Legal Language
By entering into this Affiliate Advertising Agreement with Tara Spa Therapy, Inc. ("TARA"), Affiliate agrees to be bound by the additional terms and conditions required by TARA to participate in the TARA affiliate program.
Affiliates shall not undertake or engage in the following practices:
- Modify or alter the TARA site in any way;
- Make any representations, either express or implied, or create an appearance that a visitor to your Site is visiting the TARA site; e.g., "framing" the TARA site;
Affiliates found in violation of this policy will be subject to termination following a single email warning.
Affiliate Advertising Agreement
The undersigned ("Affiliate"), by submitting the Affiliate Application and this Affiliate Advertising Agreement (collectively, the "Agreement") to Tara Spa Therapy, Inc. (f/k/a TARA), acknowledges that it wishes to become an Affiliate, and in consideration of TARA's approval of Affiliate's Application, agrees to be bound by the terms and conditions of this Agreement. Affiliate warrants that all information provided in the Affiliate Application is true and accurate. Affiliate understands that TARA has sole discretion over whether to accept or reject Affiliate's Application, and that this Agreement will not be binding unless Affiliate has been notified of such acceptance directly from an authorized TARA representative.
RECITALS:
1. Term
TARA reserves the right to terminate this Agreement at any time upon notice to Affiliate via e-mail or via TARA's Web site. TARA may immediately terminate this Agreement without notice if Affiliate is in breach of any representation, warranty or covenant in this Agreement or any other agreement to which Affiliate and TARA are parties. Affiliate may terminate this Agreement upon thirty (30) days' written notice to TARA. The rights and obligations contained in Sections 3, 5, 6, 7, 8 and 9 of this Agreement shall survive the termination or expiration of this Agreement.
2. Acceptance
(a) Affiliate at its discretion, and upon approval by TARA, shall determine which web site link and customer code Affiliate will display on Affiliate's web site. Any Offer displayed by Affiliate shall be displayed according to the terms and conditions set forth in this Agreement. Affiliate shall not alter or modify the web site link and customer code as provided by TARA. Affiliate agrees and acknowledges that Affiliate's contact information, including but not limited to Affiliate's Name and Email Address, will be made available to TARA.
3. Payment For Services
(a) TARA agrees to remit to Affiliate a Commission ("Commission"), payable in the amounts and according to the terms as set forth in this Agreement, which result in the sale of Products to Qualified Customers (as defined below). All payment obligations will be based upon tracking and reporting provided by TARA.
(b) As used in this Agreement: (i) "Net Monthly Sales" means the net dollar amount of Products sold to Qualified Customers during a calendar month. Net Monthly Sales are calculated exclusive of fraudulently placed orders, cancelled orders and/or returned orders; (ii) "Qualified Customer" means any individual or entity that is tracked by TARA's proprietary technology, and who, within the period of time as set above, has clicked through to the TARA Web site via an authorized hyperlink provided to Affiliate by TARA, entered the authorized customer code provided to Affiliate by TARA and purchased Products from the TARA Web site.
(c) In the event an individual or entity visited more than one Affiliate of TARA prior to purchasing Products from the TARA Web site, the commission will be applied to the Affiliate whose customer code was entered.
(d) TARA shall pay the Commission to Affiliate within thirty (30) days after the end of the month in which TARA has received payment from each applicable Product order. TARA shall not be obligated to make any payment of Commission to Affiliate until (1) it has received payment for the Product order from the individual or entity who placed the order, and (2) the aggregate amount of Commission due to Affiliate equals or exceeds fifty dollars ($50.00). Any earned but unpaid Commissions shall carry over to the next regularly scheduled payment period.
(e) TARA will only remit payment to Affiliate if Affiliate has been accepted by TARA as an Affiliate and has provided TARA with a correct mailing address and a tax identification number (W-9 form).
(f) Regardless of the timing of any payment made by TARA to Affiliate hereunder, TARA shall be authorized to chargeback any Fee paid to Affiliate that specifically relates to (i) Products returned by Qualified Customers within ninety (90) days from the date of purchase; (ii) refunds or credits issued to Qualified Customers within ninety (90) days from the date of purchase; or (iii) overpayments to Affiliate, duplicate entries or other clear bona-fide errors. TARA shall deduct the amount of the chargeback from and offset such amounts against any monies owed by TARA to Affiliate. In the event that TARA has not fully recouped, via offset, any chargeback within sixty (60) days from the date of the chargeback, Affiliate shall issue payment to TARA for the outstanding amount of the chargeback.
(g) Amounts credited to Affiliate's account will not bear interest.
(h) Affiliate hereby authorizes TARA to remit payment for amounts owed to Affiliate in the form of a TARA corporate check.
4. Responsibilities of TARA
TARA will use commercially reasonable efforts to provide and maintain the necessary technology applications ("TARA Technology") required to track the relevant actions completed by Qualified Customer. TARA Technology enables TARA to provide Affiliate with real-time access to records that will allow it to monitor the volume of Commissions produced, subject to billing corrections and adjustments, thereby in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by either party in connection with the performance of this Agreement shall be the sole property of TARA.
5. Responsibilities of Affiliate
(a) Affiliate agrees and warrants that it shall: (i) only place links and customer codes on its Web site in accordance with the terms set forth in this Agreement, and (ii) position the links and customer codes on their Web site in such a manner to assure that the links and customer codes are fully and clearly visible.
(b) Affiliate agrees and warrants that it shall not engage in any of the following prohibited activities: (i) violate any applicable law or regulation; (ii) promote or conduct any illegal or fraudulent activity through the TARA Web site; (iii) send or cause to be sent unsolicited advertising e-mails; (ivi) engage in any pop-up or pop-under advertising provided, supported or involving any third party to generate impressions, clicks, or transactions; (vii) use any cookie, device, program, robot, iframes, hidden frames, popup windows or any other operation or process that interferes with TARA's ability to properly identify and track Qualified Customers; (viii) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end user. In addition to any other remedies that may be available, in the event that Affiliate engages in any such prohibited activities, TARA may immediately terminate this Agreement or Affiliate's display of any particular link and/or customer code.
(c) Affiliate shall not reproduce, distribute, republish, sub-license or otherwise make the Commissions information available to any third party ("Third Party Distribution") for any reason.
(d) Affiliate agrees never to alter any TARA tags so as to include any personally identifiable or sensitive information of any visitors in such tags.
(e) Affiliate further agrees and warrants that it will comply with all local, state and federal laws and regulations (including, but not limited to, the "CAN-SPAM" Act, effective January 1, 2004, as may be amended from time to time).
(f) TARA shall notify Affiliate of any complaint received by TARA regarding the email or Web site practices of Affiliate or any alleged violation by Affiliate of the above warranties. Within forty-eight (48) hours of such notification, Affiliate shall respond to TARA and provide source information as to any questionable emails including, but not limited to, the time, date, IP address and content of the questionable emails. Additionally, as to each individual that agrees to be included in Affiliate's outbound email solicitations, Affiliate shall maintain the information establishing the time and date that each individual granted such permission. If Affiliate fails to provide source information satisfactory to TARA to demonstrate that Affiliate did not send SPAM email or otherwise breach the above warranties, then, in addition to any and all other remedies available pursuant to this Agreement and under existing law, TARA shall have the right to immediately suspend payment to and further performance of any services by Affiliate.
6. Indemnification; Limitation of Liability
(a) Affiliate agrees to indemnify, defend and hold harmless TARA (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to, (i) any breach of this Agreement or any applicable law or regulation by Affiliate, (ii) the actual or alleged violation by Affiliate of any person's or entity's intellectual property or privacy rights. Affiliate agrees that it will not assert a defense based upon lack of privity against TARA for seeking to enforce these indemnities.
(b) TARA agrees to indemnify, defend and hold harmless Affiliate (and its respective officers, directors, employees, shareholders and agents) from and against any and all liability claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any breach of this Agreement or any applicable law or regulation by TARA.
(c) Neither Affiliate nor TARA shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses or any lost or imputed profits of any kind arising out of this Agreement or its termination, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from TARA's willful misconduct or recklessness, the liability of TARA shall not exceed the total amount of the Advertising Fees actually paid by TARA to Affiliate under this Agreement. Affiliate shall not be liable for any errors or omissions included in the Offers received from TARA. TARA shall not be liable to Affiliate or any other person or entity for (i) any information provided to any person or entity by any illegal, inappropriate act or act of misconduct on the part of the Affiliate, or (ii) system downtime of TARA.
7. Confidentiality
In connection with the business relationship contemplated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party's vendors, and such party's contemplated plans, strategies and prospects ("Confidential Information"). Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party's request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information: (a) is or becomes generally available to or known to the public through no wrongful act of the receiving party; (b) was previously known by the receiving party through no wrongful act of receiving party; (c) was independently developed by the receiving party without reference to the Confidential Information; or (d) was lawfully disclosed to the receiving party by a third party under no obligation of confidentiality to the other party.
8. Trademarks and Proprietary Rights
(a) TARA grants Affiliate a limited, non-exclusive, non-transferable, revocable license to use, reproduce and display on their Web site the link and customer code in accordance with the terms of this Agreement. TARA specifically does not grant Affiliate any right to use TARA's trade name without the express written consent of TARA. TARA grants Affiliate a limited, non-exclusive, non-transferable license for the term of this Agreement to use the TARA Technology solely in accordance with the terms of this Agreement. Affiliate grants TARA a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute its company name and logo for use in TARA's promotional materials. Each license granted in this Section 8(a) is hereinafter referred to individually as "Licensed Property."
(b) Neither party shall use the other party's Licensed Property in a manner that disparages the other party or its products or services, blurs, dilutes or otherwise diminishes the other party's tradenames, trademarks, servicemarks or other intellectual property, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party shall comply with the other party's requests as to the use of the other party's Licensed Property and will avoid any action that diminishes the value of such marks. Without limiting the foregoing, Affiliate shall not, without written permission from TARA, (i) use any of TARA's brand names, keywords or derivations of either of the above for any purpose; or (ii) purchase any URL containing any of TARA's brand names, keywords or derivations of either of the above.
(c) Subject to the limited licenses granted to TARA and Affiliate under Section 8(a), each party owns and shall retain all right, title and interest in its tradenames, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express written consent of such party. All data that is collected by TARA while performing its obligations under this Agreement is the property of TARA. TARA currently uses and plans to continue to use data that it collects in an aggregate manner (i.e., that information which is gathered as a group of demographic data, and is not personally or company identifiable).
9. General Provisions
(a) Representations and Warranties. Each party represents and warrants to the other party that: (i) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and (ii) nothing contained in this Agreement or required by such party's performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws; and (iii) the performance of this Agreement shall not infringe or violate upon the Intellectual Property or privacy rights of any third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9(A), NEITHER TARA NOR AFFILIATE MAKE, AND EACH SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE DISTRIBUTION MEDIUM, PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND NON-INFRINGEMENT.
(b) Privacy. Affiliate's use of the Services (including, without limitation, its utilization of the Tara Web site in connection therewith) (i) shall comply with all applicable laws, rules and regulations and (ii) shall not violate the terms or conditions of any other agreement pursuant to which tags are delivered to the Web site. Each of the Web sites shall feature a privacy policy that covers Affiliate's use of the Services and complies with all applicable laws, rules and regulations.
(c) Governing Law. The laws of California, excluding California's choice of law, and applicable federal U.S. laws shall govern the Agreement. Each party agrees to submit to the personal and exclusive jurisdiction of the courts located in Monterey County, California. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
(d) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
(e) Relationship. The relationship of TARA and Affiliate established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other. The detailed operations of TARA under this Agreement are subject to the sole control and management of TARA. The parties acknowledge that, except as set forth in Section 5 hereto, this Agreement sets forth a non-exclusive relationship between the parties. Affiliate agrees that it will not assert a defense based upon lack of privity against TARA for claims arising in connection with this Agreement or in connection with Marketer's enforcement of the indemnity obligations set forth in Section 6(a) above.
(f) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective, provided the following: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective parties as follows. To TARA at the address listed on its Web site and to Affiliate at the address set forth in the Affiliate Application. Each party shall be responsible to ensure that their respective contact information, including e-mail address and phone number, is updated, current and correct.
(g) Successors and Assignees. This Agreement shall be binding upon and inure to the benefit of the parties hereto, its successors and assignees.
(h) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. TARA reserves the right to modify this Agreement at any time. Any such modification shall be immediately effective upon the posting of the modified Agreement upon the TARA Web Site, or any successor Web site. Affiliate's continued display of the link and customer code pursuant to this Agreement after the posting of such modifications shall constitute acceptance and ratification of all such modifications.
(i) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
