PhantomPlate Affiliate Agreement
This Agreement contains the complete terms and conditions that apply to an individual’s or entity’s participation in the PhantomPlate Affiliate Program (the “Program”). As used in this Agreement, “we”, “us” or “ours” means PhantomPlate, and “you”, “your” or “yours” means the participating individual or entity. “Site” means a World Wide Web site and, depending on the context, refers either to Phantomplate site, located at the URL www.phantomplate.com or to each site that you will link to our site (each of which you will identify in your Program application). Your failure to comply with any provision of this Agreement shall be grounds for Phantomplate to terminate this Agreement immediately and for your forfeiture of any commissions.
In consideration of the covenants and agreements herein, the sufficiency of which is acknowledged, the parties hereby agree as follows:
1. Enrollment If accepted as a participant in the Program, you will be granted (subject to the terms and conditions of this Agreement) the non-exclusive right to earn commissions on certain sales generated by Phantomplate from customers voluntarily referred to our site from your site by means of an Internet hypertext transfer link placed on your site. To become a participant in the Program, you will first have to submit a complete Affiliate Program Application via our site. We will evaluate your application and notify you by email whether your Affiliate Program Application has been accepted or rejected. We may reject your application if we determine, in our sole discretion, that your site or business is not suitable for the Program for any reason. If we reject your application, then none of the terms and conditions of this Agreement shall apply to you, except for Sections 1 and 13.
- Setting Up Banner Links. During the term of this Agreement, we will make available to you on a non-exclusive basis banner links. Such Banner Links may contain a particular PhantomPlate logo, product, words identifying PhantomPlate and/or text. Using Banners. You may display the banners on your site, provided you abide by the terms and conditions of this Agreement. In using the banners, you agree to cooperate fully with us in order to establish and maintain such banners. All Affiliate sites shall display such banners prominently on relevant portions of the sites, with our consent. You shall use only those banners that we provide to you or those approved in writing by us, and to substitute those banners with any new banners that we may provide from time to time during the term of this Agreement. You shall comply with all guidelines provided by us with respect to the graphic reproduction, appearance and “look and feel” of the banners and all references to us.
- No Spam or Forced Linking. You shall not send unsolicited commercial email (“spam”) with a Link, our URL or any other reference to PhantomPlate or its products or services referenced in the email. You also shall not force visitors to our site via any mechanism which acts as an automatic transport, such as “meta refresh” or “forced exit” scripts. This Agreement shall terminate immediately and automatically if you direct traffic to our site through the use of spam or any automatic transport mechanism or otherwise use a banner in an unauthorized fashion, and in such case, all commissions earned shall be immediately and automatically forfeited.
Order Processing. We will be responsible for processing all orders placed by customers who follow the Links from your site to our site. All aspects of order processing and fulfillment, including order entry, customer service, shipping, cancellations, returns and payment processing will be our sole responsibility. You shall not misrepresent PhantomPlate or otherwise make any claims, representations or warranties in connection with our products or services, and shall have no authority to, and shall not, bind us to any obligations.
- Calculation.We will pay you a commission equal to twenty percent (20%) of Net Sales for all purchases made by customers within thirty (30) days after the customer followed a Link to our site from your site, for which we have received full payment. Net Sales shall include those amounts received by us for the sale of products fewer amounts collected by us for sales, use or other taxes, duties, shipping, handling, returns, credit card fraud, and similar charges. A commission will only be paid if the visitor to our site is tracked by our system from the time of the banner link to the time of the sale.
- Earning Commissions. For a sale to generate a commission, the customer must: (a) follow a banner link from your site to our site or send traffic through a re-direct from your site; (b) purchase the product in question using our online ordering system within thirty (30) days after first following the Link to our site; and (c) remit full payment to us. You shall have no claims to commission or compensation on business secured by or through other persons or entities. Also, we will not issue a commission payment to you if you refer yourself from a Link that is operated or controlled by your site.
- Click Commission: Phantomplate pays $0.05 for every click directed to Phantomplate.com through the affiliate’s website. For affiliates that drive high traffic (greater than 500 clicks in a monthly accounting period), commissions will only be paid if the click to sale conversion ratio is equal to or better than 1:300 (1 sale for every 300 clicks) in a monthly accounting period. Phantomplate reserves the right to evaluate this based on past performance to make an exception.
- Payment. We will pay your commission on a calendar monthly basis. Within approximately thirty (30) days following the end of each month, we will send you a check for the commission earned on products sold and paid for during the preceding month, less any taxes required to be withheld under applicable law. If the commission payable to you for any quarter is less than fifty ($200.00) U.S. dollars, we will hold those commissions until such time as your commission earned equals at least two hundred ($200.00) U.S. dollars. If a product sale that generated commission is returned by the customer or discounted, we will deduct the corresponding commission from your next monthly payment. All payments shall be made in U.S. dollars. PhantomPlate shall not be responsible for exchange rate fluctuations or currency conversion costs.
- Ownership. You acknowledge and agree that all right, title and interest in all PhantomPlate logos, trade names, trademarks and service marks, including those incorporated in Links (collectively, the “MySQL Marks”), are the sole and exclusive property of PhantomPlate and may not be used without our prior written consent.
Obligations Regarding Your Site.
- Operation. You will be solely responsible for, and PhantomPlate shall have no liability related to, the development, operation and maintenance of your site.
- No Confusing Content. You agree that the domain name for your site does not and will not contain the “phantomplate” mark, or any variation of “phantom” and “plate.” Your site may not copy, “co-brand” or “frame” our site or otherwise have any portion of our site visible on your site or otherwise have any portion of your site visible on the screen once a user has clicked through to our site. Your site will not in any way copy any content from, or resemble the look and feel of, the PhantomPlate site, nor may it or you create the impression that your site is the PhantomPlate site or is part of the PhantomPlate site. All content on the PhantomPlate site is the copyrighted material of PhantomPlate or a third party and may not be copied without prior written permission from PhantomPlate. All banners and links used by you to link to our site must be downloaded from our affiliate software in accordance with the terms of this Agreement. Under no circumstances may any Affiliate site in any way state or imply (in text or otherwise) that the site offers or sells PhantomPlate products or services on sale, off-price, at a discount, or otherwise at lower than regular prices.
Term & Termination.
- Term. The term of this Agreement will begin upon our acceptance of your Affiliate Program Application and will end when terminated either by you or us. At any time, either you or we may terminate this Agreement, with or without cause, by giving the other party written a notice of termination. If this Agreement is terminated for any reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
- Effect of Termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all Links and any other materials provided by or on behalf of us to you pursuant to this Agreement or in connection with the Program, and return to PhantomPlate all of its confidential information. The provisions of Sections 2.3, 5.1, 5.3, 6.1, 6.2, 8, 9, 11, 12, 13 and 14.3 through 14.6 shall survive any termination of this Agreement.
Limitation of Liability. We will not be liable for indirect, incidental, special, exemplary or consequential damages, or any loss of revenue, profits or data arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, and notwithstanding any other provision of this Agreement, our aggregate liability arising with respect to this Agreement and the Program for any reason and upon any cause of action will not exceed the total commissions paid or payable to you under this Agreement during the twelve (12) month period immediately before you were to make and notify us of a claim. This limitation applies to all causes of action in the aggregate, including (without limitation) breach of contract, breach of warranty, negligence, misrepresentations and other torts. No action, regardless of form, arising out of this Agreement may be brought by you more than one (1) year after the cause of action has accrued. Both parties understand and agree that the remedies and limitations herein allocate the risks between the parties as authorized by applicable laws. The fees herein reflect, and are set in reliance upon, this allocation of risk and the exclusion of consequential and other damages set forth in this agreement. Disclaimer. We make no express or implied warranties or representations with respect to the Program, the PhantomPlate website, the Links or any products sold through the Program, including (without limitation) implied warranties of merchantability, fitness for a particular purpose, non-infringement, system integration, NON-INTERFERENCE AND ACCURACY OF INFORMATIONAL CONTENT. 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. Representations and Warranties. You hereby represent and warrant to us the following: (a) this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; (b) the execution, delivery and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate any provision of law, rule or regulation to which you are subject, any order, judgment or decree applicable to you or binding upon your assets or properties, any provision of your by-laws or certificate of incorporation or organization or any agreement or other instrument applicable to you or binding upon your assets or properties; (c) you are an adult of at least 18 years of age; and (d) your site complies, and shall continue during the term of this Agreement to comply, with all applicable laws.
Confidentiality. As a result of your participation in the Program, we may disclose to you certain information which we consider to be confidential (“Confidential Information”). Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own 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.
Indemnification. You hereby agree to indemnify, defend and hold harmless PhantomPlate, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys’ fees and costs) of any nature whatsoever incurred or suffered by us (collectively the “Losses”), in so far as such Losses (or actions in respect thereof) arise out of or are based on: (a) any claim or threatened claim that our use of any Affiliate Banner or other material provided by you infringes on the copyright, trade secret, trademark, patent or other intellectual property rights, proprietary rights or other rights of any third party; (b) the breach of any representation or warranty made by you herein, or any of your obligations herein; or (c) any claim related to your site.
Assignment. You may not assign, sublicense or otherwise transfer this Agreement or any of your rights or obligations hereunder, by operation of law or otherwise, without our prior written consent, which may be withheld in our sole and absolute discretion. 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.
3. Other Provisions.
- Relationship of Parties. PhantomPlate and you are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You have no authority to make or accept any offers or representations on our behalf and agree not to make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
- Modification. We may modify any of the terms and conditions contained in this Agreement at any time and in our sole discretion. Posting on our site of a change notice or a new agreement is considered sufficient notice, although we may also notify you of changes by email. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement on our site, or notify you by email, will constitute binding acceptance of the change. You agree always to provide us with timely written updates of your contact information.
- Interpretation. The parties have agreed to execute this Agreement in the English language. In the event of any dispute in connection with this Agreement, the English language version of the Agreement will control for all purposes. Any action brought under this Agreement shall be conducted in the English language. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement. The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
- Governing Law. If your principal place of business or place of organization is in the United States of America, then this Agreement shall be deemed to have been executed in the United States of America and shall be governed by the laws of the State of Delaware, without regard to the conflict of laws provisions thereof. If your principal place of business or place of organization is in any country other than the United States of America, then this Agreement shall be deemed to have been executed in Sweden and shall be governed by the laws of Sweden, without regard to the conflict of laws provisions thereof. In no event shall the United Nations Convention on Contracts for the International Sale of Goods apply to, or govern, this Agreement.
- Dispute Forum. The parties hereby consent to the exclusive jurisdiction of the courts of Sweden and the State of Delaware, United States of America, as provided in this Section. In the event that we initiate an action in connection with this Agreement or any other dispute between the parties, the exclusive jurisdiction of such action shall be in (a) Newark, Delaware, if your principal place of business or place of organization is in the United States; or (b) Uppsala, Sweden, if your principal place of business or place of organization is in any country other than the United States. In the event that you initiate an action in connection with this Agreement or any other dispute between the parties, the exclusive jurisdiction of such action shall be in Stockholm, Sweden. Notwithstanding the foregoing, either party may bring a counterclaim in an action in the same jurisdiction in which the originating claim was filed, and either party may enforce any judgment rendered by such court in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek injunctive or other equitable relief in any jurisdiction in order to protect our intellectual property rights.
- 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.
Independent Investigation. You acknowledge that you have read this Agreement, have had an opportunity to consult with your own legal advisors if you so desired, and agree to all its terms and conditions. You understand that we may at any time, directly or indirectly, solicit customer referrals on terms that may differ from those contained in this Agreement or operate sites that are similar to or competitive with your site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.