BY SUBMITTING AN APPLICATION TO OUR AFFILIATE PROGRAM, YOU ARE CONSENTING TO THIS AFFILIATE AGREEMENT, WHICH ARE THE TERMS AND CONDITIONS OF OUR AFFILIATE PROGRAM.
In consideration of Samantha King doing business as HeySamanthaKing.com (“Business”) maintaining an Affiliate Program for its Programs, Products and Services, and Program or Training Materials, and you (“Affiliate”) desiring to participate in the Affiliate Program, it is agreed as follows:
In order to enroll in the Business’ Affiliate Program, Affiliate must complete an application form for each website through which Affiliate desires to promote the Programs, Products and Services, and Program or Training Materials sold through the Affiliate Program. Applicant agrees that any registration information provided to the Business will always be accurate, correct and up to date and that the account will not be used for any illegal or unauthorized purpose. Applications will be evaluated by the Business and Business reserves the right to deny entrance into its Affiliate Program to any applicant that is deemed unqualified for any reason, at Business’s sole and absolute discretion.
The term of this Agreement shall be exactly one year from the date on which you first become an Affiliate or Facilitator. At the end of the term, this Agreement will automatically renew for an additional one-year term unless cancelled by either party in accordance with Paragraph 3.
Business or Affiliate may terminate this Agreement for any reason by providing 30 days written notice to the other party. The Cancellation Date will be the date which is 30 days after the date written notice is sent.
Failure to comply with the terms of this Agreement will result in immediate cancellation of this Agreement by the Business and forfeiture by Affiliate of any accrued, unpaid commissions. Business shall pay any pending commissions owed to Affiliate through the Cancellation Date, if a cancellation of this Agreement occurs for any reason other than a violation of this Agreement on the part of the Affiliate.
Upon cancellation by either party, Affiliate’s limited license to use the intellectual property of Business for the purpose of promoting the Programs, Products and Services, and Program or Training Materials offered through the Affiliate Program, will cease as of the Cancellation Date.
The Business reserves the right to terminate this Agreement if the Affiliate behaves in a manner which, at the sole discretion of the Business, is likely to damage the reputation of the Business.
Business shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website and in the Affiliate’s e-mail marketing and social media marketing (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Business’s website, as specified by the Business.
The Affiliate’s use and display of the Promotional Materials on the Affiliate’s website shall conform to the following terms, conditions and specifications:
1. Affiliate may not use any graphic, textual or other materials to promote Business’s website, products or services other than the Promotional Materials provided by Business, unless Business approved such other materials in writing prior to their display.
2. Affiliate may only use the Promotional Materials for the purpose of promoting Business’s website (and the programs, products and services, and program or training materials available thereon), and for linking to Business’s website.
3. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by Business. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from the Business for such alteration or modification.
4. The Promotional Materials will be used to link only to Business’s website, to the specific web site page specified by Business.
Upon acceptance into the Affiliate Program, Business grants the Affiliate a revocable, non-exclusive, worldwide, royalty-free license to use the Promotional Materials provided by Business during the term of this Agreement. The Affiliate may display these materials on the Affiliate’s website for the sole purpose of participating in the Affiliate Program. The Affiliate is prohibited from distributing, reproducing, modifying, amending, or creating derivative works of the Promotional Materials. Upon cancellation by either party, Affiliate’s limited license to use the Promotional Materials for the purpose of promoting the Programs, Products and Services, and Program or Training Materials offered through the Affiliate Program, will cease as of the cancellation date. Upon the cancellation date, Affiliate must immediately cease any use of the Promotional Material. The Affiliate is not granted a license to use any of the Business’s intellectual property or proprietary material, other than the Promotional Materials discussed above.
a. Affiliate will be paid a referral fee (“Commission”), for each customer who completes a purchase of any Programs, Products and Services, and Program or Training Materials included in the Affiliate Program on the Business’ website using the unique affiliate link assigned to Affiliate (“Link”). Commissions will be calculated based upon the Gross Sales Price of the programs, products and services, and program or training materials. Gross Sales Price is defined as all payments received by the Business by the sale of the product, but not including any sales tax, finance charges, processing charges, collection costs, amounts due to credit card fraud, credits given to customers, bad debt right-off and refunded products or services. The Affiliate shall be paid Commissions only on sales that are tracked through the Business’s online tracking system and indicate the Link as the source.
b. The Commission rate is currently 40% of the Gross Sales Price of each completed purchase made through the Link and actually paid to the Business. Business reserves the right to change and amend the commission rate structure at any time, in the Business’s sole discretion.
c. Commissions will be paid to the Affiliate 60 days following completed purchase (“60 Day Cycle”). Commissions will be adjusted for orders that are cancelled, returned, or where payment is otherwise refunded to the purchaser. All payments will be made by PayPal to the Affiliate via the email address provided unless other arrangements are approved by the Business.
d. In the event that the amount of Commissions due to the Affiliate are fifty dollars in Canadian currency ($50) or less, that sum will be kept by Business and paid in the next 60 Day Cycle in which the sum owing is fifty-one dollars in Canadian currency ($51) or more.
e. Commissions are paid net of any deductions or taxes required under provincial or federal law. Affiliates are required to provide such information as is necessary for the Business to be able to determine whether deductions are required including but not limited to the Affiliate’s Business Number and residency.
The Business will handle all aspects of customer service for customers who purchase through the Affiliate’s Link including customer inquiries, product orders, customer billing and collection. Business reserves the right to change the Business’s policies and procedures, pricing structure, add or cancel any special offers, discontinue programs, products and services, and program or training materials, or change the terms under which programs, products and services, and program or training materials are offered at any time, without any advanced notice to the Affiliate or customers purchasing through the Affiliate’s Link.
The Affiliate grants Business a revocable, non-exclusive, worldwide, royalty-free license to use the Affiliate’s trademarks, trade names, service marks, business names, web page titles, slogans, logos, and copyrighted materials for the purposes of promoting, advertising, announcing, or marketing the Affiliate’s participation in the Affiliate Program. The Business has no obligation to announce, advertise, market, or promote the Affiliate’s participation in the Business Affiliate Program, but reserves the right to do so at its sole discretion.
The Affiliate is solely responsible for the development, maintenance and operation of the Affiliate’s website and for placing Links on Affiliate’s website in compliance with the terms of the Affiliate Program.
The Affiliate is solely responsible for the dissemination of the Affiliate Links through e-mail marketing and social media marketing.
Affiliate is responsible for disclosing that the Links provided on its website or marketed to potential customers by other means are affiliate links in accordance with s. 74.01 of the Competition Act (Canada).
Affiliate is responsible for all materials that appear on Affiliate’s website and for ensuring that such items do not infringe upon the rights of any third party including, but not limited to, copyright, trademark, privacy or other proprietary rights.
a. Business’s Warranties: Business represents, warrants and covenants that Business has full authority to enter into this Agreement and that the Affiliate Program, whether conducted by Business or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.
b. Affiliate’s Warranties: Affiliate represents, warrants and covenants that Affiliate has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Affiliate’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term. The Affiliate represents, warrants and covenants that its website does not and will not contain any materials that are illegal and that the Affiliate’s site is not operated for an illegal purpose or in an illegal manner.
c. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.
a. IN NO EVENT SHALL THE BUSINESS HAVE ANY LIABILITY TO AFFILIATE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND
b. IN NO EVENT SHALL THE BUSINESS’S LIABILITY EXCEED THE FEES PAID UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.
c. THE FOREGOING LIMITATIONS IN THIS PARAGRAPH 12 SHALL NOT APPLY TO THE OBLIGATIONS UNDER PARAGRAPHS 6, 9, 13 AND 21.
d. The Affiliate acknowledges that the Business has not made and does not make any representations as to the future income, expenses, sales volume or potential profitability or loss of any kind that may be derived as a result of your participation in this Program or use of our Program Materials. The Business cannot and does not guarantee that you will attain a particular result, positive or negative, financial or otherwise, through participation in this Affiliate Program, and you accept and understand the results differ for each individual. We also expressly disclaim responsibility in any way for the choices, actions, results, use, misuse or non-use of the information provided or obtained through participation in the Affiliate Program. Affiliate agrees that its results are strictly its own and the Business is not liable or responsible in any way for Affiliate’s results.
The Affiliate hereby indemnifies and holds harmless the Business, its employees, contractors, affiliates, agents, successors and assigns from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Business may incur and which are based in whole or in part upon the Affiliate’s participation in the Affiliate Program, any claims that any of the Affiliate trademarks and other intellectual property and proprietary material infringe upon the rights of any third party, the Affiliate breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Affiliate use, operation or the content of the Affiliate’s website.
The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
This Agreement was prepared by Business and/or its counsel. It is expressly agreed that this Agreement shall not be construed against Business merely because it was prepared by its counsel; rather, each provision of this Agreement shall be construed in a manner which is fair to both parties.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns; provided, however, that Affiliate may not assign any of its rights under this Agreement, except to a wholly owned subsidiary entity of Affiliate. No such assignment by Affiliate to its wholly owned subsidiary shall relieve Affiliate of any of its obligations or duties under this Agreement.
All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served by email to the Business at samantha@sellyouronlinecourse.com
To the Affiliate at the email address provided on the application form completed by Affiliate at the time of enrollment in the Affiliate Program.
Any party may change its email address for purposes of this paragraph by giving the other parties written notice of the new address.
This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
All disputes and questions, the value of which does not exceed fifteen thousand dollars in Canadian currency ($15,000), which shall arise between any of the parties in connection with this Agreement, or the construction or application thereof or any Section or thing contained in this Agreement or as to any act, deed or omission of any party or as to any other matter in any way relating to this Agreement, shall be resolved by arbitration. Such arbitration shall be conducted by a single arbitrator. The arbitrator shall be appointed by agreement between the parties or, in default of such agreement, such arbitrator shall be appointed by a Judge of the Superior Court of Justice sitting in the City of Toronto, in the Province of Ontario, Canada, upon the application of any of the parties and such judge shall be entitled to act as such arbitrator, if he or she so desires. Unless otherwise agreed to by the parties, the arbitration shall be held in in the City of Toronto. The procedure to be followed shall be agreed to by the parties or in default of such agreement, determined by the arbitrator. The arbitrator shall have the power to proceed with the arbitration and to deliver his or her award notwithstanding the default by any party in respect of any procedural order made by the arbitrator. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
If any term, provision, covenant, or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
Questions about this Affiliate Agreement? Email us at samantha@sellyouronlinecourse.com
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