BY SUBMITTING AN APPLICATION TO OUR PROGRAM, YOU ARE CONSENTING TO THIS AGREEMENT, WHICH ARE THE TERMS AND CONDITIONS OF OUR PROGRAM.
This is a legal agreement between Swanked Creative, LLC (“We”, “Us” or “Company”) and you (“You”). This Agreement contains the complete terms and conditions of Your relationship with the Company and, if applicable, Your participation in Our Affiliate Program (“the Program”).
In order to enroll in the Program, You must complete an application form for each website through which You desire to promote the products and services sold through the Program. You agree that any registration information provided to Us 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 Us, and We reserve the right to deny entrance into the Program to any applicant that is deemed unqualified for any reason, at Our sole and absolute discretion.
2. Term and Termination
The term of this Agreement (the "Term") will begin upon the date of our acceptance, and will end when terminated as described in this paragraph.
Either you or we may terminate this Agreement at any time, with or without cause, by giving the other written notice of termination, by U.S. Mail or e-mail to the last known address. Failure to comply with the terms of this Agreement may result in immediate cancellation of this Agreement by Us and forfeiture by Affiliate of any accrued, unpaid commissions. We will pay any pending commissions owed to You through the Termination Date, if a cancellation of this Agreement occurs for any reason other than Your violation of this Agreement.
Subject to the foregoing, You are only eligible to earn commissions on sales occurring during the Term, and commissions earned through the date of termination will remain payable only if the orders are not canceled. We may withhold final payment for a reasonable time to ensure against cancellations.
In the event either party terminates this Agreement, You agree to return all materials provided by Us.
We make no guarantee that You will be an Affiliate for any of our future launches, services, products, or programs.
3. Promotion and Order Tracking
We will make available to you an affiliate link that will track purchases and allow you to be paid for affiliate referrals (the "Links" collectively, or "Link" individually) in order to link to Our website and any related sales pages or online marketplace.
If a prospective customer clicks on your Link, a cookie will live on the prospect’s computer for 30 days to track any transactions.
You and we will cooperate in good faith to develop and implement such Links. Each Link will permit recipients to navigate directly to a page on Our website or related site, designated by us via a special tagged link format. You will be solely responsible for integrating the Links into your site to properly enable sales tracking, and we will not be responsible for your failure to do so, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to you under this Agreement. Referral Fees are only payable if they can be tracked to you with your affiliate ID. We cannot track referrals for users who do not accept cookies or if they delete Your cookie.
You agree that You will not place any referral or affiliate link, coupon code, or other tracking device on any page or screen that contains content that: advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities, violates intellectual property rights of third parties; or contains or promotes deceptive information.
You agree that You are responsible for disclosing that the Links provided on Your website or marketed to potential customers by other means are affiliate links in accordance with Section 5 of the Federal Trade Commission Act.
4. Referral Fees
We will pay You referral fees ("Referral Fees") in the amount of 25% of sales, that We actually receive from the sale of all products that are purchased by users during a visit to Our site or related site, during the life of your cookie (“Qualifying Purchase”). Referral Fees will not be payable on sales otherwise made from Our site or related sites, even if the customer previously made a Qualifying Purchase.
5. Payment Schedule
Referral Fees will be payable within sixty (60) days from the end of each calendar quarter in which payments are received. If during any quarter of the Term your referral fees do not exceed the minimum amount of $100, then you will not receive payments or reports until following the next period during which your aggregate referrals fees equal or exceed said amount or until the termination of this agreement, whichever occurs earlier.
We pay affiliates via a PayPal account, provided to us when a member joins. If the PayPal email changes, it is Your responsibility to notify Us to ensure proper payments. We will not resend payments returned due to incorrect payment email addresses.
We will provide reports of sales for which Referral Fees are payable with each payment.
We cannot and do not guarantee any financial results or business outcome from participating in the Program.
6. Site Downtime.
Each party acknowledges that their respective sites may be subject to temporary downtime due to causes beyond their reasonable control subject to the specific terms of this Agreement, retains sole right and control over the programming, content and conduct of transactions over its respective site or service.
EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (i) THE AMOUNT OF SALES THAT EACH PARTY MAY GENERATE DURING THE TERM, AND (ii) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT. OUR ENTIRE LIABILITY ARISING FROM THIS AGREEMENT WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNTS PAYABLE TO YOU HEREUNDER.
8. Fulfillment and Customer Contact Policy
We will be solely responsible for fulfilling all orders and payment processing, and customers who buy products through the Affiliate Marketing Program will be deemed Our customers. Accordingly, all rules, policies, operating procedures and information concerning customer orders and sales will apply to those customers, including our rules of privacy and confidentiality. We may change our policies and operating procedures at any time, without notice. You may not contact any customer after a Qualifying Purchase to solicit additional sales or to add them to any email list used for marketing purposes.]
9. Launch Preparation and Marketing; Bonuses
You will create your own launch copy, graphics, and marketing plan, with Our advice and support.] You agree to execute Your marketing plan during the launch period We identify.
We will provide You with launch graphics and images that you may use and modify in your own marketing efforts.
You agree to use the hashtag “#SwankedCreative” and tag @SwankedCreative in all social media posts on any platform related to the Program or including any Links.
You agree to reference the full name of the Program and Swanked Creative in all e-mail newsletters, blog posts, or other longer-form content.
We will provide information regarding the content of the Program and past results; you agree to follow this information in crafting your own launch content.
You agree not to make any claims about the Program or results that are exaggerated or untrue, and to use any disclaimers We provide.
You agree to provide a valuable bonus to each Qualifying Purchaser, which bonus content must be approved by Us in advance of the launch marketing period.
You agree that all information and training you receive from Us about our sales, marketing, and funnel, are subject to the Non-Disclosure and Confidentiality term in Paragraph 12.
10. Intellectual Property Rights
We grant to You during the Term a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between Your and Our websites, and to use Our trade names, logos, trademarks and service marks (“Our Marks") on your site and marketing efforts solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform your obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of Our Marks will be subject to Our prior written approval.
You hereby grant to Us during the Term, a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between Your and Our Websites and to use Your trade names, logos, trademarks and service marks (the "Affiliate Marks") solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform our obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the Affiliate Marks will be subject to your prior written approval.
Except as set forth above, You and We each reserve all right, title and interest in respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks and other intellectual property rights). Use of the other's marks except as set forth herein is strictly prohibited.
We agree to indemnify, defend and hold harmless You and Your affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney's fees) relating to the operation of Our site, a breach of Our obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials provided by Us for display on Your site.
You agree to indemnify, defend and hold harmless Us and Our affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney's fees) relating to the operation of Your site, a breach of Your obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials of Your site.
12. Non-Disclosure and Confidentiality
In order to assist You in performing Your obligations under this Agreement, You will have access to some confidential information. For purposes of this Agreement, “Confidential Information” includes all information or material that has or could have commercial value or other utility in the business in which We are engaged, or to Our clients or their business, and which is not generally known to the public, including without limitation the Program, the content of Our products and services, and Our launch strategy. You agree to keep all Confidential Information strictly confidential and not to use or disclose this information to third parties or for the benefit of anyone other than Us, unless You first obtain written permission from Us permitting You to disclose such information.
The nondisclosure provisions of this Agreement shall survive the termination of this Agreement and Your duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer has or could have commercial value or other utility in the business in which We or Our clients are engaged, or until it becomes publicly known. You agree that any violation or threatened violation of this Non-Disclosure and Confidentiality term would cause irreparable injury to Us that may not be adequately compensated by damages, entitling Us to obtain injunctive relief, without bond, in addition to all legal remedies.
13. General Provisions
You and We are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between You and Us.
In its performance of this Agreement and in the operation of each party's respective Websites, You and We each will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, You and We each will pay, collect and remit such taxes as may be imposed with respect to any compensation, royalties or transactions under this Agreement.
This Agreement will be governed by the laws of Georgia. You agree to submit to the jurisdiction and venue of the state and federal courts in or nearest to Atlanta, Georgia, and waive any defense of lack of personal jurisdiction or forum non conveniens. This Agreement may only be modified by agreement of both parties in writing. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and the invalid or unenforceable provision will be replaced by a valid or enforceable provision. The prevailing party in any dispute between the parties arising out of or related to this agreement, whether resolved by negotiation, mediation, or litigation, shall be entitled to recover its attorneys’ fees and costs from the other party.
By submitting Your application You assert that You have read, understood and agreed to all of the terms and conditions of this Agreement, You have independently evaluated this program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.