TREES FOR A CHANGE AFFILIATE PROGRAM AGREEMENT
BY SUBMITTING AN APPLICATION TO PARTICIPATE IN THE TREES FOR A CHANGE AFFILIATE PROGRAM, AFFILIATE HEREBY ACKNOWLEDGES, ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AFFILIATE AGREEMENT (THE “AGREEMENT”), between TREES FOR A CHANGE, an e-commerce company headquartered in Sonoma County, California (“TFC”), and the AFFILIATE, whose details are set out in the Affiliate Program application (“Affiliate”); collectively referred to as “the parties.”
WHEREAS, the purpose of this Affiliate Program Agreement (“Agreement”) is to set forth the terms, conditions and other provisions of the TFC Affiliate Program (“Program”), through which approved Affiliates will earn a specified commission on TFC’s sales of products purchased by Affiliates’ referred customers via approved Affiliate Program advertising and promotion of TFC and/or TFC products.
THEREFORE, the parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
- EFFECTIVE TERM OF AGREEMENT. This Agreement shall be effective upon TFC’s acceptance and approval of Affiliate’s application to participate in the Program, and shall remain in effect until such participation is ended. Affiliate shall be eligible to earn commissions only while actively participating in the Program in accordance with the terms of this Agreement.
- Either party, without cause, may suspend or terminate Affiliate’s participation in the Program at any time. Each party agrees to provide timely advanced email notice to the other in the event of suspension or termination of participation in the Program.
- TFC reserves the right to suspend or cancel the Program at any time and shall notify Affiliate via email of any Program suspension or cancelation. TFC shall have no obligation thereafter to pay commissions on sales of products to Affiliate’s referrals.
- TFC may, upon email notice to Affiliate, suspend or terminate Affiliate’s participation in the Program for any violation of the terms of this Agreement, including, without limitation, any unauthorized or illegal use of TFC intellectual property and/or infringement upon or harm to TFC’s rights and interests therein.
- MODIFICATION OF TERMS AND CONDITIONS. TFC may, in its sole discretion, amend this Agreement or modify the Program and/or Program application requirements at any time. Written notice to Affiliates of such modification may or may not be provided in advance of the amended Agreement posting on TFC’s Affiliate Program site. Affiliate’s continuing participation in the Program will constitute acceptance of the Agreement amendment or Program modification. If Affiliate is unable or unwilling to accept the amendment, Affiliate may discontinue participation in the Program by notifying TFC via email.
AFFILIATE PROGRAM APPLICATION AND PARTICIPATION REQUIREMENTS.
- To join the TFC Affiliate network and participate in the Program (powered by Refersion), Affiliate must complete and submit an online application located at https://treesforachange.refersion.com, and create a login and password for an Affiliate account. TFC may reject any application at its sole discretion. Through Affiliate’s account, Affiliate will be able to download tracking code and banner creatives, track and view sales, and receive commission payments. In order for TFC to accurately track the sales coming from Affiliate’s website, Affiliate must use either the downloadable tracking code as a text link on its website, or use one or more TFC-provided banner creatives with a tracking code.
- Affiliate shall not use the Program, Affiliate’s participation therein, or any information received therefrom, for any illegal or unauthorized purposes, including, without limitation: engaging in any deceptive software download or computer settings practices to promote TFC; or engaging in fraud, which shall be defined for purposes of this Agreement as any action that intentionally attempts to create sales, leads, or click-throughs using robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of creating commissions. ANY FRAUD OR ATTEMPTED FRAUD WILL RESULT IN TERMINATION OF AFFILIATE’S PARTICIPATION IN THE PROGRAM AND VOIDED COMMISSIONS.
- Legitimate Methods of Advertising. Affiliate shall use only TFC-provided Program links, discount codes, banners or other clickable images (“Creatives”), and/or text advertisements. Affiliate is not permitted to promote or utilize any TFC materials not related to the Affiliate Program, such as coupon codes provided in TFC customer newsletters, codes provided to other partners or Affiliates, or any other promotional codes or coupon codes received outside of Affiliate’s participation in the Program. Any sales generated through improper promotion will result in loss of commission.
- Affiliate shall promptly remove any expired, invalid or non-functioning coupon or discount codes, links and banners from its website(s), social media accounts or email offers. In the event that a current, unexpired code or banner is invalid or not functioning, Affiliate shall notify TFC immediately. It is Affiliate's responsibility to routinely check links determine whether a payout associated with any particular link provided has been discontinued by TFC. TFC is not responsible for any lost revenue or incurred costs as a result of an Affiliate using an invalid link.
- Affiliate coupon codes and links shall not be promoted on any third-party websites such as coupon databases.
- Affiliate is prohibited from using PPC (Pay Per Click) advertising solely and directly for the purpose of earning commissions from TFC sales, and is prohibited from linking their TFC affiliate tracking link directly to any PPC advertising.
- Affiliate is prohibited from posting its own link(s) on TFC’s social media.
- TFC Brands. Affiliate acknowledges and agrees that the following or similar terms, including, without limitation, “Trees for a Change.com,” “Trees for a Change,” “www.treesforachange,” “www.treesforachange.com” and any combination, similar alteration or misspelling of such terms (collectively, “TFC Brands”), in addition to any logos or images appearing on TFC’s website, materials, or products, are the sole property of TFC unless otherwise attributed. Affiliate agrees that it shall not: (a) bid on terms in any search engine that mention TFC Brands including any derivatives and misspellings, TFC Brands with other keywords including, without limitation, ‘coupons,’ ‘promos,’ or ‘promotions’; (b) use TFC Brands with keywords or any misspellings in Affiliate domain name(s); (c) use direct linking to “treesforachange.com” from any paid search ads; and (d) use “treesforachange.com” as a display URL.. TFC reserves the right to terminate this Agreement and immediately seek legal, equitable or other appropriate remedies in the event of violation or infringement upon any TFC trademark, or any misuse or fraudulent use of any TFC Brands. The provisions of this section shall remain enforceable after termination of the Agreement and/or discontinuation of Affiliate’s participation in the Program.
- TFC Obligations. In administering the Program, TFC agrees to: (a) provide Affiliate with promotional materials, such as links, coupon codes, Creatives and any other graphic materials that TFC, in its sole discretion, determines appropriate to promote its products; (b) process all orders for TFC products sold via Affiliate's links in a timely manner with high quality customer service; (c) track sales generated via the Affiliate's links; and (d) provide timely payment processing, cancellations, returns and other related customer service activities for TFC products sold via Affiliate's links.
LICENSES AND PERMITTED USE.
- TFC grants to Affiliate a limited, non-exclusive, non-transferable, revocable right to (i) access the TFC site through HTML links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such links, to use TFC Brands, Creatives, logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that TFC provides or authorizes for purposes of the Program. Affiliate shall use Licensed Materials only while actively participating in the Program in good standing. Affiliate agrees that all uses of the Licensed Materials will be on behalf of TFC and the good will associated therewith will inure to the sole benefit of TFC.
- Both parties agree not to use the other party's materials in any manner that could be construed or considered to be misleading, disparaging or otherwise portrays the other party in a negative light.
- Any inappropriate use of the promotional material may be cause for immediate termination of the Agreement.
- Except for the license as described in this Agreement, each party reserves all respective rights in its own intellectual property. This Agreement shall not constitute a transfer by either party to the other party of any rights, titles, interests, or licenses not expressly set forth herein.
- TFC CREATIVES. Affiliate’s permissible use of TFC Creatives is strictly limited to promotion of TFC and its products. Affiliate shall not corrupt, modify, or disable the tracking functionality of TFC-provided Creatives, and shall not alter, add to, subtract from, or otherwise modify Creatives without TFC’s prior written consent. If available Creatives do not fit Affiliate’s needs, TFC may be able to offer an alternative Creative; or, Affiliate may, with TFC’s written approval, use an Affiliate creative with TFC’s tracking code.
COMMISSIONS AND PAYMENTS.
- Affiliates shall receive a commission for referring authorized sales via links provided by TFC Affiliate Program to TFC's website. In order for Affiliate to qualify for a commission, a visitor to Affiliate’s website must: (a) be directed to TFC’s website by clicking a TFC link on Affiliate’s website, and (b) purchase any TFC product within 30 days of the initial click-through.
- Commission amount. The commission amount for any sale is based on the net price (net of any discounts provided to the customer) of the product sold. Commission rates may be changed at any time by TFC and Affiliate may view current applicable commission rates by logging into Affiliate's account.
- The commission shall be paid only on links that can be tracked and reported by TFC Affiliate Program systems powered by Refersion. In order for Refersion to properly track any referral, the customer must have cookies enabled on their web browser. TFC is not responsible for any lost revenue or incurred costs as a result of customers not having cookies enabled at the time of purchase.
- Canceled customer orders do not qualify for commission fees. To the extent a customer receives a refund, no commission shall be paid to the Affiliate.
- There is no maximum dollar limit on commissions that Affiliate may earn while participating in the Program.
- TFC reserves the right to reverse commission credits due to order cancellations, duplicate tracking, returns, disputed charges, and/or program violations as outlined in these terms and conditions.
REPRESENTATIONS AND WARRANTIES.
- Affiliate represents and warrants that: (a) Affiliate/Affiliate’s authorized agent has the authority to enter into and perform Affiliate’s duties and obligations under this Agreement; and (b) the website[s] where Affiliate will display TFC marketing materials, and Affiliate’s marketing practices, do not and will not (i) infringe on any third party’s copyright, patent, trademark, trade secret, privacy or any other rights, or (ii) violate any applicable laws, rules, or regulations.
- Affiliate acknowledges that TFC does not assume and should not be exposed to any business and operational risks associated with Affiliate’s business, or any aspects of the operation or content of Affiliate’s website(s). Accordingly, Affiliate shall defend, indemnify, and hold harmless TFC from and against any suit, proceeding, assertion, damage, cost, liability, and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims of customers or other third parties’ claim (including, without limitation, claims by regulators) against TFC, its agents, officers, contractors or employees arising from or connected with (i) Affiliate’s website[s], including without limitation any activities or aspects thereof or commerce conducted thereon; (ii) the marketing activities Affiliate undertakes in connection with the Program; or (iii) the breach or alleged breach of the representations and warranties made herein.
LIMITATION OF LIABILITY; DISCLAIMERS.
- Except with respect to liabilities arising under the previous paragraph, in no event shall either party be liable to the other party for indirect, incidental, consequential, special, or exemplary damages, including, without limitation, damages for loss of revenue or lost profits, arising from any provision of this Agreement or the Program generally, even if such party had been advised of the possibility of such damages. Except as expressly set forth in this Agreement, neither party makes any representations or warranties, express or implied, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. In addition, neither party makes any representation that the operation of its website will be uninterrupted or error free, and such party will not be liable for the consequences of any interruptions or errors.
- TFC expressly disclaims any and all liability for defects in the service provided by Refersion, including, without limitation, access interruptions to the service, loss of data via the information handling system or viruses, loss of profits, or any loss caused by any third party by deleting, removing, deactivating or tampering with the Affiliate tracking service or any other consequential loss, whether arising from neglect, error or breach of contract.
- Notwithstanding anything to the contrary contained in this Agreement, in no event shall TFC’s cumulative liability to Affiliate arising out of or related to this Agreement, whether based on contract, negligence, strict liability, tort or other legal equitable theory, exceed the total commission fees paid to Affiliate under this agreement.
- Affiliate hereby agrees to indemnify and hold harmless TFC, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that TFC’s use of Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by Affiliate herein, or (iii) any claim related to Affiliate’s site, including, without limitation, content therein not attributable to TFC.
- Any information either party is exposed to during communications or negotiations that is not available to the general public shall be considered confidential company information. Either party may not disclose any confidential company information to any person or entity, except where compelled by law, unless prior written consent for such disclosure is obtained from the other party.
- Affiliate is independent contractor. Nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship between Affiliate and TFC. Affiliate has no authority to make or accept any offers or representations on behalf of TFC, and shall make no statements, whether on Affiliate’s website[s] or in any other materials or correspondence, that would reasonably appear to contradict anything in this Section.
- Any failure of TFC to enforce at any time any provision of this Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof.
- Entire Agreement. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
- The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
12.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.