AFFILIATE PROGRAM AGREEMENT & TERMS AND CONDITIONS
This Affiliate Program Agreement (the “Agreement”) is made and effective 28th of September 2016
Swissmade Trading Ltd., Swissmade.direct, (SMT), a corporation organized and existing under the laws of the Switzerland, with its head office located at: Neustadtstrasse 7, CH-6003 Lucerne
the registered and accepted Affiliate (Participant) with legal domicile according to the registered address on the affiliate website.
With the subscription of the Affiliate Program it is agreed as follows:
- The name of this affiliate program is Swissmade.direct Affiliate Program (the “Affiliate Program”).
- The Participant represents and warrants to the SMT that the Participant has read and understand the Privacy Policies and agree to the terms set forth therein.
- For purposes of this Agreement, the term “the Participant” refers to the individual or legal entity who applies for and is accepted into the Affiliate Program. The term “the SMT” refers to the sponsor of the Affiliate Program. The term “the SMT’s website” refers to the website that SMT maintains at swissmade.direct. The term “the Participant’s web site” refers to the web site on which the Participant agrees to place a link to the SMT’s web site but includes also the generated URL from the SMT Affiliate Programm and the related account of the Participant in the Affiliate Program where the participant is registered on the SMT website. “Merchandise” means all products, merchandise and stock that is offered by the SMT for sale through its website.
1. AFFILIATE PROGRAM REGISTRATION
To register for the Affiliate Program, the Participant must complete and submit to the SMT Affiliate Program Application Form. The Affiliate Program Application Form is included on the SMT’s web site and can be completed and submitted through its web site. The participant commit oneself to complete all informations truthfully.
2. APPROVAL OR REJECTION OF AFFILIATE PROGRAM APPLICATION
The SMT reserves the right to approve or reject ANY Affiliate Program Application in its sole and absolute discretion. The Participant will have no legal recourse against the SMT for the rejection of the Participant Affiliate Program Application.
3. REASONS FOR REJECTION
Without limiting the right to reject any application for any reason whatsoever in the SMT’s absolute discretion, the Participant application will be rejected if it is non complete, not filled truthfully or if the Participant’s web site or business contains images or content that is not acceptable to SMT or is inconsistent with the image that the SMT wishes to create in association with its web site, or if the Participant’s web site contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference, or if the Participant’s site contains any material that appears to SMT to violate any patent, trademark, copyright, trade secret, confidential information, or other property rights of any other party.
4. TERMINATION AFTER ACCEPTANCE
Even after the SMT has accepted the Participant as an Affiliate Program member, the SMT reserves the absolute right to rescind or terminate the Participant affiliate status for any reason in its sole and absolute discretion, including but not limited to the reasons set forth above. With the termination of the membership all benefits of this Aiffiliate Program will be terminated at the same time.
5. FINANCIAL RESPONSIBILIITES
The Participant will be fully responsible for all costs and expenses of maintaining and marketing the Affiliate Program, including but not limited to all costs associated with the creations, hosting, modification, and improvements to the Participant’s web site, costs of search engine placement and other Internet marketing, costs of inserting the SMT’s links into its web site, offline marketing costs, postage costs, and all other costs and expenses, and the Participant hereby holds the SMT harmless from or against the same. SMT is only responsible for the own cost’s of its website swissmade.direct and the creation of the related URL’s.
6. NO REPRESENTATIONS REGARDING INCOME POTENTIAL
SMT makes no representations and warranties regarding potential income that may result from participation in this Affiliate Program and specifically disclaims any and all warranties relative to earning potential from the Participant affiliate status.
7. RESPONSIBILITY TO LINK TO THE SMT’S SITE
a.) As a Affiliate, the Participant will have the obligations to distribute the created URL’s (including the the products or the SMT site) from his account in the the Affiliate program of SMT or place links on its site directing users to the SMT’s site. The SMT will make available to the Participant button links, text links, and banner advertisements to be placed on the Participant’s website which will direct users to SMT’s website via hypertext link. As a Program Affiliate, the Participant is given a limited term license, during the term of the Participant active participation as a Program Affiliate, to utilize the SMT’s logo images provided to the Participant on the website that the Participant designates in the Participant Affiliate Program Application.
b.) SMT makes to its Affiliates, URL’s, links, banners, and other information advertising its site or products to be used subject to the terms of this Agreement available. These materials will contain its trademarks and other proprietary property. The Participant may display these materials on the Participant’s web site for the purpose of promoting the SMT’s site and products and participating in this Affiliate Program. If the Participant discontinue the Affiliate Program or if the Participant participation is terminated for any reason, the Participant will immediately cease using these materials and will delete all such materials from its web site and from its computer. The Participant must obtain the SMT approval of all links to the SMT’s site that the Participant place on its web site. The Participant will cooperate with the SMT in the establishment and placement of links on the Participant’s web site.
c.) The Participant will only be permitted to use the links and URL’s that SMT provided to the Participant or is created in the Participant account of the Affiliate Programm of SMT on the web site that the Participant designate in the Affiliate Program Application. Any additional web sites or entities will require additional submissions of Affiliate Program Applications and approval by the SMT.
d.) The Participant will not modify the links or other materials that the SMT provided to the Participant or the placement of the links on the Participant’s page. The Participant consent to the SMT monitoring the Participant’s web site to determine continued compliance with this Agreement.
e.) The Participant consent to the SMT including information relative to traffic from the Participant’s site in the SMT reports. This information may be provided to outside parties.
8. CUSTOMER SERVICE
a.) The SMT will be responsible for handling all customer inquiries, product orders, customer billing and collection, product shipment relative to customers that enter the SMT’s site through the links from the Participant’s site. Pricing of the SMT products and services is totally within its discretion and the SMT reserves the right to change the pricing structure, terminate any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to the Participant or users accessing the SMT’s site. The SMT’s only responsibility to the Participant in this regard is to track customer orders that occur through the created URL of the account of the Participant in the Affiliate Program of SMT and/or links from the Participant’s web site and make reports to the Participant of the commissions due to the Participant as a result thereof. All such reports shall be un-audited. The SMT will have no obligation to provide the Participant with any specific information relative to any customer, regardless of whether they access the SMT’s site through the link from the Participant’s site.
b.) The SMT is not responsible for the failure to assign any sale or commissions to the Participant if the same results from the improper formatting of the link from the Participant’s web site or the generated URL in the Affiliate Program. The Participant should assure at all times that the link or URL is appropriately formatted and report any problems that the Participant may have with the same to the SMT immediately.
a.) Commissions will be paid to the Participant based upon a percentage of sales made to users who access the SMT’s site through the Participant’s URL of the Affiliate Program or its website. Commissions will be calculated based upon the net sales price of an order, not including any shipping and handling, sales tax, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, and any other payment made to the SMT that is not the purchase price for the product that is purchased. Commissions will not be calculated based upon amounts that are attributable to credit card fraud, credits or discounts given to customers, bad debt right-off, chargebacks and returned goods. The SMT reserve the right to deduct in subsequent months for any commission that the SMT paid that is for a product that is subsequently returned or refunded, or for any other reason if the previous monthly commission was overpaid or later subject to reduction. The rates changes upon total net amount of valid paid sales during the calendar year which are shown in the Participant Affiliate account.
b.) The percentages to be paid as commissions hereunder are currently as set forth in appendix A at the end of this Agreement. The SMT reserves the right to change and amend the commission rate structure at any time, in the SMT’s sole discretion.
c.) Commissions will only be paid on sales that are tracked through the SMT’s online tracking system and indicate the Participant’s URL or web site’s link as the source. There is no right to commissions if a user later returns to the SMT’s site and makes a purchase through another link or source other than through the Participant’s URL or web site. The Participant has no right to commissions based upon subsequent sales, even if the customer first arrived at the SMT’s site through the link from the Participant’s site. Commissions will only be tracked and paid when the user makes a purchase on the same visit that the user visits the SMT’s site from the link of the Participant’s site or his URL. For subsequent sales might paid out a reduced commission according to appendix A.
d.) SMT will pay commission only upon collection by the SMT. The Participant has no right to commissions until the applicable customer has paid the SMT in full and no chargeback request or any other losses have occured. Only purchases that are made through the SMT’s online ordering process will count towards commission calculations. For example, if a customer visits the SMT’s web site through the link from the Participant’s web site and instead of placing an online order calls and places an order via telephone, the Participant will have no right to any commission from that sale.
e.) Commissions will be paid to the Participant on a monthly basis on or 10 days after delivering the order to the customer. The SMT does not guarantee an exact date of calculation of commissions or payments. All payments will be made via wire transfer to the account that the Participant supplied in the Affiliate Program Application. The SMT does not send payment if the total commission due to the Participant is not at least 10 CHF. Amounts below 10 CHF will accrue to the Participant account and payment will be made for the month when the Participant’s total commissions achieve the minimum 10 CHF. The SMT reserves the right to amend the minimum commission payment amount at any time. Any fees for the money transfer are paid by the parties in equal.
10. CUSTOMERS PROVENANCE
All parties who make purchases through the SMT’s web site, regardless of whether they may have reached its web site through the link from the Participant’s web site or the URL, are deemed to be the SMT’s customers and not the Participant’s customers relative to the SMT’s products and services. The SMT will have the right to contact these customers and send future marketing offers to them. The Participant will have no right to commissions on subsequent purchases that may be made by these customers, except for subsequent purchases that may be traced at the time of purchase through a link from the Participant’s web site or URL. Additionally, all such customers and purchases will be subject to the SMT policies, procedures, rules and regulations and the Participant has no right or authority to amend or offer any different offers relative to the purchase of products from the SMT’s web site. The SMT however, reserves the right to amend any of its terms, conditions, policies, procedures, pricing, payment policies, collection policies, and all other items relative to the SMT’s business and sale of products at any time in its sole discretion.
11. TRADEMARKS AND COPYRIGHTS
a.) The Participant will have a non-exclusive, limited term license to use the trademarks, logos, and copyrighted material that the SMT provided to the Participant for use solely on the home page that the Participant designate in the Participant Affiliate Program Application or in its URL created in the Affiliate Program of SMT. The Participant may only use the images that the SMT specifically makes available to the SMT Affiliate Members at the area of its web site that is specifically designated as approved images for Affiliate Program Members or provided directly to them. The Participant may not distribute, reproduce, modify, amend, these images in any way. The Participant may use these images only for the purposes of promoting the SMT’s web site and products in compliance with the Affiliate Program policies and procedures and the terms of this Agreement. The license so granted is subject to complete compliance with all terms and conditions of this Agreement and any policies the SMT may create and amend from time to time regarding the Affiliate Program.
b.) The Participant will only use such items in the form, size, content, and appearance that the SMT provided them to the Participant. The Participant is not permitted to modify them. The Participant agrees to display these items prominently on its web site or to distribute them through the generated URL. These items may only be used in if they contain a hypertext link to the SMT’s web site. This license shall immediately terminate upon the termination from the Affiliate Program. The SMT may also terminate this license upon notice to the Participant in the event that the Participant’s use of these items is contrary to or does not conform with its standards, such standards to be determined in its sole and absolute discretion. The Participant agrees that the SMT retains all right, title and interest in and to all such materials. The SMT will retain all goodwill and other value associated with any of these materials. The Participant will not gain any trademark, copyright or other proprietary rights to such materials. The Participant agrees not to take any action that is contrary to or inconsistent with the SMT rights to these materials. The Participant will not use these materials in any way that is damaging, defamatory, disparaging, derogatory, or negative to the SMT or that paints the SMT in a false or negative light. The SMT may revoke the limited license granted hereunder at any time in writing to the Participant. Upon termination or revocation, the Participant will immediately cease from any use this material.
c.) The Participant is not permitted to use any other proprietary materials, including but not limited to trademarks, copyrights, logos, text, and any other materials that belong to the SMT or to any other party and which may appear on the SMT’s web site.
d.) The Participant grants to the SMT a non-exclusive right and license to use the Participant’s trademarks, trade names, service marks, business names, web page titles, slogans, logos, and copyrighted materials for the purposes of promoting, advertising, announcing, or marketing the Participant participation in the SMT Affiliate Program. The Participant represents and warrants to the SMT that no other party has any rights in and to any of these materials and that these materials do not infringe upon or otherwise interfere with the rights of any other party. The Participant represents and warrants to be the absolute, sole and exclusive SMT of all such materials and the SMT of all trademark rights, copyrights, and other proprietary rights in and to the same. The Participant represents to have the right, power, and authority to license said materials to the SMT as aforesaid and that the Participant is not under any legal or contractually limitation on the right to so license these materials. The SMT has no obligation to announce, advertise, market, or promote the Participant participation in the SMT Affiliate Program, but reserves the right to do the same at its sole discretion.
12. PRODUCT AVAILABILITY
The SMT cannot guarantee product availability or the term of any price or special promotion or offer.
The Participant is responsible for all matters pertaining to the Participant own distribution of the URL and/or web site including its development, maintenance, operation and placing links on the Participant’s site in compliance with the terms of the Affiliate Program. The Participant is completely responsible for all items that appear on its site or URL and for assuring that such items do not infringe upon or violate the rights of any other party. The Participant attests to obtain al the rules and regulations, especially regarding spam and blacklisting policies. SMT is not responsible for any matter pertaining to the Participant’s site, URL distributing or the content thereof and the Participant holds the SMT harmless and indemnifies the SMT from any and all claims, suits, threats, demands, liabilities, actions, causes of action related in any way to the Participant’s web site and business. Such indemnity includes the SMT costs and attorney fees in defending any such matter. The Participant represents and warrants to the SMT that its site does not and will not contain any materials that are illegal and that the Participant’s site is not operated for an illegal purpose or in an illegal manner.
14. REPRESENTATIONS AND WARRANTIES
The Participant hereby represents and warrants to the SMT to have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry of this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. The Participant’s entry of this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court or administrative order.
The effectiveness of this Agreement shall not commence until the Participant Affiliate Program Application is accepted by the SMT. The effectiveness hereof and binding effect shall occur upon the SMT acceptance of the Participant Affiliate Program Application. This Agreement shall remain in full force and effect until terminated by the Participant or by the SMT. Either the SMT or the Participant may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via Email to the Participant at the Email address indicated in the Participant Affiliate Program Application. Any and all notices to the Participant via Email at such address shall be deemed to be effective notice to the Participant for all purposes.
The Participant will forfeit all right to receive past commissions that may have accrued to the Participant if this Agreement is terminated as a result of the Participant failure to comply with the terms of this Agreement or any policies and procedures of Affiliate Program that may be established and amended by the SMT in its discretion from time to time. If this Agreement is terminated for any other reason, the Participant will have a right to receive its accrued commissions through the effective date of termination; provided, that if the Participant total commissions due hereunder do not exceed CHF 10.00, such accrued commission shall be forfeited. The SMT has the right to withhold final commission payments for sufficient time in order to assure that the amount paid to the Participant is accurate and not subject to later adjustment for returns, chargebacks or any other reason. If following final payment the SMT determines that the amount of commissions that the Participant were paid was too high, as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from the Participant to the SMT and the SMT shall have all legal right to receive a refund of such overpaid commission from the Participant.
The SMT reserves the right in its sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement upon notice to the Participant. Notice of any changes may be given via Email to the Participant or by posting such changes in the Affiliate Program sections of the SMT’s web site. Such changes and modifications will take effect upon transmission of Email or posting on the SMT’s web site. The Participant may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to the Participant and such termination shall be the Participant sole and exclusive remedy. In the event that the Participant continues to participate in the Affiliate Program following such modifications, the Participant will be deemed by the Participant continued participation to accept any and all such changes.
a.) THE SMT HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS ITS WEB SITE OR TO ACCESS ITS WEB SITE USING THE LINK OR URL FROM THE PARTICIPANT’S WEB SITE OR THE DISTRIBUTED URL. FURTHERMORE, THE SMT SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO ITS WEB SITE, THE AFFILIATE PROGRAM, THE PARTICIPANT PARTICIPATION IN THE AFFILIATE PROGRAM, THE PARTICIPANT ABILITY TO MAKE ANY COMMISSIONS OR OTHERWISE PROFIT THROUGH PARTICIPATION IN THIS AFFILIATE PROGRAM, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTIBILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON THE SMT’S COURSE OF DEALING OR USAGE OF TRADE. THE SMT DOES NOT REPRESENT OR WARRANT THAT ITS WEB SITE OR ANY APPLICATION, INCLUDING BUT NOT LIMITED TO ITS LINK AND/OR URL TRACKING FEATURES, WILL BE ERROR FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION.
b.) THE SMT SHALL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT DAMAGES OR LIABILITIES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, LOSS PROFITS, LOST BUSINESS OPPORTUNITY OR ANY OTHER DAMAGES; REGARDLESS OF WHETHER THE SMT WAS OR HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND TOOK NO ACTION TO PREVENT THE SAME.
c.) Without limiting the forgoing, the SMT total liability for any damages arising hereunder shall never exceed the total commissions paid and payable by the SMT pursuant to the terms hereof.
In the event that any information is disclosed to the Participant through the Participant participation in the Affiliate Program related in any way to the SMT company and business which the SMT deem to be confidential and proprietary, the Participant agrees to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for the Participant own purposes. Confidential information will include any information regarding the SMT changes or modifications to this Agreement or this Affiliate Program (which the SMT shall have no obligation to make) or any special treatment that the Participant may receive (which the SMT reserves the right to provide in its sole discretion to any affiliate). Confidential information shall also include any and all information related to the SMT’s business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, sales information, and all other information which the SMT considers to be confidential and proprietary.
The Participant hereby indemnifies and holds the SMT, and all of the SMT stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the SMT may incur and which are based in whole or in part upon the Participant participation in the Affiliate Program, any claims that any of the Participant trademarks and other proprietary material infringe upon the rights of any other party, the Participant breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Participant use, operation or the content of the Participant’s web site.
21. GOVERNING LAW
This Agreement shall be interpreted under the laws of Switzerland. Any and all legal actions relative hereto shall be in the courts of Lucerne, Switzerland.
22. RELATIONSHIP OF THE PARTIES
The parties hereto are independent contractors and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint venturers, shareholders, employer/employee, agent/servant. The Participant has no power or authority to bind the SMT to any obligation, agreement, debt or liability. The Participant shall not hold itself out as an agent or representative of the SMT. Any modification of this provision shall be in writing form and legally valid signatured.
Notices to the SMT shall be by certified mail, return receipt requested addressed to the address contained in this Agreement, or such other address that the SMT provide notice of to the Participant via Email or by posting the same on the Affiliates section of the SMT web site. Notices to the Participant shall be by Email addressed to the Email address that the Participant provided to the SMT in the Participant Affiliate Program Application or by posting such notices on the Affiliate section of the SMT’s web site. It shall be the Participant responsibility to check the Affiliate section of the SMT web site periodically to monitor all notices set forth thereon.
This Agreement is only for the benefit of the party that the Participant list in the Affiliate Program Application. The Participant shall have not right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
25. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supercedes any and all prior discussions, understandings, agreements, representations, warranties or covenants between the parties related to the subject matter hereof. This Agreement may only be amended by a writing signed by the authorized representative of each of the parties, except as otherwise set forth herein. Any waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent or other breach or default and shall not serve to modify the agreements set forth herein.
If any provision or term of this Agreement is held to be invalid for any reason, it shall not effect the enforceability of the remainder of this Agreement or any other term or condition of this Agreement.
26. BEGINNING OT THIS TERMS AND CONDITIONS
The Participant agrees with creating the account of the Affiliate Program on the SMT Affiliate Program page to this agreement and terms and conditions. SMT agrees to the Participant with accepting the submission and the related confirmation.
Commission Rates in CHF
|Total amount of sales CHF||Rate first sale in %||Rate subsequent sales in %|
|5’001.00 – 10’000.00||10||5|
|10’001.00 – 15’000.00||12||6|
|15’001.00 – 20’000.00||13||6.5|
|20’001.00 – 25’000.00||14||7|
|25’001.00 – 30’000.00||
|30’001.00 – unlimited||special agreement||special agreement|