MySMARTblog.com Affiliate Agreement
THIS AGREEMENT (the “Agreement”) is made as of the moment of completion of signup for the MySMARTblog.com Affiliate Program (aka Referral Partner Program) by and between, MySMARTblog, LLC (the “Company”), and the person signing up for the program (the “Affiliate,” and collectively, the “Parties”).
WHEREAS Affiliate wishes to include certain materials promoting Company, and to include a link to Company’s website within those materials on Affiliate’s website;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Promotional Materials. Company 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 (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 Company’s website, as specified by Company.
2. Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
A. Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
Email email@example.com to request approval.
B. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products and services available thereon), and for linking to Company’s website.
C. The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.
D. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
Email firstname.lastname@example.org to request approval.
3. License. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
4. Intellectual Property. Company retains all rights, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.
5. Relationship of Parties. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
A. In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) in the amount as stated by the company. The company has sole rights to change product pricing and commission percentage at anytime without notice to affiliates.
B. In order to receive payment, Affiliate will provide Company with the required information including for U.S. Affiliates, Affiliate’s U.S. tax identification number and a fully-completed Form W-9.
C. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 14 days of discovering such discrepancy.
D. For the purposes of this Agreement, a “Bona Fide Click-Through” shall be defined as any successful attempt by a visitor of Affiliate’s website to click on the link within the Promotional Materials on Affiliate’s website and to visit Company’s website. Company shall have sole discretion to determine whether any particular click-through or class of click-throughs shall qualify as Bona Fide Click-Throughs. Affiliate shall not attempt to: (i) artificially generate click-throughs to Company’s website by use of deception or misrepresentation; (ii) manipulate, incentivize, or otherwise encourage Affiliate’s employees, agents, customers, or other persons to click the link to the Company’s website for any purpose other than the promotion of the services and/or products offered through Company’s website; or (iii) create or employ any mechanism designed to artificially or automatically generate click-throughs to Company’s website.
E. Affiliate earns a percentage of the gross sales price of the item or items purchased by customer which are included in the group of products available for commission in a given affiliate program. Company shall pay all Commissions accrued and payable to Affiliate within 20 business days of the first day of each month after the Refund Period has ended for the product. The list of products available for commission along with their specific commission rates and details are listed in the Affiliate Center for review by the Affiliate at any time. Note: No Commissions are paid for referrals that are current or past clients of Company and referrals for Company’s services must remain a client for a minimum of 30 days to be eligible as a commissioned item. Reported payout amount listed in the Affiliate center is subject to change at anytime based on cancellations and non-payments before the payout period. If any customer referred by Affiliate charges back their credit card after commissions are paid, commission amount paid may be deducted from future commissions. If at any point the Company suspects fraudulent activity, the Company may freeze Affiliate’s account for an audit. Commissions for sales are only paid if the product is purchased through Company’s website.
F. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement as a result, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
G. In the event that an affiliate purchases from their own affiliate link, no commission will be paid for that purchase. Affiliate’s personal purchases are not commissionable to that affiliate.
7. Affiliate’s Representations and Warranties. Affiliate represents and warrants the following:
A. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
B. Affiliate’s website does not contain any materials that are:
I. Sexually explicit, obscene, or pornographic;
II. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
III. Graphically violent, including any violent video game images; or
IV. Solicitous of any unlawful behavior
C. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
D. Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.
E. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
F. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
G. Affiliate will not engage in the distribution of any unsolicited bulk emails, tweets, status updates, or other online activity (spam) in any way mentioning or referencing Company or Company’s websites.
8. Indemnification. Affiliate shall indemnify and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
9. Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
10. Tracking. When a visitor clicks through an affiliate link, a cookie with a 30-day lifespan is set in their browser that contains the affiliate ID and a reference to the link Affiliate used to send the visitor. Additionally, this data is stored in a browser session until the user logs out, and when the visitor creates an account (“registers”) the affiliate ID and link reference are stored in a database to match the user to the referring Affiliate.
When this person buys a membership or product from Company, the script will look for a cookie or in the database to determine who initially sent the visitor upon registration. Visitors sent through the affiliate link may make a purchase later in time and the commission will still be awarded if the cookie is present in their browser or they are using the same account as the one logged in the database, according to if Company is generating commissions “by cookie” or “by referral”.
At the moment you enter into this agreement, Commissions are generated “by referral”, meaning when a new user makes a purchase using the Affiliate’s personal referral links, the Affiliate who referred the new user’s account earns the commission. Company reserves the right to change this at any time with email notice to affiliates.
Company also agrees to track by “last cookie wins” policy, unless otherwise announced. This means that cookies overwrite each other, and if Affiliate A sends a User to the Website and that User does not register, and then Affiliate B sends the same User to the Website and the User does register, Affiliate B gets credit for the referral. Note that the tracking cookie does determine which Affiliate receives credit when a newly registered user makes a purchase and therefore commissions are generated.
A. This Agreement shall take effect on date of signup and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section.
B. Either Party shall have the right to terminate this Agreement at any time and for any cause and without notice.
C. At the termination of this Agreement, Affiliate shall cease using any product materials in Affiliate’s possession or under control and shall return same, including all catalogs, brochures, advertising, literature and other property of the Company, immediately. Further, all banner advertisements, button links, text links, and/or other graphic or textual material that form part of the Promotional Materials as defined herein shall be forever deleted, discontinued and removed from Affiliate’s website unless Company otherwise allows the same to remain.
12. Taxes. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate, however Company shall report earnings to appropriate governmental agencies, as required by law
13. Limitation of Liability. Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement. Company cannot guarantee that all Affiliate links will work and properly refer every customer back to referring Affiliate with every possible browser/browser setting/computer configuration.
14. Choice of Law and Venue: The parties acknowledge that this contract shall be construed and enforced in accordance with the laws of the State of Arizona. The parties further agree that any litigation brought arising out of this contract will be brought in Maricopa County, Arizona and not in any other state or county. In the event of any litigation arising out of this contract then the prevailing party shall be entitled to reasonable attorney fees and costs.
15. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
16. Severability. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
17. Notice. Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, addressed as follows:
14441 W McDowell B-102
Goodyear, AZ 85395
18. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
19. Entire Agreement. This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. The Agreement is being made by each of the parties after each party has had an opportunity to fully review, analyze, and obtain legal counsel with respect to this Agreement and all of its terms.
You must fill out and return the following Internal Revenue Service form for tax reporting purposes prior to any commissions being paid.
Affiliate Agreement: January 27, 2014