This Affiliate Program Agreement (the “Agreement”) is made and effective today.
BY CLICKING ON BECOME AN AFFILIATE AT THE BOTTOM OF THIS AGREEMENT'S TEXT, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR COMPLIANCE WITH EACH AND EVERY TERM AND CONDITION, AND THAT YOU ARE AUTHORIZED TO BIND YOURSELF OR THE ENTITY YOU REPRESENT.
1.1. This Affiliate Program Agreement (“Agreement”) contains the complete terms and conditions that apply to your participation in the FabricSight Affiliate Program (the “Program”). The purpose of the Program is to allow you to refer people or businesses to FabricSight using special trackable web links, making it possible for us to confirm which individuals or businesses you refer to us so that we can, under the terms of this Agreement, pay you the appropriate commission on Commissionable Fees (the “Fee” or “Fees”).
- AFFILIATE OBLIGATIONS
2.1. This Agreement will become effective upon your acceptance of the Agreement as indicated above. Our team will analyze each application, and FabricSight reserves the right to decide whether or not a business is compatible with our affiliate program. We may reject your application if we determine (at our sole discretion) that your website is unsuitable for the Program. [A1] Unsuitable websites include but are not limited to those that:
- 2.1.1. promote pornography and/or sexually explicit materials
- 2.1.2. promote violence or use of illegal substances
- 2.1.3. promote discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age
- 2.1.4. promote hate, crime, or other illegal activities
- 2.1.5. incorporate any materials which infringe or assist others in infringing on any copyright, trademark, or other intellectual property rights, or to violate the law
- 2.1.6. are in any way unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable to us at our sole discretion
2.2. By participating in the Program you agree that you will not engage in any such activities. You should also note that if we accept your application and your website is thereafter determined, at our sole discretion, to be unsuitable for the Program, we may terminate your Agreement immediately.
- RELATIONSHIP OF PARTIES
3.1. While the parties to this Agreement shall work hand-in-hand for the benefit of both parties, the parties acknowledge and agree that the Affiliate will, from a legal perspective, act as and will be an independent contractor and not an employee or agent of FabricSight. Nothing in this Agreement shall create a partnership, joint venture, agency, or franchise between the parties in the legal sense of these terms. The Affiliate shall not sign any document in the name of or on behalf of FabricSight,FabricSight’sAffiliate’s nor shall it hold itself out as being an agent of FabricSight or as having apparent authority to contract for or by AFFILIATE’S
- AFFILIATE'S WEBSITE AND PROMOTIONAL METHODS
4.1. The Affiliate shall be solely responsible for all materials that appear on its website. It shall strictly adhere to all applicable laws and regulations in conducting its business and, more specifically, in marketing and advertising FabricSight. You are solely responsible for the accuracy and appropriateness of all materials posted on your website, and for ensuring that your activities, including materials posted on your website and communications with FabricSight and our potential customers are not defamatory, in violation of copyright laws, or otherwise illegal. You further agree that your activities, including communications with our potential customers and us, regarding or relating to FabricSight in any way, are in full compliance with all applicable laws in your jurisdiction.
4.2. You agree not to use any predatory advertising methods designed to generate traffic from websites that have not been contracted in the online promotion of FabricSight products, services or Affiliate Program. Predatory advertising is defined as any method that creates or overlays links or banners on websites, spawns browseowner’sws, or any method invented to generate traffic from a website without that website owner's knowledge, permission, and participation. Examples include, but are not limited to, keyword parsing, browser plug ins such as TopText and Surf+, banner replacement technology such as Gator, browser spawning technology that is not wAffiliate’spendent. Participation in predatory advertising Programs will be cause for the Affiliate's immediate agreement termination.
4.3. Without restricting the generality of the foregoing, the Affiliate shall not send unsolicited email and shall not send an email or any other communication to a recipient if the recipient has requested that you discontinue such communication.
4.4. You agree to defend, indemnify and hold FabricSight harmless for any violations of the foregoing. FabricSight disclaims all liability for these matters.
- FABRICSIGHT RIGHTS AND OBLIGATIONS
5.1. FabricSight shall have the right to monitor the Affiliate's website at any time to determine if it is in compliance with the terms and conditions on this Agreement. We may notify you of any changes to your website that we feel should be made regarding your promotion of FabricSight, or to make sure that your links to our website are appropriate and to notify you of any changes that we feel should be made.
5.2. FabricSight reserves the right to terminate this Agreement and your participation in the Affiliate Program immediately and without notice to you should you commit fraud in your use of the FabricSight Affiliate Program or should you abuse this Program in any way. If such fraud or abuse is detected, FabricSight shall not be liable to you for any commissions on Fees for such fraudulent sales.
- AFFILIATE COMMISSIONS, RIGHTS, AND PAYMENT
6.1. Subject to all terms of this Agreement, FabricSight will pay you a 5% commission on the sales of fabrics available on FabricSight.com by customers you refer to us. We will also pay you a 5% commission for any additional sales of fabrics concluded by customers you refer given that these purchases are made within 90 days of said clients having clicked on your affiliate link and given that they use the same device and browser.
6.2. If the Affiliate reaches the 2000 euro sales monthly milestone, the Affiliate will receive a 2.5% discount coupon code to distribute to its referrals, which should help the Affiliate retain the customers it will direct to FabricSight.com. FabricSight’s aim by providing the Affiliate with such discount codes is to help the Affiliate build a reliable stream of revenue.
6.3. If more than one Affiliate claims the same commission for a sale, FabricSight shall select the Affiliate to receive the compensation based on our best efforts to determine which Affiliate was responsible for the initial referral.
6.4. YOU SHALL NOT RECEIVE COMMISSION FOR A FABRIC PURCHASE MADE DIRECTLY OR INDIRECTLY FOR YOURSELF.
6.5. All commissions are based upon the paid price of a Commissionable Fee before tax and logistics. If any commission is paid on a Commissionable Fee, which is later refunded or determined to have been charged the customer in error, the amount paid as commission to the Affiliate will be deducted from future commissions if any are due, or an invoice in the amount of the commission paid to the Affiliate will be issued and payable by the Affiliate to FabricSight within 30 days.
6.6. Payment of commissions will be made on a monthly basis within 30 days following the actual credit of the payment for the purchase. Commissions will be paid by check, or some other method at the discretion of FabricSight and acceptable to the Affiliate. Commission payments are made in Euros.
6.7. It is your responsibility to provide complete and accurate payee information including tax ID or other applicable information as appropriate for your country of residence in order to receive payment. If this Agreement terminates, any commissions due at the time of termination will be paid within 90 days following termination unless as indicated elsewhere in this agreement.
6.10. The Affiliate shall be responsible for all taxes and other similar levies applicable to the commission pursuant to any law or regulation. The Affiliate shall report the commission to its taxation authorities as required by law. FabricSight shall not be responsible for any taxes owed by you arising out of your relationship with FabricSight as set forth in this Agreement.
7.1. FabricSight may modify any of the terms and conditions in this Agreement, including terminating this Agreement or the Affiliate Program at any time at its sole discretion. Modifications may include, but are not limited to, changes in the scope, percent of commissionable fees, payment procedures, and the Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AS SET FORTH BELOW. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE POSTING OF THE CHANGE NOTICE OR NEW AGREEMENT ON THE topofthemountain.ca WEBSITE WILL CONSTITUTE YOUR AGREEMENT TO THE CHANGES.
- TERMS AND TERMINATION
8.1. The term of this Agreement will begin upon your acceptance of the Agreement as indicated above and will end when terminated by either party. Either FabricSight or the Affiliate may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and you will immediately cease use of, and remove from your website or websites, all references to FabricSight and all links to the FabricSight's website.
8.2. FabricSight will, however, continue to pay you commissions on Commissionable Fees from your referrals for a certain period following termination. The current policy is to pay for three months following termination; however, we may pay entirely at our own discretion for as many or as few months as we choose depending on the conditions of termination. Violation of the terms of this Agreement by the Affiliate may result in the forfeiture of all future or pending commissions on commissionable fees.
9.1. FABRICSIGHT MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING FABRICSIGHT SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN. ANY IMPLIED WARRANTIES OF FABRICSIGHT'S ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITE OR OF OUR REFERRAL TRACKING LINK TECHNOLOGY WILL BE FREE FROM DEFECT OR WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY DEFECTS, INTERRUPTIONS OR ERRORS.
- LIMITATIONS OF LIABILITY
10.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, FABRICSIGHT WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR ACTUAL OR ANTICIPATED REVENUE, PROFITS OR LOST BUSINESS), EVEN IF FABRICSIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL FABRICSIGHT'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) BREACH OF WARRANTY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSIONS PAYABLE TO YOU UNDER THIS AGREEMENT.
- REPRESENTATIONS, WARRANTIES AND COVENANTS
11.1. You represent, warrant and covenant that:
- 11.1.1. you have full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
11.1.2. you have sufficient right, title, and interest in and to the rights granted to FabricSight in this Agreement;
11.1.3. the material posted on Affiliate's website does not defame any third party or violate or infringe upon the rights of any third party or any applicable copyright and other laws that pertain to it;
11.1.4. you shall not make any representations or warranties regarding the products or services provided by FabricSight; and
11.1.5. you shall not make or publicize any statements that are disparaging, slanderous, defamatory, libelous or derogatory of FabricSight or that otherwise portray FabricSight in a negative manner.
12.1. You hereby agree to indemnify and hold harmless FabricSight, and its subsidiaries and Affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorney fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on any claim that our use of the Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, any misrepresentation of a representation or warranty or breach of a covenant and Agreement made by you herein, or any claim related to your website, including, without limitation, content therein not attributable to us.
13.1. In connection with the activities contemplated by this Agreement, you may acquire confidential technical or business information of FabricSight, which is not generally known to the public, including without limitation proposals, ideas or research related to possible new products or services; financial statements and other financial information; any reporting information required by the Agreement; and the terms of this Agreement and the relationship between the parties (collectively, "Confidential Information"). You agree not to disclose the Confidential Information or use the Confidential Information for your own benefit or for the benefit of any third party. Your obligations in this Section shall not apply to any information that you can prove was in the public domain at or subsequent to the time it was communicated to you through no fault of yours; was rightfully in your possession free of any obligation of confidence owed to FabricSight at or subsequent to the time it was communicated to you by FabricSight; was in response to a valid order by a court or other governmental body or was otherwise required by law. Upon the termination or expiration of this Agreement, you shall return upon FabricSight's request or otherwise destroy all Confidential Information of FabricSight in your possession.
14.1. You may not assign your rights or obligations under this Agreement to any party.
14.2. You may not create, publish, distribute, or permit any written or electronically transmitted publicity material (including without limitation, advertisements and press releases) that makes reference to FabricSight, or the FabricSight' website without first submitting the material to FabricSight and receiving its approval, authorization and consent in writing. You shall not issue any public statement(s) regarding the relationship with FabricSight without the prior written approval of FabricSight.
14.3. This Agreement shall be governed by and interpreted in accordance with the laws of Spain.
14.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
14.5. This Agreement represents the entire Agreement between you, and us, and shall supersede all prior Agreements and communications of the parties, oral or written.
14.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
14.7. FabricSight reserves the right, at its full discretion, to disqualify any individual it suspects of undermining or manipulating the registration and/or qualifying process, the operation of the Affiliate Program by attempting to circumvent the Affiliate commission schedule or artificially increasing your commissions or by other fraudulent methods or results, or to be acting in violation of this Agreement. FabricSight may, at its sole discretion, cancel the Affiliate Program. In the event of your non-compliance with any requirement stated herein, FabricSight may withhold or reduce any payments due to you until resolution of all disputes.
14.8. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect.
- GENERAL CONDITIONS
YOU HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND AND HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES UPON YOU WITHOUT RESERVATION. YOU HAVE ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO YOU TO INDUCE YOU TO ACCEPT THIS AGREEMENT. YOU AGREE TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.
EXHIBIT A - DEFINITIONS
As used in this Agreement, the terms set forth below shall have the following meanings:
Commissionable purchase means amount of money paid to FabricSight for the purchase of fabrics paid for by the Customer to FabricSight and does not include taxes.
Affiliate means someone that is directly responsible for referring customers who purchase fabrics from FabricSight.
EXHIBIT B - AFFILIATE COMMISSION SCHEDULE
This Schedule is in effect:
Affiliate Commission = Commissionable purchase x 5%