In consideration of The Modern Tog (“Company”) maintaining an Affiliate Program for its Paid Digital Products and Marketog Marketing Course and Your Company (“Affiliate”) desiring to participate in the Affiliate Program, it is agreed as follows:
1. ENROLLMENT
In order to enroll in the Company Affiliate Program, Affiliate must complete an application form. Applicant agrees that any registration information provided to the Company 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 Company and Company reserves the right to deny entrance into its Affiliate program to any applicant that is deemed unqualified for any reason, at Company’s sole and absolute discretion.
2.TERM AND STATUS
The term of this Agreement shall be exactly 1 month from the date of signing. At the end of the term, this Agreement will automatically renew for an additional 1 month term unless cancelled by either party in accordance with Paragraph 3.
3. CANCELLATION
Company or Affiliate may may cancel this Agreement at any time and for any reason, with or without cause, by giving the other party written or electronic notice of termination. Failure to comply with the terms of this Agreement will result in immediate cancellation of this Agreement by the Company and forfeiture by Affiliate of any accrued, unpaid commissions. Company shall pay any pending commissions owed to Affiliate that have been earned 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 Company for the purpose of promoting the products and/or services offered through the Affiliate Program, will cease as of the cancellation date.
4. 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 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 the Company.
5. USE OF PROMOTIONAL MATERIALS
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 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.
2) The Promotional Materials will be used to link only to Company’s website, to the specific web site page specified by Company.
3) Affiliate may not use Affiliate Links (their own or other company’s Affiliate Links) to purchase products or courses included in this Affiliate program.
6. LIMITED LICENSE TO USE INTELLECTUAL PROPERTY
Upon acceptance into the Affiliate Program, Company grants the Affiliate a revocable, non-exclusive, worldwide, royalty-free license to use the Promotional Materials provided by Company 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 products and/or services 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 Company’s intellectual property or proprietary material, other than the Promotional Materials discussed above.
7. COMMISSION
a. Affiliate will be paid a referral fee (“Commission”), for each customer who completes a purchase on the Company website using the unique affiliate link assigned to Affiliate (“Link”) within 30 days of using the Affiliate Link provided the customer does not clear their internet cookies within that time. Commissions will be calculated based upon the Gross Sales Price. Gross Sales Price is defined as all payments received by the Company by the sale of the product, but not including any shipping and handling, sales tax, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, 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 Company’s online tracking system and indicate the Link as the source.
b. The Commission rate will be 30% of the Gross Sales Price of each completed purchase made through the Affiliate’s link and actually paid to the Company.
c. Commissions will be paid to the Affiliate within one month after the close of the month in which the refund period for that product ends. Commissions will be adjusted for orders that are cancelled, returned, or where payment is otherwise refunded to the purchaser. All payments will be made to the Affiliate’s PayPal account unless other arrangements are approved by the Company. For example, if you earn a commission on January 25th and the refund period is 30 days (ending on February 24th), you will be paid your commission during the month of March.
8. CUSTOMER SERVICE
The Company 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, product shipment. Company reserves the right to change the Company’s policies and procedures, pricing structure, add or cancel any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to the Affiliate or customers purchasing through the Affiliate’s Link.
9. AFFILIATE INTELLECTUAL PROPERTY
The Affiliate grants Company 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 Company has no obligation to announce, advertise, market, or promote the Affiliate participation in the Company Affiliate Program, but reserves the right to do so at its sole discretion.
10. AFFILIATE’S DUTIES
a. 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.
b. Affiliate is responsible for clearly disclosing that the Links provided on its website or marketed to potential customers by other means are affiliate links in accordance with Section 5 of the Federal Trade Commission Act.
c. 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.
11. WARRANTIES
a. Company’s Warranties: Company represents, warrants and covenants that Company has full authority to enter into this Agreement and that all of the services, whether performed by Company 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.
12. LIMITATION OF LIABILITY
a. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY 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 A PARTY’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.
13. INDEMNIFICATION
The Affiliate hereby indemnifies and holds harmless the Company, its officers, directors, 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 Company 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.
14. EFFECT OF HEADINGS
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.
15. ENTIRE AGREEMENT; MODIFICATION; WAIVER
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.
16. NEUTRAL CONSTRUCTION
This Agreement was prepared by Company and/or its counsel. It is expressly understood and agreed that this Agreement shall not be construed against Company 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.
17. COUNTERPARTS
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.
18. ASSIGNMENT
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.
19. NOTICES
All notices, requests, demands, and other communications under this Agreement shall be in writing or via electronic communication and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given or if sent electronically, or on the day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
To Company at: PO Box 54, Silver Bay, MN 55614 or contact@themoderntog.com
To Affiliate at: Address or email submitted on application form.
Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.
20. GOVERNING LAW; VENUE
This Agreement shall be construed in accordance with, and governed by, the laws of the State of Minnesota as applied to contracts that are executed and performed entirely Minnesota. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration and judgment on the award rendered by the arbitrator(s) will be considered binding. The place of arbitration shall be St. Louis County, Minnesota.
21. RECOVERY OF LITIGATION EXPENSES
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.
22. SEVERABILITY
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.
