TERM AND CONDITIONS OF BREAKER AFFILIATE AGREEMENT
The following terms and conditions will be effective if and only if BreakingT accepts your application to enroll in the BreakingT Affiliate Program. By enrolling as an Affiliate in the program, you agree to be bound and abide by such terms and conditions.
1. Referral Fees. We will pay you referral fees on eligible product sales to customers as provided in Section 2. For a product sale to be eligible to earn a referral fee, the customer must follow a Referral Link from your Affiliate Site to our Site, select and purchase eligible products using our online ordering system, accept delivery of the products, and remit full payment to us (“Qualified Purchase”). If a customer leaves our website but returns within 30 days to purchase products initially viewed through a Referral Link such a purchase will be deemed a Qualified Purchase and we will pay a referral fee.
Affiliates and employees of Affiliates may not purchase products through the Referral Links on your Affiliate Site for personal use, resale, or commercial use of any kind. BreakingT reserves the right to not pay referral fees for any purchases determined to be in violation of this prohibition; and/or the right to retain and offset referral fees for any such sales that BreakingT may discover at any time.
2. Referral Fee Schedule. Referral fees you earn will be in amounts established by us and posted on our Site in a Referral Fee Schedule, incorporated into this Agreement by reference. You will be able to review the Referral Fee Schedule on your account dashboard. We reserve the right to modify the Referral Fee Schedule at any time in our sole discretion upon prior notice to you. Referral fees shall be calculated as either a flat rate or percentage of revenues derived by us from Qualified Purchases, excluding revenues associated with shipping, handling, gift-wrapping, taxes, and any other service charges. Referral fees will only be available for products that we designate.
3. Referral Fee Payment. We will pay referral fees on a monthly basis. Approximately 30 days following the end of each calendar month, we will send you a check for the referral fees earned on Qualified Purchases of products that were shipped during that month. However, if the referral fees payable to you for any calendar month are less than $50.00, we will hold those referral fees until the total amount due is at least $50.00 or until this Agreement is terminated. If products that generated referral fees are returned by a customer (for any reason), we will deduct the corresponding referral fee from subsequent payments. Upon termination of this Agreement, and for a period of one year thereafter, if returns generate a negative balance we will issue you a bill for returned product referral fees.
4. Links on Your Site. To accurately track sales and referral fees, we will provide you with special website links back to our Site (“Referral Links”) to be used on your Affiliate Site. You must ensure that each of the links between your Affiliate Site and our Site uses all formats and embedded codes provided by our Referral Links.
5. Confidentiality. As an Affiliate, you may gain access to certain confidential or proprietary information of the Company. Such “Confidential Information” shall include all information concerning the business, affairs, products, marketing, systems, technology, customers, end-users, financial affairs, accounting, statistical data belonging to the Company and any data, documents, discussion, or other information developed by Referring Party hereunder and any other proprietary and trade secret information of Company whether in oral, graphic, written, electronic or machine-readable form. The Referring Party agrees to hold all such Confidential Information of the Company in strict confidence and shall not, without the express prior written permission of Company, (a) disclose such Confidential Information to third parties; or (b) use such Confidential Information for any purposes whatsoever, other than the performance of its obligations hereunder. The obligations under this Section shall survive termination or expiration of this Agreement.
6. Policies and Pricing. Customers who buy products through the Affiliate Program will be deemed to be BreakingT customers. Accordingly, all BreakingT rules, policies and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change such policies and operating procedures at any time at our discretion.
7. BreakingT Marks. The trademarks, trade names, website banners, designs, images and logos made available to you through our Site and the Referral Links are the exclusive intellectual property of BreakingT (“BreakingT Marks”). Subject to the terms and conditions of this Agreement, BreakingT grants you a limited non-exclusive, nontransferable, revocable license to use the BreakingT Marks during the term of this Agreement exclusively in connection with the Affiliate Program. You will not (a) modify the BreakingT Marks, or (b) cause any act or thing that would impair our rights in the BreakingT Marks or damage the reputation for quality inherent in the BreakingT Marks. Further, you acknowledge (a) your use of BreakingT Marks does not convey to you any right, title or interest in or to the BreakingT Marks; (b) BreakingT ownership of the BreakingT Marks, (c) you may not contest the BreakingT Marks, register or attempt to register in any jurisdiction any BreakingT mark or any confusingly similar mark or trade name; (d) you shall identify the BreakingT Marks by including appropriate symbols and notices reasonably requested by us; (e) you may not obtain or use the BreakingT Marks except as provided in this Agreement; and (f) your use of the BreakingT Marks, including all goodwill associated with such use, shall inure solely to the benefit of BreakingT
8. Customer and Sales Information. We will own all right, title and interest (including all intellectual property rights) in and to all information that is created or collected in connection with this Agreement, including, without limitation, (a) any contact information collected from any customer who enters the BreakingT.com Site from a link from your Affiliate Site (“Affiliate Customers”) and (b) any information regarding click-through rates or product purchases by Affiliate Customers (“Sales Information”). Subject to the terms and conditions of this Agreement, BreakingTpure.com grants you a limited worldwide, non-exclusive royalty-free license to use the Sales Information to the extent necessary to fulfill your obligations under this Agreement or for your internal research purposes. You agree not to disclose any Sales Information or Affiliate Customer contact information to any third party without BreakingT’s prior written approval. You agree not to send Affiliate Customers e-mail communications promoting your Site as an affiliate of BreakingT or otherwise unless approved in advance by BreakingT. You agree to maintain and adhere to your privacy policy, as posted and updated on your Affiliate Site.
9. Responsibility for the Affiliate Site. You are solely responsible for the development, operation and maintenance of your Affiliate Site and for all materials that appear on your Site, including, but not limited to the Referral Links. Furthermore, you bear sole responsibility for ensuring the accuracy and appropriateness of materials posted on your Site (including but not limited to all product-related materials) and ensuring that content posted on your Site does not violate or infringe upon the rights (including, but not limited to, copyrights, trademarks, privacy or other personal or proprietary rights) of any third party or violate any provision of this Agreement or any applicable national, state, regional or local laws or regulations.
We disclaim all liability for the matters stated in this Section. In addition, you agree to indemnify and hold us and Refersion harmless from all claims, damages and expenses (including, without limitation, attorneys' fees) relating to the content development, operation, maintenance and contents of your Affiliate Site or any breach of your obligations under this Agreement.
10. Term of the Agreement; Termination. The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either of us. Either you or BreakingT may terminate this Agreement at any time, for any reason, with or without cause, by giving the other party written notice of termination. Upon termination of this Agreement, (a) all licenses hereunder shall terminate, (b) you will immediately remove any Referral Links, BreakingT Marks, and other BreakingT intellectual property or brand features from your Affiliate Site, and (c) BreakingT shall immediately remove any of your logos, marks, and brand features from the BreakingTpure.com site. In addition to the right to terminate this Agreement, BreakingT shall be entitled, in addition to any and all remedies of law, to seek damages for breach of this agreement, including, injunctive relief, and/or refund of the fees and other payments made pursuant to the terms of this Agreement.
11. Modification. We reserve the right to change or modify the terms and conditions contained in this Agreement, at any time and in our sole discretion. Any changes or modifications will be effective upon posting of the revisions, and posting notice of such changes to the Site. BreakingT may deliver notice by posting a change notice or a new agreement on our Site or by giving you notice of the change or modification via email. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. If any modification is not acceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following our posting of a modification (including a new Agreement) on our Site will constitute your acceptance of the modification.
12. Relationship of Parties. BreakingT and the Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your Affiliate Site or otherwise, that reasonably would contradict anything in this Section.
13. Limitation of Liability. YOU UNDERSTAND AND AGREE THAT BREAKINGT AND REFERSION SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BREAKINGT AND/OR REFERSION’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. All claims made hereunder by you against us shall be made within six months of the act or omission which forms the basis of such claims.
14. Disclaimer of Warranties. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, we make no representation that the operation of our Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors or termination of any services, products or this Agreement.
15. Assignment and Successors. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against, the parties and their respective successors and assigns.
16. Publicity. You agree and understand that under this Agreement you shall not utilize media releases of any kind, other than those expressly authorized under this Agreement or otherwise authorized by BreakingT in writing, in order to publicize your relationship with BreakingT. Furthermore, absent express approval from BreakingT under the terms of this Agreement or otherwise, you shall not use any BreakingT Mark, trademark, service mark, logo or any other information which identifies BreakingT in your sales, marketing and publicity activities and/or materials, including, but not limited to interviews with representatives of any written publication, television station or network, or radio station or network, and publication in any website, digital media, print, video or audio media.
17. Governing Law, Jurisdiction, and Venue. This Agreement will be governed by the laws of the United States and the Commonwealth of Virginia, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought only in the federal or state courts and you irrevocably consent to the jurisdiction of such courts.
18. Scope of Agreement. This Agreement and the Referral Fee Schedule constitutes the entire agreement and understanding between us with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous written or oral agreements or representations between us.
