This Referral Agreement (the “Agreement”) is entered into by and you, the Affiliate (“Affiliate”), and Emotes Creator ( or “Company”) (collectively, the “Parties”).
WHEREAS, Emotes Creator’s website is located at http://www.emotescreator.com; and
WHEREAS, this Agreement includes and incorporates the following exhibits by reference: Exhibit A (“Terms and Conditions”); and Exhibit B (“Affiliate Benefits”).
NOW THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. RESPONSIBILITIES OF AFFILIATE.
1.1. Affiliate agrees not to make any representations, warranties or other statements concerning Emotes Creator, Emotes Creator’s website, any of Emotes Creator’s products or services, or Emotes Creator website policies, except as expressly authorized herein.
2.1. Subject to Section 5 of the Terms and Conditions, the term of the Agreement shall be for one (1) month from Effective Date (“Term”), and shall be renewed automatically for subsequent one (1) month terms. This Agreement may be terminated by either party at any time provided thirty (30) days prior written notice is submitted by the party terminating the Agreement.
3.1. Emotes Creator may, at its sole discretion, provide to Affiliate standard reports which include all information necessary to compute revenue owed to Affiliate, as defined in Exhibit B to this Agreement. Affiliate shall have access to a web based portal to view the data used to calculate revenue owed to Affiliate.
3.2. Payment. After ninety (90) days from the accrual of the commissions the affiliate can request payment. Alternatively, the affiliate can use the accumulated credit as a discount for purchases on EmotesCreator.com at any time.
TERMS AND CONDITIONS
The following Terms and Conditions are deemed incorporated into and part of the Agreement between Affiliate and Emotes Creator to which these Standard Terms and Conditions are attached.
1.1. “Confidential Information” is defined in Section 12 of the Terms and Conditions.
1.2. “Hypertext Link” means a URL (or an icon, logo, highlighted or colored text, figure or image representing a URL or script) on which a user may point and click, or otherwise send a command to accept another website.
1.3. “Intellectual Property” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all laws pertaining to other proprietary rights, and any and all applications renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
1.4. “Customer” means the individual(s) or business Affiliate referred, by Affiliate, to Emotes Creator that purchases services from Emotes Creator.
1.5. “ Emotes Creator Content” means content normally available through the Emotes Creator website and any and all Intellectual Property contained therein.
1.6. “ Emotes Creator Marks” means the trademarks, service marks, and trade names owned or claimed by Emotes Creator.
1.7. “Referred Visitor” means a web user or Affiliate customer who followed a hypertext link directly from the Site to the Emotes Creator website and whose visit to the Emotes Creator website was recorded in the tracking processes of the Emotes Creator website in sufficient detail to enable tracking for revenue sharing purposes. “Referred” and “Referral” shall have related meanings. Affiliate recognizes and understands the referred visitor may thwart Emotes Creator website tracking by various options and actions advertently or inadvertently set in place by the referred visitor.
1.8. “Emotes Creator Revenue” indica i ricavi direttamente correlati alla fornitura di prodotti e servizi ai clienti di Emotes Creator. A scanso di equivoci, Emotes Creator includerà solo i prodotti acquistati dai clienti di Emotes Creator.
1.9. “Revenue Share” or “Commission” means the percentage of Emotes Creator Revenue that shall be paid to Affiliate. Revenue Share is the percentage of Emotes Creator Revenue referred to Emotes Creator by the Affiliate. The percentage used to calculate Revenue Share is found in Exhibit B. Revenue Share is calculated based on payments received by Customer to Emotes Creator and exclude any credits issued by Emotes Creator to Customer.
1.10. “Qualified Purchase” means a sale of Emotes Creator Products and Services by Emotes Creator to a Customer which meets the requirements set forth in this Agreement.
1.11. “Site” means the Affiliate’s Internet website which displays Emotes Creator services and/or promotions.
2.1. Trademark License. During the Term, Emotes Creator hereby grants to Affiliate a worldwide, non-exclusive, royalty-free license to use Emotes Creator Marks on the Site, only to advertise and promote Emotes Creator and any associated advertising inventory, and to fulfill any promotional obligations specified herein. Affiliate’s usage of any materials containing Emotes Creator Marks will be subject to Emotes Creator’s final written approval.
2.2. Trademark Restrictions. Title to Emotes Creator Marks shall remain with Emotes Creator. Affiliate will use Emotes Creator Marks exactly in the form provided and in conformance with any Emotes Creator usage policies, and use limitations set forth herein. Affiliate shall not use Emotes Creator Marks in combination with any other trademark without the prior written consent of Emotes Creator.
2.3. Ownership. Affiliate shall retain all right, title and interest, including, but not limited to, all intellectual property rights, in and to its own Intellectual Property. Nothing contained herein shall constitute a grant to Emotes Creator of any right, title or interest in or to the Affiliate, Intellectual Property. Emotes Creator shall not use Affiliate’s name or trademarks without the express written permission of Affiliate. Emotes Creator and its licensors shall retain all right, title and interest, including, but not limited to, all of Emotes Creator’s Intellectual Property, and to the Emotes Creator Content. Except as expressly granted in this Section 2, Affiliate receives no right, title or interest in or to the Emotes Creator Content or any other property owned by Emotes Creator or provided to Affiliate by Emotes Creator.
3. QUALITY CONTROL.
3.1. Emotes Creator, at its sole discretion, shall determine if a Site contains material that infringes the intellectual property rights of a third party, is obscene, defamatory, objectionable or offensive to actual or potential users of the Site or potential customers of Emotes Creator, or otherwise gives rise, or may give rise, to civil or criminal liability (collectively, “Offensive Material”). The parties’ discretion in making such a determination about the presence of Offensive Material may be informed by, among other things, a complaint from a third party. If Emotes Creator determines that the Site contains Offensive Material, Affiliate shall immediately act to remedy the offensive material in a mutually agreeable manner.
3.2. Affiliate shall not:
1. Use Emotes Creator Marks in any manner that would be offensive to good taste or would injure the reputation of the Emotes Creator and/or of Emotes Creator Marks;
2. Use Emotes Creator Marks in any paid advertisements;
3. Use the Emotes Creator Marks in connection with any other goods or services, except as permitted hereunder; or
4. Register in any country any trademark similar to the Emotes Creator Marks. If Affiliate obtains or makes any such registration or application, such registration or application shall be deemed to be for the benefit of and owned exclusively by Emotes Creator, and Affiliate shall do all acts and things necessary to effectuate Emotes Creator’s rights therein, including, without limitation, immediately assigning any such registrations and applications to Emotes Creator.
3.3. At no time shall Affiliate challenge or contest the validity, ownership, title or registration of Emotes Creator in or to any or all of the Emotes Creator Marks, or any of Emotes Creator’s rights in or to any or all of its Intellectual Property. Upon Emotes Creator’s request, Affiliate shall execute all documents as Emotes Creator may request so as to ensure that all right, title and interest in and to the Emotes Creator Marks or any of its Intellectual Property shall reside with Emotes Creator, subject to this License.
3.4. Affiliate agrees that any goodwill that accrues by or through Affiliate use of the License shall be Emotes Creator’s sole and exclusive property, and shall not in any way accrue to Affiliate. All trademark or other intellectual property rights in and to Emotes Creator’s Intellectual Property and License inure to the benefit of Emotes Creator. Affiliate shall not take any action, whether during the Term or thereafter, to assert any claim in or to any such good will. During the Term and thereafter, Affiliate shall not commit any act or omission that may have the effect of jeopardizing any good will connected with Emotes Creator’s Intellectual Property or the License.
3.5. Emotes Creator expressly requires you to disclose that there is a “material connection” between you and Emotes Creator anytime you offer an endorsement or testimonial on our services, in accordance with the Federal Trade Commission guidance. Such disclosure must be clear and prominent.
3.6. You should obtain legal advice on how to fully comply with all responsibilities outlined in this Agreement.
3.7. Emotes Creator does not permit any of the following activity to promote services and in the event any such activity does occur, Emotes Creator will immediately terminate this Agreement. The following list is not all encompassing and Emotes Creator reserves the right to terminate this Agreement for any reason we deem necessary:
1. Unsolicited mass e-mail solicitations, IRC (Internet Relay Chat) posting or any other form of spam.
2. Providing inaccurate or incomplete information to Emotes Creator related to your identity or any other information requested.
3. Attempt to cheat, defraud or mislead us in any way.
4. Misrepresent to the public the terms and conditions of our websites or your Site.
5. Engage in pop-up or pop-under advertisements.
6. IFrames may not be used at any time and any sales that occur through hidden IFrames or Cookie Stuffing methods will be considered invalid.
3.8. Emotes Creator discourages the use of Pay Per Click.
3.9. Emotes Creator strictly prohibits Affiliates from claiming they are employed by Emotes Creator, acting on behalf of Emotes Creator or make any other similar claims.
4. REMEDY FOR UNAUTHORIZED USE OF MARKS.
4.1. Affiliate acknowledges that Emotes Creator has no adequate remedy under this Agreement or at law in the event that Affiliate were to use the Emotes Creator Marks in a manner not authorized by this Agreement, and that Emotes Creator would, in such circumstances, be entitled to injunctive or other equitable relief, including interlocutory and preliminary injunctive relief. Affiliate also acknowledges that Emotes Creator’s rights and remedies under this Agreement and under the law are intended to be cumulative, and not mutually exclusive.
5. TAX FORMS AND ADDRESS CHANGES.
5.1. Currently Emotes Creator can only pay commissions against an issued invoice. If you are not a person who can issue invoices with a TAX ID such as (VAT, IVA, and similar) you cannot receive payments from Emotes Creator. In this case, you can only convert your commissions into Discount Coupons.
6.1. Upon expiration or termination of this Agreement, each party shall immediately discontinue the use of the other’s trademarks, content and other Intellectual Property, and Confidential Information as may have been provided hereunder, and all licenses granted hereunder shall terminate unless such licenses are expressly stated as surviving. The parties’ obligations hereunder shall survive any expiration or termination of this Agreement.
6.2. In the event the Affiliate is no longer affiliated with the Customer or Customer notifies Emotes Creator that a new Emotes Creator Affiliate is affiliated with Customer, the Affiliate, which was previously affiliated with Customer, shall no longer be eligible for payment under this Agreement.
7. USER DATA.
7.1. Neither Emotes Creator nor Affiliate will sell, disclose, transfer or rent any demographic information (including, but not limited to, name, email address, mailing address, telephone number, and/or any other identifying information collected) submitted by Referred Visitors (“Individual Data”) to any third party.
8. REPRESENTATIONS AND WARRANTIES.
8.1. Each party represents and warrants to the other party that: (i) such party has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; (iii) when executed and delivered by such party, this Agreement will constitute a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; (iv) such party’s Intellectual Property and any other materials provided by one party to the other party pursuant to this Agreement, does not and will not infringe on any copyright, trademark, patent or any other third party right or violate any applicable law or regulation; and (v) such party acknowledges that the other party makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for in this Agreement.
9. LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR CLAIMS AND LIABILITIES ARISING FROM THE INDEMNIFICATION OBLIGATIONS OF SECTION 10. IN NO EVENT SHALL Emotes Creator BE LIABLE FOR MORE THAN $100.00.
10. DISCLAIMER OF WARRANTIES.
EXCEPT AS PROVIDED FOR HEREIN, EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY “AS IS.” EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
11.1. Affiliate shall indemnify, save and hold harmless Emotes Creator, its successors, licensees and assigns, and the officers, directors, employees and agents of all of the foregoing, from and against any and all claims, demands, suits, losses, costs, expenses (including without limitation reasonable attorneys’ fees), damages or recoveries (including without limitation any amount paid in settlement) suffered, made, incurred or assumed by Emotes Creator or its successors, licensees and assigns by reason of the breach or alleged breach of any term or condition of this Agreement, or any warranty, understanding, representation, agreement or certification made or entered into herein or hereunder by Affiliate.
Neither party shall disclose information designated as confidential or proprietary by the other or which otherwise ought reasonably be considered as confidential and proprietary, including, without limitation, certain creative, business, technology, research, customer, pricing and/or other information related to the party seeking to protect such information (“Confidential Information”). Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as required to perform under this Agreement and shall take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. This definition of Confidential Information shall not apply to information which (a) is already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) is lawfully received by recipient from a third party without a restriction on disclosure or use, or (d) is independently developed by recipient without reference to the Confidential Information. The restriction on disclosure shall not apply to Confidential Information which is required to be disclosed by a court or government agency.
13.1. Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Italy .
13.2. Publicity. Any public announcement relating to this Agreement will be subject to the parties’ mutual approval, which will not be unreasonably withheld or delayed.
13.3. Assignment. This agreement may not be assigned, transferred, or sublicensed by either party without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed; provided, however, that no consent shall be required to an assignment of this Agreement in connection with a merger, consolidation, or sale of substantially all of the assets of such party.
13.4. Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
13.5. Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
13.6. Notice. Any notice under this Agreement shall be in writing and delivered by overnight courier with signature confirmation to the last known address for each Party or via a ticket in the Emotes Creator client portal. Notices will be sent to a party at its address set forth below or such other address as that party may specify in writing pursuant to this Section.
13.7. Entire Agreement Waiver. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. This Agreement may be changed by Emotes Creator at any time without notice.
REVENUE SHARING TERMS
1. Revenue Share
1.1. Under this Agreement you will be paid a Revenue Share for each Qualified Purchase by a Customer that you refer to Emotes Creator under and in accordance with the terms of this Agreement. Each Customer and each Qualified Purchase must meet the following requirements (the “Requirements”)
1. Each Customer must be a qualified Referred Visitor and must register by completing and submitting an order online through the Emotes Creator website.
2. Each Customer must make a Qualified Purchase, and provide a valid payment for the purchased Emotes Creator Products or Services. To generate a Revenue Share for you, each Customer must be an active and qualified customer of Emotes Creator and must be up to date in all payments at the time the Revenue Share is processed and not have been subject to a refund, credit, cancellation, suspension or chargeback.
3. Each Customer must sign up in a manner, which in our sole judgment, definitely establishes that the Customer was referred directly from you to Emotes Creator under this Agreement.
4. Each Customer must remain in compliance with our Master Services Agreement and other policies that are active at the time the Revenue Share is processed.
5. All Revenue Share shall be paid to Affiliate via PayPal unless otherwise agreed by the Parties.
1.2. Emotes Creator reserves the right to withhold Revenue Share for Affiliates who are new to the program or that are deemed to be potentially fraudulent as determined by Emotes Creator in its sole discretion.
1.3. Emotes Creator reserves the right to suspend payment of Revenue Share at any time at its sole discretion.
1.4. Emotes Creator, in its sole discretion, reserves the right to withhold indefinitely any Revenue Share, and/or to reverse, deny or reject any Revenue Share, for any sale which has not been in an approved status in good standing as an account of Emotes Creator for a period of at least ninety (90) days.
1.5. Revenue Share may be corrected by Emotes Creator staff in order to portray the correct amount owed.
1.6. The revenue share is calculated equal to the specified percentage (30%) of the amount paid by the customer.
1.7. Revenue Share is only payable when $100.00 has accumulated in your affiliate account.