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This agreement (the “Agreement”) is made between Cooch Ball (the “Company”), and the Referral Partner, and collectively, the “Parties”) for participation in The Company’s Referral Partner program, effective as of this date of enrolling in this program.By signing up as an Referral Partner with the Cooch Ball, you agree to the following Terms of Service.
Company shall make available to Referral Partner certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Referral Partner website (the “Promotional Materials”). Referral Partner shall display the Promotional Materials on Referral Partner’s website prominently and as Referral Partner sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Referral Partner shall also include a link from the Promotional Materials to Company’s website, as specified by Company.
Use of Promotional Materials
The Referral Partner’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:Referral Partner may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
Referral Partner 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.
Referral Partner will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Referral Partner wishes to alter or otherwise modify the Promotional Materials, Referral Partner must obtain prior written consent from Company for such alteration of modification.
Company hereby grants to Referral Partner a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Referral Partner any rights, ownership or interest in the Promotional Materials, or in the underlying Cooch Ball Intellectual Property, other than the rights to use the Promotional Materials granted under the License.
Relationship of Parties
This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Referral Partner. Referral Partner shall provide services for Company as an independent contractor. Referral Partner shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
In exchange for A Referral Partner’s display of the Promotional Materials, and for Referral Partner’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) in the amount of 15% of a product sold to a visitor that accesses Company’s website through a link on Affiliate’s website, email or promotional materials.
This percentage is subject to change by the Company at any time. Notification to A Referral Partner of any change in commission percentage will be given by Company at the email address on hand for the Referral Partner. Commission will be based on purchases made by a user for any new and recurring purchases for the life of the registered user.
Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Referral Partner. Referral Partner shall be given reasonable access to these records upon request, and is available through the Referral Partner area on the member page. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Referral Partner in any period or periods shall be rectified by Company within 14 days of discovering such discrepancy.
Commissions are held for a period of 1 month from any purchase to protect Company in the event of any chargeback that may occur. Company shall pay all Commissions accrued and payable to Referral Partner on the 1st of each month (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Referral Partner is less than $100.00, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month. Payment is made via the Referral Partner PayPal account.
In the event that Referral Partner materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Referral Partner shall be forfeited, and Company shall not be obligated to pay such Commissions to Referral Partner.
Referral Partner’s Representations and Warranties.
Referral Partner represents and warrants the following:
• In the event that Referral Partner materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Referral Partner shall be forfeited, and Company shall not be obligated to pay such Commissions to Referral Partner.
• Referral Partner has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
• Referral Partner’s website does not contain any materials that are: Sexually explicit, obscene, or pornographic; Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise); Graphically violent, including any violent video game images; or Solicitous of any unlawful behaviour; including bulk email campaigns. Referral Partner has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Referral Partner’s website. Nothing on Referral Partner’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Referral Partner have any reason to believe that any person or entity will bring or threaten such a claim in the future.
• Referral Partner will not use the Promotional Materials in any manner other than those set forth in Section 2 above.
• Referral Partner will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
• Referral Partner will not publish or otherwise distribute any advertising materials for Referral Partner’s website that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Referral Partner will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement.
• Referral Partner will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.Referral Partner will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company’s website.
Referral Partner shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Referral Partner’s warranties set forth in Section 7 above. Referral Partner shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Referral Partner of the Promotional Materials.ConfidentialityAny information that Referral Partner is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Referral Partner may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination.
Company shall not be responsible for any taxes owed by Referral Partner arising out of Referral Partner’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Referral Partner.
Limitation of Liability
Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
The headings for sections herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
This Agreement constitutes the entire agreement between Company and Referral Partner, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.