TERM AND CONDITIONS OF AFFILIATE AGREEMENT
The following terms and conditions will be effective if and only if Alima accepts your application to enroll in the Alima Affiliate Program. By enrolling as an Affiliate in the program, you agree to be bound and abide by such terms and conditions.
1. Referral Fees. We will pay you referral fees on eligible product sales to customers as provided in Section 2. For a product sale to be eligible to earn a referral fee, the customer must follow a Referral Link from your Affiliate Site to our Site, select and purchase eligible products using our online ordering system, accept delivery of the products, and remit full payment to us (“Qualified Purchase”). If a customer leaves our website but returns within 30 days to purchase products initially viewed through a Referral Link such a purchase will be deemed a Qualified Purchase and we will pay a referral feel. However, note that we will not pay referral fees in cases where customers make an un-traceable follow-up purchases after using a Referral Link. For example, if a customer uses a different computer or device to make a purchase, or if a customer deletes or disables cookies on their computer or device it is impossible to reliably connect such follow-up purchases to use of a Referral Link.
Affiliates and employees of Affiliates may not purchase products through the Referral Links on your Affiliate Site for personal use, resale, or commercial use of any kind. Alima reserves the right to not pay referral fees for any purchases determined to be in violation of this prohibition; and/or the right to retain and offset referral fees for any such sales that Alima may discover at any time.
2. Referral Fee Schedule. Referral fees you earn will be in amounts established by us and posted on our Site in a Referral Fee Schedule, incorporated into this Agreement by reference. You will be able to review the Referral Fee Schedule on your account dashboard. We reserve the right to modify the Referral Fee Schedule at any time in our sole discretion upon prior notice to you. Referral fees shall be calculated as a percentage of revenues derived by us from Qualified Purchases, excluding revenues associated with shipping, handling, gift-wrapping, taxes, and any other service charges. Referral fees will only be available for products that we designate.
3. Referral Fee Payment. We will pay referral fees on a monthly basis. Approximately 45 days following the end of each calendar month, we will send you a check for the referral fees earned on Qualified Purchases of products that were shipped during that month. However, if the referral fees payable to you for any calendar month are less than $25.00, we will hold those referral fees until the total amount due is at least $25.00 or until this Agreement is terminated. If products that generated referral fees are returned by a customer (for any reason), we will deduct the corresponding referral fee from subsequent payments. Upon termination of this Agreement, and for a period of one year thereafter, if returns generate a negative balance we will issue you a bill for returned product referral fees.
4. Links on Your Site. To accurately track sales and referral fees, we will provide you with special website links back to our Site (“Referral Links”) to be used on your Affiliate Site. You must ensure that each of the links between your Affiliate Site and our Site uses all formats and embedded codes provided by our Referral Links. We will not be responsible for any error in the placement or deployment of Referral Links on your Affiliate Site, even if such errors result in any loss or reduction of referral fees. We shall have no obligation to calculate or pay referral fees that would have been generated in the absence of errors in the use or deployment of Referral Links. Each Referral Link will be in a form that displays images words and other content determined by Alima. Through your account dashboard you may create as many Referral Links as you wish.
5. Order Processing. We will process product orders placed by customers who follow Referral Links from your Affiliate Site to our Site. We reserve the right to reject orders that do not comply with any and all requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase products using Referral Links from your Affiliate Site to our Site and will make available to you reports summarizing sales activity on your account dashboard. The form, content and frequency of the reports may vary from time to time at our discretion. You hereby agree not to disclose the information contained in these reports to any third party without prior written consent from Alima.
6. Policies and Pricing. Customers who buy products through the Affiliate Program will be deemed to be Alima customers. Accordingly, all Alima rules, policies and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change such policies and operating procedures at any time at our discretion.
7. Alima Marks. The trademarks, trade names, website banners, designs, images and logos made available to you through our Site and the Referral Links are the exclusive intellectual property of Alima (“Alima Marks”). Subject to the terms and conditions of this Agreement, Alima grants you a limited non-exclusive, nontransferable, revocable license to use the Alima Marks during the term of this Agreement exclusively in connection with the Affiliate Program. You will not (a) modify the Alima Marks, or (b) cause any act or thing that would impair our rights in the Alima Marks or damage the reputation for quality inherent in the Alima Marks. Further, you acknowledge (a) your use of Alima Marks does not convey to you any right, title or interest in or to the Alima Marks; (b) Alima ownership of the Alima Marks, (c) you may not contest the Alima Marks, register or attempt to register in any jurisdiction any Alima mark or any confusingly similar mark or trade name; (d) you shall identify the Alima Marks by including appropriate symbols and notices reasonably requested by us; (e) you may not obtain or use the Alima Marks except as provided in this Agreement; and (f) your use of the Alima Marks, including all goodwill associated with such use, shall inure solely to the benefit of Alima
9. Responsibility for the Affiliate Site. You are solely responsible for the development, operation and maintenance of your Affiliate Site and for all materials that appear on your Site, including, but not limited to the Referral Links. Furthermore, you bear sole responsibility for ensuring the accuracy and appropriateness of materials posted on your Site (including but not limited to all product-related materials) and ensuring that content posted on your Site does not violate or infringe upon the rights (including, but not limited to, copyrights, trademarks, privacy or other personal or proprietary rights) of any third party or violate any provision of this Agreement or any applicable national, state, regional or local laws or regulations.
We disclaim all liability for the matters stated in this Section. In addition, you agree to indemnify and hold us and Refersion harmless from all claims, damages and expenses (including, without limitation, attorneys' fees) relating to the content development, operation, maintenance and contents of your Affiliate Site or any breach of your obligations under this Agreement.
10. Term of the Agreement; Termination. The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either of us. Either you or Alima may terminate this Agreement at any time, for any reason, with or without cause, by giving the other party written notice of termination. Upon termination of this Agreement, (a) all licenses hereunder shall terminate, (b) you will immediately remove any Referral Links, Alima Marks, and other Alima intellectual property or brand features from your Affiliate Site, and (c) Alima shall immediately remove any of your logos, marks, and brand features from the alimapure.com site. In addition to the right to terminate this Agreement, Alima shall be entitled, in addition to any and all remedies of law, to seek damages for breach of this agreement, including, injunctive relief, and/or refund of the fees and other payments made pursuant to the terms of this Agreement.
11. Modification. We reserve the right to change or modify the terms and conditions contained in this Agreement, at any time and in our sole discretion. Any changes or modifications will be effective upon posting of the revisions, and posting notice of such changes to the Site. Alima may deliver notice by posting a change notice or a new agreement on our Site or by giving you notice of the change or modification via email. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. If any modification is not acceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following our posting of a modification (including a new Agreement) on our Site will constitute your acceptance of the modification.
12. Relationship of Parties. Alima and the Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your Affiliate Site or otherwise, that reasonably would contradict anything in this Section.
13. Limitation of Liability. YOU UNDERSTAND AND AGREE THAT ALIMA AND REFERSION SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALIMA AND/OR REFERSION’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. All claims made hereunder by you against us shall be made within six months of the act or omission which forms the basis of such claims.
14. Disclaimer of Warranties. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, we make no representation that the operation of our Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors or termination of any services, products or this Agreement.
15. Assignment and Successors. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against, the parties and their respective successors and assigns.
16. Publicity. You agree and understand that under this Agreement you shall not utilize media releases of any kind, other than those expressly authorized under this Agreement or otherwise authorized by Alima in writing, in order to publicize your relationship with Alima. Furthermore, absent express approval from Alima under the terms of this Agreement or otherwise, you shall not use any Alima Mark, trademark, service mark, logo or any other information which identifies Alima in your sales, marketing and publicity activities and/or materials, including, but not limited to interviews with representatives of any written publication, television station or network, or radio station or network, and publication in any website, digital media, print, video or audio media.
17. Governing Law, Jurisdiction, and Venue. This Agreement will be governed by the laws of the United States and the State of Oregon, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought only in the federal or state courts located in Portland, Oregon, and you irrevocably consent to the jurisdiction of such courts.
18. Injunctive Relief. You expressly agree that your violation of this Agreement may cause irreparable harm to Alima and that a remedy at law in such a case would be inadequate. Therefore, in addition to any and all remedies available at law, Alima will be entitled to seek an injunction or other equitable remedies in all legal proceedings, without the need to post a bond of any kind, in the event of any threatened or actual violation of any or all of the provisions hereof which may threaten irreparable harm to Alima.
19. Attorneys’ Fees. In the event any action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party shall be entitled to receive from the other party, shall be entitled to receive its reasonable attorneys' fees and costs incurred in bringing such action, up to and through any appeal.
20. Waiver and Severability. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. The failure of either party to enforce any right or remedy shall not be deemed a waiver of said right or remedy. If any provision of this Agreement is determined to be invalid or unenforceable, it will be deemed to be modified to the minimum extent necessary to be valid and enforceable. If it cannot be so modified, it will be deleted and the deletion will not affect the validity or enforceability of any other provision unless, as a result, the rights of either party are materially diminished or the obligations and burdens of either party are materially increased so as to be unjust or inequitable.
21. Scope of Agreement. This Agreement and the Referral Fee Schedule constitutes the entire agreement and understanding between us with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous written or oral agreements or representations between us.