulfillment of any agreement by you under this Agreement.
Any suit, action, proceeding, claim, or investigation against Case Indemnitees which arises from or which is based upon or pertaining to your acts or omissions or conduct of business.
Failure to comply with the terms of this Agreement by you or your employees and agents.
Defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegation thereof to the extent caused by you or your employees and agents.
Failure to pay appropriate taxes for yourself or your employees and agents, including withholding taxes.
The Affiliate Site contains or promotes materials that infringe or violate the copyright or other intellectual property rights of any third party.
13.2 If any lawsuit, enforcement action or any attempt to collect on an alleged liability is filed against Case Indemnitees, written notice thereof shall be given to you within ten (10) business days after receipt of notice or other date by which action must be taken; provided, however, that the failure of Case Indemnitees to give timely notice shall not affect its rights to indemnification hereunder except to the extent that you demonstrate damage caused by such failure. After such notice, you shall be entitled, if it so elects, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at your reasonable cost and expense. Case Indemnitees shall cooperate in all reasonable respects, at your cost and expense, with you and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. You shall not, without the prior written consent of Case Indemnitees, effect any settlement of any proceeding in respect of which Case Indemnitees is/are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by you and includes an unconditional release of Case Indemnitees from all liability on claims that are the subject matter of such proceeding.
13.3 If you shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then the Company Indemnitees shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as Case Indemnitees, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by you upon demand by Case Indemnitees.
13.4 Case may deduct or offset or withhold your Fees if the Company, in its sole and absolute discretion, determines that you have committed some act that is likely to result in disputes, chargebacks or damages to Case to which Case would be entitled to indemnification by you.
14. Choice of Law
14.1 This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws, rules, or principles.
15. Dispute Resolution
15.1 To the fullest extent permitted by law, all disputes arising out of and related to this Agreement (“Disputes”) shall be resolved through mediation then arbitration. Any Dispute(s) shall be submitted to mediation conducted in accordance with the rules of the American Arbitration Association. Either Party may initiate mediation by filing a request for mediation with a copy served on the other Party. Neither the attorney-client nor work product privilege shall be deemed to have been waived by any statement or disclosure made in the proceedings. If the Parties have not settled the Dispute by mediation the Dispute shall be settled exclusively by arbitration. The arbitration shall be initiated and conducted pursuant to the arbitration rules of the American Arbitration Association in effect at the time the request for arbitration is made. Arbitration shall be final and binding upon the Parties. Any Party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise, no Party shall initiate or prosecute any lawsuit or administrative action in any way related to any Dispute. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. The Parties shall maintain the confidential nature of the arbitration proceeding and the award, except as may be necessary in connection with a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. Notwithstanding anything herein to the contrary, either Party shall be entitled to seek to obtain any provisional remedy, including injunctive or similar relief, from any court of competent jurisdiction as may be necessary to protect such Party’s rights and interests. Affiliate hereby consents to exclusive jurisdiction in and venue in State of California for all proceedings arising out of this Agreement.
16. Waiver of Jury Trail
16.1 Each of the Parties knowingly, voluntarily, and irrevocably waives, to the fullest extent permitted by law, all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of any Party in negotiation, administration, performance or enforcement of this Agreement.
17. Force Majeure
17.1 Case shall not be responsible or liable for any delay or failure to fulfill any provision of this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot, insurrection, embargoes, acts of civil or military authorities, fires, floods, explosions, accidents, or any other cause beyond the reasonable control of the Case.
18. Interpretation
18.1 You acknowledge and agree that you had sufficient time and opportunity to review this Agreement. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any party as drafter.
18.2 This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.
18.3 The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
19. Amendments
19.1 Case may modify or amend the terms of this Agreement at any time by posting such changes on the Site and/or notifying you by email. No such amendment shall be effective until at least thirty (30) days after the posting or email notice, whichever occurs first. Notwithstanding any modification, the rights and obligations of the Parties relating to the consideration to be received hereunder and any fees to be charged as between Parties as to any occurrence prior to the effective date of such modification shall remain unchanged by any such modification.
20. Notices
20.1 Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered in Person or sent by registered or certified mail (return receipt requested) or nationally recognized overnight delivery service, postage pre-paid, or delivered via telecopier or facsimile transmission addressed as follows, or to such other address has such Party may notify to the other Parties in writing:
To Case:
Name: Andrew Faour
Address: 16938 Saticoy St, Van Nuys, CA 91406
Email: andrew@wineandliquordepot.com or scareltt@wineandliquordepot.com
To the Affiliate:
Name: ____________________________________________________________
Address: __________________________________________________________
Email: ____________________________________________________________
21. Entire Agreement, Inurement
11.1 It is hereby acknowledged that this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent may not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either party in connection with a merger, consolidation, sale of all of the equity interests of the party, or a sale of all or substantially all of the assets of the party to which this Agreement relates. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
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ACCEPTED AND AGREED:
Case Liquors, Inc.
Signature ________________________________________________________
Signee Name ________________________________________________________
Signee Title ________________________________________________________
Date ________________________________________________________
Affiliate
Signature ________________________________________________________
Signee Name ________________________________________________________
Signee Title ________________________________________________________
Date ________________________________________________________