BY JOINING OUR AFFILIATE PROGRAM, YOU ARE CONSENTING TO THIS AFFILIATE AGREEMENT.
WHEREAS Swanked Creative, LLC (“Company”) offers services in accord with the terms of this agreement (“Agreement”), and
WHEREAS you (“Affiliate”) seek the services provided by Company.
NOW THEREFORE, in consideration of the mutual promises and benefits contained in the Agreement, the Parties hereby agree as follows:
1.1 In order to enroll in the Company Affiliate Program, Affiliate must complete the online registration form and accept these terms and conditions. Affiliate certifies that all registration information provided to the Company is accurate and correct.
1.2 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 discretion.
The term of this Agreement is 1 (one) year from the date the Affiliate joined. At the end of the term, this Agreement will automatically renew for an additional 1 (one) year term unless cancelled by either party in accordance with this Agreement.
3.1 Cancellation for cause. Company may cancel this Agreement for cause if Affiliate fails to comply with the terms of this Agreement. Such cancellation will be in writing and will be effective immediately. Cancellation for cause will result in forfeiture by Affiliate of any commissions accrued but unpaid at the time of cancellation.
3.2 Cancellation without cause. Company or Affiliate may cancel this Agreement for any reason by providing 30 days written notice to the other party. The “Cancellation Date” will be the 30th day from the date the written notice is sent. In the event of such cancellation, Company will pay any pending commissions owed to Affiliate through the Cancellation Date.
3.3 Limited License. Cancellation of the Agreement, whether for cause or not, automatically revokes Affiliate’s limited license to use the Promotional Materials of Company for the purpose of promoting the products and/or services offered through the Affiliate Program.
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 on Affiliate’s website prominently and 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
5.1 Affiliate may not use any other materials to promote Company’s website, products or services other than the Promotional Materials provided by Company, unless Company approves such other materials in writing prior to their display.
5.2 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.
5.3 Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from the Company for such alteration or modification.
5.4 The Promotional Materials will be used to link only to Company’s website and for no other purpose.
5.5 Affiliate shall not use paid search placement, including but not limited to advertisement purchased through bidding on keywords, search terms or other identifiers that include Company brand features or trademarks, in any search engine, including but not limited to Google, Bing, Yahoo, or any other search engine, portal, sponsored advertising service, or search referral service. Such keywords and identifiers include but are not limited to brand design, web design, digital marketing, and any spelling variations thereof. Company will not pay commissions to Affiliate for sales generated through such keyword bidding or other paid searches and reserves the right to cancel this Agreement and pursue all available legal remedies for a violation of this provision.
6. LIMITED LICENSE TO USE INTELLECTUAL PROPERTY
6.1 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.
6.2 The Affiliate may display these Promotional 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.
6.3 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.
6.4 Affiliate agrees that it will not contest the validity of any of Company’s trademarks, service marks, copyrights, or any other intellectual property rights.
6.5 Affiliate agrees that it will not adopt any trade or service marks that are confusingly similar or colorably similar to Company’s marks.
7.1 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. Commissions are 50% per sale, for each completed purchase made through the Affiliate’s link and actually paid to the Company, and will be be calculated after transaction fees are deducted. No commissions will be awarded in the event of a refund or bad debt write-off.
7.2 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. No commission will be paid to Affiliates who are using the link to purchase the product for themselves, whether using a separate email address or not; the purchaser must be a separate individual, as displayed in our affiliate tracking software.
7.3 Company reserves the right to change and amend the commission rate structure at any time, in the Company’s sole discretion.
7.4 Commissions earned will be paid to the Affiliate every month between the 1st and the 5th. 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.
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, and product shipment/delivery. 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’s participation in the Company Affiliate Program, but reserves the right to do so at its sole discretion.
10. AFFILIATE OBLIGATIONS
10.1 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.
10.2 Affiliate is responsible for 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.
10.3 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.
10.4 Affiliate will make sure all information provided to Company by Affiliate at the time of registration is kept up to date as long as the affiliate relationship exists.
10.5 Affiliate will not use the Affiliate account for any illegal or unauthorized purpose.
11.1 Company represents, warrants and covenants that Company has full authority to enter into this Agreement.
11.2 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.
11.3 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.
12. LIMITATION OF LIABILITY
12.1 In no event shall the Company have any liability to Affiliate for any lost profits, loss of use, business interruptions, cost 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
12.2 In no event shall the company’s liability exceed the fees paid under this agreement, whether in contract, tort, or under any other theory of liability.
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. HEADINGS; STRICT CONSTRUCTION
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent of any provisions of the Agreement. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent. The Parties agree that this Agreement shall be construed impartially between the Parties without regard to which Party may or may not be considered the drafter or scrivener of the Agreement.
15. NO IMPLIED WAIVER
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
16. ENTIRE AGREEMENT
16.1 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
16.2 Company may modify this Agreement at anytime by updating this Agreement on its website and sending electronic notice to Affiliate.
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. Company reserves the right to refuse to continue the Affiliate relationship with the assignee.
18.1 All notices, requests, demands, and other communications under this Agreement shall be in writing via electronic mail and shall be deemed to have been duly given on the date sent.
18.2 Any party may change its email address for purposes of this paragraph by giving the other parties written notice of the new email address.
19. GOVERNING LAW; VENUE
This Agreement shall be construed in accordance with, and governed by, the laws of the State of Georgia. The exclusive venue for any court proceeding based on or arising out of this Agreement shall be Georgia.
20. 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 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.
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.
Updated: November 7, 2017