THIS AFFILIATE AGREEMENT (“Agreement”) contains the complete terms and conditions that apply to your participation as an affiliate with the Octaband LLC Affiliate Marketing Program, and the establishment of links from your Website to Octaband. BY PARTICIPATING IN THE AFFILIATE MARKETING PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
As used in this Agreement, “we,” “us” or “Octaband” means Octaband LLC, and “you,” “your” or “Affiliate,” means the affiliate signatory to this Agreement. “Website” individually and collectively means your website and/or e-mail communications and/or software applications. “Affiliate Marketing Program” means the program managed by or on behalf of Octaband by which participating entities place links on their website(s) that connect to a Octaband website and for which a referral fee is earned.
1. Term and Termination. The term of this Agreement (the “Term”) will begin upon our acceptance of you into the Affiliate Marketing Program and your acceptance of this Agreement and will end when terminated as described herein. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other written notice of termination. You are only eligible to earn commissions on sales occurring during the Term, and commissions earned through the date of termination will remain payable only if the product orders are not canceled. Octaband may withhold final payment for a reasonable time to ensure against cancellations and any potential damages resulting from your breach of this Agreement, if applicable.
2. Promotion. Octaband will make available to you, or you will create, subject to our approval, a variety of graphic and textual links (the “Links” collectively, or “Link” individually) in order to link to Octaband and its products. You and we will cooperate in good faith to develop and implement such Links. Each Link will permit recipients to navigate directly to a page on the Octaband website designated by us via a special tagged link format. No Link will be placed on any page or screen that contains content that: advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities, violates intellectual property rights of third parties; or contains or promotes deceptive information. You will be responsible for integrating the Links into your site to properly enable sales tracking, and we will not be responsible for your failure to do so, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to you under this Agreement.
3. Referral Fee. You will earn Referral Fees equal to ______% of Net Proceeds received by Octaband during the Term. Octaband will pay you referral fees (“Referral Fees”) equal to a percentage of the aggregate Net Proceeds received from the sale of Qualifying Purchases actually made from Octaband. The term “Qualifying Purchases” will mean all products that are purchased by users during a visit to Octaband’s website immediately following navigation to the designated URL through a hypertext link from you under this Affiliate Marketing Program. Referral Fees will not be payable on sales otherwise made from Octaband website, even if the customer previously made a Qualifying Purchase. The term “Net Proceeds” will mean the gross proceeds received by Octaband website from the sale of Qualifying Purchases on Octaband’s website, less costs and expenses attributable to taxes, shipping and handling, fraud and bad debts, duties, gift wrapping and credit card processing. (For purposes of calculating Net Proceeds, credit card sales will be subject to a flat deduction of 3% of the gross sale price.)
4. Payment Schedule. Referral fees will be payable within sixty (60) days from the end of each calendar quarter via a PayPal account. You have the responsibility of notifying Octaband of any changes to your PayPal account details.
5. Fulfillment and Policy. Octaband will be solely responsible for fulfilling all orders and payment processing for its products. Customers who buy products through the Affiliate Marketing Program will be deemed customers of Octaband. Accordingly, all Octaband rules, policies, operating procedures and information concerning customer orders and sales will apply to those customers, including our rules of privacy and confidentiality. Prices and availability of Octaband products may vary from time to time. Octaband will always determine the price paid by the customer. We may change our policies and operating procedures at any time, without notice. Affiliates are not authorized to collect payments or sell any Octaband product from other websites as a “reseller” and no “resale” rights are granted in any way. Affiliates are not authorized to give away any unit(s) of Octaband product.
6. Modification. We may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. These modifications may include, but are not limited to changes in the payment procedures, Referral Fee and Affiliate Marketing Program rules. If any of the modifications are unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Marketing Program following the posting of the change notice or new Agreement on our website will be considered your acceptance of the changes.
7. Monitor. We have the right to monitor your Website at any time to determine if you are following the terms and conditions of this Agreement or to make sure that your links to our website are appropriate and to notify you of any changes that we feel should be made. If you do not make the changes to your Website that we consider necessary, we reserve the right to terminate your participation in the Affiliate Marketing Program.
8. Representations and Warranties; Limitation of Liability. You represent and warrant that: (i) you have full power and authority to enter into this Agreement and to perform your obligations hereunder; (ii) you have obtained all permits, licenses, and other governmental authorizations and approvals required for your performance under this Agreement; (iii) the services to be rendered by you under this Agreement neither infringe nor violate any patent, copyright, trade secret, trademark, or other proprietary right of any third party.
Octaband will remain solely responsible for the operation of the Octaband website, and you will remain solely responsible for the operation of your site. You acknowledge that our website may be subject to temporary downtime due to causes beyond our reasonable control. Subject to the specific terms of this Agreement, we retains sole right and control over the programming, content and conduct of transactions.
WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (i) THE AMOUNT OF SALES THAT THE OCTABAND WEBSITE MAY GENERATE DURING THE TERM, AND (ii) ANY ECONOMIC OR OTHER BENEFIT THAT THE YOU MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT. We make no express or implied warranties or representations with respect to the Affiliate Marketing Program or any Octaband products and services sold through the Affiliate Marketing Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, we make no representation that the operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors, including the tracking of information about Qualifying Purchases during the period of interruption.
OCTABAND WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT. OCTABAND’S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNTS PAYABLE TO AFFILIATE HEREUNDER.
9. Intellectual Property Rights. Octaband hereby grants to you during the Term a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between yours and our Web Sites and to use Octaband’s trade names, logos, trademarks and service marks (the “Octaband Marks”) on your site solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform your obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the Octaband Marks will be subject to Octaband’s prior written approval. You hereby grant to Octaband during the Term, a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between yours and our websites and to use your trade names, logos, trademarks and service marks (the “Affiliate Marks”) solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform our obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the Affiliate Marks will be subject to your prior written approval. Except as set forth above, you and we each reserve all right, title and interest in respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks and other intellectual property rights).
EXCEPT AS EXPLICITLY PERMITTED ABOVE, YOU SHALL NOT AND ARE NOT AUTHORIZED TO USE THE OCTABAND MARKS OR ANY OTHER OCTABAND INTELLECTUAL PROPERTY WITHOUT OUR EXPRESS PRIOR WRITTEN PERMISSION. You agree not to use Octaband marks in a domain or website name, in any bids for keywords or google adwords (or similar programs at other search engines), in any search engine advertising (paid or otherwise), in any metatags, google adwords (or similar programs at other search engines), key words, advertising, search terms, code, or otherwise. Your use of the Octaband Marks in any manner, other than as expressly permitted hereunder (in addition to being a breach of this agreement) shall constitute unlawful infringement of our trademarks, copyrights or other intellectual property rights, and may subject you to claims for damages (including without limitation, treble damages for knowing or willful infringement), and the obligation to pay our legal fees and costs in connection with any action or proceeding in which we seek to enforce our rights under this agreement or with regard to any of our intellectual property rights. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto.
You are not allowed to post any refunds, credits or discounts, or other content concerning Octaband, unless we have given you prior written permission in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Marketing Program using banners and links. Each Link connecting users of your Website to the pertinent area of our website will in no way alter the look, feel, or functionality of our site. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the program.
Upon termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and you will immediately cease use of, and remove from Affiliate’s Website, all links to the Octaband website and Octaband Marks and any other materials provided by Octaband.
10. Indemnification. You agree to indemnify, defend and hold harmless us and our affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney’s fees) relating to the operation of your site, a breach of your obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials of your site.
11. FTC Endorsement Compliance. It is the intent of Octaband to treat our customers fairly and to comply fully with all Federal Trade Commissions regulations related to advertising. As such, we require our affiliates to comply with these regulations. This includes, but is not limited to, Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising, which requires, among other criteria, that material connections between advertisers and endorsers be disclosed. This means that directories, review/rating sites, blogs and other websites, email or collateral that purport to provide an endorsement or assessment of an advertiser (in this case Octaband) must prominently disclose the fact financial or in-kind compensation is provided from the advertiser. You are advised to seek and obtain your own legal advice on how these rules apply to your website or other promotional activities for which you receive compensation. Octaband reserves the right to withhold commission fees and cancel the affiliate relationship with you should we determine, at our discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations/guides we deem relevant.
12. Confidentiality. You agree that all information including, without limitation, the terms of this Agreement, business and financial information, vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement.
13. Independent Review. Your application submission acknowledges that you have read this agreement and agree to be bound by all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit Octaband relationships on terms that may differ from those contained in this agreement. We may also solicit Octaband relationships with entities that operate websites that are similar to or compete with your website. You have independently evaluated the desirability of participating in the Affiliate Marketing Program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
14. General Provisions.
i. You and we are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between you and us. In its performance of this Agreement and in the operation of each party’s respective Websites, you and we each will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, you and we each will pay, collect and remit such taxes as may be imposed with respect to any compensation, royalties or transactions under this Agreement. Neither you nor we will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.
ii. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts. Any action arising hereunder will be brought in the federal or state courts, located in Massachusetts. In any action or proceeding to enforce this Agreement, we will be entitled to recover from you our costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
iii. Any notices under this agreement will be given in writing. Notices may be given by electronic mail and will be deemed delivered and given for all purposes on the sent date, but only if the receiving party has confirmed its receipt by return electronic mail. Notices sent via traditional means will be sent via certified mail, return receipt requested.
iv. You may not assign this Agreement, in whole or in part, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
v. The failure of us to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
vi. This Agreement represents the entire Agreement between you and us with respect to the subject matter hereof and supersedes any other oral or written agreements regarding such subject matter, and may be amended or modified only by a written instrument signed by a duly authorized agent of each party.
vii. If any provision of this Agreement will be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect.
I INDICATE MY APPROVAL OF THIS AGREEMENT AND DESIRE TO BECOME AN AFFILIATE UNDER THESE TERMS AND CONDITIONS BY SIGNING BELOW, BY SUBMITTING PROPOSED REFERRED CUSTOMERS OR QUALIFYING PURCHASES TO US UNDER OUR AFFILIATE PROGRAM AND/OR BY COLLECTING ANY REFERRAL FEES FROM US.