Affiliate Agreement
Effective Date: March 3rd, 2018
Primary Website: www.weswimco.com
THE AGREEMENT: This Affiliate Agreement (hereinafter called the "Agreement") is provided by the
following organization, hereinafter referred to as "Company": We Swim Co. Our primary website is
located at the address listed above. 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.
e) Affiliate Application: The fully completed form which must be provided to us for consideration of
your inclusion in the Affiliate Program.
f) Website: The primary website we've noted above will be referred to as Website.
2) ASSENT & ACCEPTANCE
By submitting an application to our Affiliate Program, you warrant that you have read and reviewed this
Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement,
please leave the website immediately and do not submit an application to our Affiliate Program. This
Agreement specifically incorporates by reference any Terms of Conditions, Privacy Policies, End-User
License Agreements, or other legal documents which we may have on our website.
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3) AGE RESTRICTION
You must be at least 18 (eighteen) years of age to join our Affiliate Program or use this Website. By
submitting an application to our Affiliate Program, you represent and warrant that you are at least 18 years
of age and may legally agree to this Agreement. The Company assumes no responsibility or liability for
any misrepresentation of your age.
4) PROGRAM SIGN-UP
In order to sign up for our Affiliate Program, you will first be asked to submit an Affiliate Application to
join. The Affiliate Application may be found at the following website: www.weswimco.com.
Submitting an Affiliate Application does not guarantee inclusion in the Affiliate Program. We evaluate
each and every application and are the sole and exclusive decision-makers on Affiliate acceptance. If we
choose not to allow your inclusion in the Affiliate Program, we will attempt to notify you in a reasonable
manner. If you do not hear from us within a reasonable time frame, please consider your application
rejected. We are not obligated to provide you any explanation for your rejection, but please be advised we
may reject applicants for any reason or manner, including but not limited to a website or social media page
which violates our Acceptable Use Policy.
If your Affiliate Application is rejected, you may not reapply. If your Affiliate Application is accepted,
each of the terms and conditions in this Agreement apply to your participation. We may also ask for
additional information to complete your Affiliate Application or for you to undertake additional steps to
ensure eligibility in the Affiliate Program.
5) 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.
6) AFFILIATE PROGRAM
After your acceptance in the Affiliate Program, 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).
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.
We will provide you with a specific link or links which correspond to certain products we are offering for
sale (collectively, the "Link"). The Link will be keyed to your identity and will send online users to the
Company's website or websites. 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
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times. We may modify the specific link or links and will notify you if we do so. You agree to only use
links which are prior approved by us and to display the Link prominently on your website or social media
page, as described in your Affiliate Application (collectively, the "Affiliate Site").
Each time a user clicks through the Link 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).
7) SPECIFIC TERMS APPLICABLE
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 real-time data
regarding your account with us through the portal on which you log into the website.
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;
g) May not have been induced by the Affiliate offering the customer any coupons or discounts;
8) PAYOUT INFORMATION
Payouts will only be available when the Company has your current address information as well as
accounting and tax documentation. You will be asked to submit a W8/W9 tax form. Accounting
information may include the routing and account number of a bank where you wish to post a direct deposit
or may include an email address for an online method of payment.
Currently, the Company employs the following methods of payout:
Paypal
Debit Card
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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 the month or period after they accrue. For example, if payouts are made every 15
days, an entire 15 day period must finish for the payout of that period to be available in the following
period.
We explicitly reserve the right to change payout information in our sole and exclusive discretion. If we do
so, you will be notified.
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.
9) REPORTS
You may log into your account with us to review reports related to your affiliation, such as payout reports
and Qualified Click and/or Purchase information. Please be advised however, that not all listed qualifying
clicks and/or purchases have been fully reviewed for accuracy in the reports viewable by you in real-time
and therefore may be subject to change prior to payout.
10) TERM, TERMINATION & SUSPENSION
The term of this Agreement will begin when we accept you into the Affiliate Program. 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.
11) INTELLECTUAL PROPERTY
You agree that the intellectual property owned by the Company includes all copyrights, trademarks, trade
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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 access our websites in conjunction with the Affiliate Program and 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.
Other than as provided herein, you are not permitted to use any of the Company IP or any confusingly
similar variation of the Company IP without our express prior written permission. This includes a
restriction on using the Company IP in any domain or website name, in any keywords or advertising, in
any metatags or code, or in any way that is likely to cause consumer confusion.
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 license to use your name, trademarks and servicemarks if
applicable and other business intellectual property to advertise our Affiliate Program.
12) MODIFICATION & VARIATION
The Company may, from time to time and at any time, modify this Agreement. You agree that the
Company has the right to modify this Agreement or revise anything contained herein. You further agree
that all modifications to this Agreement are in full force and effect immediately upon posting on the
Website and that modifications or variations will replace any prior version of this Agreement, unless prior
versions are specifically referred to or incorporated into the latest modification or variation of this
Agreement. If we update or replace the terms of this Agreement, we will let you know via electronic
means, which may include an email. If you don't agree to the update or replacement, you can choose to
terminate this Agreement as described below.
a) To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of
law, you agree that the prior, effective version of this Agreement shall be considered enforceable and
valid to the fullest extent.
b) You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of
this Agreement to note modifications or variations. You further agree to clear your cache when doing
so to avoid accessing a prior version of this Agreement.
13) RELATIONSHIP OF THE PARTIES
Nothing contained within this Agreement shall be construed to form any partnership, joint venture,
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agency, franchise, or employment relationship. You are an independent contractor of the Company and
will remain so at all times.
14) 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.
15) AFFILIATE OBLIGATIONS & FTC COMPLIANCE
You are responsible for ensuring operation and maintenance of the Affiliate Site, including technical
operations, written claims, links, and accuracy of materials. You must ensure, as noted above, that the
Affiliate Site does not infringe upon the intellectual property rights of any third party or otherwise violate
any legal rights.
We may monitor your account, as well as clicks and/or purchases coming through your account. If we
determine you are not in compliance with any of these the terms of this Agreement, we have the right to
immediately terminate your participation in the Affiliate Program.
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
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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 sub-part, we may terminate our
relationship with you at our sole and exclusive discretion.
16) REVERSE ENGINEERING & SECURITY
You agree not to undertake any of the following actions:
a) Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on
any of our websites or services;
b) Violate the security of any of our websites or services through any unauthorized access,
circumvention of encryption or other security tools, data mining or interference to any host, user or
network.
17) DATA LOSS
The Company does not accept responsibility for the security of your account or content. You agree that
your participation in the Affiliate Program is at your own risk.
18) 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
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participate in its own defense, if the Company wishes.
19) SPAM POLICY
You are strictly prohibited from using the Affiliate Program for illegal spam activities, including gathering
email addresses and personal information from others or sending any mass commercial emails.
20) 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.
21) SERVICE INTERRUPTIONS
The Company may need to interrupt your access to the Affiliate Program to perform maintenance or
emergency services on a scheduled or unscheduled basis. You agree that your access may be affected by
unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for
any damage or loss caused as a result of such downtime.
22) NO WARRANTIES
You agree that your use of the Affiliate Program is at your sole and exclusive risk and that any services
provided by us are on an "As Is" basis. The Company hereby expressly disclaims any and all express or
implied warranties of any kind, including, but not limited to the implied warranty of fitness for a particular
purpose and the implied warranty of merchantability. The Company makes no warranties that the Affiliate
Program will meet your needs or that it will be uninterrupted, error-free, or secure. The Company also
makes no warranties as to the reliability or accuracy of any information. You agree that any damage that
may occur to you, through your computer system, or as a result of loss of your data from your use of the
Affiliate Program is your sole responsibility and that the Company is not liable for any such damage or
loss.
23) LIMITATION ON LIABILITY
The Company is not liable for any damages that may occur to you as a result of your participation in
Affiliate Program, to the fullest extent permitted by law. The maximum liability of the Company arising
from or relating to this Agreement is limited 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.
24) GENERAL PROVISIONS:
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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 California 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: We Swim CO., California. 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: We Swim CO. 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 California. 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 sub-part, be litigated. The Parties, in
agreement with this sub-part 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 sub-part of this Agreement is held invalid or unenforceable by a
court of law or competent arbitrator, the remaining parts and sub-parts 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 sub-part of this Agreement will not constitute a waiver of any other part or sub-part.
G) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts 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
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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 e-mail or fax. For any questions or concerns, please
email us at the following address: info@weswimco.com.
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