This Affiliate Agreement (“Agreement”) dated as of _______________, 2020 (“Effective Date”) is entered into by and between Venus Vibes LLC (D.B.A., V FOR VIBES) with its principal place of business at 251 Valencia Ave 145269, Coral Gables, FL, 33114 (“Merchant”) and _________________________, with its principal place of business at ___________________________ (“Publisher” or “Affiliate”). Merchant and Affiliate may be referred to herein individually as “a Party” and together as “the Parties” herein.
WHEREAS, Affiliate is the operator of a website, application or service (including email service) (“Affiliate Sites”);
WHEREAS, Affiliate shall advertise and generate information via the Affiliate Sites and deliver such information to Merchant in accordance herewith (“Services”); and
NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows.
- This Agreement will begin on the Effective Date and continue until terminated as provided herein.
- Either Party may terminate this Agreement at any time, with or without cause, upon two (2) business day’s written notice. All provisions which by their terms contemplate survival shall survive the termination or expiration of this Agreement regardless of the cause of such termination. Upon any termination of the Agreement, Affiliate will immediately stop using the Merchant’s Advertiser Materials and each Party will promptly return to the other all of the other Party’s Confidential Information within its possession or control.
- Network Agreements. Merchant and Affiliate are connected as members of the AWIN Inc. (“AWIN”) Network. In becoming a Publisher or Affiliate within the Network, Affiliate agreed to the Standard Terms (located at https://s3.amazonaws.com/docs.awin.com/Legal/Publisher+terms+2019_ US+tripartite.pdf) and Affiliate represents and warrants to Merchant that it will abide by the terms and that Merchant may rely on the terms, statements, obligations, representations and warranties of Affiliate therein. Capitalized terms not defined herein shall have the meaning set forth in the Affiliate Standard Terms. The provisions in the Standard Terms could include different or more stringent requirements than contained in this Agreement. Should any conflict appear between this Agreement and the Standard Terms, those provisions most protective of the Merchant shall apply.
- Affiliate Materials.
- All Affiliate Sites and affiliated websites, links, creative (collectively the “Affiliate Materials”) must continually meet the following criteria, at a minimum: (a) Affiliate may not offer incentives to users as means to enhance the performance of any advertising in any way, including offering monetary rewards, points, prizes, or sweepstakes to users registering for these offers; (b) Affiliate Sites and posted policies must be fully functional at all levels and in compliance with state and federal rules, regulations and statutes pertaining to internet marketing; (c) Spawning process pop-ups are prohibited; (d) Affiliate shall not iframe Merchant ads; (e) Affiliate shall notify consumers of all data transfer from Affiliate to Merchant prior to such transfer and (f) such other criteria as the parties may agree upon from time to time.
- The content of Affiliate’s Materials shall comply with all applicable laws and regulations (including all laws respecting intellectual property rights). Affiliate’s Materials shall not contain or include any Prohibited Materials. “Prohibited Material”, as determined in Merchant’ sole discretion, shall mean, (i) materials that promote or glorify violence, firearms, or other weapons, (ii) materials communicating hate or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, (iii) materials promoting or providing instructional information regarding illegal activities; (iv) materials promoting gambling or sales or use of alcohol, tobacco, or firearms, (v) materials that infringe or violate the rights of others (including copyright, trademark, trade secret, privacy and/or publicity rights), (viii) materials that are defamatory, slanderous, libelous or harmful, (ix) materials that violate any Advertising Standards or consumer fraud, laws and regulations relating to spyware, adware or malware, laws and regulations relating to online privacy and/or data security, and laws and regulations relating to online sweepstakes and contests, and (x) materials that otherwise violate this Agreement.
- Reporting and payment for Actions will be handled through AWIN.
- As consideration for its provision of Services, Affiliate will receive:
- A 20% commission rate on any order choice from Merchant’s platform
- A sixty (60) day cookie to drive sales
- Vibrant content links
- Merchant may revise the commission rates upon no less than thirty (30) days prior written notice to Affiliate.
- “Action” means a Sale, Lead, Click, Ad Impression, or other event, that has been specified as eligible for remuneration by the Merchant. Actions must relate to an individual person that: (i) includes at a minimum a valid name, ip address and email address; (ii) does not contain invalid or incomplete information; (iii) is not a Duplicate Lead; and (iii) is not a Fraudulent Lead.
- For purposes of this Agreement, a “Duplicate Lead” means a Lead or Click submitted by Affiliate to Merchant that reproduces the uniquely identifying data related to an individual person that was either previously submitted to Merchant by Affiliate, or already exists in Advertiser’s or Merchant’ database from a different source.
- For purposes of this Agreement, a “Fraudulent Lead” means (a) a Lead or Click generated through the inducement of persons to click or sign up for Merchant’s offer based on incentives, (b) multiple Leads or Clicks generated through the use of proxy servers, (c) multiple Leads or Clicks from the same IP address, (d) Leads or Clicks generated through the use of any spyware, device, programs, robots, iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an event and/ or (e) any Sales, Ad Impressions, Leads or Clicks generated through methods that are not in compliance with all applicable laws, Advertising Standards, rules, regulations and guidelines.
- Affiliate agrees to repay Merchant any amounts paid out to Affiliate for Duplicate or Fraudulent Leads, sales refunds, credits, or chargeback, or any amount related to a payment that is returned or refunded for any reason.
- Affiliate will be responsible for payment of any sales taxes, use taxes, value added taxes, goods or services taxes or comparable taxes. Such amounts are expected to be withheld by the AWIN platform. Affiliate will indemnify Merchant against any claims related to such taxes and any penalties, interest or amounts due as a result of non-payment of such taxes by Affiliate.
- Representations and Warranties.
- Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a Party or by which it is otherwise bound; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, Advertising Standards, rules, regulations and guidelines.
- Affiliate further represents and warrants that:
- It is the owner or is licensed to use the Affiliate Materials, and such Affiliate Materials do not and will not (i) Advertising Standards, (ii) violate or infringe upon any third party’s patent, trademark, copyright or other third party intellectual property right, or (iii) contain any Prohibited Material;
- In the performance of its obligations hereunder, it will not, (i) violate any Advertising Standards, or (ii) violate or infringe upon any third party’s patent, trademark, copyright or other third party intellectual property right;
- All Advertiser Materials will be displayed as provided, and shall not be altered without prior written consent from Merchant;
- It has the authority to bind its Subpublishers to the terms hereof and shall be liable for any breach of this Agreement by its Subpublishers;
- Affiliate’s Materials shall not contain or include any Prohibited Materials;
- The recipients of all marketing communications in connection with this Agreement have manifested lawful, express and affirmative consent to receive same;
- Affiliate will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective tags, source codes, Tracking Code, links, pixels, modules or other data;
- If Affiliate is driving consumers to Marchant via email or banner advertising, it shall not, without the prior express written consent of Merchant: (i) utilize weekend email drops; (ii) engage in fraudulent techniques, incentivized marketing, co-registration paths or contextual marketing; (iii) utilize search advertising or “social” marketing methods; (iv) forward non-U.S. traffic; (v) host images or assets at any Merchant web server; and/or (vi) fail to pass the sub-source ID in a URL.
- It will not
- incentivize or offer points, rewards, cash or prizes unless approved by Merchant and it is expressly noted that the offer is an incentive offer;
- place misleading statements near any Advertiser Material (i.e., “You will win $5,000”) or falsely suggest a link between Merchant and a third-party;
- post any Advertiser Materials using an unauthorized host;
- violate guidelines of any search engines being utilized;
- engage in search engine spam, doorway pages, cloaking, etc;
- bid on any trademarked name or terms in any PPC/”keyword”/”adword”/offer unless given express written permission by Merchant;
- use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the individual;
- engage in offline marketing, including facsimile or telemarketing; or
- otherwise engage in any misleading or deceptive conduct or violate any other restrictions imposed by Merchant or AWIN.
- It will not target or collect information from children under the age of thirteen (13) years of age;
- Merchant further represents and warrants it is the owner or is licensed to use the Advertiser Materials, and license the same to Affiliate hereunder, and such Advertiser Materials, do not and will not (i) violate any Advertising Standards, (ii) violate or infringe upon any third party’s patent, trademark, copyright or other third party intellectual property right, or (iii) contain any Prohibited Materials.
- Merchant hereby grants to Affiliate a revocable, non-exclusive, worldwide license to use, reproduce and transmit the Advertiser Materials for the purpose of providing the Services herein. Affiliate shall have no interest in or right to the Advertiser Materials except as set forth herein, and Advertiser owns and shall retain all rights to, titles and interest in its Advertiser Materials. If Affiliate creates any derivative works from the Advertiser Materials (upon the written consent of Merchant), Merchant shall retain all ownership rights (including all copyrights) in those derivative works.
- Notwithstanding anything to the contrary herein, Affiliate may
- Combine Merchant’s name with other words for TM+ (plus) bidding (i.e. Your V for Vibes Coupon). In doing so, Affiliates must utilize “negative keywords” so that the search engine does not broad match Affiliate’s campaign based solely off of the word “coupon” or similar.
- Utilize SEO tactics centered around Merchant’s brand name.
- Utilize common coupon tactics such as a “Click to Reveal Coupon Code” strategy.
- Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party and its officers, directors, shareholders, employees, agents, successors and assigns (collectively “Representatives”) from and against any and all claims, losses, liabilities, damages, penalties, fines, forfeitures, judgments, and any other fees, costs, and expenses, including reasonable attorneys’ fees and related costs and expenses, (collectively “Claims”) resulting from (i) its breach of this Agreement, (ii) any claims relating to its violation or infringement of the intellectual property rights of any third party, (iii) its violation of any applicable laws, Advertising Standards, rules, regulations and guidelines, or (iv) its gross negligence, willful misconduct or fraud.
- LIMITED LIABILITY. IN NO EVENT SHALL: (A) MERCHANT BE LIABLE OR OBLIGATED TO AFFILIATE IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, LOST PROFITS OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE; OR (B) MERCHANT’S AGGREGATE LIABILITY OUT OF OR RELATING TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID TO AFFILIATE HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
- During the term of this Agreement, each party may disclose to the other party certain information (either oral, written or digital) including, but not limited to, data, research, product plans, products, services, pricing, customer lists, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data (collectively, “Confidential Information”). Confidential Information shall also include the terms of this Agreement. For purposes of this Agreement, the party disclosing the Confidential Information shall be referred to as the “Disclosing Party” and the party receiving the Confidential Information shall be the “Recipient.” Recipient agrees to use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third parties as Recipient would use to protect its own Confidential Information. Recipient shall not disclose to any third party, nor permit any other person or entity access to the Disclosing Party’s Confidential Information, except as required by an employee, agent, officer, director, partner, or representative of such party in order to perform the obligations or exercise rights under this Agreement. Each party shall ensure that its employees, agents, officers, directors, partners, or representatives are advised of the confidential nature of the Confidential Information and are precluded by contract or other legal obligation from taking any action prohibited under this Section 8. A party shall immediately notify the other party in writing of all circumstances surrounding any possession, use, or knowledge of Confidential Information by any person or entity other than those authorized by this Agreement.
- The term “Confidential Information” shall not include any information which: (a) at the time of the disclosure or thereafter is or becomes generally available to the public other than as a result of its disclosure by the Recipient in violation of this Agreement, (b) was or becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party, (c) is independently developed by the Recipient or its representatives without the use of any Confidential Information, or (d) was in the possession of the Recipient prior to being disclosed to the Recipient by the Disclosing Party.
- Each party agrees that Confidential Information shall be used for the sole purpose of performing its obligations or exercising its rights under this Agreement.
- Upon termination of this Agreement, Recipient shall, upon the request of the Disclosing Party, return or destroy all Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Recipient may retain one (1) copy of all Confidential Information for legal and compliance purposes provided it maintains such copy in accordance with this Agreement and ceases using such data for business purposes. In the case of destruction, the Recipient shall certify in writing such destruction to the Disclosing Party within ten (10) days following written request for such certification.
- Recipient may disclose the Disclosing Party’s Confidential Information upon the order of any competent court or government agency. Prior to any such disclosure the Recipient shall, to the extent that doing so would not prejudice the Recipient or subject the Recipient to a fine or penalty, inform the Disclosing Party of such order and afford the Disclosing Party the opportunity to contest such disclosure.
- Each party agrees that its obligations in this Section are necessary and reasonable in order to protect the Disclosing Party and its business, and each party agrees that the remedy of damages would be inadequate to compensate the Disclosing Party for any breach by the Recipient of its obligations set out under this Section. Accordingly, each party agrees that, in addition to any other remedies that may be available, the Disclosing Party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient, without limiting any other rights and remedies to which the Disclosing Party may be entitled to at law, in equity or under this Agreement.
- Promotion. Neither Party may issue a press release announcing this relationship or use the other Party’s name without the prior written consent of the other; provided however that Merchant shall not be required to secure Affiliate’s permission to name Affiliate in any press release or marketing material that merely states that Affiliate is a publisher of Merchant, either on an individual basis or as part of a list of some or all of Merchant’s publishers. Furthermore, Merchant may display Affiliate’s name and logo on Merchant’s website(s) and publicly available publisher lists.
- General Provisions.
- Independent Parties. Neither Party may make any commitment or incur any expense or charge for or in the name of the other Party. Neither the execution nor performance of this Agreement will establish any joint venture or partnership or create the relationship of principal and agent between the Parties.
- Governing Law, Dispute Resolution, Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflict of laws rules. The parties submit to the exclusive jurisdiction and venue of the state and federal courts within Miami-Dade County, Florida for purposes of any suit, action or other proceeding arising out of, or relating, to this Agreement. Each party knowingly, voluntarily and intentionally waives its right to a trial by jury, to the extent permitted by law, in any suit, action or other proceeding arising out of, or relating, to this Agreement.
- Expenses and Attorneys’ Fees. In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
- Each party shall be responsible for procuring and maintaining for itself and its employees all insurance coverages as appropriate for its business and required by Federal or State law, including workers’ compensation insurance.
- All notices required to be given under this Agreement shall be in writing and shall be deemed to have been given when personally delivered or when mailed by registered or certified mail, postage prepaid, return receipt requested, or when sent by Federal Express or other overnight delivery service, addressed as follows (or to such other address that a Party may provide from time to time by notice to the other Party):
If to the Affiliate:
If to the Merchant:
Venus Vibes LLC
- This Agreement may not be modified, amended, rescinded or canceled in whole or in part, except by written instrument signed by the Parties hereto which makes specific reference to this Agreement and which specifies that this Agreement is being modified, amended, rescinded or canceled.
- If any provision of this Agreement is declared invalid or illegal for any reason whatsoever, then, notwithstanding such invalidity or illegality, the remaining terms and provisions of this Agreement will remain in full force and effect in the same manner as if the invalid or illegal provision had not been contained herein.
- No failure on the part of either Party to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or a future exercise thereof or the exercise of any other right or remedy granted hereby, or by any related document, or by law. Any failure of a Party to comply with any obligation contained in this Agreement may be waived by the Party entitled to the benefit thereof only by a written instrument duly executed and delivered by the party granting such waiver, which instrument makes specific reference to this Agreement and the provision to which it relates and describes the right or obligation consented to, waived or purported to be violated.
- Force Majeure: Neither party shall be liable to the other party for any delay or failure of said party to perform its obligations hereunder (except for payment obligations) if such delay or failure arises from any cause or causes beyond the reasonable control of such party. Such causes shall include, but are not limited to, acts of God, floods, fires, port or transportation delays, loss of electricity or other utilities, labor strikes or delays by either party in providing required resources or support or performing any other requirements hereunder.
- Neither party may assign this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Company may assign this Agreement to any successor in interest as a result of a merger or a stock or asset purchase. Any attempted assignment in violation of this provision shall be deemed void. This Agreement shall be binding upon and shall benefit the parties and their respective successors and permitted assigns.
- Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties hereto relating to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
VENUS VIBES LLC