Affiliate AgreementPlease read the agreement document below before registering and click the link at the bottom to indicate your acceptance of these terms.
This Agreement contains the complete terms and conditions that apply to your participation as an affiliate in the Affiliate Program of Candlewic, and the establishment of Links from your affiliate Web site to our Web site, "Candlewic.com". As used in this Agreement, "we" or "us" means Candlewic, "you" or "your" means the applicant, and "Product" or "Products" means any and all items offered for sale by us on the Candlewic.com web site.
1. Enrollment in the Affiliate Program
To begin the enrollment process, you will submit a complete Affiliate Program application via our site. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable.
If we reject your application, you are welcome to reapply to the Affiliate Program at any time. You should also note that if we accept your application and your site is thereafter determined (at our sole discretion) to be unsuitable for the Program, we may terminate this Agreement at any time.
2. Links on your site
As an Affiliate Site, we will make available to you a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links will serve to identify your site as a member of our Affiliate Program and will establish a link from your site to ours. The Links may connect to different areas of our site.
In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display in your site only those graphic or textual images (indicating a Link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to the pertinent area of our site will in no way alter the look, feel, or functionality of our site.
You will only earn referral fees with respect to activity on our site occurring directly through said Links. We will not be liable to you with respect to any failure by you to use these Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.
3. Our Responsibilities
We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for processing every order placed by a customer following a special Link from your site, for tracking the volume and amount of sales generated by your site, and for providing information to Affiliate Sites regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service.
4. Other Responsibilities and Opportunities of Affiliate Sites
(a) If you qualify and agree to participate as an Affiliate Site, you shall display Links prominently throughout your site as you see fit and with our consent.
(b) Compliance with the Agreement: We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
5. Commission Determination
Only Candlewic Products that are (i) sold by us, (ii) purchased by users within 30 days of linking to our site from your site pursuant to a Link, (iii) shipped by us, and (iv) for which we have received full payment will qualify for a commission (each, a "Qualifying Purchase"). Commission rates will be based on the aggregate amount actually paid to us for Qualifying Purchases of the Candlewic Products, excluding amounts collected by us for sales taxes, duties, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods ("Net Sales"). All available items on our site will be included in the computation of Net Sales.
The base commission rate on Candlewic Products will be equal to 5 percent (5%) of Net Sales for Qualifying Purchases. Affiliate Sites that can demonstrate high traffic volume may qualify for premium level commission rates. The commission rate is subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the commission rate.
6. Commission Payment
We will pay you commissions on a quarterly basis. When the total commissions due to you (based on Section 5 above) exceeds fifty dollars ($50), we will send a commission check for the applicable commission (less any taxes required to be withheld under applicable law) and a statement of activity to you. However, if the referral fees payable to you for any calendar quarter are less than $50, we will hold those referral fees until the total amount due is at least $50 or (if earlier) until this Agreement is terminated. Such commission checks and statements of activity will be sent approximately thirty (30) days after the end of each calendar quarter.
7. Reports of Sales
You will be given a password and have the ability to enter a password-protected web site to receive your sales statistics on a daily basis.
8. Policies and Pricing
All customers who visit the Candlewic site, including, without limitation, customers who buy Candlewic Products through the Affiliate Program, will be deemed to be customers of Candlewic. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and Candlewic Product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for Candlewic Products sold under the Affiliate Program in accordance with our own pricing policies. Prices and availability of Candlewic Products may vary from time to time. Because price changes may affect products that you already have listed on your site, you may not include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent.
10. Obligations Regarding Your Site
(a) You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to our catalog; the accuracy and propriety of materials posted on your site (including, but not limited to, all Candlewic Product-related materials); ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.
(b) You shall not send any unsolicited email messages or “SPAM” regarding the Affiliate Program, our connection to the Affiliate Program, our products sold through the Affiliate Program, your connection to the Affiliate Program, or your products or services sold through the Affiliate Program. You will be found to be in violation of this Agreement if you send unsolicited mailings using any portion/feature of the Software/Service provided by Kowabunga! Technologies including an Affiliate Link and this Agreement will be terminated.
(c) We disclaim all liability for all matters for which you are responsible under this agreement. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
(d) You hereby agree that your site will not, in any way, copy or resemble the look and feel of our site nor will you create the impression that your site is our site or is a part of our site. You also hereby agree that your site will not contain any content of our site or any materials which are proprietary to Candlewic, except (i) with our prior written permission, or (ii) materials which are obtained by you in accordance with the provisions hereof.
11. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all Links to our site, and all Candlewic trademarks, logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are only eligible to earn commission on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related Candlewic Product orders are not cancelled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and at our sole discretion, by changing this agreement as posted on our site. Notice of any change by e-mail, to your address on our records, or the posting on our site of a change notice or a new Agreement, is considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING CHANGES TO THIS AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
13. Relationship of Parties
You and Candlewic 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 will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
Candlewic may cite your name or URL in connection with your participation in the program in materials including, but not limited to, postings on our site, newsletters, advertisements, and other communications.
We make no express or implied warranties or representations with respect to the Affiliate Program or any Candlewic Products sold through the Affiliate Program (including, without limitation, warranties of fitness for a particular purpose, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors.
15. Representations and Warranties
You hereby represent and warrant to us as follows:
(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 (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) if you are a legal entity, any provision of your by-laws or certificate of incorporation or other organizational documents, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
(c) You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
(d) No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
(e) There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
(f) You are an adult of at least 18 years of age.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, business and financial information, customer and vendor lists, and pricing and sales information, selling and pricing procedures, trade secrets, including, without limitation, system designs, program materials (including source code and any documentation which has not been publicly distributed or disclosed), operating procedures equipment design, product specifications, and any other proprietary technology concerning us or you, respectively, or any of our Affiliates or Kowabunga! Technologies’ My Affiliate Program provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its 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 through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
17. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE 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.
You hereby agree to indemnify and hold harmless Candlewic and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, including, without limitation, violation of the policy prohibiting unsolicited emails/SPAM, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
19. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT 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 WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE 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. Governing Law
This Agreement will be governed by the laws of the United States and the Commonwealth of Pennsylvania, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Philadelphia, Pennsylvania, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable 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 right to subsequently enforce such a provision or any other provision of this Agreement.
21. Paragraphs 10, 11, 14, 16, 17, 18, and 20 shall survive any expiration or termination of this Agreement.