Affiliate Marketing Agreement
This Affiliate Marketing Agreement (“Agreement”) is made and entered into as of the date of electronic acceptance by the accepting party (the “Affiliate” or “you”) and Pow Product Inc., doing business as CockBlock Toys™, a company incorporated under the laws of the Province of Ontario and located at 403-110 Cumberland St., Toronto, Ontario M5R 3V5, Canada (the “Company”).
By participating in the promotional program described below (the “Program”), the Affiliate hereby agrees to bound by the terms of this Agreement and to access, use and abide by the terms and conditions of the Program, all as amended from time to time. If you do not agree to this Agreement in its entirety, you are not authorized to register as an Affiliate or participate in the Program in any manner.
1. Purpose. The purpose of this Agreement is to allow the Affiliate to promote the adult toy CockBlock™ and its variants (collectively, the “Product”) on behalf of the Company and to receive a Commission (as defined in Section 7 hereof), upon the terms and subject to the conditions of this Agreement, generated by the Affiliate’s marketing efforts.
2. Registration. By accepting the terms of this Agreement, you agree to be considered for registration to the Program by the Company. The Company reserves the right to approve or reject any Affiliate registration application in its sole and absolute discretion. The Affiliate has no legal recourse against the Company for the rejection of an Affiliate program registration. If the registration of an Affiliate is rejected, this Agreement shall automatically terminate save and except for any terms which are intended to survive indefinitely.
3. Affiliate Obligations. The Affiliate agrees to promote the Product in a professional manner and to comply with all laws and regulations applicable to the marketing of the Product. The Affiliate shall not make any false or misleading representations regarding the Product or engage in any unlawful marketing practices or use spyware or phishing techniques or engage in any fraudulent and dishonest practices.
4. UpPromote. The Company uses the services of UpPromote to administer the Program, including generating and distributing online cookies, tracking orders originating from the Affiliate and determining fees payable to the Affiliate. The Company is not responsible for any errors or inaccuracies resulting from UpPromote services.
5. Affiliate Links. Each Affiliate will be provided with a unique link generated by UpPromote (the “Designated Link”). If a prospective customer (a “Customer”) clicks on the Affiliate’s Designated Link and subsequently purchases a Product, the Affiliate will be credited with the applicable Commission. If a Customer accesses a Designated Link of another Affiliate but subsequently clicks on the Affiliate’s Designated Link, it is the latter that will be credited with the sale.
6. Affiliate Coupon Codes. The Company, in its sole discretion, may assign a coupon or discount code to the Affiliate via the UpPromote Dashboard (the “Designated Coupon Code”). If so assigned, the Designated Coupon Code may be used in connection with the Affiliate’s promotion of the Product in accordance with the terms of this Agreement. To the extent the Affiliate promotes any coupon, discount, promotion or other offer with respect to a Product, it shall clearly state whether or not the offer is timebound, other express limitations as are made disseminated via the Program, and that other terms and conditions may apply.
7. Commissions and Payment.
a. Commission Structure. Affiliate may be entitled to a commission where they refer a Customer to the Company and such referral results in the purchase of a Product (the “Commission”). The Commission payable shall be determined based on the commission structure of the Program in place from time to time (which shall initially be calculated as a percentage of sales based on the percentage indicated on the electronic acceptance form acknowledged and agreed to by the Affiliate). Commissions shall be calculated on the net order value of Products on the Company’s website, and for certainty, shall not be payable on taxes, shipping or handling, or any other fees applicable to the transaction. Commissions are payable only on successfully completed sales transactions where full payment has been received by the Company.
b. Commission Payment. Commissions will be paid via the UpPromote system. For the Affiliate to receive a Commission, the Affiliate must specify its payment details on UpPromote Settings. The payment schedule is disclosed on the UpPromote Affiliate Guide page. The Affiliate may verify the status of unpaid Commissions on the UpPromote Commission tab, and any paid Commission on the UpPromote Payment tab. Transactions that result in charge backs or refunds will not be paid out or will be deducted against future Commissions if already paid. Payments will be made in USD. Currency exchange fees may occur depending on your default currency settings.
c. Designated Link and Designated Coupon Code. In the event a Customer clicks both on the Affiliate’s Designated Link and uses their Designated Coupon Code, the Affiliate will only receive a single Commission with respect to the sale (i.e. there shall be no double commissions payable). The Affiliate is prohibited from promoting and/or claiming any Commission in respect of a Designated Link and/or Designated Coupon Code of any other Affiliate. The Affiliate is further prohibited to promote or market any other offer in respect of the Company or any Product except as contemplated by the Program. The Company reserves the right to audit all transactions and related Commissions, and to reverse or adjust the latter, to the extent it contravenes any term or condition of this Agreement.
d. Cookies. “Cookies” are data files that are placed on your device or computer and often include an anonymous unique identifier. Cookies are created when a user's browser loads a particular website. The website sends information to the browser which then creates a text file. Every time the user goes back to the same website, the browser retrieves and sends this file to the website's server. A cookie is used to track Customers who have clicked on the Affiliate Designated Link and to determine any Commissions payable under the Program. If a Customer does not enable cookies or clears cookies from their device, there can be no sales attribution and accordingly no Commission payable. Days of cookie recognition is stated on the UpPromote Affiliate registration form. The tracking day will start from the time a customer clicks on the Affiliate’s link or uses the coupon. Within the days of cookie recognition time, every order made by this customer at the Company website will automatically result in commissions to the Affiliate (even if the customer does not click on the affiliate link to purchase). Affiliates must get permission to modify available creative and keep it updated if hosted on their servers.
8. Social Content. It is the Affiliate's responsibility to understand and comply with the terms and conditions of any social channel through which it intends to promote the Product, including how to denote any commercial promotional activity.
9. Company Campaigns. The Company reserves the right to promote any Product to any market or customer on a worldwide basis without restriction. The Company further reserves the right, in its absolute discretion, to generate and market advertising campaigns, promotions and offers that may be consistent with or depart from any promotional offers extended via the Program. Without limiting the foregoing, the Company actively runs its own online pay-per-click (PPC) campaigns in promotion of the Product, and the Affiliate is expressly prohibited from initiating or in any way participating in online campaigns that are intended or could reasonably be expected to have the effect of competing with any Company campaigns or increase the Company’s campaign costs by bidding on CockBlock or CockBlock Toys brand names, trademarks, search terms or variations/misspellings of same. For the avoidance of doubt, the Affiliate shall not bid on or secure any search terms or URLs that include all or part of any of the Company’s brand or product names or combination thereof (e.g. "brand + generic" keywords like "CockBlock offers" or "CockBlock toy"). Displaying the CockBlock URL as your display URL is strictly prohibited.
10. Domain and Restrictions. The Affiliate shall not use the CockBlock or CockBlock Toys brand or product names in any domain names they register. However, they can include such brand or product names in a subfolder, landing page or link, such as “www.affiliatesite.com/ cockblock”. The Affiliate must not register domains that resemble or are confusingly similar to domain names used by the Company or could be reasonably be expected to mislead the Customer into thinking that they are visiting a Company website. Affiliates cannot use frames, masked URLs, or direct forwarding for promotion. Pay per view/Cost per view marketing, pop-ups, and pop-unders are strictly prohibited in the promotion of any Product.
11. Taxes. The Affiliate shall be solely responsible for any taxes imposed on the compensation by the Affiliate received under this Agreement and hereby agrees to indemnify the Company in the event any taxing authority deems the Company to have defaulted in the collection and remittance of any withholdings or other payment in respect of the relationship between the Company and the Affiliate hereunder.
12. Pricing. The Company has the exclusive right to determine and adjust Product prices at its discretion from time to time, whether the Product is being bundled with other products, sold at retail, wholesale, or otherwise distributed in any manner whatsoever. Affiliates are not permitted to purchase any Products for the purposes of resale. The Affiliate will not engage in any fraudulent transactions or facilitate any fraudulent transactions in connection with the Program.
13. Marketing Materials. Subject to the terms and conditions of this Agreement, the Company may share promotional media such as banners, logos, or specific collection promotions (collectively, “Marketing Materials”) to you through the UpPromote Marketing tab which may contain Company IP (as defined herein). The Affiliate may download such Marketing Materials and embed code related to same, as applicable, to share on Affiliate channels. The Company hereby grants to the Affiliate a temporary, non-exclusive, non-transferable, royalty-free and worldwide license to use the Marketing Material, and any Company IP therein, for the purpose of fulfilling the terms of this Agreement only. The foregoing license shall immediately terminate upon the termination of this Agreement and the Affiliate shall forthwith cease and desist any use of the Marketing Materials at such time.
14. Product Name. The Company gives the Affiliate permission to use the term "CockBlock" in any publications related to the Product solely in connection to the Program and within the parameters of this Agreement. The Affiliate must use the Trademark symbol ™ in connection with the product name in the initial mention in any content.
15. Term and Termination. This Agreement shall commence on the date of electronic acceptance by the Affiliate and shall continue until terminated by either party. The Company retains the right to terminate the Agreement at any time and for any reason. The Affiliate may request to be removed from the Program by contacting firstname.lastname@example.org. Upon termination, both parties' rights and obligations will cease save and except for the terms herein that are intended to survive the expiry or termination hereof. Upon termination, the Affiliate will no longer have the right to use any Marketing Materials or any Company IP, including the term "CockBlock", and must immediately stop doing so. All Commissions shall be paid to the Affiliate up to and including the termination date (net of any returns or refunds). The Affiliate shall remove any content related to the Product. Both parties will have no further obligations to each other unless specified otherwise. The Affiliate must also permanently erase any Confidential Information (as defined herein) which they may have in their possession, including from all computer systems and mobile devices.
16. Code of Conduct. The Company may publish further rules and regulations pertaining to the Program and will provide reasonable notice thereof to the Affiliate. The Affiliate must be truthful when promoting the Product and cannot depict it in scenes that involve coercion, violence, or illegal substances. The Affiliate is under no obligation to use any Product. Any use of the Product is completely voluntary, with full consent of all participants who shall be over the age of 21 and are not under the influence of drugs or alcohol. Affiliate shall not post any content that disparages or could be reasonably be expected to damage the reputation of the Product or Company at any time during the agreement, and shall remove immediately the same, if requested by the Company.
17. Promotion Methods. The Affiliate must not promote any Product using the following methods: (a) using leads from sources that do not reasonably prequalify prospects or target likely users (like phone books or personal data collections), (b) using fake redirects, automated software, or other tools to create actions, (c) creating actions that aren't genuine, like using robots or hidden frames, or (d) offering incentives other than as authorized under the Program to get actions from end users. The Company does not allow the Affiliate to fire any tracking pixels that may interfere with the Company’s tracking and analytics.
18. Product Usage and Adult-Related Content. The Affiliate acknowledges that the compensation received under this Agreement is solely for the promotion of the Product and not for the use of the Product or for creation of adult-related content. The Affiliate may independently choose to create adult-related content if it is legal and does not violate any laws or regulations and agrees to take all reasonable precautions to comply with applicable laws in this regard. The Affiliate shall not use the Product for any illegal or inappropriate purposes. The Affiliate acknowledges that the creation of adult-related content is not a requirement of this Agreement, and the Company is not requesting or paying the Affiliate to create such content. The Affiliate must also protect the privacy of participants and adhere to all applicable laws governing the production and distribution of adult content, including obtaining all required disclosures and documentation from any other participants. The Affiliate hereby agrees to indemnity the Company from any claims or damages sustained by the Company related to the Affiliate’s use of any Product or Company IP in connection with adult-related content.
19. Confidentiality. Subject to applicable law, the Affiliate shall not disclose any confidential or proprietary information of the Company, including but not limited to the terms of this Agreement (collectively, the “Confidential Information”), to any third party without the prior written consent of the Company.
20. Intellectual Property. Notwithstanding anything herein to the contrary, the Company retains all ownership rights to the “Company IP”, which term includes all worldwide intellectual property rights now or in the future held by the Company including the following, whether registrable or non-registrable: (a) all tangible and intangible rights associated with works of authorship worldwide, including copyrights, copyright applications, neighboring rights, moral rights, and all derivative works thereof; (b) all know-how, trade secret rights, patents, patent applications, designs, algorithms, and other industrial property rights, as well as trademark and trade name rights, and all other intellectual and industrial property rights (of every kind and nature worldwide and however designated), whether arising by operation of law, treaty, contract, license, or otherwise; and (c) all registrations, initial applications, renewals, extensions, continuations, divisions, reissues, or similar rights in any of the foregoing that are now or later in force.
21. Exclusivity and Independent Contractors. The Company and Affiliate hereby agree that this agreement does not establish an exclusive relationship as between them with respect to the subject matter hereof. This Agreement does not authorize either party to act as agent, employee, or legal representative of the other. Neither party has the power to control the activities and operations of the other, and the Affiliate shall at all times be and remain an independent contractor to the Company.
22. Representations and Warranties. The Affiliate represents and warrants that the Affiliate is over the age of 21, is not employed by a competitor or rival company, and has the right and authority to enter into this Agreement and to perform its obligations hereunder, and that the Affiliate’s performance hereunder shall not violate any applicable laws or regulations.
23. Limitation of Liability. In no event shall the Company be liable to the Affiliate for any indirect, incidental, special, punitive, or consequential damages, including but not limited to, lost profits, arising out of or in connection with this Agreement. Any liability of the Company with respect to the use of any Product shall be limited to the terms of sale thereof and any warranty obligations, if and as applicable.
24. Indemnification. The Affiliate shall indemnify and hold harmless the Company, its officers, directors, employees, agents, and other affiliates, from and against all claims, damages, and expenses, including legal fees on a substantial indemnity basis, arising out of or in connection with the Affiliate’s breach of any representation, warranty or covenant of this Agreement.
25. Survival. Any ongoing obligations stated in this Agreement will continue even after the termination of this Agreement.
26. Amendment. This Agreement may be amended from time to time by the Company in its sole discretion, provided that the Company gives the Affiliate reasonable notice of any proposed changes in writing. The notice shall include the effective date of the updated terms and the specific changes being made. The Affiliate shall have the right to terminate this Agreement if they do not agree to the updated terms.
27. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada.
29. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, understandings, and agreements between the parties relating to the subject matter of this Agreement.
30. Electronic Signature. The parties agree that this Agreement may be executed electronically and that the electronic signature of the Affiliate or other form of digital acceptance shall have the same legal effect as a physical signature.
BY CLICKING THE "I ACCEPT" BUTTON, the Affiliate acknowledges and agrees that they have read, understood, and accepted the terms and conditions of this Agreement, and it shall become legally binding and effective as of the date of electronic acceptance.