AFFILIATE PROGRAM AGREEMENT
This Affiliate Program Agreement (the “Agreement”) is made, and effective from the date accepts the application.
BETWEEN: Sure Aqua Corporation Pty Ltd CAN 64 129 004 244 (the “Owner”), a corporation organized and existing under the laws of the NSW of Australia with its head office located at Suite 21, Garden Plaza, 3-9 Terminus Road, Castle Hill, NSW 2154, Australia
AND: Applicant’s name on application (the “Recipient”), a corporation organized and existing under the laws of the Application Address, with its address on the application.
In consideration of the terms and covenants of this agreement, and other valuable consideration, the parties agree as follows:
a. The name of this affiliate program is the Sure Aqua Corporation’s Pty Ltd Affiliate Program (the “Affiliate Program”).
b. The Recipient represents and warrants to Sure Aqua that the Recipient has read and understand the Privacy Policies and agree to the terms set forth therein.
c. For purposes of this Agreement, the term “the Recipient” refers to the individual or legal entity who applies for and is accepted into the Affiliate Program. The term “Sure Aqua” refers to the sponsor of the Affiliate Program. The term “Sure Aqua’s website” refers to the website that Sure Aqua maintains at [ADDRESS]. The term “the Recipient’s website” refers to the website on which the Recipient agrees to place a link to Sure Aqua’s website as specified in the Exhibit B hereof. “Merchandise” means all products, merchandise and stock that is offered by Sure Aqua for sale through its website.
1. AFFILIATE PROGRAM REGISTRATION
To register for the Affiliate Program, the Recipient must complete and submit to Sure Aqua an Affiliate Program Application Form. The Affiliate Program Application Form is included on Sure Aqua’s website and can be completed and submitted through its website.
2. APPROVAL OR REJECTION OF AFFILIATE PROGRAM APPLICATION
Sure Aqua reserves the right to approve or reject ANY Affiliate Program Application in its sole and absolute discretion. The Recipient will have no legal recourse against Sure Aqua for the rejection of the Recipient Affiliate Program Application.
3. REASONS FOR REJECTION
Without limiting the right to reject any application for any reason whatsoever in Sure Aqua’s absolute discretion, the Recipient application will be rejected if it is non complete, if the Recipient’s website contains images or content that is not acceptable to Owner or is inconsistent with the image that Sure Aqua wishes to create in association with its website, or if the Recipient’s website contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference, or if the Recipient’s site contains any material that appears to Owner to violate any patent, trademark, copyright, trade secret, confidential information, or other property rights of any other party.
4. TERMINATION AFTER ACCEPTANCE
Even after Sure Aqua has accepted the Recipient as an Affiliate Program member, Sure Aqua reserves the absolute right to rescind or terminate the Recipient affiliate status for any reason in its sole and absolute discretion, including but not limited to the reasons set forth above.
5. FINANCIAL RESPONSIBILITIES
The Recipient will be fully responsible for all costs and expenses of maintaining and marketing the Affiliate Program, including but not limited to all costs associated with the creations, hosting, modification, and improvements to the Recipient’s website, costs of search engine placement and other Internet marketing, costs of inserting Sure Aqua’s links into its website, offline marketing costs, postage costs, and all other costs and expenses, and the Recipient hereby holds Sure Aqua harmless from or against the same.
6. NO REPRESENTATIONS REGARDING INCOME POTENTIAL
Sure Aqua makes no representations and warranties regarding potential income that may result from participation in this Affiliate Program and specifically disclaims any and all warranties relative to earning potential from the Recipient affiliate status.
7. RESPONSIBILITY TO LINK TO SURE AQUA’S SITE
a. As a Program Affiliate, the Recipient will have the obligations to place links on its site directing users to Sure Aqua’s site. Sure Aqua will make available to the Recipient button links, text links, and banner advertisements to be placed on the Recipient’s website which will direct users to Owner’s website via hypertext link. As a Program Affiliate, the Recipient is given a limited term license, during the term of the Recipient active participation as a Program Affiliate, to utilize Sure Aqua’s logo images provided to the Recipient on the website that the Recipient designates in the Recipient Affiliate Program Application.
b. Sure Aqua makes available to its Affiliates, links, banners, and other information advertising its site to be used subject to the terms of this Agreement. These materials will contain its trademarks and other proprietary property. The Recipient may display these materials on the Recipient’s website for the purpose of promoting Sure Aqua’s site and participating in this Affiliate Program. If the Recipient discontinues the Affiliate Program or if the Recipient participation is terminated for any reason, the Recipient will immediately cease using these materials and will delete all such materials from its website and from its computer. The Recipient must obtain Sure Aqua approval of all links to Sure Aqua’s site that the Recipient place on its website. The Recipient will cooperate with Sure Aqua in the establishment and placement of links on the Recipient’s website.
c. The Recipient will only be permitted to use the links that Sure Aqua provided to the Recipient on the website that the Recipient designate in the Affiliate Program Application. Any additional websites or entities will require additional submissions of Affiliate Program Applications and approval by Sure Aqua.
d. The Recipient will not modify the links or other materials that Sure Aqua provided to the Recipient or the placement of the links on the Recipient’s page. The Recipient consent to Sure Aqua monitoring the Recipient’s website to determine continued compliance with this Agreement.
e. The Recipient consent to Sure Aqua including information relative to traffic from the Recipient’s site in Sure Aqua reports. This information may be provided to outside parties.
f. You may not place links to Sure Aqua’s website or website content in newsgroups, message boards, unsolicited email and other types of spam, banner networks, counters, chat rooms, guest books, IRC channels or through similar Internet resources.
8. ANTI-SPAM POLICY
Sure Aqua strictly forbid the use of unsolicited commercial email (UCE) or SPAM campaigns. Sure Aqua maintain a Zero-Tolerance policy against SPAM, be it direct, third party or any affiliate (Recipient) or similar agent acting on the Recipient’s behalf. As such, Sure Aqua reserves the right to terminate any violating Recipient’s account or any part thereof, without notice or compensation.
Any Recipient’s found to be involved in a SPAM/UCE campaign, including flooding newsgroups, distributing messages to recipients that do not want the information or any other abuse contravening UCE legislation will be met as follows:
a. The Recipient’s account will be closed immediately, without burden of notice or compensation.
b. A US$500.00 administration fee will be incurred against the offending Recipient.
d. The Recipient will be held accountable for any monetary damages suffered by Sure Aqua, sustained through contravention of this Affiliate Program Agreement. This will include, but not limit to punitive damages related to lost clients and brand deterioration.
9. CUSTOMER SERVICE
a. Sure Aqua will be responsible for handling all customer inquiries, product orders, customer billing and collection, product shipment relative to customers that enter Sure Aqua’s site through the links from the Recipient’s site. Pricing of Sure Aqua products and services is totally within its discretion and Sure Aqua reserves the right to change the pricing structure, terminate 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 Recipient or users accessing Sure Aqua’s site. Sure Aqua’s only responsibility to the Recipient in this regard is to track customer orders that occur through links from the Recipient’s website and make reports to the Recipient of the commissions due to the Recipient as a result thereof. All such reports shall be un-audited. Sure Aqua will have no obligation to provide the Recipient with any specific information relative to any customer, regardless of whether they access Sure Aqua’s site through the link from the Recipient’s site.
b. Sure Aqua is not responsible for the failure to assign any sale or commissions to the Recipient if the same results from the improper formatting of the link from the Recipient’s website. The Recipient should assure at all times that the link is appropriately formatted and report any problems that the Recipient may have with the same to Sure Aqua immediately.
a. Commissions will be paid to the Recipient based upon a percentage of sales made to users who access Sure Aqua’s site through the Recipient’s site. Commissions will be calculated based upon the gross sales price, but not including any shipping and handling, sales tax, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, and any other payment made to Sure Aqua that is not the purchase price for the product that is purchased. Commissions will not be calculated based upon amounts that are attributable to credit card fraud, credits given to customers, bad debt right-off and returned goods. Sure Aqua reserve the right to deduct in subsequent months for any commission that Sure Aqua paid that is for a product that is subsequently returned or refunded, or for any other reason if the previous monthly commission was overpaid or later subject to reduction.
b. The percentages to be paid as commissions hereunder are currently as outlined. Sure Aqua reserves the right to change and amend the commission rate structure at any time, in Sure Aqua’s sole discretion.
c. Commissions will only be paid on sales that are tracked through Sure Aqua’s online tracking system and indicate the Recipient’s website’s link as the source. There is no right to commissions if a user later returns to Sure Aqua’s site and makes a purchase through another link or source other than through the Recipient’s website. The Recipient has no right to commissions based upon subsequent sales, even if the customer first arrived at Sure Aqua’s site through the link from the Recipient’s site. Commissions will only be tracked and paid when the user makes a purchase on the same visit that the user visits Sure Aqua’s site from the link to its site on the Recipient’s site.
d. Sure Aqua will pay commission only upon collection by Sure Aqua. The Recipient has no right to commissions until the applicable customer has paid Sure Aqua in full. Only purchases that are made through Sure Aqua’s online ordering process will count towards commission calculations. For example, if a customer visits Sure Aqua’s website through the link from the Recipient’s website and instead of placing an online order calls and places an order via telephone, the Recipient will have no right to any commission from that sale.
e. Commissions will be paid to the Recipient on a monthly basis on or about the 30th of the subsequent month for amounts received by Sure Aqua during the previous month. Sure Aqua does not guarantee an exact date of calculation of commissions or payments. All payments will be made via PayPal Payout direct to the Recipient supplied in the Affiliate Program Application. Sure Aqua does not send payment if the total commission due to the Recipient is not at least $100. Amounts below $100 will accrue to the Recipient account and payment will be made for the month when the Recipient’s total commissions achieve the minimum $100. Sure Aqua reserves the right to amend the minimum commission payment amount at any time.
11. CUSTOMERS’ PROVENANCE
All parties who make purchases through Sure Aqua’s website, regardless of whether they may have reached its website through the link from the Recipient’s website, are deemed to be Sure Aqua’s customers and not the Recipient’s customers relative to Sure Aqua’s products and services. Sure Aqua will have the right to contact these customers and send future marketing offers to them. The Recipient will have no right to commissions on subsequent purchases that may be made by these customers, except for subsequent purchases that may be traced at the time of purchase through a link from the Recipient’s website. Additionally, all such customers and purchases will be subject to Sure Aqua policies, procedures, rules and regulations and the Recipient has no right or authority to amend or offer any different offers relative to the purchase of products from Sure Aqua’s website. Sure Aqua however, reserves the right to amend any of its terms, conditions, policies, procedures, pricing, payment policies, collection policies, and all other items relative to Sure Aqua’s business and sale of products at any time in its sole discretion.
12. TRADEMARKS AND COPYRIGHTS
a. The Recipient will have a non-exclusive, limited term license to use the trademarks, logos, and copyrighted material that Sure Aqua provided to the Recipient for use solely on the home page that the Recipient designate in the Recipient Affiliate Program Application. The Recipient may only use the images that Sure Aqua specifically makes available to Sure Aqua Affiliate Members at the area of its website that is specifically designated as approved images for Affiliate Program Members. The Recipient may not distribute, reproduce, modify, amend, these images in any way. The Recipient may use these images only for the purposes of promoting Sure Aqua’s website and products on the Recipient’s website in compliance with the Affiliate Program policies and procedures and the terms of this Agreement. The license so granted is subject to complete compliance with all terms and conditions of this Agreement and any policies Sure Aqua may create and amend from time to time regarding the Affiliate Program.
b. The Recipient will only use such items in the form, size, content, and appearance that Sure Aqua provided them to the Recipient. The Recipient is not permitted to modify them. The Recipient agrees to display these items prominently on its website. These items may only be used in if they contain a hypertext link to Sure Aqua’s website. This license shall immediately terminate upon the termination from the Affiliate Program. Sure Aqua may also terminate this license upon notice to the Recipient in the event that the Recipient’s use of these items is contrary to or does not conform with its standards, such standards to be determined in its sole and absolute discretion. The Recipient agrees that Sure Aqua retains all right, title and interest in and to all such materials. Sure Aqua will retain all goodwill and other value associated with any of these materials. The Recipient will not gain any trademark, copyright or other proprietary rights to such materials. The Recipient agrees not to take any action that is contrary to or inconsistent with Sure Aqua rights to these materials. The Recipient will not use these materials in any way that is damaging, defamatory, disparaging, derogatory, or negative to Sure Aqua or that paints Sure Aqua in a false or negative light. Sure Aqua may revoke the limited license granted hereunder at any time in writing to the Recipient. Upon termination or revocation, the Recipient will immediately cease from any use this material.
c. The Recipient is not permitted to use any other proprietary materials, including but not limited to trademarks, copyrights, logos, text, and any other materials that belong to Sure Aqua or to any other party and which may appear on Sure Aqua’s website.
d. The Recipient grants to Sure Aqua a non-exclusive right and license to use the Recipient’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 Recipient participation in Sure Aqua Affiliate Program. The Recipient represents and warrants to Sure Aqua that no other party has any rights in and to any of these materials and that these materials do not infringe upon or otherwise interfere with the rights of any other party. The Recipient represents and warrants to be the absolute, sole and exclusive owner of all such materials and Sure Aqua of all trademark rights, copyrights, and other proprietary rights in and to the same. The Recipient represents to have the right, power, and authority to license said materials to Sure Aqua as aforesaid and that the Recipient is not under any legal or contractually limitation on the right to so license these materials. Sure Aqua has no obligation to announce, advertise, market, or promote the Recipient participation in Sure Aqua Affiliate Program, but reserves the right to do the same at its sole discretion.
13. PRODUCT AVAILABILITY
Sure Aqua cannot guarantee product availability or the term of any price or special promotion or offer.
The Recipient is responsible for all matters pertaining to the Recipient own website including its development, maintenance, operation and placing links on the Recipient’s site in compliance with the terms of the Affiliate Program. The Recipient is completely responsible for all items that appear on its site and for assuring that such items do not infringe upon or violate the rights of any other party. Sure Aqua is not responsible for any matter pertaining to the Recipient’s site or the content thereof and the Recipient holds Sure Aqua harmless and indemnifies Sure Aqua from any and all claims, suits, threats, demands, liabilities, actions, causes of action related in any way to the Recipient’s website and business. Such indemnity includes Sure Aqua costs and attorney fees in defending any such matter. The Recipient represents and warrants to Sure Aqua that its site does not and will not contain any materials that are illegal and that the Recipient’s site is not operated for an illegal purpose or in an illegal manner.
15. REPRESENTATIONS AND WARRANTIES
The Recipient hereby represents and warrants to Sure Aqua to have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry of this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. The Recipient’s entry of this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court or administrative order.
The effectiveness of this Agreement shall not commence until the Recipient Affiliate Program Application is accepted by Sure Aqua. The effectiveness hereof and binding effect shall occur upon Sure Aqua acceptance of the Recipient Affiliate Program Application. This Agreement shall remain in full force and effect until terminated by the Recipient or by Sure Aqua. Either Sure Aqua or the Recipient may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via Email to the Recipient at the Email address indicated in the Recipient Affiliate Program Application. Any and all notices to the Recipient via Email at such address shall be deemed to be effective notice to the Recipient for all purposes.
The Recipient will forfeit all right to receive past commissions that may have accrued to the Recipient if this Agreement is terminated as a result of the Recipient failure to comply with the terms of this Agreement or any policies and procedures of Affiliate Program that may be established and amended by Sure Aqua in its discretion from time to time. If this Agreement is terminated for any other reason, the Recipient will have a right to receive its accrued commissions through the effective date of termination; provided, that if the Recipient total commissions due hereunder do not exceed [AMOUNT], such accrued commission shall be forfeited. Sure Aqua has the right to withhold final commission payments for sufficient time in order to assure that the amount paid to the Recipient is accurate and not subject to later adjustment for returns or any other reason. If following final payment Sure Aqua determines that the amount of commissions that the Recipient were paid was too high, as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from the Recipient to Sure Aqua and Sure Aqua shall have all legal right to receive a refund of such overpaid commission from the Recipient.
Sure Aqua reserves the right in its sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement upon notice to the Recipient. Notice of any changes may be given via Email to the Recipient or by posting such changes in the Affiliate Program sections of Sure Aqua’s website. Such changes and modifications will take effect upon transmission of Email or posting on Sure Aqua’s website. The Recipient may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to the Recipient and such termination shall be the Recipient sole and exclusive remedy. In the event that the Recipient continues to participate in the Affiliate Program following such modifications, the Recipient will be deemed by the Recipient continued participation to accept any and all such changes.
a. SURE AQUA HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS ITS WEBSITE OR TO ACCESS ITS WEBSITE USING THE LINK FROM THE RECIPIENT’S WEBSITE. FURTHERMORE, SURE AQUA SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO ITS WEBSITE, THE AFFILIATE PROGRAM, THE RECIPIENT PARTICIPATION IN THE AFFILIATE PROGRAM, THE RECIPIENT ABILITY TO MAKE ANY COMMISSIONS OR OTHERWISE PROFIT THROUGH PARTICIPATION IN THIS AFFILIATE PROGRAM, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTIBILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON SURE AQUA’S COURSE OF DEALING OR USAGE OF TRADE. SURE AQUA DOES NOT REPRESENT OR WARRANT THAT ITS WEBSITE OR ANY APPLICATION, INCLUDING BUT NOT LIMITED TO ITS LINK TRACKING FEATURES, WILL BE ERROR FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION.
b. SURE AQUA SHALL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LIABILITIES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, LOSS PROFITS, LOST BUSINESS OPPORTUNITY OR ANY OTHER DAMAGES; REGARDLESS OF WHETHER SURE AQUA WAS OR HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND TOOK NO ACTION TO PREVENT THE SAME.
c. Without limiting the forgoing, Sure Aqua total liability for any damages arising hereunder shall never exceed the total commissions paid and payable by Sure Aqua pursuant to the terms hereof.
In the event that any information is disclosed to the Recipient through the Recipient participation in the Affiliate Program related in any way to Sure Aqua company and business which Sure Aqua deem to be confidential and proprietary, the Recipient agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Recipient own purposes. Confidential information will include any information regarding Sure Aqua changes or modifications to this Agreement or this Affiliate Program (which Sure Aqua shall have no obligation to make) or any special treatment that the Recipient may receive (which Sure Aqua reserves the right to provide in its sole discretion to any affiliate). Confidential information shall also include any and all information related to Sure Aqua’s business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which Sure Aqua considers to be confidential and proprietary.
The Recipient hereby indemnifies and holds Sure Aqua, and all of Sure Aqua stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless 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 Sure Aqua may incur and which are based in whole or in part upon the Recipient participation in the Affiliate Program, any claims that any of the Recipient trademarks and other proprietary material infringe upon the rights of any other party, the Recipient 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 Recipient use, operation or the content of the Recipient’s website.
22. GOVERNING LAW
This Agreement shall be interpreted under the laws of the NSW of Australia. Any and all legal actions relative hereto shall be in the courts of NSW of Australia.
23. RELATIONSHIP OF THE PARTIES
The parties hereto are independent contractors and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint venturers, shareholders, employer/employee, agent/servant. The Recipient has no power or authority to bind Sure Aqua to any obligation, agreement, debt or liability. The Recipient shall not hold itself out as an agent or representative of Sure Aqua.
Notices to Sure Aqua shall be by certified mail, return receipt requested addressed to the address contained in this Agreement, or such other address that Sure Aqua provide notice of to the Recipient via Email or by posting the same on the Affiliates section of Sure Aqua website. Notices to the Recipient shall be by Email addressed to the Email address that the Recipient provided to Sure Aqua in the Recipient Affiliate Program Application or by posting such notices on the Affiliate section of Sure Aqua’s website. It shall be the Recipient responsibility to check the Affiliate section of Sure Aqua website periodically to monitor all notices set forth thereon.
This Agreement is only for the benefit of the party that the Recipient list in the Affiliate Program Application. The Recipient shall have not right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
26. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supercedes any and all prior discussions, understandings, agreements, representations, warranties or covenants between the parties related to the subject matter hereof. This Agreement may only be amended by a writing signed by the authorized representative of each of the parties, except as otherwise set forth herein. Any waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent or other breach or default and shall not serve to modify the agreements set forth herein.
If any provision or term of this Agreement is held to be invalid for any reason, it shall not effect the enforceability of the remainder of this Agreement or any other term or condition of this Agreement.