Affiliate Partnerships with Viper Swimwear - Legal Statement.
Affiliate Marketing Legal Statement and Agreement
Viper Swimwear's web site - www.viperswimwear.com (hereafter "VS") operates the Viper Swimwear Affiliate Marketing Program (hereafter "AMP"), through which independent owner-operators of Internet Web sites ("Agents") are granted the non-exclusive right to direct visitors to their Internet services (the "referrals") to one or more Internet services designated by VS, hereafter known as "AMP Destination Site(s)." VS shall pay Agent a commission of no less than 10 % (percent) of the net sales amount ( not including freight or taxes) for each bona-fide visitor who buys any products at VS AMP Destination Site, through a mechanism known as an Internet "hypertext/ banner" or text link. VS's Agents are offered this same opportunity to earn 10% percent of all transactions made by the visitors sent to VS, provided that such transaction(s) occur within ten (10) days of their first visit. Payment for these money-making opportunities shall be made at monthly intervals as determined by the affiliate reaching the $25.00 minimums via a Viper Swimwear check or payment through Pay Pal, at VS's discretion. Termination of this Agreement is at will, and may be effected by either party after 10 day's notice with all commissions paid up to date of termination. The Agent agrees as follows:
Article 1: Relationship
1.1 Agency Appointment: VS hereby grants Agent the non-exclusive right to direct visitors to their services to one or more Internet services designated by VS, in accordance with the terms and conditions of this Agreement. This Agreement does not grant Agent an exclusive right or privilege to assist VS in the solicitation of orders arising from Agent's referrals, and WS may contract with and obtain the assistance from others at any time to perform services of the same or similar nature as specified herein. Agent shall have no claims to commissions or other compensation on business secured by or through persons or entities other than Agent. In connection with such solicitations and referrals, Agent a.) shall not misrepresent the VS AMP Destination Site(s) or otherwise make any claims, representations, or warranties in connection with the VS AMP Destination Site(s) other than as expressly authorized by VS, and b.) shall have no authority to, and shall not, bind VS to any obligations, except as may be expressly set forth herein to the contrary or as otherwise agreed to and approved in advance by VS. Agent may not use any form of UCE e-mail promotions (spam) to generate sales from the agents coded links. Agent agrees that they are immediately terminated and loose accumulated commissions if caught or reported for UCE type e-mail practices. Notwithstanding the above, or anything to the contrary in this Agreement, Agent shall neither sell nor promote VS AMP Destination Site(s) without the express prior written consent of VS. Nothing in this Agreement nor any conduct of either party shall be deemed to constitute an employment relationship.
Article 2: License
2.1 VS hereby grants to Agent a non-exclusive, non-transferable license, during the term of this Agreement, to use the VS AMP and VS intellectual-property marks (hereafter "marks") solely in connection with the marketing, advertising, and promotion of the VS AMP Destination Site(s). Agent's use of VS AMP marks will at all times be subject to the prior written approval of VS, which shall not be unreasonably withheld or delayed. Agent shall comply with all guidelines provided by VS with respect to the graphic reproduction, appearance, and "look and feel" related to the marketing and representation of VS AMP Destination Site(s). This license cannot be sub-licensed, assigned or otherwise transferred by Agent to any third Person or Entity without the express prior written consent of VS. The license granted by WS to Agent hereunder shall automatically and immediately terminate upon any termination of this Agreement.
2.2 The license granted to Agent herein is subject to the reservation in VS of all right, title, and interest in and to the VS and AMP marks. The marks are the valid and exclusive property of VS, and Agent's right to use the marks is limited to and arises only out of the license granted hereunder. Agent shall not assert the invalidity, un enforceability, or contest the ownership by VS of the marks in any action or proceeding of whatever kind or nature, and shall not take any action that may prejudice VS's rights in the marks, render the same generic, or otherwise weaken their validity or diminish their associated goodwill.
Article 3: Representations, Warranties, and Covenants
3.1 (a) Agent is duly organized, validly existing, and in good standing under the laws of the state or country of Agent's origin; (b) Agent has all requisite power and authority to enter into this Agreement and to carry out and perform its obligations under the terms of this Agreement; (c) this Agreement has been duly authorized, executed, and delivered by Agent and is a valid and binding obligation of Agent enforceable in accordance with its terms; and (d) the execution, delivery, and performance of and compliance with this Agreement does not and will not conflict with, or constitute a default under, or result in the creation of, any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of Agent, nor result in any violation of (i) any term of Agent's governing documents, (ii) in any material respect, any term or provision of any mortgage, indenture, contract, agreement, instrument, judgment or decree,or (iii) to the best of Agent's knowledge, any order, status, rule or regulation applicable to Agent, the violation of which would have a material adverse effect on Agent's business or properties.
Article 4: Disclaimer of Warranties and Limitation of Liability
4.1 VS makes no warranties, either express or implied, concerning the performance or functionality of the VS AMP Internet Marketing Program or any VS AMP Destination Site, and hereby expressly disclaims all implied warranties, including warranties of merchantability or fitness for a particular use or purpose. All Viper Swimwear products do carry a 100 % 30 day satisfaction guarantee. Under no circumstances shall VS be liable to Agent or any other Person or Entity, including, without limitation, subscribers, for any loss, injury, or damage, of whatever kind or nature, resulting from or arising out of any mistakes, errors, omissions, delays, or interruptions in the receipt, transmission, or storage of any messages or information arising out of or in connection with the VS AMP Internet Marketing Program or any VS AMP Destination Site. Without limiting the generality of the foregoing, VS shall in no event be liable to agent or any other person, including, without limitation, subscribers, for indirect, incidental, or special damages, lost profits, lost savings, or any other form of consequential damages, regardless of the form of action, even if VS has been advised of the possibility of such damages, whether resulting from breach of its obligations under this agreement or otherwise.
4.2 VS makes no warranties as to any VS AMP Internet Marketing Program services furnished, provided, or sold to Agent hereunder, including, without limitation, any implied warranties of merchantability or fitness for a particular use or purpose.
Article 5: Term and Termination
5.1 The term of this Agreement shall be continuous, unless and until either party notifies the other in writing, with reasonable advance notice, that such party desires to terminate the Agreement, in which case this Agreement may be terminated immediately. TERMINATION IS AT WILL, FOR ANY REASON, BY EITHER PARTY after giving a 10 day notice. Those Agents who are reported for UCE spam violations will be immediately terminated from the program. For purposes of notification of termination, delivery via email is considered a written and immediate form of notification.
5.2 Upon any termination of this Agreement, Agent and VS will be released from all obligations and liabilities to the other occurring or arising after the date of such termination or the transactions contemplated hereby, except with respect to those obligations which by their nature are designed to survive termination as provided herein; provided that no such termination will relieve Agent from any liability arising from any breach of this Agreement occurring prior to termination. Commissions owed to agent will be paid to date of termination.
5.3 Upon termination of this Agreement, (i) VS's acceptance of orders obtained through Agent shall not constitute a continuation or renewal of this Agreement or a waiver of such termination, (ii) Agent shall be entitled only to those unpaid commissions, if valid, earned by Agent on or prior to the date of termination; (iii) Agent shall in no event be entitled to commissions with respect to any amount of referrals delivered after the date of termination, irrespective of whether any service order, contract, or commitment relating thereto was entered into prior to the date of termination; (iv) all rights and licensees of Agent hereunder shall immediately terminate; and (v) Agent shall return to VS any confidential information, and all copies thereof, in its possession, custody and control and will cease all uses of any trade names, trademarks, service marks, logos and other designations of VS and the Viper Swimwear Affiliate Marketing Program.
Article 6: Indemnity
6.1 Agent shall defend, indemnify, and hold VS, its directors, officers, employees, and representatives harmless from and against any and all liabilities, losses, damages, and costs, including reasonable attorney's fees, resulting from, arising out of, or in any way connected with (a) any breach by Agent of any warranty, representation, or agreement contained herein, (b) the performance of Agent's duties and obligations hereunder, (c) the negligence of Agent, (d) any injury (including death) to persons or damages to property caused directly or indirectly by the negligent or intentional acts or omissions of Agent, or (e) the unauthorized use of the VS or Viper Swimwear Affiliate Marketing Program marks by Agent.
Article 7: Confidential Information
7.1 Agent acknowledges that, during the term of this Agreement, it may be entrusted with Confidential Information relating to the business, operations, or underlying technology of VS and/or the Viper Swimwear Affiliate Marketing Program. Agent shall provide care to avoid disclosure or unauthorized use of the Confidential Information to any other Person or Entity. Agent shall not use the Confidential Information for purposes other than those necessary to further the purposes of this Agreement. Agent shall not disclose the Confidential Information to third persons or outside parties without the prior written consent of VS. All trademarks and copywrites of Viper Swimwear shall not be used for advertising or search engine listings by affiliates without written approval from Viper Swimwear management. Should Agent be required under applicable law, rule or regulation, or pursuant to the order of any court or governmental entity of legal process of any governmental entity of competent jurisdiction to disclose Confidential Information in its possession, custody or control, Agent shall: (a) give at least thirty (30) days prior written notice of such disclosure to VS; (b) use its best efforts to limit such disclosure; and (c) make such disclosure only to the extent so required. Agent's obligations hereunder with respect to Confidential Information shall survive the expiration or earlier termination of this Agreement.
Article 8: Miscellaneous
8.1 Assignability: Agent shall not assign or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of VS. Any attempted assignment in violation of the provisions of this provision will be void.
8.2 Severability: If any provision of this Agreement, or the application thereof to any Person or circumstance, shall be held invalid or unenforceable under any applicable law, such invalidity or unenforceability shall not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, or the application of such provision to other Persons or circumstances, and, to this end, the provisions hereof are severable.
8.3 Non-Waiver: No delay or failure by VS in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.
8.4 Remedies: The rights and remedies of VS hereunder shall not be mutually exclusive - i.e., the exercise of one (1) or more of the provisions hereof shall not preclude the exercise of any other provision hereof. Agent acknowledges, confirms, and agrees that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be unforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any rights at law or otherwise of VS for a breach or threatened breach of any provision hereof, it being the intent of this provision to make clear that the respective rights and obligations of VS shall be enforceable in equity as well as at law or otherwise.
8.5 Interpretation: This Agreement shall not be construed or interpreted in favor or against VS or Agent on the basis of draftsmanship or preparation of the Agreement.
8.6 Headings: The headings, captions, and other typographical formatting used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
8.7 Execution and Acceptance: By creating an account with the VS AMP Internet Marketing Program, using the automatic facility located on the Internet at the appropriate VS URL (www.viperswimwear.com) address, Agent executes, accepts, enters into, and becomes party to this Agreement. At such point, VS simultaneously and automatically becomes counter-party to this Agreement. The Effective Date of such Agreement is the day on which Agent creates such account in the Viper Swimwear Affiliate Marketing Program signup form.
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