Terms of Use and Privacy Statement
Affiliate Agreement
Effective Date: January 17th, 2019
Primary Website: href
THE AGREEMENT: This
Affiliate Agreement (hereinafter called the "Agreement") is provided
by the following organization, hereinafter referred to as "Company":
Esty Spot, LLC. Our primary website is located at the address listed above. The
Agreement is a legal document between you and the Company that describes the
affiliate relationship we are entering into. This Agreement covers your
responsibilities as an affiliate and our responsibilities to you. Please ensure
you read and understand the entirety of this document, as well as have a
lawyer's assistance if you desire, because each of the terms of this Agreement
are important to our working relationship.
1) DEFINITIONS
The parties referred to in this Agreement shall be defined as
follows:
a) Company, Us, We: As we describe above, we'll be referred to as
the Company. Us, we, our, ours and other first-person pronouns will also refer
to the Company, as well as all employees or legal agents of the Company.
b) You, the Affiliate: You will be referred to as the
"Affiliate." You'll also be referred to throughout this Agreement
with second-person pronouns such as You, Your, or Yours.
c) Parties: Collectively, the parties to this Agreement (the
Company and You) will be referred to as "Parties" or individually as
"Party."
d) Affiliate Program: The program we've set up for our affiliates
as described in this Agreement.
e) Affiliate Application: The fully completed form which must be
provided to us for consideration of your inclusion in the Affiliate Program.
f) Website: The primary website we've noted above will be referred
to as Website.
2) ASSENT & ACCEPTANCE
By submitting an application to our Affiliate Program, you warrant
that you have read and reviewed this Agreement and that you agree to be bound
by it. If you do not agree to be bound by this Agreement, please leave the
website immediately and do not submit an application to our Affiliate Program.
This Agreement specifically incorporates by reference any Terms of Conditions,
Privacy Policies, End-User License Agreements, or other legal documents which
we may have on our website. We may
change it at any time with or without notice.
3) PROGRAM SIGN-UP
In order to sign up for our Affiliate Program, you will first be
asked to submit an Affiliate Application to join. The Affiliate Application may
be found at the following website: href.
Submitting an Affiliate Application does not guarantee inclusion
in the Affiliate Program. We evaluate each and every application and are the
sole and exclusive decision-makers on Affiliate acceptance. If we choose not to
allow your inclusion in the Affiliate Program, we will attempt to notify you in
a reasonable manner. If you do not hear from us within a reasonable time frame,
please consider your application rejected. We are not obligated to provide you
any explanation for your rejection, but please be advised we may reject
applicants for any reason or manner, including but not limited to a website or
social media page which violates our Acceptable Use Policy.
If your Affiliate Application is rejected, you may not reapply. If
your Affiliate Application is accepted, each of the terms and conditions in
this Agreement apply to your participation. We may also ask for additional
information to complete your Affiliate Application or for you to undertake
additional steps to ensure eligibility in the Affiliate Program.
4) NON-EXCLUSIVITY
This Agreement does not create an exclusive relationship between
you and us. You are free to work with similar affiliate program providers in
any category. This agreement imposes no restrictions on us to work with any
individual or company we may choose.
5) AFFILIATE PROGRAM
After your acceptance in the Affiliate Program, you must ensure
your account is set up thoroughly, including specific payout information and
location (such as a bank or online account which we may use to post payment).
Please be advised the below is a general description of the
Affiliate Program. Everything contained in this subsection is subject to the
specific terms and conditions throughout the rest of this Agreement.
We will provide you with a specific link or links which correspond
to certain products we are offering for sale (collectively, the
"Link"). The Link will be keyed to your identity and will send online
users to the Company's website or websites. You hereby agree to fully cooperate
with us regarding the Link and that you will explicitly comply with all of the
terms of this Agreement for the promotion of the Link at all times. We may
modify the specific link or links and will notify you if we do so. You agree to
only use links which are prior approved by us and to display the Link
prominently on your website or social media page, as described in your
Affiliate Application (collectively, the "Affiliate Site").
Each time a user clicks through the Link posted on the Affiliate
Site and completes the sale of the product or service and we determine it is a
Qualified Purchase, as described below, you will be eligible to receive the
following percentage of the sale: 10% (ten percent).
6) SPECIFIC TERMS APPLICABLE
We will determine whether payout is permissible in our sole and
exclusive discretion. We reserve the right to reject clicks and/or sales that
do not comply with the terms of this Agreement.
Processing and fulfillment of orders will be our responsibility.
We will also provide real-time data regarding your account with us through the
portal on which you log into the website.
As described above, in order to be eligible for payout, user
purchases must be "Qualified Purchases." Qualified Purchases:
a) Must not be referred by any other partner or affiliate links of
the Company (in other words, Qualified Purchases are only available through
your specific Affiliate Link;
b) May not be purchased by an already-existing partner or
affiliate of the Company;
c) May not be purchased prior to the Affiliate joining the
Affiliate Program;
d) May only be purchased through a properly-tracking Affiliate
Link;
e) May not be purchased by a customer in violation of any of our
legal terms or Acceptable Use Policy;
f) May not be fraudulent in any way, in the Company's sole and
exclusive discretion;
g) May not have been induced by the Affiliate offering the
customer any coupons or discounts;
h) May not bid or use any branded keywords on any search engines (including Google,Yahoo, Bing, Youtube, Facebook, or any social media and sites Esty Spot, LLC deems; These keywords included: Esty Spot, Estyspot, estyspot.com or any variation thereof.
7) PAYOUT INFORMATION
Payouts will only be available when the Company has your current
address information as well as accounting and tax documentation. You will be
asked to submit a W8/W9 tax form. Accounting information may include the
routing and account number of a bank where you wish to post a direct deposit or
may include an email address for an online method of payment.
Currently, the Company employs the following methods of payout:
Paypal or Check
For any changes in your address or accounting information, you
must notify us immediately and we will endeavor to make the changes to your
payout information as soon as possible.
Payouts will be available the month or period after they accrue.
For example, payouts are made every 30 days, an entire 30 day period must
finish for the payout of that period to be available in the following period.
We explicitly reserve the right to change payout information in
our sole and exclusive discretion.
Payouts are also subject to the following restriction:
a) Payouts are only available when a threshold of the following
amount is met: $25 (twenty-five US dollars) However, Esty Spot, LLC may at there full discretion pay out under the $25 threshold if it has been longer than 90 days. For any disputes as to payout, the Company must be notified within
thirty days of your receipt of the payout. We will review each dispute
notification as well as the underlying payout transaction to which it is
related. Disputes filed after thirty days of payout will not be addressed. Must
be sent to info@estyspot.com
8) REPORTS
You may log into your account with us to review reports related to
your affiliation, such as payout reports and Qualified Click and/or Purchase
information. Please be advised however, that not all listed qualifying clicks
and/or purchases have been fully reviewed for accuracy in the reports viewable
by you in real-time and therefore may be subject to change prior to payout.
9) TERM, TERMINATION & SUSPENSION
The term of this Agreement will begin when we accept you into the
Affiliate Program. It can be terminated by either Party at any time with or
without cause. This will also go in effect 1/17/2019.
You may only earn payouts as long as you are an Affiliate in good
standing during the term. If you terminate this Agreement with us, you will
qualify to receive payouts earned prior to the date of termination.
If you fail to follow the terms of this Agreement or any other
legal terms we have posted anywhere on our website or websites, you forfeit all
rights, including the right to any unclaimed payout.
We specifically reserve the right to terminate this Agreement if
you violate any of the terms outlined herein, including, but not limited to,
violating the intellectual property rights of the Company or a third party,
failing to comply with applicable laws or other legal obligations, and/or
publishing or distributing illegal material.
At the termination of this Agreement, any provisions that would be
expected to survive termination by their nature shall remain in full force and
effect.
10) INTELLECTUAL PROPERTY
You agree that the intellectual property owned by the Company
includes all copyrights, trademarks, trade secrets, patents, and other
intellectual property belonging to the Company ("Company IP").
Subject to the limitations listed below, we hereby grant you a
non-exclusive, non-transferable, revocable license to access our websites in
conjunction with the Affiliate Program and use the Company IP solely and
exclusively in conjunction with identifying our company and brand on the
Affiliate Site to send customers to the Affiliate links we provide. You may not
modify the Company IP in any way and you are only permitted to use the Company
IP if you are an Affiliate in good standing with us.
We may revoke this license at any time and if we find that you are
using the Company IP in any manner not contemplated by this Agreement, we
reserve the right to terminate this Agreement.
Other than as provided herein, you are not permitted to use any of
the Company IP or any confusingly similar variation of the Company IP without
our express prior written permission. This includes a restriction on using the
Company IP in any domain or website name, in any keywords or advertising, in
any metatags or code, or in any way that is likely to cause consumer confusion.
Please be advised that your unauthorized use of any Company IP
shall constitute unlawful infringement and we reserve all of our rights,
including the right to pursue an infringement suit against you in federal
court. You may be obligated to pay monetary damages or legal fees and costs.
You hereby provide us a non-exclusive license to use your name,
trademarks and servicemarks if applicable and other business intellectual
property to advertise our Affiliate Program.
11) MODIFICATION & VARIATION
The Company may, from time to time and at any time, modify this
Agreement. You agree that the Company has the right to modify this Agreement or
revise anything contained herein. You further agree that all modifications to
this Agreement are in full force and effect immediately upon posting on the
Website and that modifications or variations will replace any prior version of
this Agreement, unless prior versions are specifically referred to or
incorporated into the latest modification or variation of this Agreement. If we
update or replace the terms of this Agreement, we will let you know via
electronic means, which may include an email. If you don't agree to the update
or replacement, you can choose to terminate this Agreement as described below.
a) To the extent any part or sub-part of this Agreement is held
ineffective or invalid by any court of law, you agree that the prior, effective
version of this Agreement shall be considered enforceable and valid to the
fullest extent.
b) You agree to routinely monitor this Agreement and refer to the
Effective Date posted at the top of this Agreement to note modifications or
variations. You further agree to clear your cache when doing so to avoid
accessing a prior version of this Agreement.
12) RELATIONSHIP OF THE PARTIES
Nothing contained within this Agreement shall be construed to form
any partnership, joint venture, agency, franchise, or employment relationship.
You are an independent contractor of the Company and will remain so at all
times.
13) ACCEPTABLE USE
You agree not to use the Affiliate Program or our Company for any
unlawful purpose or any purpose prohibited under this clause. You agree not to
use the Affiliate Program in any way that could damage our websites, products,
services, or the general business of the Company.
a) You further agree not to use the Affiliate Program:
I) To harass, abuse, or threaten others or otherwise violate any
person's legal rights;
II) To violate any intellectual property rights of the Company or
any third party;
III) To upload or otherwise disseminate any computer viruses or
other software that may damage the property of another;
IV) To perpetrate any fraud;
V) To engage in or create any unlawful gambling, sweepstakes, or
pyramid scheme;
VI) To publish or distribute any obscene or defamatory material;
VII) To publish or distribute any material that incites violence,
hate, or discrimination towards any group;
VIII) To unlawfully gather information about others.
14) AFFILIATE OBLIGATIONS & FTC COMPLIANCE
You are responsible for ensuring operation and maintenance of the
Affiliate Site, including technical operations, written claims, links, and
accuracy of materials. You must ensure, as noted above, that the Affiliate Site
does not infringe upon the intellectual property rights of any third party or
otherwise violate any legal rights.
We may monitor your account, as well as clicks and/or purchases
coming through your account. If we determine you are not in compliance with any
of these the terms of this Agreement, we have the right to immediately
terminate your participation in the Affiliate Program.
We require all of our Affiliates to comply with all applicable
statutes, regulations, and guidelines set by the federal government, through
the Federal Trade Commission, as well as state and local governments as
mandated. The Federal Trade Commission requires that affiliate relationships,
such as the relationship between you and the Company, be disclosed to
consumers.
We recommend that you seek independent legal counsel to advise you
of our obligations to disclose in this manner.
You are required to post a conspicuous notice on your website
regarding the Affiliate Program. The notice does not have to contain the
precise words as the example given below, but should be similar:
We engage in affiliate marketing whereby we receive funds through
clicks to our affiliate program through this website or we receive funds
through the sale of goods or services on or through this website. We may also
accept advertising and sponsorships from commercial businesses or receive other
forms of advertising compensation. This disclosure is intended to comply with
the US Federal Trade Commission Rules on marketing and advertising, as well as
any other legal requirements which may apply.
We also require you to comply with any and all applicable data
privacy and security laws and regulations, including all of those which may
impact your country of residence or your visitors. Such regulations include,
but are not limited to, any applicable laws in the United States or the General
Data Protection Regulation of the European Union. We also require that you
implement adequate organizational and technical measures to ensure an
appropriate level of security for the data that you process. Further, you
hereby agree to comply with any requests which we may make to you regarding
compliance with the General Data Protection Regulation or requests which you
may receive from data subjects.
If we find you are not in compliance with any of the requirements
of this sub-part, we may terminate our relationship with you at our sole and
exclusive discretion.
15) REVERSE ENGINEERING & SECURITY
You agree not to undertake any of the following actions:
a) Reverse engineer, or attempt to reverse engineer or disassemble
any code or software from or on any of our websites or services;
b) Violate the security of any of our websites or services through
any unauthorized access, circumvention of encryption or other security tools,
data mining or interference to any host, user or network.
16) DATA LOSS
The Company does not accept responsibility for the security of
your account or content. You agree that your participation in the Affiliate
Program is at your own risk.
17) INDEMNIFICATION
You agree to defend and indemnify the Company and any of its
agents (if applicable) and hold us harmless against any and all legal claims
and demands, including reasonable attorney's fees, which may arise from or
relate to your use or misuse of the Affiliate Program, your breach of this
Agreement, or your conduct or actions. You agree that the Company shall be able
to select its own legal counsel and may participate in its own defense, if the
Company wishes.
18) SPAM POLICY
You are strictly prohibited from using the Affiliate Program for
illegal spam activities, including gathering email addresses and personal
information from others or sending any mass commercial emails.
19) ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the
Parties with respect to the Affiliate Program. This Agreement supersedes and
replaces all prior or contemporaneous agreements or understandings, written or
oral.
20) SERVICE INTERRUPTIONS
The Company may need to interrupt your access to the Affiliate
Program to perform maintenance or emergency services on a scheduled or
unscheduled basis. You agree that your access may be affected by unanticipated
or unscheduled downtime, for any reason, but that the Company shall have no
liability for any damage or loss caused as a result of such downtime.
21) NO WARRANTIES
You agree that your use of the Affiliate Program is at your sole
and exclusive risk and that any services provided by us are on an "As
Is" basis. The Company hereby expressly disclaims any and all express or
implied warranties of any kind, including, but not limited to the implied
warranty of fitness for a particular purpose and the implied warranty of
merchantability. The Company makes no warranties that the Affiliate Program
will meet your needs or that it will be uninterrupted, error-free, or secure.
The Company also makes no warranties as to the reliability or accuracy of any
information. You agree that any damage that may occur to you, through your
computer system, or as a result of loss of your data from your use of the
Affiliate Program is your sole responsibility and that the Company is not
liable for any such damage or loss.
22) LIMITATION ON LIABILITY
The Company is not liable for any damages that may occur to you as
a result of your participation in Affiliate Program, to the fullest extent
permitted by law. The maximum liability of the Company arising from or relating
to this Agreement is limited one hundred ($100) US Dollars. This section
applies to any and all claims by you, including, but not limited to, lost
profits or revenues, consequential or punitive damages, negligence, strict
liability, fraud, or torts of any kind.
23) GENERAL PROVISIONS:
A) LANGUAGE: All communications made or notices given pursuant to
this Agreement shall be in the English language.
B) JURISDICTION, VENUE & CHOICE OF LAW: Through your
participation in the Affiliate Program, you agree that Arizona shall govern any
matter or dispute relating to or arising out of this Agreement, as well as any
dispute of any kind that may arise between you and the Company, with the
exception of its conflict of law provisions. In case any litigation
specifically permitted under this Agreement is initiated, the Parties agree to
submit to the personal jurisdiction of the state and federal courts of the
following county: Esty Spot, LLC, Arizona. The Parties agree that this choice
of law, venue, and jurisdiction provision is not permissive, but rather
mandatory in nature. You hereby waive the right to any objection of venue,
including assertion of the doctrine of forum non conveniens or similar
doctrine.
C) ARBITRATION: In case of a dispute between the Parties relating
to or arising out of this Agreement, the Parties shall first attempt to resolve
the dispute personally and in good faith. If these personal resolution attempts
fail, the Parties shall then submit the dispute to binding arbitration. The
arbitration shall be conducted in the following county: Esty Spot, LLC. The
arbitration shall be conducted by a single arbitrator, and such arbitrator
shall have no authority to add Parties, vary the provisions of this Agreement,
award punitive damages, or certify a class. The arbitrator shall be bound by
applicable and governing Federal law as well as the law of Arizona. Each Party
shall pay their own costs and fees. Claims necessitating arbitration under this
section include, but are not limited to: contract claims, tort claims, claims
based on Federal and state law, and claims based on local laws, ordinances,
statutes or regulations. Intellectual property claims by the Company will not
be subject to arbitration and may, as an exception to this sub-part, be
litigated. The Parties, in agreement with this sub-part of this Agreement,
waive any rights they may have to a jury trial in regard to arbitral claims.
D) ASSIGNMENT: This Agreement, or the rights granted hereunder,
may not be assigned, sold, leased or otherwise transferred in whole or part by
you. Should this Agreement, or the rights granted hereunder, by assigned, sold,
leased or otherwise transferred by the Company, the rights and liabilities of
the Company will bind and inure to any assignees, administrators, successors,
and executors.
E) SEVERABILITY: If any part or sub-part of this Agreement is held
invalid or unenforceable by a court of law or competent arbitrator, the
remaining parts and sub-parts will be enforced to the maximum extent possible.
In such condition, the remainder of this Agreement shall continue in full
force.
F) NO WAIVER: In the event that we fail to enforce any provision
of this Agreement, this shall not constitute a waiver of any future enforcement
of that provision or of any other provision. Waiver of any part or sub-part of
this Agreement will not constitute a waiver of any other part or sub-part.
G) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts
under this Agreement are for convenience and organization, only. Headings shall
not affect the meaning of any provisions of this Agreement.
H) FORCE MAJEURE: The Company is not liable for any failure to
perform due to causes beyond its reasonable control including, but not limited
to, acts of God, acts of civil authorities, acts of military authorities,
riots, embargoes, acts of nature and natural disasters, and other acts which
may be due to unforeseen circumstances.
I) ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications
are permitted to both Parties under this Agreement, including e-mail or fax.
For any questions or concerns, please email us at the following address:
info@estyspot.com.