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Willoughby's Coffee & Tea Affiliate Agreement (Version 1, 05/15/2006) Please read the agreement document below before registering. By creating an Affiliate account with us, you are agreeing to the terms and conditions specified in this agreement. Violation of any restrictions included herein may result in cancellation of your account and possible forfeiture of affiliate revenue. 1. Enrollment Process and Prohibited Sites To begin the enrollment process, you will submit a completed Affiliate Application on our web site. We will notify you by e-mail of your acceptance or rejection. We may reject your site, in our sole discretion, for any reason or no reason. If approved, your account will become active twenty-four (24) hours after you receive an e-mail notification of approval from us. If you are an individual, you must be at least 18 years of age (or the age of majority in your state, locality or jurisdiction in which you reside) in order to become an Affiliate. You may submit an Affiliate application and we may reject your application if we determine, in our sole discretion, that your site or service is unsuitable for our Affiliate Program. Unsuitable sites include, but shall not be limited to, those that: contain images or content that is in any way unlawful, harmful, threatening, defamatory, pornographic, obscene, or otherwise legally prohibited; facilitates illegal activity or is considered obscene or harmful to minors or is not in compliance with applicable laws; promotes fraudulent, unlawful, misleading, or unfair business practices; promotes violence; has previously sent unsolicited commercial e-mail or that intends on sending unsolicited commercial e-mail at any time during the term of this agreement (SPAM); incorporates any materials which infringe or assist others to infringe on any copyright, trademarks, patents, or other intellectual property rights; promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes illegal activities; or involves unfair competition. If we reject your application, you are welcome to reapply to the Affiliate Program at any time. If we accept your application and your site is thereafter determined, in our sole discretion, to be unsuitable for the Affiliate Program, we may terminate this Agreement at any time. 2. Linking to our site Once you have been notified that your site has been accepted into the Affiliate Program, you will receive or there will be made available to you on our site various text links, and/or banner or button links to our site. We may change the type or appearance of these links at any time without your prior consent or notification. You may display these links throughout your site as you see fit. You may not alter, modify or expand these links in any way without our prior written consent. To permit accurate tracking, reporting, and referral fee accrual, you must ensure that each of the links between your site and our site properly utilizes your Affiliate Link that was provided to you upon your acceptance into our Affiliate Program. You will only earn referral fees with respect to activity on our site occurring directly through your Affiliate Links. We will not be liable to you with respect to any failure by you to use this Affiliate Link, 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. Order Processing We will process orders placed by customers who follow the Affiliate Links from your site to our sites. We reserve the right to reject orders that do not comply with certain requirements that we have or may in the future establish. We will be solely responsible for all aspects of order processing and fulfillment, including, but not limited to, order entry, payment processing, shipping, cancellations, returns and related customer service. We will track the number and amount of sales generated by your site and will make unaudited reports, summarizing this sales activity, available to you through our site. The form, content, and frequency of the reports may vary from time to time in our discretion. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Affiliate Links between your site and our site are properly formatted and are working properly. 4. Referral Fees, Referral Fee Payment and Reports of Sales As an Affiliate, you will be entitled to a referral fee as displayed on the Affiliate Referral Fee Schedule and which may be changed or modified from time to time at our sole discretion. For a product sale to be eligible to earn a referral fee, the customer must follow your Affiliate Link from your site to our site, select and purchase the product(s) using our automated ordering system, accept delivery of the product at the shipping destination, and remit full payment to us. No referral fees will be paid if the visitor to our site cannot be tracked by our system or if the customer later places an order while visiting our site without returning through your Affiliate Link. Referral fees will not be paid for phone orders placed by customers who visit our site through your Affiliate Link. We reserve the right to not make referral fee payments to you for orders canceled by customers prior to their first delivery. We will pay you, as an independent contractor, referral fees on a monthly basis. Approximately 20 days following the end of each calendar month, we will send you a check for the referral fees earned during the month. However, if the referral fees payable to you for any month are less than $25.00, we will hold those commissions until the total amount due you is at least equal to $25.00. This minimum referral fee payout amount is subject to change at any time or from time to time. You will be notified of any change in the minimum referral fee payout amount. You may review your sales at any time by viewing your account using your User Name and Password which you created upon creation of your Affiliate Account. 5. Policies, Ownership of Customer and Pricing We may change our policies, terms, and operating procedures at any time without prior notice and your continued use of the Affiliate Program is your assent to the change or modified policies, terms, and operating procedures. Customers who buy products through this Program will be deemed to be our customers and, accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. Product and service prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product or service. 6. Limited License We grant you a nonexclusive, revocable right to use the graphic images and text provided for Affiliates on our web site and such other images for which we grant express permission, solely for the purpose of identifying your site as an Affiliate Program participant and to assist in generating product sales. You may not modify the graphic images or text, or any other of our images, in any way, without our prior written permission. We reserve all of our rights in the graphic images and text, any other images, our trade names and trademarks, and all other intellectual property rights. We may revoke your license at any time by giving you written notice. The rights granted to you pursuant to this section shall terminate upon the effective date of the expiration or termination of this Agreement and by that time you shall cease and desist all use of our graphic image and text, any other images, our trade names and trademarks, and all of our other intellectual property rights. 7. Anti-Spam Policy It is our policy of that marketing of any of our products by way of "SPAM" e-mail is prohibited. Any and all affiliates (and prospective affiliates) who participate in the use of "SPAM" e-mailing will be disqualified from our Affiliate Program without notice. “SPAM”, for the purposes of this agreement is defined as the sending of unsolicited e-mail or the sending of e-mails that are misleading, spoofed, contain misleading subject lines, contain inaccurate or misleading sender or recipient data, or violate applicable State or Federal Statutes. For the purposes of this agreement, “SPAM” also includes similar, abusive behavior in a third party "chat room" or website or the sending of unsolicited or misleading Instant Messages, Chatroom, Newsgroup, ICQ or IRC messages. Such behavior could include automatically sending scripted text (and website URLs) disguised as "chat" or conversation into any third party chat room. You hereby represent, agree, and warrant that you shall only send commercial e-mail to those who opted-in and consented to receive such commercial e-mail and you further represent, agree, and warrant that as proof of the above you shall maintain, use, and update in real time an "E-Mail Database" that contains a full audit trail of all persons or entities who opted-in and consented to receive any commercial e-mail advertisements sent by you (or at your request) during the term of this agreement including, the date of the opt-in consent, the manner, date, time, location (URL if by web form), scope, and method of the opt-in consent, the e-mail address (and PII and/or Static IP address if obtained) that opted-in, and all the e-mails sent to such e-mail address, and requests to opt-out by such e-mail address along with the manner, date, time, location (URL if by web form), scope, and method of such opt-out. You hereby agree to act expeditiously to remedy any and all complaints of spam or unsolicited commercial e-mail, including but not limited to, opting-out such persons from receiving further e-mails from you. You further agree to fully and immediately respond to any and all requests or queries we make of you requesting information and/or written reports of data located in the E-Mail Database. In addition, you agree to make immediately available to us for inspection and querying, upon our demand of you during the term of this agreement and for five years after termination, the E-Mail Database in a usable and secure manner remotely or in person at our discretion. You also agree to preserve the integrity of the data in the E-Mail Database, to, amongst other things, provide evidence of opt-in consent of all e-mails sent during the term(s) of this agreement, and all such E-Mail Database data will be preserved (and not erased or destroyed) during the term of this agreement and for at least five years thereafter. 8. Responsibility for Your Site You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Your site shall contain current and accurate contact information so that a third-party will have a reasonable expectation of reaching you during normal business hours by telephone, mail, facsimile and/or email. You hereby represent and warrant to us that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and that materials posted on your site are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material. We disclaim all liability for these matters. 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. 9. Term and Termination 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. You are only eligible to earn referral fees on sales occurring during the term. 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 our trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Affiliate Program. 10. Modification 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. 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. 11. Relationship of Parties You and we 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. We may use 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. 12. Disclaimers and Limitation of Liability We will not be liable for indirect, incidental, special, or consequential punitive or multiple 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, our performance of services or of any other obligations relating to the Agreement, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement will not exceed the total commissions paid or payable to you under this Agreement. The foregoing limitation of liability shall apply regardless of the cause of action under which such damages are sought. Our files will prevail in determining all statistics including but not limited to the amount of valid hits, signups, referrals, cancellation, credits and any commissions or referral fees owed to any Affiliate pursuant to this Agreement. Any discrepancies or errors must be brought to our attention within 30 days or else they will be deemed permanently waived. We make no express or implied warranties or representations with respect to the Affiliate Program or any product or service sold through it. 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 service interruptions or errors. You acknowledge and agree that under no circumstances shall we, our employees, independent contractors, authors, agents, representatives, assigns and successors be liable to you, or any other person or entity, for any direct or indirect losses, injuries, special or incidental or consequential damages of any kind (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOODWILL, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) with regard to any link to any our web sites, or arising from or in connection with the Affiliate Program, or due to any mistakes, omissions, delays, errors, interruptions in the transmission, or receipt of our services or content , including without limitation any losses due to server problems, computer or other equipment failure, or due to incorrect placement of HTML., regardless whether based upon breach of contract, negligence or any other claim or cause of action, In the event of any network downtime, computer or technical error we will not be held responsible for any lost hits, signups, traffic or income. 13. Indemnification You hereby agree to defend (or pay our attorneys’ fees ands costs of defense at our sole discretion), indemnify and hold us and our subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees insofar as such fees, costs, or actions arise out of or are based on 1) any failure or breach of any representation, warranty, covenant, or agreement made by you herein, 2) any misuse of our name or trademarks, 3) any claim related to your site or services, including, without limitation, any content therein, 4) any claim that your content infringes copyrights or any other intellectual property rights or that your site or services are engaged in unfair competition, 5), any claim arising out of your violation of the terms and conditions of this agreement, 6) any claim that you or your site(s) violated privacy rights or failed to maintain proper security, or 7) any claim that your advertising, communications (including, but not limited to e-mail communications), or marketing is misleading or unlawful in any manner. When we are threatened with suit by a third party, we may seek written assurances from you concerning your promise to indemnify us. Your failure to provide that assurance will may be considered by us to be a breach of your Agreement and this Agreement will then be subject to termination by us. 14. 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 PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 15. Miscellaneous Provisions This Agreement will be governed by the laws of the United States and the State of Florida, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in Miami-Dade County, Florida, 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 be enforceable against the parties and their respective successors and assigns. Where written notice is provided for in this Agreement, e-mail notice shall be deemed to be such a written notice provided that any notice to us is e-mailed to us at affiliates@willoughbyscoffee.com and any notice to you is e-mailed to you at the last e-mail address you provided to us in your Affiliate Program application or by subsequent e-mail update. 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 provision or any other provision of this 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 represents the entire understanding between the parties with respect to the subject matter hereof and supersedes 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. The headings and other captions used in this Agreement are for the convenience and ease of reference only and shall not be used in interpreting, constructing and/or enforcing any of the provisions of this Agreement. |