UPCLICK AFFILIATE AGREEMENT
This is a legally binding Agreement by which you (the "Affiliate") agree to refer potential customers (each a "Customer") to us ("Upclick") through the internet. Please read this Agreement carefully as it describes all of your rights and obligations in your relationship with Upclick.
Upclick is in the business of producing, marketing and promoting various online affiliate management and reseller services (the "Service") on the Internet.1. Appointment of Affiliate
1.1. Appointment of Affiliate. 2. Obligations of Upclick
Upclick grants the Affiliate the non-exclusive, non-transferable right and license to advertise, market and promote the Service in accordance with the terms and conditions hereof. All other rights and licenses not expressly granted to the Affiliate herein are reserved by Upclick.
Upclick shall provide the Services, subject to the terms hereof. Upclick can change or terminate any part of the Service, at any time and in any manner at its sole discretion and without prior notice to the Affiliate.
2.2 Commissions. 3. Obligations of the Affiliate
Upclick shall pay to Affiliate commissions (the "Commissions") at the rates set out for merchant affiliate offers by each merchant visible in the Affiliate's account through www.upclick.com (the "Site"), such as they may be from time to time. Commissions shall be paid only when the Affiliate refers a valid sale to such merchants through the Site.
The Affiliate shall use its best efforts to actively and effectively advertise, market and promote the Service.
The Affiliate shall engage only in advertising, marketing and promotional efforts which do not violate any law, and which reflect positively upon the business reputation of Upclick and merchants who resell products through Upclick. Upclick shall have the right to review and approve the manner and methods of advertising, marketing and promotion used by the Affiliate in connection with the Service. Affiliate shall send to Upclick a copy of any and all promotional material used in performing hereunder. Whether or not Upclick reviews or comments on such material shall not affect the obligations of Affiliate hereunder. Affiliate shall cease any promotional campaign that Upclick deems inappropriate.
The Affiliate shall bear all costs and expenses incurred in connection with the advertising, marketing and promotion of the Service; including without limitation, all costs directly related to marketing. UNDER NO CIRCUMSTANCES SHALL Upclick BE LIABLE HEREUNDER FOR ANY AMOUNTS OTHER THAN THE FEES.
3.4 Valid information. 4. Compensation
The Affiliate shall provide a valid and public e-mail address as well as an accurate postal address (no mailboxes) for Upclick or potential merchants to contact the Affiliate.
Upclick shall pay the Commissions as per the terms hereof. No Commissions shall be paid unless Affiliate is owed at least $100 during the then current Commission payment cycle.
4.2. Offset Right.
Upclick shall have the right to withhold any and all Commissions if Affiliate or any of its affiliates are in breach of this Agreement any other agreement with Upclick or any of its affiliates. To the extent that any chargebacks of transactions occur in respect of customers referred to Upclick by Affiliate, Affiliate shall be obliged to refund both the Commissions earned in respect of such transactions together with a share of the fees incurred by Upclick in respect of the chargeback which corresponds to the share of the Commissions on the transaction earned by the Affiliate. By way of example only, if Affiliate was to earn 35% on the transaction in Commissions and the fee to Upclick for the chargeback is $50, then the Affiliate shall be liable to reimburse Upclick for any Commissions received in respect of the transaction, plus $17.50, being 35% of $50.00. In the event of any inconsistency between these terms and the posted Commissions, the latter shall prevail.
4.3 Reserve Account. 5. Term and Termination
Upclick shall withhold ten percent (10%) of Commissions on a rolling period of three (3) months from when they would otherwise be payable in a non-interest bearing reserve account (the "Reserve Account") which account shall be used to offset liabilities (including, but not limited to, charge backs and refunds) of the Affiliate to Upclick hereunder. In case of termination amounts that accumulate in the Reserve Account shall be paid to Affiliate within one (1) year of the termination hereof, unless this Agreement is terminated for breach in which case the Affiliate forfeits its rights in the amounts held in the Reserve Account. The Reserve Account is not insured in the event of a bankruptcy of Upclick.
The term of this Agreement shall begin as of the date on which the Affiliate has agreed to the terms hereof either through the Site or on paper and shall end one (1) year thereafter after which it shall automatically renew for additional and successive one (1) year terms until terminated pursuant to the terms hereof.
5.2 At Will.
Either party may terminate this Agreement on notice to the other party either via the Site or as provided below.
Upclick may terminate this Agreement with immediate effect if the Affiliate is in breach of the terms of this Agreement. Such breach includes, but is not limited to, situations when the Affiliate engages in advertising, marketing, distribution and promotional efforts that would impair the goodwill and business reputation of Upclick or would expose Upclick to legal liability.
Upclick may terminate this Agreement with immediate effect if the Affiliate shall become insolvent or make a bulk sale of its assets or if the Affiliate makes a general assignment for the benefit of creditors, or any proceeding or filing is instituted or made by the Affiliate seeking relief, or to adjudicate it a bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its assets or takes any action to authorize or in furtherance of any of the foregoing;
5.4. Effect of Termination.
Upon any termination hereof, the Affiliate shall immediately return to Upclick any and all materials, over which Upclick has a proprietary right, that are in the Affiliate's possession and/or in the possession of the Affiliate's agents and employees. The Affiliate shall also immediately remove any hyperlinks and materials, over which Upclick has a proprietary right, from the Affiliate's web site and/or the web sites of the Affiliate's agents.
5.5. Upclick Information.
Any and all information concerning Upclick resellers, merchants, customers and other affiliates shall remain the sole and exclusive property of Upclick and may not be used or disclosed by Affiliate without the prior express written consent of Upclick.
5.6 Commissions Following Termination.
In the event that this Agreement is terminated without default by Affiliate, Upclick shall continue to pay Commissions to Affiliate for one month after such termination after which Upclick shall not be liable for any Commissions to the Affiliate. In the event that this Agreement is terminated on account of a default by Affiliate, Upclick shall not be liable for any Commissions not already paid to the Affiliate from the time that said default occurred.
6. Fee Statements
6.1. Fee Statements.
Payment of Commissions shall be accompanied by a statement that specifies the calculation of the sum to be paid to the Affiliate. Affiliate shall not be entitled to any Commissions on referrals of customers who subsequently chargeback, return or obtain a refund in respect of their purchases through Upclick. Fee statements will therefore be adjusted by Upclick from time to time to reflect overpayments, customer chargebacks and/or credits or underpayments to customers by Upclick. To the extent that Affiliate is liable to refund Commissions pursuant to this provision, Upclick shall deduct the amount of such Commissions from future Commissions payable hereunder. Upclick may also offset any liability of Affiliate to Upclick by withholding Commissions that would be otherwise payable.
6.2 Online Monitoring.
Affiliate shall be granted, during the term hereof, the right to monitor the Commissions to which it is entitled, from time to time, via its online login at the Site.
6.3 Upclick Reporting Definitive. 7. Exclusivity and Non-Competition
In the event of any dispute as to the amount of Commissions payable, Upclick reports concerning such Commissions shall be authoritative and shall supersede any other tracking that may have been carried out by Affiliate or any third party.
The Affiliate agrees, understands and acknowledges that Upclick may enter into agreements of this type with third parties to promote the Service or a similar version thereof.
The Affiliate has not paid for the use of the trademarks, logos, copyrights, trade names or designations belonging to Upclick, and nothing contained in this Agreement shall give the Affiliate any right to, title to or interest in any of them.
The Affiliate acknowledges that Upclick owns and retains all copyrights and other proprietary rights, as well as any software supplied by Upclick, whether through the Site or otherwise. The Affiliate shall not assert any claim or interest in any trademark, trade name, copyright, service mark or logo belonging or licensed to Upclick, or do anything to adversely affect their validity or enforceability. This includes any act or assistance in any act that may infringe upon, or lead to the infringement of, any software copyright.
7.4. Registration of Names. 8. Confidentiality and Non-Disclosure
Without limiting the generality of the foregoing terms, the Affiliate shall not itself attempt, or assist any third party in attempting, to register any trademark, trade name or other proprietary right with any governmental agency (federal, provincial, local or otherwise) or with any other entity or authority without the express, unequivocal and unambiguous prior written consent of Upclick. The Affiliate shall not affix a trademark, logo or trade name of Upclick to any non-Upclick product. The Affiliate shall not alter, erase, deface or overprint any notice of proprietary rights on anything provided by Upclick.
8.1 Confidential Information. 9. Representations and Warranties
The Affiliate and Upclick each agree that each may have access to, and become acquainted with, confidential information of the other. The Affiliate and Upclick each specifically agree not to misuse, misappropriate or disclose any such confidential information, directly or indirectly, to any third party.
9.1 Compliance 10. Indemnification and Limitation of Liability
The Affiliate warrants, represents and covenants to Upclick: (i) that it has all necessary rights, licenses, permissions and business permits, and will comply with all applicable laws, rules and regulations in connection with promoting the Service; (ii) that its practices hereunder shall not consist of use of SPAM, bulk e-mails, fax blasting for any illegal or distasteful business practices; and (iii) that it shall not make any misrepresentations concerning Upclick or any products or services sold through Upclick.
Each party shall defend, indemnify and hold harmless the other and its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys' fees and expenses) arising out of or resulting from (i) the indemnifying party’s performance under this Agreement including, without limitation, performance, nonperformance, or defect in performance, any statement, misstatement, representation or misrepresentation made by the indemnifying party; (ii) the negligent or willful acts or omissions of the indemnifying party or the indemnifying party’s agents and/or employees; and (iii) any statements, claims, representations or warranties made by the indemnifying party or the indemnifying party’s agents and/or employees, relating to the Products.
10.2 No Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES PROVIDED BY EITHER PARTY OR THAT THE OPERATION OF THE SERVICES WILL BE INTERRUPTION OR ERROR FREE.
10.3 Limitations of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER PARTY, NOR ITS AFFILIATES, AGENTS OR LICENSORS, SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF THE PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL EACH PARTY'S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE AFFILIATE IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID TO THE AFFILIATE DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
10.4 Force Majeure. 11. General
Upclick shall use its commercially reasonable efforts to perform its obligations hereunder, however, Upclick, its affiliates, agents or licensors shall not be liable for any loss resulting from the activities of the Affiliate, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Upclick's reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. Upclick's obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by the Affiliate.
Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested (i) to Upclick at the postal address provided therefor on the Site; (ii) to the Affiliate at the address provided therefor upon registration with the Site; or (iii) to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
11.2 On-Line or Written Formation of Contract.
By acceptance of the terms hereof on-line by the Affiliate or by execution of a written acceptance of the terms hereof by the Affiliate, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
None of the terms of this Agreement shall be amended by either party unless such an amendment specifically references this Agreement and is agreed to by both parties.
None of the Affiliate or any of its successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Upclick which consent may be withheld for any reason, at Upclick's sole discretion.
This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
The Affiliate shall be liable for and shall indemnify and reimburse Upclick for any and all reasonable attorneys' fees and other costs and expenses paid or incurred by Upclick in the enforcement of this Agreement, or in collecting any amounts due from the Affiliate hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.
All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
11.9 Governing Law and Choice of Forum.
This Agreement shall be deemed to be governed and enforced in accordance with the laws of the City of Sliema, Malta whose courts shall have exclusive jurisdiction over disputes arising hereunder.
11.10 Whole Agreement.
References to "this Agreement" include any schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Upclick and furnished to the Affiliate from time to time.