This Affiliate Agreement (this “Agreement”) contains the complete terms and conditions between MindToaster Limited (“MindToaster” or “we”), and you, regarding your application to serve as an affiliate (an “Affiliate”) of MindToaster. As an Affiliate, your role will be to promote the HolyCrossStore products owned and operated by MindToaster (the “Product”).
Acceptance by you of this Agreement as set forth below constitutes your acceptance of the terms and conditions of this Agreement, and will be a legally binding agreement between you and us.
1. AFFILIATE PROGRAM APPLICATION AND ENROLLMENT. To become an Affiliate you will have to submit a completed Affiliate program application (“Affiliate Program Application”). We will evaluate your application and, where applicable, notify you of your acceptance. We may reject your application if we determine, at our sole discretion. If we reject your application, you are welcome to reapply to the Affiliate Program at any time.
2. LEGALITY; ELIGIBILITY. USE OF THE PRODUCT IS LIMITED TO ONLY SUCH PERSONS WHO MAY DO SO UNDER THE LAWS OF THE COUNTRY(IES) AND/OR JURISDICTION(S) TO WHICH THEY ARE SUBJECT. WITHOUT DEROGATING FROM THE ABOVE, EACH USER MUST BE A NATURAL PERSON WHO IS A RESIDENT AND CITIZEN OF COUNTRY/JURISDICTION ALLOWING ACCESS TO OUR WEBSITE (THE “WEBSITE”) AS WELL AS USE OF THE PRODUCT. WITHOUT DEROGATING FROM ANY OTHER PROVISION HEREIN, IT IS SPECIFICIALLY STATED THAT ACCESS TO AND/OR ANY USE OF, THE WEBSITE AND/OR THE PRODUCT AND/OR ANY SERVICES PROVIDED BY MINDTOASTER BY ANY RESIDENT AND/OR CITIZEN OF THE UNITED STATES OF AMERICA IS PROHIBITED. YOU MUST ABIDE BY ALL RULES AND REQUIREMENTS SET FORTH IN THE TERMS AND CONDITIONS OF OUR WEBSITE (THE “GENERAL TERMS AND CONDITIONS”) WITH RESPECT TO LEGALITY AND ELIGIBILITY OF USERS OF THE PRODUCT.
3. ACTIVITIES. In the event of your acceptance in the Affiliate Program, you will be authorized to act as an Affiliate, strictly in accordance with all terms and conditions set forth in this Agreement and in accordance with all guidelines and requirements of MindToaster, as they may be from time to time. Prohibited activities may include (but are not limited to) any activity that we deem to be in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable, which by way of example only contains (i) sexually explicit, pornographic, or obscene content (whether in text or graphic), (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise) (iii) graphic violence (iv) politically sensitive or controversial issues or (v) any unlawful behavior or conduct. You hereby acknowledge that your conduct as an Affiliate shall reflect on MindToaster and has the potential to cause substantial damage to MindToaster’s reputation and goodwill and that you shall at all times consider the goodwill and reputation of MindToaster and MindToaster’s name. Any violation of the above undertakings or any other act of yours against MindToaster or against any of its employees, such as disparagement of MindToaster or any such person or acting against their interest shall be deemed a material breach of the terms of this Agreement. We will make available to you, banner advertisements, button links, text links, and other links as determined by MindToaster, which shall all link to our Website (collectively hereinafter referred to as “Links”), which you may use for purposes of this Agreement, provided you abide by the terms and conditions of this Agreement and by any guidelines and requirements of our as they may be from time to time, at our sole and absolute discretion. In any event that we determine that your use is not in compliance with the terms and conditions of this Agreement or our guidelines or requirements, we shall be entitled to take such measures, as to render inoperative the Links used by you. You may not advertise the Product in any way not approved in advance by MindToaster including, without limitation, the use of spam e-mails.
4. PAYING CUSTOMER. A “Paying Customer” shall mean any person who shall access our Website via a Link provided by you and purchased at least one product from the website. To permit accurate tracking, reporting, and commission accrual, you must ensure that the Links are properly formatted throughout the term of this Agreement.
5. COMMISSIONS. With respect to any Paying Customer, MindToaster shall pay you according to the commission scheme set forth on our Website. We hereby retain the right to amend the commission scheme by which you shall be paid as we shall see fit. MindToaster shall normally pay within fifteen (15) days following the end of each month during which a Paying Customer was created by you. MindToaster may deduct any and all process and handling fees which may apply with respect to any manner of funds transfer or payment elected by it, at its sole discretion. To the extent that any commissions paid to MindToaster shall be subject to refunds, deductions, etc. (e.g., due to charge backs, etc.), such refunds, deductions, etc. shall be applied to you as well, including with respect to any monies which may already have been paid to you. You are urged to provide accurate details in regard to the manner and information relating to your preferred method of receiving commissions, however MindToaster has the right and discretion to determine the manner of payment. MindToaster shall not be held liable for your delayed receipt of commissions due to your provision of inaccurate details. All commissions and payments include all taxes, tariffs and compulsory payments which may apply, such as VAT, etc., and to the extent required, MindToaster may deduct and/or withhold all such taxes which may be due. New affiliates that get 5 or more new Paying Customer in their first 30 days from joining the program will get a $50 bonus paid on their first affiliate payments. This is a one-time bonus for new affiliates.
6. FRAUD. MindToaster retains the right to review all commissions for possible fraud. During the period of time in which MindToaster shall review commissions for possible fraud, such review period not to exceed one hundred and eighty (180) days, MindToaster shall have the right to withhold any commission accrued in your favor until such time as the review has been concluded. Any incidence of fraud constitutes a breach of this Agreement, and MindToaster retains full authority to terminate this Agreement immediately in the event of such breach. Further, in the event that MindToaster deems that fraud has occurred, you shall not be entitled to receive any commissions which have accrued to your benefit at such time whether such commissions were generated through fraud or otherwise. MindToaster retains the right to set-off from future commissions payable to you any amounts already received by you which can be shown to have been generated by fraud.
7. INTELLECTUAL PROPERTY. In the event of your acceptance to the Affiliate Program, we shall grant you a non-transferable, non-exclusive, revocable license to use the Links during the term of this Agreement, and solely in connection with the Links, to use our logos, trade names, trademarks, service marks, and similar identifying material (collectively, “Licensed Materials”), solely for the purpose of promoting the Product. You are not permitted to alter, modify, or change any Licensed Material in any way whatsoever. You may not use any Licensed Materials for purposes other than promoting the Product, without first submitting a sample of such use to us and receiving our prior written consent. You are not permitted to use any of the Licensed Materials in any manner that is disparaging or that otherwise portrays MindToaster or anyone else negatively. We reserve all of our intellectual property rights in the Licensed Materials. We may revoke your license to use the Licensed Materials at any time by notice to you. You acknowledge that, except for the license which may be granted to you in connection hereto, you have not acquired and will not acquire any right, interest or title to the Links or the Licensed Materials by reason of this Agreement or your activities hereunder. The aforementioned license shall terminate upon the termination of this Agreement.
8. OBLIGATIONS REGARDING YOUR SITE. To the extent that you shall be making use of any website owned or operated by you or otherwise under your control in any manner (each such website referred to as your “Site”), the following shall apply. You will be solely responsible for the technical operation of your Site and the accuracy and appropriateness of materials posted on therein. You agree that your Site will not, in any way, copy or resemble the look and feel of the Website and/or the Product. You also agree that your Site will not contain any content of the Product or any materials which are proprietary to MindToaster, except (i) with our prior permission, or (ii) materials obtained by you via the Affiliate Program information site in accordance with the provisions hereof or the policies or instructions therein. You will indemnify and hold MindToaster harmless from all claims, damages, and expenses (including, without limitation, attorney’s fees and expert witness fees) relating to the development, operation, maintenance, and contents of your Site or any materials, products or services linked to therein.
9. TERM. The term of this Agreement will begin upon your acceptance to the Affiliate Program and will end when terminated by either party. At any time, either party may immediately terminate this Agreement, for no reason. We reserve the right to withhold your final payment for any period of time, if payments from Paying Customers sent by you are delayed. Upon the termination of this Agreement for any reason, you will immediately cease use of all Links and Licensed Materials and any other names, marks, symbols, copyrights, logos, designs, or other proprietary designations or properties owned, developed, licenses or created with the Affiliate Program. Following the termination of this Agreement and our payment to you of all commissions due at such time of termination, we shall have no obligation to make any further payments or commissions to you. In the event of termination by MindToaster of this Agreement due to your breach of its terms, you shall not be entitled to receive any commissions which have accrued to your benefit at such time whether such commissions were generated through fraud, fraud or otherwise. Without derogating from any other right of MindToaster as set forth hereinabove, it is agreed that in any case of the lapse of a period of 90 days during which your activities have not generated any new Paying Customers, MindToaster shall be entitled to terminate this Agreement and terminate your account, including all tracking links and other components thereof, and you will no longer be entitled to receive any commissions.
10. REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant to us the following: (i) this Agreement has been duly and validly accepted by you and constitutes you legal, valid and binding obligation, enforceable against you in accordance with its terms; (ii) the execution, delivery and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not conflict with or violate any provisions of law, rule, regulation or agreement to which you are subject to; and (iii) you are an adult of at least 18 years of age. You further represent that you have evaluated the laws relating to your activities and obligations hereunder and you have independently concluded that you can enter this Agreement and fulfill your obligations hereunder without violating any applicable rule of law.
11. RELATIONSHIP OF PARTIES. You and MindToaster are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
12. CONFIDENTIALITY. We may disclose to you certain information as a result of your participation as part of the Affiliate Program, which information we consider to be confidential (herein referred to as “Confidential Information”). Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if the same is required by law or legal process.
13. LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS OR DATA ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE IMMEDIATELY PREECEDING 3 (THREE MONTHS) PRIOR TO THE EVENT ENTITLING YOU TO ANY DAMAGES, AND IN THE EVENT OF MULTIPLE EVENTS (WHETHER OR NOT RELATED OR SMILAR) – THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE IMMEDIATELY PREECEDING 3 (THREE MONTHS) PRIOR TO THE FIRST EVENT ENTITLING YOU TO ANY DAMAGES. ALSO APPLY ALL LIMITATIONS OF LIABILITY SET FORTH IN THE GENERAL TERMS AND CONDITIONS.
14. DISCLAIMERS. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR ANY OTHER PRODUCTS OR OTHER ITEMS SOLD THROUGH THE AFFILIATE PROGRAM (INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, 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 THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. ALSO APPLY ALL DISCLAIMERS SET FORTH IN THE GENERAL TERMS AND CONDITIONS.
15. INDEMNIFICATION. You hereby agree to indemnify, defend and hold harmless MindToaster, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, liabilities, damages or expenses (including attorneys’ fees and costs) of any nature whatsoever incurred or suffered by us (collectively “Losses”), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) the breach of this Agreement by you or any representation or warranty made by you herein; or (ii) any action or omission on your behalf.
16. ENTIRE AGREEMENT. The provisions contained in this Agreement constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and no statement or inducement with respect to such subject matter by any party which is not contained in this Agreement shall be valid or binding between the parties.
17. SUBJECT TO ADDITIONAL TERMS. Without derogating from any terms and conditions set forth i n this Agreement, with respect to any Property to whom you may be referring Users or otherwise market, it is your full personal obligation to comply with all the terms and conditions of such Property which may apply to you and your activities. Notwithstanding any and all terms and conditions set forth herein, it is clarified that MindToaster itself may be subject to any terms and conditions or Properties with which it may engage (” Third Party Terms and Conditions “), and such Third Party Terms and Conditions may affect the terms of this Agreement and limit or adversely affect your rights hereunder and/or as an Affiliate (e.g., different payment terms, etc.). In any such case, you hereby agree that all such Third Party Terms and Conditions shall prevail over the terms and conditions set forth in this Agreement or otherwise applying to you. For the avoidance of doubt, MindToaster is not required to inform you in advance of any Third Party Terms and Conditions, and any such Third Party Terms and Conditions may be amended from time to time at the sole and absolute discretion of MindToaster and the applicable third party.
18. MODIFICATION. We may modify any of the terms and conditions contained in this Agreement, at any time at our sole discretion. Posting on our Affiliate Program information site of a change of terms notice or a new agreement is considered sufficient provision of notice and such modifications shall be effective as of the date of posting. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement and you continued participation in the Affiliate Program following our posting of a change notice or new agreement on our Website will constitute binding acceptance of the change. Due to the above, we advise you to frequently visit the Affiliate Program information site and review the terms and conditions of this Agreement.
19. INDEPENDENT INVESTIGATION. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, HAVE HAD AN OPPORTUNITY TO CONSULT WITH YOUR LEGAL ADVISORS IF YOU SO DESIRED, AND AGREED TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THIS DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
20. MISCELLANEOUS. This Agreement and any matters relating hereto shall be governed by, and construed in accordance with the laws of the Israel alone, without regard to the principles of conflict of laws and shall be subject to the exclusive jurisdiction of the courts of the Israel. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, and any unauthorized assignment shall be deemed null and void. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and foreseeable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our rights to subsequently and for such provision or any other provision of this Agreement.
21. LANGUAGE DISCREPANCY. In case of any discrepancy between the meanings of any translated versions of this Agreement, the meaning of the English Language version shall prevail.