THE AGREEMENT: This Affiliate Agreement (hereinafter called the "Agreement") is provided by the following organization, hereinafter referred to as "Company": Kapa Nui, LLC. The Agreement is a legal document between you and the Company that describes the affiliate relationship we are entering into. This Agreement covers your responsibilities as an affiliate and our responsibilities to you. Please ensure you read and understand the entirety of this document, as well as have a lawyer's assistance if you desire, because each of the terms of this Agreement are important to our working relationship.
1) DEFINITIONS
The parties referred to in this Agreement shall be defined as follows:
a) Company, Us, We: As we describe above, we'll be referred to as the Company. Us, we, our, ours and other first-person pronouns will also refer to the Company, as well as all employees or legal agents of the Company.
b) You, the Affiliate: You will be referred to as the "Affiliate." You'll also be referred to throughout this Agreement with second-person pronouns such as You, Your, or Yours.
c) Parties: Collectively, the parties to this Agreement (the Company and You) will be referred to as "Parties" or individually as "Party."
d) Affiliate Program: The program we've set up for our affiliates as described in this Agreement.
2) NON-EXCLUSIVITY
This Agreement does not create an exclusive relationship between you and us. You are free to work with similar affiliate program providers in any category. This agreement imposes no restrictions on us to work with any individual or company we may choose.
3) AFFILIATE PROGRAM
Please be advised the below is a general description of the Affiliate Program. Everything contained in this subsection is subject to the specific terms and conditions throughout the rest of this Agreement.
The Company will provide a unique discount code and specific affiliate link which will send customers to the Company’s e-commerce website (the “Link"). The Link will be keyed to your specific identity.
In exchange, the Affiliate will spread the word about the Company’s products via all relevant channels (e.g., social media platforms, clients, services).
The Company will use affiliate software, “UpPromote” for all tracking, referral recording and payment issuance.
UpPromote will use a cookie to track people who have clicked on the Affiliate link, so they need to be using cookies for us to track them. If a person doesn't allow cookies or clears their cookies then UpPromote can't track them so can't pay earnings on that person's activity.
Cookie days is a field stated in the 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 cookie time (90 days), every order made by this customer at the merchant website will automatically result in commissions to the affiliate (There’s no need for the customer to click on the affiliate link.)
You hereby agree to fully cooperate with us regarding the Link and that you will explicitly comply with all of the terms of this Agreement for the promotion of the Link at all times. You agree to only use links which are prior approved by us and to not sell the links to other third party websites.
Each time a user clicks through the Link or uses the Code posted on the Affiliate Site and completes the sale of the product or service and we determine it is a Qualified Purchase, as described below, you will be eligible to receive the following percentage of the sale: 10% (ten percent); contingent on a minimum of $500 in generated sales within the first 90 days. Once the 90 days conclude, renewal of relationship is up to the Company’s discretion.
4) SPECIFIC TERMS APPLICABLE
As described above, in order to be eligible for payout, user purchases must be "Qualified Purchases." Qualified Purchases:
a) Must not be referred by any other partner or affiliate links of the Company (in other words, Qualified Purchases are only available through your specific Affiliate Link;
b) May not be purchased by an already-existing partner or affiliate of the Company;
c) May not be purchased prior to the Affiliate joining the Affiliate Program;
d) May only be purchased through a properly-tracking Affiliate Link;
e) May not be purchased by a customer in violation of any of our legal terms or Acceptable Use Policy;
f) May not be fraudulent in any way, in the Company's sole and exclusive discretion;
We will determine whether payout is permissible in our sole and exclusive discretion. We reserve the right to reject clicks and/or sales that do not comply with the terms of this Agreement.
Processing and fulfillment of orders will be our responsibility. We will also provide reports (see below section.)
5) PAYOUT INFORMATION
In order to receive payouts, you must ensure your account is set up thoroughly, including specific payout information and location (such as a bank or online account which we may use to post payment.)
Currently, the Company employs the following methods of payout: Venmo, Paypal, and direct deposit
For any changes in your address or accounting information, you must notify us immediately and we will endeavor to make the changes to your payout information as soon as possible.
Payouts will be available within 7 days after the 90 days following commencement of the agreement.
We explicitly reserve the right to change payout information in our sole and exclusive discretion. If we do so, you will be notified. Payouts are also subject to the following restriction:
a) Payouts are only available when a threshold of the following amount is met: at least $500 (five hundred US dollars) in Kapa Nui purchases generated by your referral link within 90 days as tracked by cookies.
For any disputes as to payout, the Company must be notified within thirty days of your receipt of the payout. We will review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after thirty days of payout will not be addressed.
6) REPORTS
With the UpPromote platform, the Affiliates have full visibility into their referrals status and payment status. All payments will be determined based on the referral data reported via the UpPromote platform.
7) TERM, TERMINATION & SUSPENSION
The term of this Agreement will begin when we officially launch the Program on June 1st. It can be terminated by either Party at any time with or without cause.
You may only earn payouts as long as you are an Affiliate in good standing during the term. If you terminate this Agreement with us, you will qualify to receive payouts earned prior to the date of termination.
If you fail to follow the terms of this Agreement or any other legal terms we have posted anywhere on our website or websites, you forfeit all rights, including the right to any unclaimed payout.
We specifically reserve the right to terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
At the termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.
8) INTELLECTUAL PROPERTY
You agree that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to the Company ("Company IP").
Subject to the limitations listed below, we hereby grant you a non-exclusive, non-transferable, revocable license to use the Company IP solely and exclusively in conjunction with identifying our company and brand on the Affiliate Site to send customers to the Affiliate links we provide. You may not modify the Company IP in any way and you are only permitted to use the Company IP if you are an Affiliate in good standing with us.
We may revoke this license at any time and if we find that you are using the Company IP in any manner not contemplated by this Agreement, we reserve the right to terminate this Agreement.
Please be advised that your unauthorized use of any Company IP shall constitute unlawful infringement and we reserve all of our rights, including the right to pursue an infringement suit against you in federal court. You may be obligated to pay monetary damages or legal fees and costs.
You hereby provide us a non-exclusive, non-transferable, revocable license to use:
Your name and trademarks if applicable on our social media page(s) and website(s), solely and exclusively in conjunction with identifying your brand.
The content you create for the Affiliate Program on our social media page(s) and website(s), which you will send us via email as detailed in section 4. This includes photos, captions, stories, and all related creative to the Affiliate Program.
9) RELATIONSHIP OF THE PARTIES
Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. You are an independent contractor of the Company and will remain so at all times.
10) ACCEPTABLE USE
You agree not to use the Affiliate Program or our Company for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Affiliate Program in any way that could damage our websites, products, services, or the general business of the Company.
a) You further agree not to use the Affiliate Program:
I) To harass, abuse, or threaten others or otherwise violate any person's legal rights;
II) To violate any intellectual property rights of the Company or any third party;
III) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
IV) To perpetrate any fraud;
V) To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
VI) To publish or distribute any obscene or defamatory material;
VII) To publish or distribute any material that incites violence, hate, or discrimination towards any group;
VIII) To unlawfully gather information about others.
11) AFFILIATE OBLIGATIONS & FTC COMPLIANCE
We require all of our Affiliates to comply with all applicable statutes, regulations, and guidelines set by the federal government, through the Federal Trade Commission, as well as state and local governments as mandated. The Federal Trade Commission requires that affiliate relationships, such as the relationship between you and the Company, be disclosed to consumers.
We recommend that you seek independent legal counsel to advise you of our obligations to disclose in this manner.
You are required to post a conspicuous notice on your website regarding the Affiliate Program. The notice does not have to contain the precise words as the example given below, but should be similar:
We engage in affiliate marketing whereby we receive funds through clicks to our affiliate program through this website or we receive funds through the sale of goods or services on or through this website. We may also accept advertising and sponsorships from commercial businesses or receive other forms of advertising compensation. This disclosure is intended to comply with the US Federal Trade Commission Rules on marketing and advertising, as well as any other legal requirements which may apply.
We also require you to comply with any and all applicable data privacy and security laws and regulations, including all of those which may impact your country of residence or your visitors. Such regulations include, but are not limited to, any applicable laws in the United States or the General Data Protection Regulation of the European Union. We also require that you implement adequate organizational and technical measures to ensure an appropriate level of security for the data that you process. Further, you hereby agree to comply with any requests which we may make to you regarding compliance with the General Data Protection Regulation or requests which you may receive from data subjects.
If we find you are not in compliance with any of the requirements of this subpart, we may terminate our relationship with you at our sole and exclusive discretion.
12) INDEMNIFICATION
You agree to defend and indemnify the Company and any of its agents (if applicable) and hold us harmless against any and all legal claims and demands, including reasonable attorney's fees, which may arise from or relate to your use or misuse of the Affiliate Program, your breach of this Agreement, or your conduct or actions. You agree that the Company shall be able to select its own legal counsel and may participate in its own defense, if the Company wishes.
13) ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties with respect to the Affiliate Program. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral.
14) LIMITATION ON LIABILITY
The Company is not liable for any damages that may occur to you as a result of your participation in the Affiliate Program, to the fullest extent permitted by law. The maximum liability of the Company arising from or relating to this Agreement is limited to one hundred ($100) US Dollars. This section applies to any and all claims by you, including, but not limited to, lost profits or revenues, consequential or punitive damages, negligence, strict liability, fraud, or torts of any kind.
15) GENERAL PROVISIONS:
A) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
B) JURISDICTION, VENUE & CHOICE OF LAW: Through your participation in the Affiliate Program, you agree that Hawaii shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the Company, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts of the following county: Kamuela, Hawaii. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.
C) ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the following county: Kamuela. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of Hawaii. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this subpart, be litigated. The Parties, in agreement with this subpart of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
D) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.
E) SEVERABILITY: If any part or subpart of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and subparts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.
F) NO WAIVER: In the event that we fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or subpart of this Agreement will not constitute a waiver of any other part or subpart.
G) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and subparts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
H) FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
I) ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications are permitted to both Parties under this Agreement, including email or fax. For any questions or concerns, please email us at the following address: aloha@kapanui.com.
The term of this Agreement shall commence on the day the affiliate signed up via the registration form. As noted on the form, signing up for the program serves as agreeing to these terms, as well as UpPromote’s Privacy Policy.
Intending to be legally bound, the parties hereto have caused this Agreement to be executed as of the date written above.
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