NITROCUT® PARTNER AFFILIATE PROGRAM AGREEMENT
APPLICATION SIGN UP LINK http://nitro-cut.com/
A. Nitrocut® (“Company”),operates the https://www.nitrocut.com website (“Website”).
In connection with the Website, the Company offers the Company Affiliate Program (“Program”), through which approved publishers providing marketing services through owned or third party websites, subscription services, promotional services (including, without limitation, newsletters and e-mail campaigns), and/or syndicated services (“Publishers”)are granted a limited, non-exclusive, revocable right:
(i) to advertise and to promote the Company’s products and the Website in compliance with this Agreement;
(ii) to circulate and to post an approved graphical or textual internet hyper-link (“Link”) to the Website;
(iii) to direct visitors to the Website (the specific URL(s)) designated by the Company from time to time (“Destination Site”).
B. This Agreement provides terms and conditions applicable to your membership, as an approved Publisher, in the Program that are in addition to, or that modify, the terms and the conditions to which you have agreed in your Publisher Service Agreement.
Any capitalized term used herein and not otherwise defined herein shall have the same respective meaning as in the Publisher Service Agreement.
2. Approval as an Approved Publisher.
A. Your participation in the Program is subject to the approval of the Company. You must first submit an application to the Company through http://nitro-cut.com/ in order to become an approved Publisher. After the application has been submitted, the Company may accept or reject you application, for any reason or no reason.
B. If the Company approves you as an approved Publisher, you will have already acknowledged your acceptance of this Agreement, and the terms and the conditions herein, by having clicked through the “Affiliate Sign Up” button, having checked the box stating “Yes, I agree to the terms and conditions” the terms and the conditions and having clicked the button “Sign Up.”
C. This Agreement applies only to approved Publishers that accept this Agreement, and the terms and the conditions herein, and only Publishers who accept this Agreement, and the terms and the conditions here in, may participate in the Program.
D. Your participation in the Program creates only a contractual relationship between the Company and you. It does not constitute an agency, broker or employer relationship between the Company and you nor does it create any franchise, joint venture, partnership, sales representative or other relationship between the Company and you.
E. The Company and its service providers may share with each other the contact information provided by you during your registration. This information includes, without limitation, your name, address, phone number and email. The Company will take commercially-reasonable steps to maintain the confidentiality of such information.
A. You are solely responsible for the development, the maintenance and the operation of your website or other content (including, without limitation, newsletters and e-mail campaigns), including, without limitation, assuring that the accuracy and the appropriateness of the content of your website, assuring that your website does not contain any viruses or other harmful properties, assuring that the content of your website is not defamatory or obscene or otherwise violates applicable laws, regulations, rules and orders and assuring that your website does not infringe on the intellectual property, including, without limitation, the copyrights, the patents, the trademarks and the trade secrets, of any other person. The Company is not responsible for your website or other content, or the content or the development, the maintenance or the operation thereof.
You may post any number of Links to the Destination Site on your website. The location, the nature, the position and the prominence of such Link on your website shall comply with this Agreement, but shall otherwise be at your discretion.
Your website and any other communications shall not copy or resemble the look and the feel of the Website and your website and any other communications shall not create the impression that your website is part of the Website.
You acknowledge that the Company may monitor your website and your other communications for the purpose of determining your compliance with this Agreement.
You are responsible for the proper formatting of the links between the Destination Website and your website and any other communication containing a link to the Destination Website. The Company is not liable or responsible for your failure to format properly such links.
B. You shall not make any representation, warranty or other statement concerning the Company, the Destination Site or the products sold by the Company, except as expressly authorized by this Agreement. You shall not represent, warrant or otherwise state that you are authorized to bind the Company.
C. You shall not advertise or promote advertisements that are misleading and/or that claim inflated discounts, or are otherwise in violation of any applicable law. You may only advertise or promote advertisements that state the actual discount, if any, that a visitor may derive by clicking on a Link.
You shall not use discounts or promotional codes, without the prior written consent of the Company.
D. You shall not send any email or other form of electronic message that implies or suggests that the Company was the sender or directed or requested you to send the message. You shall identify yourself as the sender of any such email or other form of electronic message.
You shall not send any email or other form of electronic message or advertisement containing the name, the product, the website address or the meta tag of the Company or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from you or unless you have a pre-existing business relationship with the recipient.
In addition, you shall provide all recipients of any such communication with the ability to “opt out” of further communications from you by permitting the recipient to call a toll free number or permitting the recipient to send an “unsubscribe” email to you. You agree that the Company may, upon reasonable prior written notice, audit you to ensure compliance with this Section 3(D).
You shall comply with all federal, state and local laws, regulations, rules and orders, including, without limitation, the “CAN-SPAM Act,” in connection with your provision of services here under.
E. In the process of performing services here under, you shall not install or cause to be installed spyware on any person’s computer. In the process of performing services here under, you shall not install or cause any device, mechanism or program to display an advertisement that partially or wholly covers or obscures the content of any website or any part of a potential customer’s display.
F. You shall not use the trademarks or other intellectual property including, without limitation, copyrights, patents or trade secrets, of the Company without our prior written permission. You shall not modify our trademarks in any manner and you shall not display the trademarks in any manner that implies or suggests the endorsement by the Company of your business or your website. You shall not use the trademarks in a manner that disparages the Company or its products or that, in the reasonable judgment of the Company, damages or diminishes the trademarks and the goodwill associated therewith.
You are not acquiring any ownership of, or any right to use, any of the intellectual property of the Company, including, without limitation, the copyrights, the patents, the trademarks or the trade secrets, except to the limited extent expressly permitted by this Agreement, all of which rights are reserved by, and remain with, the Company.
You shall not use “www.nitrocut.com” or any variation thereof as the domain name or URL in any search engine or like marketing campaign without the prior written consent of the Company.
G. You shall not infringe on the intellectual property of any person, including, without limitation, any copyright, patent, trademark or trade secret.
You shall not bid on any keyword, term or word in Pay-Per-Click Search Engines (PPCSE’s) that contains (i) any trademark, whether or not registered, of the Company or (ii) any keyword, term or word that is a variation of any such trademark or any other keyword, term or word that is likely to cause confusion regarding your affiliation with the Company.
H. You may bid on keyword strings.
I. You shall not bid on any of the trademark of any competitor of the Company in conjunction with the Program.
J. You shall not use any “fat-finger” or “typosquatter” domain name to redirect Internet traffic to the Destination Site or your website without prior written approval of the Company. A fat-finger or typosquatter domain name is a domain name that amounts to a misspelling of any registered or unregistered trademark of the Company.
K. You shall not place the word “Nitrocut®” or any variation of or similar spelling of the words “Nitrocut®” in your top-level domain name. The words “Nitrocut” may be included in your URL provided it is substantially as follows: “mydomain.com/Nitrocut.”
L. You shall not employ any automated or automated application, device, robot, software or any other technology that attempts to intercept or redirect referrals or traffic to or from any website without the prior written consent of the Company.
M. You shall not “frame” the Destination Site so that it appears to viewers of your website that such viewer is viewing the Destination Site. You shall not do anything to your website or any website you control that makes such website appear as though it is the Destination Site.
N. You shall not use any device, application, robot, software or technology that forces your URL into a visitor’s bookmark when such visitor attempts to bookmark the Destination Site.
O. You shall not represent to visitors that products of the Company may be purchased by or from you or through your website. You shall not sell the products of the Company. You shall not accept any order from a visitor, purchase the product ordered by the visitor from the Company and direct the Company to fulfill or drop-ship such product directly to the visitor. The Company shall have the sole right and responsibility for processing all orders made by visitors and all agreements relating to sales to visitors shall be exclusively between Company and the visitor.
P. You shall use the product copy, descriptions, images and text as provided by the Company. You may alter the size, but not the content, of product copy as provided by the Company, descriptions and images.
Q. You shall not redistribute the product feeds or the intellectual property of the Company to a website that the Company determines in its sole and absolute discretion to be competitors of the Company.
R. Affiliates are prohibited from using PRESS RELEASE marketing from any news or press vendor for promotion of Nitrocut® products. This content distribution is help exclusively for Nitrocut®.
S. You shall refer all inquiries from third parties about participation in the Program directly to the Company.
T. You shall not issue any press release that discusses or references the Company except with the prior written consent of the Company.
T1. You shall not use the logos, product copy, descriptions, images and text, trade names, trademarks or other designations of the Company on any website other than your registered website, without the prior written consent of Company.
U. You acknowledge that the privacy of the customers of the Company is an important aspect of our business. You are not entitled to access to any of the personal information that the Company collects from its customers.
V. You shall not take any action the Company reasonably determines, in its sole discretion, is inconsistent with its business, marketing, policies, practice and preferences. You shall promptly comply with all of Company’s requests, including, without limitation, with respect to the content or the related content of your website.
You acknowledge that the Company may change its policies, practices and preferences at any time. In particular and without limitation, the Company will determine the prices to be charged for products and you acknowledge that product availability and prices may vary from time to time. While the Company will use commercially reasonable efforts to present accurate and complete information, the Company cannot guaranty the availability or the price of any particular product.
A. Subject to your compliance with this Agreement, you shall earn and be paid a commission as set forth in the separate fee schedule established, and sent to you, by the Company (which fee schedule maybe sent via e-mail and is hereby incorporated by reference). You will be only be entitled to a commission if a visitor completes a purchase subject to the terms and conditions on the Destination Site after having last arrived at the Destination Site through a Link that you posted.
Any monthly commission of less than $100 will not be invoiced and paid. Payments will begin once a full months commission has exceeded the $100 minimum commission amount. We will in good faith use reasonably-commercial efforts to pay you all amounts due however if you don’t accept or process a certain payment within ninety (90) days (including, without limitation, if you do not bank a check that has been sent to you) then such payment will be void and you agree that it will no longer be owed to you. Unless otherwise agreed by us in writing, any customer refunds will be calculated in the month that such refunds occur and will be deducted from any current or future amount otherwise due or payable to you. With respect to customers who provide recurring revenue to the Company in connection with any recurring billing program or otherwise, you shall no longer receive any commissions with respect to such recurring-revenue customers upon termination of this Agreement (except with respect to commissions from such customers earned through the date of termination of this Agreement).
You are entitled to a commission only if (a) the customer is not known to the Company and (b) the system tracks the customer from the time the customer clicks on a Link to the Destination Site to the time of sale. The Company is not liable or responsible for failures for any reason to track customers, including, without limitation, a customer’s deletion of a required cookie or failures in tracking technology. You will receive a referral fee only if the customer purchases product from the Website within a ninety (90) days after clicking a Link.
The persons that visit the Website, regardless of whether or not such persons place orders, are the exclusive customers of the Company, regardless of the manner in which such person arrived at the Website, and the policies, procedures and preferences of the Company apply to those persons.
B. The Company reserves the right to refuse, delete or ignore any transaction, or correct or to reverse any amount owed to you, as the case may be, if, in the Company’s reasonable judgment, (I) you or your customer have acted in a fraudulent, dishonest or misleading manner; (ii) the Company has overpaid you; or (iii) you are obligated to indemnify Company for actual or anticipated losses.
C. Other than the payment of the commission, you are not entitled to any additional business, commission or compensation derived by or through a Destination Site.
You are not entitled to any reimbursement for any costs or expenses that you may incur in connection with this Agreement.
5. Term and Termination.
A. The term of this Agreement shall be continuous, unless and until either the Company or you properly terminate this Agreement, in accordance with the following:
(i) The Company shall provide you with written notice of termination via e-mail or any other means;
(ii) You shall use provide the Company with written notice of termination via e-mail or any other means.
B. Upon any termination of this Agreement, the Company and you are released from all liabilities and obligations to the other party from and after the date of such termination or the transactions contemplated hereby, other than those obligations that are stated to survive termination as provided herein, including, without limitation, Section 6 and Section 7; provided that no such termination will relieve you from any liability or obligation arising from any breach of this Agreement occurring prior to termination.
C. Upon the termination of this Agreement, (i) the acceptance by the Company of additional referrals obtained through you shall not constitute a continuation or renewal of this Agreement or a waiver of such termination, (ii) you shall be entitled only to those unpaid commissions, if valid, earned by you on or prior to the date of termination (for the sake of clarity, upon termination of the Agreement by you or by the Company, you shall no longer receive any commissions (except commission earned through the date of termination of the Agreement) with respect to customers who provide recurring revenue to the Company in connection with any recurring billing program or otherwise); (iii) you shall not be entitled to commissions with respect to any referrals delivered after the date of termination; (iv) all licenses and other rights that you have hereunder shall immediately terminate; and (v) you shall cease all uses of any logos, trade names, trademarks, intellectual property, and other designations of the Company and/or the Program.
A. In the performance of, or otherwise in connection with, this Agreement, the Company may disclose to you certain Confidential Information. “Confidential Information” shall mean all information regarding the Company that is not generally known to the public and that the Company deems confidential in its sole and absolute discretion.
You will treat such Confidential Information as confidential and proprietary both during the Term and after the Term for the greater of a period of three (3) years or the maximum period permitted by law.
You shall (a) not use the Confidential Information for any purpose other than in performing your obligations hereunder, (b) take suitable measures and precautions to maintain the confidentiality of the Confidential Information (such measures and precautions shall not be less than the manner in which you protect your own confidential information, and in any event shall not be less than commercially-reasonable measures and precautions as then existing in the Company’s industry) and (c) not disclose or otherwise furnish the Confidential Information to any third party other than your employees who need to know the Confidential Information to perform your obligations hereunder.
All Confidential Information is supplied “as is “without express or implied warranties of any kind. The Company further disclaims the accuracy and the completeness of the Confidential Information.
Upon the termination of this Agreement, you shall destroy or return all Confidential Information in your possession. You shall certify to the destruction or the return of the Confidential Property to the Company.
B. You shall not make to any other person or entity any statement, oral or written, that directly or indirectly impugns the integrity or quality of the Company or any manager, officer, employee, agent, member, other affiliate or representative thereof (collectively, “Company Parties”), or any of them, or any of the business or other practices of the Company and/or the Company Parties, or any of them, or any other derogatory or disparaging remarks about the Company and/or the Company Parties, or any of them .
C. You shall not initiate any proceeding, investigation, or inquiry, or any other action of any kind with any governmental agency, with respect to the Company and/or the Company Parties, or any of them (“Inquiry”). Except as required by applicable law, you shall not assist, cooperate with, or supply information of any kind to, any person or any entity in any Inquiry.
A. You shall defend, indemnify and hold the Company harmless against all actions, allegations, causes of action, claims, costs, damages, expenses, lawsuits, liabilities and obligations, including, without limitation, attorneys’ fees (collectively “Losses”), arising out of, or related to, to (i) the development, the maintenance or the operation of your website and other communications (electronic or otherwise), (ii) your breach of this Agreement, (iii) your violation of applicable law, rule, regulation or order, (iv) your images, information, methodology, technology, service or text provided or supplied pursuant to this Agreement, (v) your violation of a third party’s or the Company’s intellectual property (including, without limitation, copyrights, patents, trademarks and trade secrets) and (vi) your violation of your confidentiality obligations.
B. THE COMPANY SHALL NOT BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, SUCH AS, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS OR REVENUE. THIS LIMITATION SHALL REMAIN IRRESPECTIVE OF WHETHER SUCH ACTION IS BASED IN CONTRACT, TORT, EQUITY OR ANY OTHER LEGAL THEORY. THIS LIMITATION SHALL REMAIN WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
NOT WITH STANDING ANYTHING TO THE CONTRARY HEREIN,THE MAXIMUM LIABILITY THAT THE COMPANY SHALL HAVE TO YOU IN CONNECTION WITH THIS AGREEMENT IS THE TOTAL AMOUNT PAID TO YOU DURING THE NINTY (90) DAY PERIOD PRECEDING SUCH CLAIM.
C. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AS TO THE INFORMATION, PERFORMANCE, QUALITY, RESULTS,SERVICES AND TECHNOLOGY IN ANY WAY RELATED TO THIS AGREEMENT, INCLUDING,WITHOUT LIMITATION, WITH RESPECT TO THE UNDERLYING PRODUCTS SOLD BY OR THROUGH NITROCUT , HTTPS://WWW.NITROCUT.COM/ , OR ANY AFFILIATED ENTITY OR WEBSITE.
D. You shall not assign, transfer or delegate your obligations here under, either in whole or in part, without the prior written consent of the Company, including, without limitation, transferring your affiliate interest, affiliate number and/or affiliate identification. Any attempted assignment, transfer or delegation in violation of the provisions of this provision will be void. The Company may assign this Agreement at anytime with or without notice.
E. The provisions of this Agreement are severable. If any provision of this Agreement, or the application thereof to any circumstance or person, is deemed invalid, illegal or unenforceable under any applicable law, such illegality, invalidity or unenforce ability shall not affect the other provisions of this Agreement and such provision shall been forced to the broadest extent that it would be enforceable, legal and valid under applicable law.
F. No delay or failure by the Company in exercising any right here under and no partial or single exercise of that right shall constitute a waiver of any right.
G. The rights and the remedies of the Company are not mutually exclusive and the exercise of one or more of the provisions hereof shall not preclude the exercise of any other provision hereof.
H. This Agreement shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Agreement.
I. By applying to the Program, using the automatic facility located at https://nitro-cut.com/ and by clicking–through the “Create Account” button and clicking on “I agree to terms and submit application” acknowledging your agreement to the Terms and Conditions (including this Agreement), you, accept, and enter into and become party to this Agreement, effective on the date of such acceptance to this Agreement.
J. The Company reserves the right to modify the terms and the conditions of this Agreement in its sole discretion upon ten (10)days written notice with effect from such 10th day (or such later date as specified by Company) to you.
If any modification is unacceptable to you, your sole recourse is to terminate this Agreement by expiring the relationship and/or rejecting the new terms offered. Your continued participation in the Program by accepting the newly offered terms and conditions for this Agreement constitutes your binding acceptance to the change.
K. This Agreement shall be governed by the laws of the State of Georgia, without application of conflicts of law principles. The exclusive forum for any actions or disputes related to or arising out of this Agreement shall be in the state courts in Georgia and, to the extent that federal courts have jurisdiction, in the federal courts in Georgia. You consent to such personal jurisdiction and venue.
L Nothing in this Agreement is intended; nor shall any provision be construed to benefit a third party. There are no third party beneficiaries to this Agreement.
M. Official notices to the Company should be sent to:
Attn: Affiliate Program
BY APPLYING FOR THE PROGRAM AND CLICKING ON THE “SIGN UP” ICON BUTTON YOU ARE SIGNIFYING YOUR AGREEMENT TO BE PRESENTLY BOUND BY (i) THE TERMS OF THIS AGREEMENT, AND (II) THE TERMS AND CONDITIONS, TO THE SAME EXTENT AS IF YOU HAD PERSONALLY SIGNED THIS AGREEMENT.