last updated: August 1, 2018
YOU MUST BE AT LEAST 18 YEARS OLD AND THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE TO ENTER INTO THIS AGREEMENT AND PARTICIPATE AS AN AFFILIATE IN THE STORETENDERONLINE.COM AFFILIATE PROGRAM. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. YOUR PARTICIPATION IN THE AFFILIATE PROGRAM IS SUBJECT TO THE APPROVAL OF ALOHA DATA SYSTEMS, INC. (“ADS”) AND ADS RESERVES THE RIGHT TO REJECT YOUR PARTICIPATION IN THE PROGRAM OR TERMINATE YOUR PARTICIPATION IN THE PROGRAM AT ANY TIME.
By submitting your request to become an affiliate, or continuing to maintain your affiliate relationship with us, you acknowledge that you have read and understood this Agreement and agree to be bound by its terms and conditions.
This Affiliate Agreement, together with the Program Rules (as defined below) and any other documents or materials referenced or incorporated herein (collectively, the “Agreement“) constitutes a binding agreement that governs your participation in the Affiliate Program operated by Aloha Data Systems, Inc. (“ADS“). As used in this Agreement, “we“, “us“, or “our” means ADS, and “Affiliate“, “you” or “your” means the person or entity entering into this Agreement to participate in the Affiliate Program.
ADS administers the Affiliate Program (“Affiliate Program“) on behalf of ADS-owned websites (each, an “ADS Site“).
The Affiliate Program allows Affiliates to refer internet traffic and customers to an ADS Site from website(s) or advertising networks owned or controlled by the Affiliate (“Affiliate Site“) using a Special Link (defined below). If such traffic results in an Action (as defined below), Affiliates may be paid a commission (“Commission“), which may be calculated as a fixed fee, a percentage fee, a bonus or other payment depending upon a program type (e.g., revenue share, pay per order or pay per member) (the “Program Type“) and in accordance with certain rules (“Program Rules“). Each ADS Site may have its own Program Rules, including rules for the manner and calculation of Commissions.
BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE. YOU FURTHER CONSENT TO THE COLLECTION AND PROCESSING OF CERTAIN PERSONAL AND OTHER INFORMATION ABOUT YOU. THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE CHANGED AT ANY TIME BY US IN OUR DISCRETION, WITH OR WITHOUT NOTICE.
We indicate at the top of the page when this Agreement was last updated. Your continued participation in the Affiliate Program following such changes will be deemed acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement. Your participation in the Affiliate Program indicates that you agree to the terms of this Agreement, the Terms of Service and End User License Agreement.
Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
a. “Action” means an order, sign-up or other action resulting in a Commission, as more thoroughly defined in the Program Rules (which may vary by ADS Site).
b. “Advertising Assets” mean banners, buttons, graphics, html or source code, or similar material provided by an ADS Entity.
c. “Chargeback” means the return of any funds to a person initiated by a financial institution or service including, but not limited to, a chargeback or reversal.
d. “Credit” means the return of any funds to a person including, but not limited to, an adjustment, credit, refund or return.
e. “Affiliate ID” (e.g., 12345) means the unique identifying number associated with a specific Affiliate.
f. “Special Link” means a URL that uses, alone or in combination with Advertising Assets, your authorized Affiliate ID and otherwise complies with any formatting guidelines specified by ADS.
In order to participate in the Affiliate Program, you will be required to create an account with us (“Account“). In creating your Account, you certify that all information you provide is complete and accurate. You agree to update such information when required or requested, and you further agree not to use another person’s account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, your Account and password, and you agree to accept sole responsibility for all activities that occur under your Account or password. You agree to notify us immediately of any breach of security or unauthorized use of your Account. We shall not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of your Account, and you agree to indemnify us and hold us harmless for any such unauthorized use. If you are establishing an Account on behalf of a company or other entity, the term “you” includes both you as an individual as well as such company or other entity. You represent and warrant that (a) you have the authority and capacity to enter into this Agreement, (b) you are a business and not a consumer, and (c) if you are entering into this Agreement on behalf of a company or entity, (i) you have the authority to bind such company or entity, and (ii) such company or entity has authorized you to accept this Agreement on its behalf.
3. LIMITED LICENSE TO USE ADVERTISING ASSETS
Affiliate represents and warrants that, if advertising ADS Sites on a web site, that it owns and/or operates the Affiliate Site and desires to place Advertising Assets on the Affiliate Site subject to the terms of this Agreement. ADS makes Advertising Assets available to promote the services of one or more of the ADS Sites. Such Advertising Assets may contain logos, trademarks, service marks and/or identifying words for the ADS Entities, ADS Sites and their products and services (“ADS Services“). You are granted a non-exclusive, non-transferable and revocable license to display these Advertising Assets throughout the Affiliate Site, subject to the terms and conditions of this Agreement and ADS’ policies and procedures. You may not alter, change, add to, or otherwise modify any Advertising Asset provided by us.
4. AFFILIATE’S RESPONSIBILITY FOR AFFILIATE SITE AND CONTENT
You will be solely responsible and liable for the development, operation, maintenance and all materials and content that appears on the Affiliate Site. You shall operate and maintain the Affiliate Site in accordance with all applicable laws, rules and regulations. We reserve the right to monitor the Affiliate Site to determine if you are in compliance with this Agreement.
5. MULTIPLE REFERRAL PROGRAM TYPES; MINIMUM THRESHOLD
As an Affiliate, you may participate in multiple Programs Types and be subject to one or more Commission rate schedules (“Schedules“). A current list of Programs Types and Schedules are posted on the applicable ADS Site. Your participation in a specific Program Types may require you to meet minimum thresholds based upon various factors including, but not limited to, the duration, fees paid, conversion ratio, etc. Commissions may be modified for, or excluded from, certain trial, promotional and similar offers. The prices charged to customers of any ADS Site are subject to change at any time. You may not include conflicting price information on the Affiliate Site related to any product or service provided by any ADS Entity or ADS Site. We will use reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product or service that we offer.
6. SPECIAL LINKS ON AFFILIATE SITE; COMMISSION TRACKING AND REPORTING
Special Links permit accurate tracking, reporting, and accrual of your Commission. You may only earn a Commission with respect to activity on the ADS Site occurring directly through Special Links. Special Links may be used alone or in combination with Advertising Assets. We will have no obligation to pay you a Commission if you fail to properly format the links as Special Links, including to the extent that such failure may result in any reduction of Commission fee amounts that would otherwise be paid to you under this Agreement.
Each ADS Site uses commercially accepted methods and practices, which may include session cookies, to track a person’s activities while on the ADS Site. (To learn more about cookies, see http://en.wikipedia.org/wiki/HTTP_cookie.) Such methods and practices are designed to determine when an Action occurs. Unless otherwise expressly provided in the Program Rules for the Program Type, in order for a Commission to be earned, a person referred from the Affiliate Site to an ADS Site must be tracked by such ADS Site from the time the Special Link to the ADS Site is activated (i.e., “clicked”) until the person completes the member registration process and creates an account with such ADS Site. We will not be liable to you or any other person for any Commissions or other amounts if we are unable to determine that an Action has occurred, whether due to a visitor’s or member’s browser settings, lack of Affiliate ID, antivirus software or otherwise. The cookies are generally set to expire 90 days after a person using an ADS Site terminates his or her browser session. If the cookie session expires before the creation of an account on such ADS Site, you will not earn and will not be entitled to receive a Commission based upon any subsequent Actions taken by such person. If a person completes the member registration process and creates an account on one ADS Site, you only receive a Commission for such person’s subsequent Actions on the same ADS Site, and not any other ADS Site. For purposes of illustration only, if (a) a visitor is directed and comes to an ADS Site from a Special Link on Site A, but does not complete the member registration process and create an account and then later returns to the ADS Site from a Special Link from Site B and creates an account, no Commission is earned by or payable to Site A; or (b) if a visitor is directed and comes to an ADS Site from Site A, but does not complete the membership registration process and create an account and later returns to the ADS Site or another ADS Site and creates an account, and no valid session cookie exists, no Commission is earned by or payable to Site A.
ADS takes commercially reasonable steps to provide you with online access to track and review (a) Actions resulting in Commissions taken by members directed to the ADS Site by the Affiliate Site, (b) Commissions accrued, and (c) certain other information using ADS’ online reporting tools on a password-protected webpage (the “Affiliate Page“). The Affiliate Page is updated “real-time” and is subject to final reconciliation, taking into consideration non-completed transactions, Chargebacks, Credits and other potential charges. The form, content and frequency of the Affiliate Page remain subject to change.
7. NO COMMISSION PAID
Not all paid products or services appearing on a given ADS Site entitle you to a Commission. Any ADS Entity may refuse to permit any person to establish an Account for any reason and may reject any Action that does not meet the ADS Entity’s requirements or policies and procedures in effect from time to time. For purposes of illustration only, an ADS Entity may reject an order for goods or services based upon a credit card with insufficient funds. You shall not earn or be entitled to receive any Commission:
a. attributable to any revenue collected by us arising out of any tax, royalty and/or duty that we, or those acting on our behalf, collect from any person using an ADS Site;
b. paid by us for any SMS, merchant processing or similar fees;
c. results in Chargebacks or Credits; or
d. if the Affiliate is not “Active” as defined by their specific Affiliate Program level (see Appendix).
8. PAYMENT; COMMISSION PAYMENT FLOOR AND SETOFF
ADS’ current policy is to issue, monthly, any Commission payments earned and owing in accordance with the Program Rules for the Program Type within thirty (30) days following the end of the calendar month when the Commission was earned. All Commissions are payable in U.S. Dollars. To the extent we receive non-U.S. Dollar currency for Actions, such currency will be converted into U.S. Dollars in accordance with ADS’ exchange rate policies and procedures. Commissions are posted to the Affiliate’s online account 1 day after end-user purchase.
If the amount accrued to you for any payment of Commissions is less than the minimum amount established by us (the “Commission Payment Floor“), we will hold such payment until the payment period after the total amount accrued is at least equal to the Commission Payment Floor. The Commission Payment Floor is currently $0.01 and subject to change at any time or from time to time in our sole discretion. We will use commercially reasonable efforts to notify you of any such change in the Commission Payment Floor via email, posting a revised version of this Agreement, posting on the ADS Site, or via other methods.
If a Commission is paid or owed and a subsequent Chargeback or Credit occurs, ADS may, in addition to any other remedies, terminate this Agreement for cause and/or setoff the amount of the Chargeback or Credit and any related fees from any subsequent payments owing to you. If there is no subsequent payment due, ADS will send you an invoice for the amount of the setoff amount, and you agree to pay such invoice no later than ten (10) days following receipt.
In the event that a check issued to you is voided and reissued, ADS reserves the right to charge you a service fee. ADS also reserves the right to void any check that has not been negotiated within six (6) months following the date of its issuance, without further payment or replacement.
Commission payments are made for commissions on Active client accounts only.
9. TAX INFORMATION POLICY; SUSPENSION
Upon enrollment and completion of your Account as an Affiliate, you may be required to complete certain tax documents, e.g., IRS Form W-8, W-9, SS-4, etc. (the “Required Tax Documentation“). ADS may withhold all Commission payments owing to you until such time as you submit the completed Required Tax Documentation. During the period between when you enroll as an Affiliate and create an Account, and the time you submit the Required Tax Documentation, you may provide Special Links to the ADS Sites from the Affiliate Site, Commissions will begin to accrue, and you may have access to the Reports Page. If you fail to submit the Required Tax Documentation within thirty (30) days of your enrollment and establishment of an Account, ADS may suspend your Account until such time as you submit the Required Tax Documentation or, alternatively, ADS may terminate this Agreement immediately. Any Commissions accrued shall be forfeited should your account be suspended or terminated for your failure to submit the Required Tax Documentation.
10. ORDER PROCESSING; OWNERSHIP OF CUSTOMER INFORMATION
The ADS Entities are solely responsible for processing and fulfilling all orders for customers of the ADS Sites, including but not limited to, order entry, payment processing, shipping, cancellations, credits, returns and related customer service. Visitors and members of the ADS Sites will be considered customers of the applicable ADS Entities for all purposes, and all ADS Site terms, policies, rules and procedures will govern the customer relationship between the ADS Entities and such customers. As between the parties, the ADS Entities own any information pertaining to any person or customer who accesses any ADS Site. All orders must be paid for by the end-user customer. Affiliates are forbidden from creating accounts or using their payment card to make purchases or payments for ADS services, masquerading as the end-user. The purpose of this restriction is to (1) eliminate the possibility that the Affiliate is “reselling” the ADS services at a price different that what ADS would normally charge the end-user; an (2), to remove the possibility of an Affiliate interjecting themselves between the client and ADS, which reduces the ability for ADS to contact the client directly and limits the client’s access to ADS services and support.
11. NON-EXCLUSIVE LIMITED LICENSE TO USE ADS MARKS
The applicable ADS Entity grants you a non-exclusive, non-transferable, revocable and limited license to use the logos, trade names, trademarks, service marks, and similar identifying material specified by such ADS Entity on the applicable ADS Site or in such ADS Entity’s Program Rules (“ADS Marks“) solely for the purpose of advertising the ADS Services through the use of Advertising Assets in accordance with Section 3, subject to and in accordance with the terms of this Agreement. Without limiting the foregoing, you hereby agree:
a. to refrain from purchasing, bidding on, or otherwise obtaining or using keywords incorporating or otherwise based upon the ADS Marks on search engines (e.g., google.com, yahoo.com and bing.com);
b. to not use or place the ADS Marks on or with any items that are injurious to end-users or their property, including but not limited to, items that could give rise to a claim for a breach of an express or implied warranty or product liability, or which is scandalous, libelous, obscene, an invasion of privacy or otherwise unlawful or tortious;
c. to use the ADS Marks exactly in the form provided and in conformance with any trademark usage policies, guidelines and quality standards of the ADS Entities and not to alter, modify or change the ADS Marks in any way;
d. to furnish, upon request, at no charge to the ADS Entities, a representative specimen of your use of the ADS Marks;
e. if, at any time, your use of the ADS Marks fails to conform to the ADS Entities’ trademark usage policies, guidelines or quality standards, to promptly remove the ADS Marks from the Affiliate Site;
f. not to take any Action inconsistent with the ADS Entities’ ownership of the ADS Marks;
g. not to use the ADS Marks in any manner that is disparaging or that otherwise portrays the ADS Entities in a negative or misleading light;
h. not to create a website or web page that uses the ADS Marks in a manner that is likely to be confused (e.g., similar designs, graphics, look and feel) with one or more websites operated by the ADS Entities;
i. not to use, register or file an application to register a trademark, service mark, domain name, user name, account name or other proprietary designation incorporating the ADS Marks, or any variation of the ADS Marks, whether they are used alone, in part, or in combination with other words (e.g., “grocerystoretenderonline”) or are based upon typographical errors or misspellings (e.g., “stortender”, “storetendir”, etc.) (“Prohibited Designation“); and
j. to notify ADS promptly upon becoming aware of any improper use of the ADS Marks and reasonably cooperate with ADS (at ADS’ request) in the protection of the ADS Marks.
You may only use the ADS Marks to the extent that you advertise ADS Services pursuant to this Agreement. We reserve all intellectual property and proprietary rights in and to the ADS Marks, and any and all goodwill generated by your use of the ADS Marks shall inure solely to the benefit of the ADS Entities. You recognize the great value of the goodwill associated with the ADS Marks, and you acknowledge and agree that the ADS Marks and all rights therein and goodwill pertaining thereto are valid and belong exclusively to the ADS Entities, and that the ADS Entities have the exclusive right to use and authorize others to use the ADS Marks.
The license granted to you pursuant to this Section may be revoked at any time for any reason and shall terminate upon expiration or termination of this Agreement.
If you have previously used or registered any Prohibited Designation, (i) upon request, or (ii) if no request has been made, upon expiration or termination of this Agreement, you agree to transfer all of your rights in the Prohibited Designation and the associated goodwill to us within ten (10) days thereafter. In such case, we shall pay you a reasonable fee to cover the expenses necessary to transfer the Prohibited Designation, but in no instance will the amount exceed $100 per domain or $500 for all domains. You hereby grant an irrevocable power of attorney coupled with an interest to all or any of the ADS Entities to take all steps necessary to effectuate the transfer of the Prohibited Designation to the ADS Entities in the event that you fail to comply with the terms of this Section. Without limiting the foregoing, you specifically agree not to use the Prohibited Designations to promote the goods or services of you or any third parties.
12. NON-EXCLUSIVE LIMITED LICENSE TO USE YOUR MARKS
You hereby grant the ADS Entities a non-exclusive, transferable, world-wide license to utilize your name(s), titles, logos, and trademarks (“Your Marks“) to advertise, market, promote and publicize in any manner the ADS Services, the ADS Sites and our rights hereunder. However, we shall have no obligation to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of Your Marks and/or have all necessary rights and power to grant to us the license to use Your Marks in the manner contemplated herein, and such grant does and will not (a) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (b) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate immediately following the effective date of termination of this Agreement.
13. REPRESENTATIONS AND WARRANTIES
You hereby represent and warrant to us that neither you nor the Affiliate Site shall:
a. incur, undertake or make any representation, warranty, covenant or agreement on behalf of us or our affiliated entities to or for the benefit of any person or entity;
b. contain or promote materials that infringe or violate the copyright or other intellectual property rights of us, our affiliated entities or any third-parties;
c. contain any materials that depict persons under the age of eighteen (18), or in a manner that suggests they are;
d. promote (i) harmful or indecent matter to minors, (ii) violence, (iii) discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or any other legally prohibited classification;
e. use or benefit from unsolicited sexually explicit advertising;
f. contain content that is obscene, defamatory, misleading, libelous, hateful or unlawfully threatening, abusive or harassing or likely to cause disparagement to persons appearing on the ADS Sites;
g. involve advertising, marketing or business practices that are fraudulent or misleading, or that promote unfair competition;
i. own, control or use a URL containing a Prohibited Designation;
j. send, transfer or otherwise initiate (i) e-mails in violation of the Can-Spam Act of 2003, as amended (i.e., “spam”), or unsolicited chat messages, e.g., instant messages and group chat rooms; or (ii) any downloadable programs or executable(s) that contain viruses, worms, “Trojan horses” or any other destructive features that violate the rights of third-parties, including but not limited to, redirection to unwanted websites, modification of browser settings, interference with site navigation, and/or accessing data;
k. violate, or promote violation of, any law, statute, ordinance or regulation (including, but not limited to, the Federal Trade Commission blogger rules); or
l. violate an order, judgment decree, or the terms of any other agreement, document or instrument, including but not limited to your merchant or payment processing agreement and any associated card association rules, to which Affiliate (or its assets) are subject or bound.
m. enroll in the Program for the purpose of using our products or services for yourself (nor do so at any time during the Program).
You further represent and warrant that all information provided to us, including your email address and other contact information and identification of Affiliate Site(s), is at all times complete, accurate, and up-to-date and that you will respond in a timely manner in the event that we attempt to contact you.
14. PROHIBITED ACTIVITIES
You are prohibited from advertising on our behalf in any manner that violates, or is otherwise inconsistent with, Section 13 (“Representations and Warranties”).
You may not display, or by any other method use, any photos, videos or any other information pertaining to any members of, or any other persons depicted on, any ADS Site.
We, in addition to any other remedy we may have, reserve the right to suspend or terminate your Account and/or this Agreement, and take any other appropriate disciplinary actions permitted by law, without notice if you (or someone acting on your behalf) violate this Section.
We fully reserve the right at any time to refuse to accept traffic from you for any reason or no reason. In addition we fully reserve the right to divert any traffic you send to any ADS Site to any other site and your only remedy would be to stop sending traffic to us or to terminate this Agreement without any monetary compensation owing to you.
Any Advertising Assets, Special Links, or other web form that requires a user to provide payment information, e.g., name, address, billing information, in order to purchase a service or product from an ADS Entity must be located on an ADS Site. You shall not host or frame any webpage that allows any user to order a service or product provided by an ADS Entity, or (ii) gives any person the impression that the order page is hosted by you, e.g., iframing an ADS Site including its order page.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ADS AND THE ADS ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARISING OUT OF ANY AFFILIATES’ PARTICIPATION IN THE AFFILIATE PROGRAM OR USE OF ADS SITES OR ADS SERVICES. FURTHER, ADS AND THE ADS ENTITIES EXPRESSLY DISAVOW ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD AFFILIATE OR ANY AFFILIATE REPRESENTATIVES OR OWNERS HARMLESS IN CONNECTION WITH ANY LAWSUIT OR OTHER PROCEEDING ARISING OUT OF SUCH PARTICIPATION OR USE. IN ADDITION, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE ADS SITES OR ADS SERVICES WILL REMAIN UNINTERRUPTED OR ERROR-FREE OR GENERATE ANY INCOME OR COMMISSIONS WHATSOEVER.
16. LIMITATION OF LIABILITY
ADS, AND THE ADS ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, ADS AND THE ADS ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO YOU DURING THE PAST SIX (6) MONTHS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS WHETHER BASED UPON BREACH OF CONTRACT, NEGLIGENCE, TORT, VIOLATION OF 18 USC SECTION 2257 ET SEQ., ERRORS AND OMISSIONS, COPYRIGHT, TRADEMARK, PATENT, OR ANY OTHER CLAIM OR CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
17. ACCURACY OF DOMAIN REGISTRATION
The domain registration (i.e., “whois”) information of the Affiliate Site that contain Special Links (the “Domain Information“) shall be publicly available, i.e., not blocked or redacted by your registrar, and contain current and accurate contact information, e.g., the Affiliate’s name, address, telephone number, email address, and such other information that would provide any third-party with a reasonable expectation of contacting you during normal business hours. We reserve the right to disclose Domain Information to anyone when it is not publicly available, current and/or accurate.
18. TERM; TERMINATION
Either party may terminate this Agreement at any time by providing notice to the other party pursuant to Section 36 (“Notices”). We may also terminate this Agreement and your participation in the Affiliate Program immediately should you fail to pay any fees due to us by the date due, or should we believe, in our absolute discretion, that you are either in breach of this Agreement, that the standing or reputation of our business or products is at risk or if we believe such termination to be in the best interests of our business generally. Once your participation in the Affiliate Program ends your referred merchants become our customers and you will not be entitled to any further commissions other than those owed to you at that time.
Sections 1, 4, 8, 9, 10, 12, 13, 14, 15, 16, 19 – 37 shall survive expiration or termination of this Agreement. Upon termination, any and all licenses provided to you under this Agreement shall immediately cease and you shall immediately stop using, among other things, any Advertising Assets and Special Links under this Agreement, and you shall immediately remove all Special Links and any other content using or referencing the ADS Services or ADS Sites from the Affiliate Site.
19. NO AGENCY; INDEPENDENT CONTRACTORS
Nothing in this Agreement is deemed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf and you are prohibited from holding yourself out as our agent. Affiliate shall not take any action or make any statement that contradicts anything in this Section. It is expressly understood and agreed that Affiliate and ADS are independent contractors in all manners and respects. Affiliate shall not be entitled to any benefits and shall be solely responsible for all taxes, social security taxes, unemployment taxes, workers’ compensation insurance premiums and any other taxes on Commissions and other amounts paid to Affiliate here under.
Your Commissions, and any software, technology, programming, APIs, specifications, materials, guidelines and documentation, or other information designated “confidential” by any of the ADS Entities shall be kept confidential by Affiliate and shall not be disclosed to any third party except as may be required by any court of competent jurisdiction, governmental agency, law, regulation or the rules of any stock exchange. In such event, Affiliate shall if permitted give reasonable advance notice to ADS of the disclosure and redact or seek an appropriate protective order to the extent possible before disclosing the confidential information.
You shall defend (or pay our fees and costs of defense at our sole discretion), indemnify and hold ADS and ADS Entities and their respective successors, affiliate entities, assigns, shareholders, officers, directors, employees and applicable third parties (e.g., licensors, licensees, consultants and contractors) (collectively, the “Indemnified Person(s)“) harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) brought against the Indemnified Person(s) and arising out of or related to, your participation in the Affiliate Program, operation of the Affiliate Site, and/or your breach (or any alleged breach) of any term of this Agreement, including but not limited to, Sections 11 (“Non-Exclusive Limited License to Use ADS Marks”) and 13 (“Representations and Warranties”).
22. INDEPENDENT INVESTIGATION
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, INCLUDING THE PROGRAM RULES AND ANY ACCOMPANYING ADDENDUM, AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) PROVIDE TERMS TO OTHERS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETITIVE WITH THE AFFILIATE SITE OR THE ADS SITES WITHOUT OBLIGATION TO YOU. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
We strongly advise that you review this Agreement with your attorney before you enter into it. You acknowledge and agree that nothing herein and no statement by us or any employee, representative, agent or other person associated with us has in any way prevented or inhibited you in any way from seeking such advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair, all terms have been fully disclosed in writing, and that you have been given a reasonable chance to seek advice of independent counsel with respect to this Agreement and all transactions associated herewith.
23. ASSIGNABILITY OF THE AGREEMENT
You may not sell, resell, assign or transfer any of your rights or obligations under this Agreement without our prior written consent. We may sell, resell, assign or transfer our rights and obligations under this Agreement at any time without restriction and without notice or consent.
24. CHOICE OF LAW.
This Agreement shall be governed by the laws of the State of Nevada, without regard to its conflict of laws rules or principles.
Licensee hereby consents to exclusive jurisdiction in Nevada and venue in Clark County, Nevada for all arbitration and other proceedings arising out of this Agreement.
26. ARBITRATION OF DISPUTES
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN AFFILIATE AND ADS OR ANY OF OUR AFFILIATED ENTITIES OR OURS OR THEIR AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, OR ASSIGNS ARISING FROM OR RELATING TO THIS AGREEMENT, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY HEREOF, OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT (INCLUDING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THIS AGREEMENT), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS before a retired judge in Clark County, Nevada. In the event such a JAMS proceeding is unavailable for any reason, such disputes shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by this Agreement, and will be administered by the AAA before a single retired judge. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. This Section and Section 27 below are subject to the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA), as amended. Any award of the arbitrator shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. The arbitration proceeding will be limited solely to the dispute or controversy between the parties. AFFILIATE ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM. Nothing in this Section 26 shall be deemed to prohibit ADS from seeking an injunction or other equitable relief in any court of competent jurisdiction to protect or preserve its or its licensors’ intellectual property rights or rights in or to confidential information.
27. CLASS ACTION WAIVER
IN ANY DISPUTE, NEITHER AFFILIATE NOR ANY OTHER PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST ADS OR OTHER PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. AFFILIATE ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM.
28. REMEDIES ARE CUMULATIVE
All rights, remedies, undertakings, obligations and agreements contained in this Agreement or available at law, in equity or otherwise, shall be cumulative, and none shall be a limitation of any other remedy, right, undertaking, obligation, or agreement.
29. AGREEMENT BINDING
This Agreement shall be binding upon the parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
30. FORCE MAJEURE
Neither party shall be held responsible for delay or failure in performance hereunder caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war, or other causes beyond the affected party’s reasonable control.
The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
32. INJUNCTIVE RELIEF
Affiliate’s sole remedy for breach of any provision of this Agreement shall be an action at law for monetary damages, and in no event shall Affiliate be entitled to any injunctive or other equitable relief. ADS may bring an action for injunction or other equitable relief to protect its intellectual property rights or rights in or to confidential information and trade secrets.
This Agreement may be executed in counterparts, via any means (including facsimile and e-mail), all of which shall be effective, but when taken together shall comprise one agreement.
If any provision of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its modified terms.
This Agreement and any accompanying materials and addendums represent the entire understanding between the parties with respect to the subject matter hereof and supersede all previous understandings, written, oral or implied. This Agreement may only be amended with the written consent of the parties, and no oral waiver or amendment shall be effective under any circumstances.
Except as explicitly stated otherwise, legal and other notices shall be delivered to Aloha Data Systems, Inc. by U.S. mail at 7670 W Lake Mead Blvd, Suite 145, Las Vegas, NV 89128, or to you at the email address you provided us (a) at time of enrollment in the Affiliate Program, or (b) through a subsequent notice of an address change if listed on the Affiliate Page. Email notices to you shall be deemed given twenty-four (24) hours after email is sent, unless ADS is notified that the email address is invalid. Alternatively, ADS may provide notice by certified mail, postage prepaid and return receipt requested if your address is listed on the Affiliate Page. In such case, notice shall be deemed given upon receipt or three (3) days after the date of mailing, whichever is earlier.
Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless granted in writing and signed by an authorized representative of the waiving party.
Value-Added Affiliate Program Terms / Program Rules
The ADS Site STORETENDERONLINE.COM has the following Value-Added Affiliate Program terms:
Valid referrals to the STORETENDERONLINE.COM site which result in a paid StoreTender subscription will earn the referring Value-Added Affiliate a 25% percentage commission of the base service recurring fees (paid monthly or annually) and merchant processing residuals for as long as the client remains a paying customer with ADS, subject to the conditions below. Once the Affiliate has reached ten (10) active client referrals, the percentage commission shall increase to 40% for all future payments. To qualify, in addition to the terms and conditions of the Affiliate Agreement, the Affiliate must maintain an active account with ADS, and:
a. Meet all the requirements of the Affiliate Agreement;
b. Be a bonafide and verifiable Value-Added Affiliate (or the equivalent) of point of sale systems, engaged in providing consultation, sales, installation, configuration of software solutions and training and support services to their clients;
c. Activate at least four (4) new referral clients in each twelve (12) month period, who purchase paid StoreTender subscription services or software from STORETENDERONLINE.COM;
1. A referral client is defined as a single account, regardless of the number of locations or software subscriptions;
d. Participate in Value-Added Affiliate certification training held online by ADS staff;
e. Pass a certification examination as administered by ADS;
f. Provide Tier 1 support to their clients for ADS software and services. Value-Added Affiliate agrees to provide, at minimum, email and/or phone support to their clients with StoreTender software. In no event shall a Value-Added Affiliate refuse StoreTender software support to their client or, in lieu of providing said support, refer their client to ADS for support, without ADS’ prior consent, and;
g. Pay any applicable fees due to ADS for your participation in the program.
Value-Added Affiliates who are unable to meet or maintain the terms as described above shall not be allowed to continue participation in the Value-Added Affiliate Program, and this Agreement shall terminate.
To increase the commission percentage from 25% to 40%, Affiliates are required to monitor their own referral account status and request the increase in percentage commission when they reach the tenth active client referral, via support ticket.
The end-user (referral client) may elect to terminate the relationship with the Affiliate and request that ADS perform support and other related services directly. In that event, and in the sole discretion of ADS, due to the increased support burden on ADS, the Affiliate shall be removed from the referral account and forfeit all future commissions for that referral account.
Commissions are paid on StoreTender base software subscriptions and merchant processing residuals only (“Qualified Revenue”). For example, if you refer a client who purchases a monthly subscription to StoreTender Online Pro and the same customer purchases Premium Support and hardware, the Affiliate commission is based on the Pro subscription only, and not the add-on or hardware. “Qualified Revenue” is:
- StoreTender Pro, HQ or RF Server (Monthly or Annual Subscriptions) – Online or Self-Hosted versions.
- Integrated merchant processing revenue share.
Commissions are posted to the Affiliate’s Account one day after end-user payment. Commission payments are processed at the beginning of each month for commissions earned the previous month. Payment is via check, mailed to the Affiliate Account address. ADS reserves the right to make payment via other methods, including (but not limited to) PayPal or ACH. Should ADS adopt a different payment method, Affiliate agrees to perform the steps necessary to accept that payment method.
Pricing is solely at ADS’ discretion and subject to change at any time, with or without notice. Pricing for most ADS Services can be found on the Shop page of our web site. Additionally, the Terms under which our Services are provided to end-users is defined in the Terms of Service and End User License Agreement pages of our web site.