PREMIUM AFFILIATE AGREEMENT & APPLICATION
BROOKES VENTURES LLC (DBA "AULTERRA")
This Aulterra Affiliate Agreement (“Affiliate Agreement”) is issued by Brooke’s Ventures, LLC (DBA – Aulterra) (“Aulterra”) and applies to Affiliates of Aulterra products (“Products”) Globally. By enrolling as an Affiliate, an independent contractor, of Aulterra, you (“Affiliate,” “you,” or “your”) acknowledge the following policies and agree to adhere to the following terms. Please read this Aulterra Affiliate Agreement carefully. Until such status is otherwise revoked by Aulterra, in Aulterra’s sole and absolute discretion, the Affiliate shall be considered an “Aulterra Affiliate” hereunder.
In consideration of the terms and covenants of this agreement, and other valuable consideration, the parties agree as follows:
a) The name of this affiliate program is Aulterra Affiliate Program (the “Affiliate Program”).
b) The Affiliate represents and warrants to the Company that the Affiliate has read and understand the Company’s Privacy Policies located at https://aulterra.com/privacy-policy and agrees to the terms set forth
c) For purposes of this Agreement, the term “the Affiliate” refers to the individual or legal entity who applies for and is accepted into the Affiliate The term “the Company” refers to the sponsor of the Affiliate Program. The term “the Company’s website” refers to the website that the Company maintains at www.aulterra.com. The term “the Affiliate’s website” refers to the website or websites, as well as the social media accounts, email campaigns and other marketing channels associated with the website(s), on which the Affiliate agrees to place a link to the Company’s website as specified in the Exhibit B hereof. “Product” means all products and services that is offered by the Company for sale through the Company’s website.
1) AFFILIATE PROGRAM REGISTRATION
To register for the Affiliate Program, the Affiliate must complete and submit to the Company an executed copy of this Agreement.
2) TERMINATION AFTER ACCEPTANCE
Even after the Company has accepted the Affiliate as an Affiliate Program member, the Company reserves the absolute right to rescind or terminate the Affiliate’s affiliate status for any reason in its sole and absolute discretion, including but not limited to the following: (i) if the Affiliate’s website contains images or content that is not acceptable to Company or is inconsistent with the image that the Company wishes to create in association with the Company’s website, (ii) if the Affiliate’s website contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, or racially or ethnically objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, or religious preference, or (iii) if the Affiliate’s site contains any material that appears to Company to violate any patent, trademark, copyright, trade secret, confidential information, or other property rights of any other party.
3) FINANCIAL RESPONSIBILITIES
The Affiliate will be fully responsible for all costs and expenses of maintaining and marketing the Affiliate Program, including but not limited to all costs associated with the creations, hosting, modification, and improvements to the Affiliate’s website, costs of search engine placement and other Internet marketing, costs of inserting the Company’s links into the Company’s website, offline marketing costs, postage costs, and all other
costs and expenses, and the Affiliate hereby holds the Company harmless from or against the same.
4) NO REPRESENTATIONS REGARDING INCOME POTENTIAL
The Company makes no representations and warranties regarding potential income that may result from participation in this Affiliate Program and specifically disclaims any and all warranties relative to earning potential from the Affiliate status.
5) RESPONSIBILITY TO LINK TO THE COMPANY’S SITE
a) As an Affiliate Program member, the Affiliate will have the obligations to place links on its site directing users to the Company’s site. The Company will make available to the Affiliate button links, text links, and banner advertisements to be placed on the Affiliate’s website which will direct users to Company’s website via hypertext link. As an Affiliate Program member, the Affiliate is given a non-exclusive, limited term license, during the term of the Affiliate’s active participation as an Affiliate Program member, to utilize the Company’s logo images provided to the Affiliate on the Affiliate’s website.
b) The Company makes available to its Affiliates, links, banners, and other information advertising its site to be used subject to the terms of this Agreement. These materials will contain its trademarks and other proprietary The Affiliate may display these materials on the Affiliate’s website for the purpose of promoting the Company’s site and participating in this Affiliate Program. If the Affiliate discontinues the Affiliate Program or if the Affiliate’s participation is terminated for any reason, the Affiliate will immediately cease using these materials and will delete all such materials from the Affiliate’s website and from each of Affiliate’s computer(s). The Affiliate must obtain the Company’s approval of all links to the Company’s site that the Affiliate places on the Affiliate’s website. The Affiliate will cooperate with the Company in the establishment and placement of links on the Affiliate’s website.
c) The Affiliate will only be permitted to use the links that the Company provides to the Affiliate on the website or websites that the Affiliate designates on Exhibit B attached Any additional websites or entities will require prior written approval by the Company.
d) The Affiliate will not modify the links or other materials that the Company provides to the Affiliate or the placement of the links on the Affiliate’s page. The Affiliate consents to the Company monitoring the Affiliate’s website to determine continued compliance with this Agreement.
e) The Affiliate consents to the Company including information relative to traffic from the Affiliate’s site in the Company’s reports. This information may be provided to outside parties.
f) Affiliate may not place links to the Company's website or website content in newsgroups, message boards, unsolicited email and other types of spam, banner networks, counters, chat rooms, guest books, IRC channels or through similar Internet resources.
6) ANTI-SPAM POLICY
The Company strictly forbids the use of unsolicited commercial email (UCE) or SPAM campaigns. The Company maintains a “Zero-Tolerance” policy against SPAM, be it direct, a third party or any affiliate of Affiliate or similar agent acting on the Affiliate's behalf. As such, the Company reserves the right to terminate any violating Affiliate’s account or any part thereof, without notice or compensation.
Any Affiliate found to be involved in a SPAM/UCE campaign, including flooding newsgroups, distributing messages to Affiliates that do not want the information or any other abuse contravening UCE legislation will be met as follows:
a) The Affiliate’s Affiliate Program account will be closed immediately, without burden of notice or
7) CUSTOMER SERVICE
a) The Company will be responsible for handling all customer inquiries, Product orders, customer billing and collection, Product shipment relative to customers that enter the Company’s site through the links from the Affiliate’s site. Pricing of the Company’s Product and services is solely within its discretion and the Company reserves the right to change the pricing structure, terminate any special offers, discontinue Products or services, or change the terms under which Products or services are offered at any time, without any advanced notice to the Affiliate or users accessing the Company’s site. The Company’s sole responsibility to the Affiliate in this regard is to track customer orders that occur through links from the Affiliate’s website and provide reports to the Affiliate of the sale commissions due to the Affiliate as a result thereof. All such reports shall be un-audited. The Company will have no obligation to provide the Affiliate with any specific information relative to any customer, regardless of whether they access the Company’s site through the link from the Affiliate’s site.
b) The Company is not responsible for the failure to assign any sale or sale commissions to the Affiliate if the same results from the improper formatting of the link from the Affiliate’s website. The Affiliate should assure at all times that the link is appropriately formatted and shall report any problems that the Affiliate may have with the same to the Company immediately.
a) Sale commissions will be payable to the Affiliate based upon sales made to users who access the Company’s site through the Affiliate’s Sale commissions will be calculated based upon the gross sales price, but not including any shipping and handling, sales tax, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, and any other payment made to the Company that is not the purchase price for the Product that is purchased. Sale commissions will not be paid on amounts that are attributable to credit card fraud, credits given to customers, bad debt right-off and returned goods. The Company reserves the right to deduct in subsequent months for any sale commissions that the Company paid to Affiliate that is for Product that is subsequently returned or refunded, or for any other reason if the previous monthly sale commissions was overpaid or later subject to reduction.
b) The percentages to be payable as sale commissions hereunder are currently as set forth in Exhibit A at the end of this Agreement. The Company reserves the right to change and amend the sale commissions rate structure at any time, in the Company’s sole discretion.
c) Sale commissions will be payable only on sales that are tracked through the Company’s online tracking system that indicate the Affiliate’s website’s link as the original source, which sale occurred within 30 calendar days of the most recent visit to the Company’s site through the Affiliate’s website. There is no right to a sale commission if (i) a user makes a purchase outside of such 30-day period or (ii) a user later returns to the Company’s site through another link or source other than through the Affiliate’s website and makes a purchase. All sales made within 30 calendar days of the most recent visit to the Company’s site through the Affiliate’s website will (i) be tracked in the Company’s online tracking system and (ii) count towards sale commissions calculations.
d) The Company will pay a sale commission only upon collection by the The Affiliate has no right to sale commissions until the applicable customer has paid the Company in full. Only purchases that are made through the Company’s online ordering process will count towards sale commissions calculations.
e) Sale commissions will be paid to the Affiliate on a monthly basis on or about 15 days following the end of the month for amounts received by the Company during the previous month. The Company does not guarantee an exact date of calculation or payment of sales commissions. Commissions are paid that have a balance of $100 or more on a monthly basis or after ninety days if the commission balance does not reach $100. If your commission balance does not reach $100 or more within any given month, you can contact us to request payment to be paid on the 15th of the following month.
9) CUSTOMERS’ PROVENANCE
All parties who make purchases through the Company’s website, regardless of whether they may have reached the Company’s website through the link from the Affiliate’s website, are deemed to be the Company’s customers and not the Affiliate’s customers relative to the Company’s Product and services. The Company will have the right to contact these customers and send future marketing offers to them. The Affiliate will have no right to sale commissions on subsequent purchases that may be made by these customers, except for subsequent purchases that may be traced at the time of purchase through a link from the Affiliate’s website. Additionally, all such customers and purchases will be subject to the Company’s policies, procedures, rules and regulations and the Affiliate has no right or authority to amend or offer any different offers relative to the purchase of Product from the Company’s website. The Company, however, reserves the right to amend any of its terms, conditions, policies, procedures, pricing, payment policies, collection policies, and all other items relative to the Company’s business and sale of Product at any time in its sole discretion.
10) TRADEMARKS AND COPYRIGHTS
a) The Affiliate will have a non-exclusive, limited term license to use the trademarks, logos, and copyrighted material that the Company provided to the Affiliate for use solely on the Affiliate’s website, and any owned social media accounts, email programs and other marketing campaigns associated with said website or websites, that the Affiliate indicates on Exhibit B. The Affiliate may only use the images that the Company specifically makes available to Affiliate Program members at the area of the Company’s website that is specifically designated as approved images. The Affiliate may not distribute, reproduce, modify, or amend these images in any way. The Affiliate may use these images only for the purposes of promoting the Company’s website and Product on the Affiliate’s website in compliance with the Affiliate Program policies and procedures and the terms of this Agreement. The license so granted is subject to complete compliance with all terms and conditions of this Agreement and any policies the Company may create and amend from time to time regarding the Affiliate Program.
b) The Affiliate will only use such items in the form, size, content, and appearance that the Company provided them to the Affiliate. The Affiliate is not permitted to modify them. The Affiliate agrees to display these items prominently on the Affiliate’s website and associated marketing channels. These items may only be used if they contain a hypertext link to the Company’s website. This license shall immediately terminate upon the termination from the Affiliate The Company may also terminate this license upon notice to the Affiliate in the event that the Affiliate’s use of these items is contrary to or does not conform with the Company’s standards, such standards to be determined in the Company’s sole and absolute discretion. The Affiliate agrees that the Company retains all right, title and interest in and to all such materials. The Company will retain all goodwill and other value associated with any of these materials. The Affiliate will not gain any trademark, copyright or other proprietary rights to such materials. The Affiliate agrees not to take any action that is contrary to or inconsistent with the Company’s rights to these materials. The Affiliate will not use these materials in any way that is damaging, defamatory, disparaging, derogatory, or negative to the Company or that paints the Company in a false or negative light. The Company may revoke the limited license granted hereunder at any time in writing to the Affiliate. Upon termination or revocation, the Affiliate will immediately cease from any use this material.
c) The Affiliate is not permitted to use any other proprietary materials, including but not limited to trademarks, copyrights, logos, text, and any other materials that belong to the Company or to any other party and which may appear on the Company’s website.
11) PRODUCT AVAILABILITY
The Company cannot guarantee Product availability or the term of any price or special promotion or offer.
The Affiliate is responsible for all matters pertaining to the Affiliate’s website including its development, maintenance, operation and placing links on the Affiliate’s site in compliance with the terms of the Affiliate Program. The Affiliate is solely responsible for all items that appear on its site and for assuring that such items do not infringe upon or violate the rights of any other party. The Company is not responsible for any matter pertaining to the Affiliate’s site or the content thereof and the Affiliate holds the Company harmless and indemnifies the
Company from any and all claims, suits, threats, demands, liabilities, actions, causes of action related in any way to the Affiliate’s website and business. Such indemnity includes the Company’s costs and attorney fees in defending any such matter. The Affiliate represents and warrants to the Company that its site does not and will not contain any materials that are illegal, and that the Affiliate’s site is not operated for an illegal purpose or in an illegal manner.
The Affiliate further agrees to comply with all applicable laws, rule and regulations in connection with the performance of its obligations under this Agreement and that failure to comply therewith shall constitute a material breach of this Agreement for which the Company may terminate this Agreement immediately.
13) REPRESENTATIONS AND WARRANTIES
The Affiliate hereby represents and warrants to the Company to have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry of this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. The Affiliate’s entry of this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court or administrative order.
The effectiveness of this Agreement shall not commence until the Affiliate’s signature to this Agreement is accepted by the Company. This Agreement shall remain in full force and effect until terminated by the Affiliate or by the Company. Either the Company or the Affiliate may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via Email to the Affiliate at the Email address on Exhibit B. Any and all notices to the Affiliate via Email at such address shall be deemed to be effective notice to the Affiliate for all purposes.
The Affiliate will forfeit all right to receive past sale commissions that may have accrued to the Affiliate if this Agreement is terminated as a result of the Affiliate’s failure to comply with the terms of this Agreement or any policies and procedures of the Affiliate Program that may be established and amended by the Company in its discretion from time to time. If this Agreement is terminated for any other reason, the Affiliate will have a right to receive its accrued sale commissions through the effective date of termination; provided, that if the Affiliate total sale commissions due hereunder do not exceed the Minimum Referral Fee, such accrued sale commissions shall be forfeited. The Company has the right to withhold final sale commissions payments for sufficient time in order to assure that the amount paid to the Affiliate is accurate and not subject to later adjustment for returns or any other reason. If following final payment, the Company determines that the amount of sale commissions that the Affiliate were paid in excess of sale commissions payable and due to Affiliate, as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from the Affiliate to the Company and the Company shall have all legal right to receive a refund of such overpaid commission payments from the Affiliate.
The Company reserves the right in its sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement upon notice to the Affiliate. Notice of any changes may be given via Email to the Affiliate or by posting such changes in the Affiliate Program sections of the Company’s website. Such changes and modifications will take effect upon transmission of Email or posting on the Company’s website. The Affiliate may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to the Affiliate and such termination shall be the Affiliate’s sole and exclusive remedy. In the event that the Affiliate continues to participate in the Affiliate Program following such modifications, the Affiliate will be deemed by the Affiliate’s continued participation to accept any and all such changes.
a) THE COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS THE COMPANY’S WEBSITE OR TO ACCESS THE COMPANY’S WEBSITE USING THE LINK FROM THE AFFILIATE’S WEBSITE. FURTHERMORE, THE COMPANY SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO THE COMPANY’S WEBSITE, THE AFFILIATE PROGRAM, THE AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM, THE AFFILIATE’S ABILITY TO MAKE ANY REFERRAL FEES OR OTHERWISE PROFIT THROUGH PARTICIPATION IN THIS AFFILIATE PROGRAM, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTIBILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON THE COMPANY’S COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE COMPANY’S WEBSITE OR ANY APPLICATION, INCLUDING BUT NOT LIMITED TO ITS LINK TRACKING FEATURES, WILL BE ERROR FREE OR THAT THE COMPANY’S WEBSITE OR ANY APPLICATION WILL FUNCTION WITHOUT INTERRUPTION.
b) THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LIABILITIES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, LOSS PROFITS, LOST BUSINESS OPPORTUNITY OR ANY OTHER DAMAGES; REGARDLESS OF WHETHER THE COMPANY WAS OR HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND TOOK NO ACTION TO PREVENT THE SAME.
c) Without limiting the forgoing, the Company’s total liability for any damages arising hereunder shall never exceed the total sale commissions paid and payable by the Company pursuant to the terms hereof.
In the event that any information is disclosed to the Affiliate through the Affiliate participation in the Affiliate Program related in any way to the Company and its business which the Company deems to be confidential and proprietary, the Affiliate agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Affiliate’s own purposes. Confidential information will include any information regarding the Company’s changes or modifications to this Agreement or this Affiliate Program (which the Company shall have no obligation to make) or any special treatment that the Affiliate may receive (which the Company reserves the right to provide in its sole discretion to any affiliate).
Confidential information shall also include any and all information related to the Company’s business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which the Company considers to be confidential and proprietary.
The Affiliate hereby indemnifies and holds the Company, and all of the Company stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Company may incur and which are based in whole or in part upon the Affiliate’s participation in the Affiliate Program, any claims that any of the Affiliate’s trademarks and other proprietary material infringe upon the rights of any other party, the Affiliate’s breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Affiliate’s use, operation or the content of the Affiliate’s website.
20) GOVERNING LAW
This Agreement shall be interpreted under the laws of state of Idaho. Any and all legal actions relative hereto shall be in the state and federal courts of Idaho.
21) RELATIONSHIP OF THE PARTIES
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, agent/servant. The Affiliate has no power or authority to bind the Company to any obligation, agreement, debt, or liability. The Affiliate shall not hold itself out as an agent or representative of the Company.
Notices to the Company shall be by certified mail, return receipt requested addressed to 10464 N Government Way, Suite 2 Hayden, ID 83835, or such other address that the Company provides notice of to the Affiliate via email or by posting the same on the Affiliate section of the Company website. Notices to the Affiliate shall be by email addressed to the email address that the Affiliate provided to the Company on Exhibit B or by posting such notices on the Affiliate section of the Company’s website. It shall be the Affiliate responsibility to check the Affiliate section of the Company website periodically to monitor all notices set forth thereon.
This Agreement is only for the benefit of the Affiliate. The Affiliate shall have not right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
24) ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding between the parties with respect to the Affiliate Program and supersedes any and all prior discussions, understandings, agreements, representations, warranties or covenants between the parties related to the Affiliate Program only. This Agreement may only be amended by a writing signed by the authorized representative of each of the parties, except as otherwise set forth herein. Any waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent or other breach or default and shall not serve to modify the agreements set forth herein.
If any provision or term of this Agreement is held to be invalid for any reason, it shall not affect the enforceability of the remainder of this Agreement or any other term or condition of this Agreement.