BY SUBMITTING AN APPLICATION TO OUR AFFILIATE PROGRAM, YOU ARE CONSENTING TO THIS AFFILIATE AGREEMENT, WHICH ARE THE TERMS AND CONDITIONS OF OUR AFFILIATE PROGRAM.
In consideration of MonkeyStuff. (?Company?) maintaining an Affiliate Program for its products and you (?Affiliate?) desiring to participate in the Affiliate Program, it is agreed as follows:
- ENROLLMENT. In order to enroll in the Company Affiliate Program, Affiliate must complete an application form to promote the products and services sold through the Affiliate Program. Applicant agrees that any registration information provided to the Company will always be accurate, correct and up to date and that the account will not be used for any illegal or unauthorized purpose. Applications will be evaluated by the Company and 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 and absolute discretion.
- Term and Termination.
- The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party (the “Term”). Either party may terminate this Agreement at any time, with or without cause.
- You are only eligible to earn Commission Fees on Qualified Purchases occurring during the Term. Commission Fees earned prior to the date of termination will be eligible for commissions only if the orders for the related Company Products and Services are not cancelled within (30) days and comply with all of the terms of this Agreement. We may withhold your final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by Company in its sole discretion.
- Any Affiliate who violates this Agreement, Company’s Terms and Conditions, or any applicable law will immediately forfeit any right to any and all accrued, but not yet received, Commission Fees and will be immediately removed from the Affiliate Program.
- Company reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in Company’s sole discretion.
- 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 and/or social media platforms 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.
- USE OF PROMOTIONAL MATERIALS. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s website shall conform to the following terms, conditions and specifications:
- Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials provided by Company, unless Company approved such other materials in writing prior to their display.
- 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.
- 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.
- The Promotional Materials will be used to link only to Company’s website, to the specific web site page specified by Company.
- LIMITED LICENSE TO USE INTELLECTUAL PROPERTY. 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. The Affiliate may display these 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. Upon cancellation by either party, Affiliate’s limited license to use the Promotional Materials for the purpose of promoting the products and/or services offered through the Affiliate Program, will cease as of the cancellation date. Upon the cancellation date, Affiliate must immediately cease any use of the Promotional Material. The 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.
- 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”). Commissions will be calculated based upon the Gross Sales Price. Gross Sales Price is defined as all payments received by the Company by the sale of the product, but not including any shipping and handling, sales tax, finance charges, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, amounts due to credit card fraud, credits given to customers, bad debt right-off and refunded products or services. 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.
- The Commission rate varies per program (starting at 8%) of the Gross Sales Price of each completed purchase made through the Affiliate’s link and actually paid to the Company. Company reserves the right to change and amend the commission rate structure at any time, in the Company’s sole discretion.
- Initial commission will be paid to the Affiliate no earlier than 60 days after the commencement of the Affiliate’s term and shall furthermore coincide with the first business day after the conclusion of the 60 day period. Affiliate shall thereafter be paid monthly on the first business day of the calendar month. a monthly basis. Unless otherwise directed by the Affiliate, no payment shall issue for commissions less than $50.00. 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 unless other arrangements are approved by the Company.
- RELATIONSHIP OF THE PARTIES. You and Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 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 contradicts anything in this section.
- 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.
- 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.
- AFFILIATE’S DUTIES.
- The Affiliate is solely responsible for the development, maintenance and operation of the Affiliate’s website and/or multimedia platforms and for placing Links on Affiliate’s website in compliance with the terms of the Affiliate Program.
- 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.
- 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.
- Company’s Warranties: Company represents, warrants and covenants that Company has full authority to enter into this Agreement and that the Affiliate Program, whether conducted by Company or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.
- Affiliate’s Warranties: 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.
- EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.
- LIMITATION OF LIABILITY.
- IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO AFFILIATE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS 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
- 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 FOREGOING LIMITATIONS IN THIS PARAGRAPH 12 SHALL NOT APPLY TO THE OBLIGATIONS UNDER PARAGRAPHS 6, 9, 13 AND 21.
- 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.
- EFFECT OF HEADINGS. The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
- Company may modify this Agreement at any time in its sole discretion; provided that the change shall solely apply to events occurring after the date on which Company publishes such modifications. Such modifications shall take effect when posted on our website. Modifications may include, but are not limited to, changes in the scope of available Commission Fees, commission amounts or percentages, payment procedures, Commission Fee payment schedules, and Affiliate Program rules. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this agreement, in which event Affiliate shall be entitled to its rights under this Affiliate Agreement prior to the date of the applicable modification. Affiliate’s continued participation in the Affiliate Program following Company posting of any modification on Company’s website will constitute binding acceptance of the change.
- NEUTRAL CONSTRUCTION. This Agreement was prepared by Company and/or its counsel. It is expressly understood and agreed that this Agreement shall not be construed against Company merely because it was prepared by its counsel; rather, each provision of this Agreement shall be construed in a manner which is fair to both parties.
- This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
- 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.
- All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
To Company at:
42 Sylvia Ln
Monroe, NY 10950
To Affiliate at:
the address provided on the application form completed by Affiliate at the time of enrollment.
Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address.
- GOVERNING LAW; VENUE. This Agreement shall be construed in accordance with, and governed by, the laws of the State of New York as applied to contracts that are executed and performed entirely in New York. The exclusive venue for any court proceeding based on or arising out of this Agreement shall be Orange County, New York.
- 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 successful or 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.