Website Affiliate Agreement
Please read these terms and conditions carefully as they constitute a legal agreement between you and our company upon your acceptance into our affiliate program. By applying for and being accepted into our affiliate program, you agree to be bound by all of the terms and conditions set forth in this agreement.
THIS AFFILIATE AGREEMENT (the “Agreement) is made between Miraclesoap, Inc., a South Dakota Corporation (the “Company”), and (the “Affiliate,” and collectively, the “Parties”).
WHEREAS Affiliate wishes to include certain materials promoting Company, and to include a link to Company’s website within those materials on Affiliate’s website;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
- 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 prominently display the Promotional Materials on Affiliate’s website 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 Company.
- Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site 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, unless Company agrees to 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.
- The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.
- Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
- License. Company hereby grants to Affiliate 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.
- Intellectual Property. 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 Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.
- Relationship of Parties. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
- Order Processing: We will process orders placed by customers who follow the Links from Affiliate’s Web site to the Miraclesoap.com Web site. We reserve the right, in our sole discretion, to reject orders that do not comply with requirements established from time to time. All aspects of order processing and fulfillment, including order entry, customer service, cancellations, returns and payment processing will be Company’s responsibility.
- In consideration of Affiliate’s display of the Promotional Materials
and compliance with and performance of the terms and conditions of this
Agreement, Company shall pay to Affiliate a commission (the “Commission”)
as set forth in this section.
- A Commission will be paid to Affiliate in the amount of 25% per
sale (not including tax or shipping) for products listed on Company’s
website if the customer’s initial order is tracked as originating
from Affiliate’s Link from the time of the Link to the time of
the sale (the “initial sale”).
- For the initial sale to generate commissions payable under this
section, the customer must follow Affiliate’s Link to Company’s
Web site, purchase Company products using Company’s online ordering
system, accept delivery of the product at the shipping destination, and
remit full payment to Company. However, no Commission will be paid for
orders that are refunded, not paid for, undeliverable or payment for which
is credited to any customer. If a product sale that generated Commission
is refunded to the customer, Company will deduct the corresponding Commission
from Affiliate’s next monthly payment.
- The Affiliate shall be entitled to a Commission arising from customer’s purchase of Company products for a period of 365 days from the initial sale regardless whether customer accesses Affiliate’s link for subsequent orders; provided, however, if customer uses a different Affiliate link during the 365-day period, the original Affiliate shall no longer be entitled to Commissions.
- Company shall keep accurate and up-to-date records of the data used
to determine the total amount of Commissions owed to Affiliate. Affiliate
shall be given reasonable access to these records upon request. Any discrepancy
between the amount of Commissions owed according to these records, and
the actual amount of Commissions paid to Affiliate in any period or periods
shall be rectified by Company within 14 days of discovering such discrepancy.
Affiliate shall immediately inform Miraclesoap.com of any suspected problems
in the tracking code immediately.
- Company shall pay all Commissions accrued and payable to Affiliate
within 15 days of the first day of each month (the “Commission Payment
Date”). If on any Commission Payment Date, the amount of total Commissions
accrued and payable to Affiliate is less than $25.00, then such accrued
and payable balance shall be held over to the following month, and paid
together with the Commissions due for that month. If at any time, the balance
of accrued and payable Commissions is held over for 2 consecutive months,
then Company shall pay all accrued and payable Commissions to Affiliate
in the third month, regardless of the total amount owed.
- In the event that Affiliate materially breaches this Agreement and Company
terminates this Agreement due to such breach, then any accrued and payable
Commissions owing to Affiliate shall be forfeited, and Company shall not
be obligated to pay such Commissions to Affiliate.
- Notwithstanding anything in this Agreement to the contrary, neither Miraclesoap distributors or PTPH Essential Oil distributors shall be entitled to make purchases under this Affiliate program or be eligible or receive any Commissions under this Agreement. The determination of which persons or entities are considered Miraclesoap or PTPH Essential Oil distributors will be made in the sole discretion of the Company.
- Affiliate’s Representations and Warranties.
Affiliate represents and warrants the following:
- Affiliate 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.
- Affiliate’s website does not contain any materials that are:
- Sexually explicit, obscene, or pornographic (whether in text or graphics),
- 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 behavior
- Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’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 Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
- Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.
- Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
- Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate 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. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
- Affiliate will not engage in the distribution of any unsolicited
bulk emails (spam) in any way identifying or referencing Company
or Company’s website.
- Indemnification. Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of this Agreement, including Affiliate’s warranties set forth in Section 7 above. Affiliate
shall also indemnify and hold harmless Company for any damage, loss or other
cost arising out of the use or misuse by Affiliate of the Promotional Materials.
- Confidentiality. Any information that Affiliate obtains 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.” Affiliate
may not use or 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.
- Non-Exclusive: This is a non-exclusive agreement. Either party may enter into similar agreements with other parties.
- This Agreement shall take effect once Affiliate’s application has been submitted, its web-site has been reviewed, and written approval provided to Affiliate by Company. Once approved, this Agreement shall commence and shall remain in full force until terminated pursuant to this Section 10.
- Either Party shall have the right to terminate this Agreement without cause at any time. The terminating Party must give written notice to the other Party, as provided in Section 18.
- Taxes. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
- 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.
- Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of South Dakota, without regard to conflicts of law principles.
- Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
- Severability. 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.
- Notice. Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, addressed as follows:
If to Company: Miraclesoap.com
1904 West 24th Street
Sioux Falls, SD 57105
If to Affiliate: At the address Affiliate provides in its online Affiliate account application.
- Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
- Entire Agreement. This Agreement constitutes the entire agreement between Company and Affiliate, 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. Company may modify the terms of this agreement in writing by giving 10 days written notice to Affiliate.