BY CLICKING “I ACCEPT,” YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND ANY ADDITIONAL TERMS AND CONDITIONS OR FUTURE MODIFICATIONS.
NOW THEREFORE in consideration of the foregoing and the mutual promises, covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows:
This website affiliate agreement is between KIDDILIGHT LLC a Michigan Limited Liability Company (the “Owner”) action on behalf of any of the Owner’s clients, and the undersigned AFFILIATE (YOU), an individual (the “Affiliate”).
The Owner is engaged in the business of retail, ecommerce.
The Affiliate owns and operates one or more website(s), social media platform(s), YouTube channel(s), blog(s), and/or other online mediums of promotion (i.e. Google Advertising, Facebook Advertisements, and other marketing tools) (the “Affiliate Marketing Stream[s]”).
The Owner wishes to engage the Affiliate for the purpose of promoting its website https://kiddilight.com (the “Owner Website”) and the products and services available for purchase on the Owner Website (the “Owner Products”).
The Affiliate wishes to direct traffic via the Affiliate Marketing to the Owner Website using a unique URL (an “Affiliate Link”), and the parties want the Affiliate to receive compensation for the purchase made by the customers of the Affiliate who use the Affiliate Link (the “Affiliate Customers”) of certain applicable Owner products and services (the “Affiliate Program”).
The parties therefore agree as follows:
Of the Affiliate. The Affiliate shall:
Display the Affiliate Link in a manner that does not reflect adversely on the Owner or mislead visitors;
Use reasonable efforts to ensure the Affiliate Link works on the Affiliate Marketing Stream(s), and that any visitor who clicks on the Affiliate Link will be connected to the Owner Website;
Refer new, unique and, legitimate customers (i.e. customers not previously existing to the Owner) to the Owner Website via the Affiliate Link;
Of the Owner. The Owner shall:
Provide all assistance to the Affiliate to enable the Affiliate to post the Affiliate Link on the Affiliate Marketing Stream(s);
Provide initial information and deliver the materials comprising the Affiliate Link within 30 days of the effective date of this agreement; and
Maintain accurate records of the data used to determine the commissions earned by the Affiliate.
2. TERM AND TERMINATION.
Term. This agreement will become effective as described above and continue for an initial term of 1 year or as long as the Affiliate remains in the Affiliate Program (the “Term”). Unless either party provides written notice to the other at least 7 days before the end of the Term, this agreement will automatically renew for an additional 1-year term. This automatic extension will continue to apply at the end of each extended period until the agreement is terminated. However, this agreement shall not remain in force for more than 5 years.
Termination Procedures. This agreement may be terminated:
By either party, on provision of 7 days written notice before the end of a Term;
By either party for a material breach of any provision of this agreement by the other party, if the other party’s material breach is not cured within 15 days of receipt of written notice.
By the Owner at any time and without prior notice, if the Affiliate violates the terms of this agreement, improperly uses the Owner’s name, logo, or graphics or includes a link to the Owner Website in any form of unsolicited communication such as spam.
Effects of Termination. After the termination of this agreement, all licenses granted under this agreement will terminate unless they are expressly stated as surviving. The parties shall promptly remove all marks of the other party from any website that party controls. The Owner shall promptly pay the Affiliate any outstanding commissions if owed to the Affiliate for services rendered before the effective date of termination.
Paid Order Fees. The Owners shall pay the Affiliate a commission on any Paid Order made by the Affiliate Customers that the Affiliate refers to the Owner through the Affiliate Link during the term of this agreement. “Paid Order” means an order for which the Owner has received and processed payment, less the cost of returns and charge backs the Owner incurs on any of the Affiliate’s referred customer orders.
Calculation of Commission. The Owner shall pay the Affiliate the fixed commission rate of net revenue generated by Paid Orders for the purchase of the Owner Product by Affiliate Customers or a one-time sum as previously agreed or otherwise stated.
Statements. As determined by the third-party affiliate provider or collected data via the Affiliate Link issued to the Affiliate, the Owner shall deliver a statement detailing its computations of the commission. The Owner shall permit the Affiliate reasonable access to the records and data used to determine the commission for purposes of inspection. Any discrepancies between the Owner’s records and a commission paid to the Affiliate shall be corrected by the Owner within 60 days of receiving written notice of that discrepancy from the Affiliate.
Review Period for Pending Affiliate Sales. The Owner shall have 60 days to review and either approve or deny the commission payout of the Affiliate.
Revenue Share. Revenue Share is the shared responsibility of the Affiliate and the Owner to refund a customer upon request within bounds of the Refund Policy set by the Owner. Whereas the Affiliate is not responsible for handling any refunds, the full commission earned on that particular sale shall be forfeit in the event of charge backs, fraudulent charges, refund requests, and/or any other revenue loss due to customer action or neglect.
Limitation of Revenue Share. The Affiliate’s responsibility of Revenue Share shall be limited by the Refund Policy set by the Owner. If a customer requests a refund beyond the stipulations and obligations set forth in the Refund Policy or if the 60 day Review Period has expired, the Affiliate shall receive full commission paid.
License. The Owner grants the Affiliate a limited, nonexclusive, nontransferable, nonsublicensable right to maintain the Affiliate Link on Affiliate Marketing Stream(s) to the Owner Website, in accordance with the terms and conditions of this agreement, from which the Affiliate’s Marketing Stream(s) visitors can order Owner Products. The Owner also grants Affiliate nonexclusive, nontransferable license to use certain Owner trade names, trademarks, service marks, trade dress, logos, and other intellectual property by the Owner in identifying its business (collectively, the “Owner’s Marks”) for the sole purpose of selling Owner Products on the Affiliate Marking Stream(s). The Affiliate may not use any other Owner intellectual property which has not been directly shared with the Affiliate without the Owner’s prior written consent (including by email). The Owner reserves all proprietary rights to the Owner Marks and may immediately revoke or adjust the Affiliate’s license at any time with or without written notice.
No Other Use. The Affiliate may not use the Owner Marks for any purpose or on any other media except as stated in this agreement or as the Owner expressly authorizes in writing (including by email).
Modification. The Owner may modify or exclude any Owner Mark from the Affiliate Marketing Stream(s) and the Affiliate shall accommodate the request as soon as possible.
Affiliate Intellectual Property. The Affiliate grants the Owner a nonexclusive license to utilize the Affiliate’s trade names trademarks, service marks, trade dress, logos, and other intellectual property used by the Affiliate in identifying its business (collectively, the “Affiliate IP”) and website and Affiliate Marketing Stream(s), authorized by the Affiliate in writing (including by email), for the sole purpose of advertising, marketing, and promoting the Affiliate Program. At any time, the Affiliate may revoke or modify the licenses it has granted to the Owner and the Owner shall make reasonable efforts to comply immediately with that revocation or modification.
5. RESTRICTIONS ON AFFILIATE
Representations About Affiliate IP. The Affiliate represents and warrants that:
It has all necessary rights, licenses, permits, and clearances to use the Affiliate IP and to offer, sell, or license the goods and services through the Affiliate IP and this will not violate any applicable laws or regulations or any third-party rights;
The Affiliate IP does not violate or infringe any right of privacy, personality, or publicity, trade secrets, patents, copyrights, or trademarks under the laws of any governmental authority, domestic or international, or any other right of any third party; and
The Affiliate IP will not misdirect or mislead Internet users.
The Affiliate shall not:
Use the trademarks, service marks, trade dress, logos, or other intellectual property of the Owner except the Owner Marks as expressly permitted by the Owner (including by email);
Create, publish, distribute, or permit any written material that makes reference to the Owner without first obtaining its written consent except as may have been previously agreed between parties.
Not use the Owner’s name, logo, graphics, or include a link to the Owner Website in any form of unsolicited communication, including unsolicited email (spam). The Affiliate must maintain strict compliance with the CAN-SPAM Act of 2003 and all amendments and modifications to that law;
Alter the Affiliate Link in any manner;
Provide incentivized traffic, where offers with incentives or the appearance of incentives including points, lottery, coupon, contest entries or rewards, are used to generate revenue for Affiliate Customers. This includes misleading statements near the ad creative (e.g., “you will win $100”) unless such discount or incentive receives prior written approval (including by email) by the Owner;
Warrant that the Affiliate Marketing Stream(s) does not promote or contain sexually explicit materials, promote violence or contain violent material, promote or conatin defamatory materials, promote discrimination, or emply discrimintory practices based on race, sex, religion, nationality, disabilty, or age. If the Affiliate violates any of these restrictions. If the Affiliate violates any of the aforementioned conditions, the Owner may, without limiting forms of recourse, terminate the Affiliate’s status in the Affiliate Program.
6. OWNER RIGHTS.
Right to Monitor Affiliate Marketing Stream(s). The Owner has the right, but not the duty, to monitor the Affiliate Marketing Stream(s) prior to the publication of advertisements. The Owner shall notify the Affiliate of any modification that the Owner reasonably requests to be made to the Affiliate Marketing Stream(s) in connection with posting the Affiliate Link. If the Affiliate fails to make that change, the Owner may terminate the agreement immediately without written notice and all unpaid compensation shall be null and void, releasing the Owner from any obligations of payment to the Affiliate.
Right to Remove Link. The Owner may direct the Affiliate to remove, and the Affiliate shall remove, the Affiliate Link from the Affiliate Marketing Stream(s) at any time for any reason.
Right to Disclaimer. The Owner may direct the Affiliate to post the disclaimer set forth in this agreement on the Affiliate Marking Stream(s).
7. CONFIDENTIAL INFORMATION.
Definition. Confidential Information" means this agreement and all nonpublic information of a party, in whatever form, pertaining to the business of that party, including information relating to that party's finances, customer records, and information, and all associated documentation and materials that the party disclosing the information (in that capacity, a "Disclosing Party") designates as being confidential when disclosing it to the other party (in that capacity, a "Receiving Party"), or that, under the circumstances of disclosure, ought to be treated as confidential by the Receiving Party. Confidential Information also includes any information relating to the Disclosing Party's parent, subsidiaries, and affiliates. Confidential Information does not include information or data that is: (i) known to the Receiving Party before its disclosure by the Disclosing Party without an obligation of confidentiality under another agreement;
independently developed by the Receiving Party without use of any Confidential Information;
in the public domain when the Receiving Party seeks to disclose or make use of it, other than as a result of disclosure by the Receiving Party; or
received by the Receiving Party from a third party with a legal or contractual right to disclose that information or data.
Disclosure. The Receiving Party shall not use or disclose the Confidential Information of the Disclosing Party except in connection with the exercise of its rights or the performance of its obligations under this agreement. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person other than its employees, agents, or independent contractors who have a need to know it in connection with this agreement, and who are under obligations of confidentiality substantially similar to this section. The Receiving Party shall protect the confidentiality of the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in any case with reasonable care. All Confidential Information made available under this agreement, including copies, shall be returned or destroyed by the Receiving Party, and certified as having been returned or destroyed, promptly after the termination of this agreement.
Exceptions. A Receiving Party will not be in violation of this section if it discloses Confidential Information that is required to be disclosed because of a valid order by a court or other governmental body or by applicable law or by the rules of any nationally recognized stock exchange. However, under these circumstances, the Receiving Party shall notify the Disclosing Party in writing of that disclosure to permit the Disclosing Party to seek confidential treatment of that information.
Of Owner by Affiliate. At all times after the effective date of this agreement, the Affiliate shall indemnify the Owner against any award, charge, claim, compensatory damages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty, or other loss (a "Loss") or any attorney's or other professional's fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of: (i) the Affiliate's gross negligence or willful misconduct arising from the Affiliate's carrying out of its obligations under this agreement; or
the Affiliate's breach of any of its obligations or representations under this agreement.
Of Affiliate by Owner. The Owner shall at all times indemnify the Affiliate against a Loss or Litigation Expense caused by any breach of any of the representations or agreements made by the Owner under this agreement.
9. DISCLAIMER OF WARRANTIES; LIMITATION OF DAMAGES AND LIABILITY.
The Owner shall abide by all warranties as they exist on the Owner Website. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE OWNER MAKES NO, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE OWNER'S PRODUCTS AND SERVICES PROVIDED TO AFFILIATE CUSTOMERS THROUGH THE AFFILIATE PROGRAM AND ANY SERVICES PROVIDED BY THE OWNER UNDER THIS AGREEMENT INCLUDING ANY IMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Additionally, the Owner makes no representations that the operation of the Owner Website or services will be uninterrupted or error free and it will not be liable for the consequences of any interruptions or errors. Neither the Owner nor any of its agents, employees, officers,or directors will be liable for consequential, incidental or special damages, including lost profits, even if it has knowledge of the potential loss or damage. THE OWNER'S LIABILITY SHALL NOT EXCEED THE TOTAL COMMISSION PAID OR PAYABLE UNDER THE AGREEMENT.
10. NATURE OF RELATIONSHIP.
Nothing in this agreement creates any employment, independent contractor, or agency relationship between the Affiliate and the Owner. Neither party may enter into contracts, assume or create any liability or make agreements of any kind for, in the name of, or on behalf of, the other party.
Any Affiliate Customer that follows the Affiliate Link to the Owner Website, upon arrival and use of the Owner Website, will be deemed to be a customer of the Owner. Accordingly, the Owner will be responsible for all aspects of order processing and fulfillment of the Owner Products. All Owner rules, prices, policies,and operating procedures will apply to sales of Owner Products made under this agreement.
The Owner expressly reserves the right to add, delete, or modify its products and services and prices at any time. The Owner also expressly reserves the right to reject any order.
The Owner is NOT responsible for the operation or contents of the Affiliate Website, or any third party website not controlled by the Owner. The Affiliate is responsible for and must pay all expenses that are incidental to its activities and responsibilities under this agreement, including employees' and subcontractors' compensation; costs of developing, maintaining, and operating the Affiliate Website; programming costs; and creating, producing or revising any marketing materials. The Affiliate shall assume sole responsibility for any liabilities that may be incurred by the Affiliate in operating its business and fulfilling the terms of this agreement and is solely responsible for the payment of all foreign, federal, state and local taxes that may accrue because of this agreement.
11. GOVERNING LAW.
Choice of Law. The laws of the state of Michigan govern this agreement (without giving effect to its conflicts of law principles).
Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in Wayne County, Michigan.
12. AMENDMENTS. No amendment to this agreement will be effective unless it is in writing and signed by a party.
13. ASSIGNMENT AND DELEGATION.
No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
14. COUNTERPARTS; ELECTRONIC SIGNATURES.
Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
Addresses. A party shall address cotices under this section to a party at the following addresses:
If to the Owner:
1098 Ann Arbor Rd W
Plymouth, MI 48170
If to the Affiliate (You)
[Your email address used in Affiliate Application]
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
18. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
The descriptive headings of the sections and subsections of this agreement are for
convenience only, and do not affect this agreement's construction or interpretation.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
21. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
22. CHANGES TO AGREEMENT
Kiddilight LLC reserves the right, at its sole discretion, to change, amend, modify, add or remove terms and conditions contained in this Agreement, at any time, without further notice by posting any changes on the website. Any new terms or conditions will be effective as soon as they are posted. It is your responsibility to check this Agreement and the Affiliate Program periodically and you are deemed to be aware of such changes. Your continued use of the Software and/or the Results following the posting of such changes will mean that you accept and agree to the changes. If you do not agree to the changes, please stop using the Affiliate Program and the results.
Personal Information Controller
Any personal information provided to or gathered by UpPromote under this Privacy Notice will be stored and controlled by UpPromote (the data controller).
Information collected from Merchants
When merchant uses the app, we are automatically able to access certain types of information from your Shopify account such as email, first name, last name, shop information (shop domain, shop currency, shop address …). We collect this information to provide you with our Services; for example, to confirm your identity, contact you, provide customer support when you contact us, provide you with advertising and marketing activities.
Information collected from Affiliates
When an Affiliate signs up to join a program, we collect some information to inform merchants such as email, personal information, payment details and social network information,...The information would help merchant evaluate affiliate background and potential, along with process specific activities within the app and contact affiliate if needed.
Information collected from Customers when visiting merchant website
In order to track referral order, when customers visit merchant website and make a purchase, UpPromote system will collect information of order such as total order, order items, order ID,....
“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.
We may also disclose your personal information to any third party with your prior consent.
Use of UpPromote app by Children
UpPromote is not intended for children. If you are under 13, you may use the affiliate marketing system only with the supervision of your parent or guardian.
UpPromote understands that you have rights over your personal information, and takes reasonable steps to allow you to access, correct, amend, delete, port, or limit the use of your personal information. If you are using the system and wish to exercise these right, please contact us through firstname.lastname@example.org. We may require that you provide us with acceptable verification of your identity before providing access to such information.
If you are an affiliate and wish to exercise these rights, please contact the merchant you interacted with directly — we serve as a processor on their behalf, and can only forward your request to them to allow them to respond.