AFFILIATE MARKETING AGREEMENT
Effective Date: January 1st, 2021
1. Parties. The parties to this Agreement are you (the affiliate), and the owner and operator of this website and software, www.GetDandy.com (Dandy, Inc.), (“Dandy”). If you are not acting on behalf of yourself as an individual, then “you” means your company or organization. All references to “we”, “us”, “our”, “this website” or “this site” shall be construed to mean Dandy.
2. Non-Exclusive Appointment of Affiliate And Restrictions. Effective upon our acceptance of your affiliate application and subject to the terms and conditions hereof, Dandy hereby authorizes you to be a non-exclusive participant in the DANDY Affiliate Program (also referred to as the “Program”) for purposes of promoting and marketing our Dandy Software Subscription.
2.1 Our relationship shall at all times remain, that of independent contractors, and not that of employer and employee, franchisor and franchisee, joint venturers, or partners. No payment of any fee or equivalent charge is required as a condition to enter into this Agreement.
2.2 You are not authorized to accept orders or to enter into contracts or to create any obligation in DANDY’s name, or to transact any business on behalf of DANDY.
2.3 No license is granted herein for use of our tradename or trademarks; however, during the term of this Agreement, you are authorized to use any materials provided by us such as social media posts, banner advertisement links, button links, and/or a text links which may incorporate our tradename or trademarks, but only in the form provided by us. You do not obtain any ownership rights in any intellectual property, including, without limitation, any intellectual property with respect to the tracking URL(s), links, link formats, technical specifications, guidelines, or graphical artwork, or with respect to this site’s domain name.
2.4 You agree that we may notify you from time to time regarding the Program with emails sent to your then-current email address listed for your affiliate account. We reserve the right in such emails to modify existing policies and/or to add new policies regarding the Program, and you agree to follow any such policies.
2.5 Except as may be expressly authorized in writing by us, your appointment of sub-affiliates is not permitted.
2.6 You agree that we have the right to approve your advertisements and promotions prior to publication by you. Prior approval may be in the form of approved advertisements and promotional materials posted to our website. If we do not post your advertisement or promotional material to our website, you agree to send a support request email requesting approval.
2.7 You may use search engine optimization and online advertising in your marketing efforts; provided, however, you are not authorized to purchase or register any keywords, search terms or other identifiers that include any principal words in our tradename, domain name, or any of our trademarks or logos, or any variation thereof (“Proprietary Terms”) for use in any search engine, portal, pay-per-click advertising service, or other search, advertising, or referral service. From time to time we may request that you cause any applicable web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such web search engine offers such exclusion capabilities, and you agree to promptly comply with such requests.
3. Referrals. The term “Referrals” means users who access this site through tracking URL(s) that we provide to you.
4. Emails From Us. You acknowledge that as a participant in the Program, we may from time to time send you email updates about the Program. By participating in the Program, you consent to our sending you these email updates.
5. Referral Fees and Payment Terms. Fees are payable based on sales to your Referrals that we are able to track and credit to you. We will pay you referral fees monthly in accordance with our then-current policy. In no event shall we be liable for more than a single referral fee for a single Referral sale, and in the event of a dispute between competing affiliates for credit for a sale, our determination will be final. We reserve the right to change prices in our discretion at any time. If any sale is refunded, the referral fee will be deducted from the subsequent payment of referral fees. WE MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY POTENTIAL INCOME YOU MAY MAKE.
6. Order Processing And Fulfillment. We will be solely responsible for all aspects of processing and fulfillment for orders for DANDY Services placed by Referrals. We reserve the right to reject orders that do not comply with our requirements.
7. Use of Keywords In Search Engine Optimization And Online Advertising. You are authorized to use search engine optimization and online advertising in your marketing efforts; provided, however, you are not authorized to purchase or register any keywords, search terms or other identifiers that include any principal words in our tradename, domain name, or any of our trademarks or logos, or any variation thereof (“Proprietary Terms”) for use in any search engine, portal, pay-per-click advertising service, or other search, advertising, or referral service. From time to time we may request that you cause any applicable web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such web search engine offers such exclusion capabilities, and you agree to promptly comply with such requests.
8. Monitoring Rights.
8.1 You agree that we may monitor your (i) advertisements for our products and services regardless of the media, platform, or format, and (ii) marketing methods, procedures, and communications by any means now known or hereafter developed for purposes of determining your compliance with this Agreement, including without limitation, monitoring your website(s), emails, and social media posts both directly by us and indirectly via third parties.
8.2 We will notify you via email regarding any requirement for assistance with monitoring your advertisements and promotions, and you agree to implement any and all such requirements.
8.3 You also agree that we have the right to require you to modify or cease any of your advertisements, marketing methods, procedures, and communications. Your only recourse will be to terminate this Agreement and your participation in the Program.
9. Policies Regarding Spam and Deceptive Marketing Techniques.
9.1 You may engage in general email promotions; provided, however, that as a condition of your participation in the Program, you agree to comply strictly with all applicable laws (federal, state, and otherwise in all applicable jurisdictions) that govern marketing email, including without limitation, the U.S. CAN-SPAM Act of 2003, Canada’s Anti-Spam Law (if applicable), and all other applicable anti-spam laws. Violation of any of these laws will lead to immediate termination of this Agreement. You agree to defend and indemnify us from and against any claim by a third party in connection with your failure to comply with this No-Spam Policy.
9.2 You agree to not use any of the following techniques: malware, adware, spyware, phishing, pharming, and similar deceptive techniques.
9.3 You agree that you will not promote our offers on any coupon or discount site.
10. Recruitment of Sub-Affiliates. Except as may be expressly authorized in writing by us, appointment of sub-affiliates is not permitted.
11. Federal Trade Commission Rules Regarding Endorsements.
11.1 The Federal Trade Commission classifies you as an “endorser” for our products or services that you market as our affiliate. Accordingly, you are required to disclose your “material connections” with us in your capacity as our affiliate. This means, among other things, that you should disclose the fact that you are compensated for promoting our products and services. You agree to comply strictly with all FTC requirements in your affiliate marketing activities.
11.2 You agree to add the following notice to the bottom of your website pages and at the bottom of all commercial emails:
Affiliate Compensation Disclosure: From time to time, we promote, endorse, or suggest products or services of others. In most cases, we will be compensated, either as an affiliate with a commission based on sales, or with a free product to review or use. Our recommendations are always based on (i) our personal belief in the high quality and value of the product or service, and (ii) our review of the product or service, or a prior relationship or positive experience with the sponsoring person or organization.
11.3 Refer to the following FTC publication for guidance: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking .
12. Federal Trade Commission Rules Regarding Truthful and Non-Deceptive Advertising.
12.1 The Federal Trade Commission (FTC) and various state laws prohibit advertising that is false or misleading. Accordingly, among other things, you are required to substantiate your advertising claims prior to dissemination and to state these claims in clear language that is both true and also not misleading. You agree to comply strictly with all applicable laws and regulations including without limitation FTC and state law requirements in your affiliate marketing activities.
12.2 Refer to the following FTC publication for guidance: https://www.ftc.gov/tips-advice/business-center/advertising-and-marketing/online-advertising-and-marketing .
13. Prior Approval of Your Ads And Promotions. You agree that we have the right to approve your advertisements and promotions prior to publication by you. Prior approval may be in the form of approved advertisements and promotional materials posted to our website. If your advertisement or promotional material is not posted, then you agree to send a support request email requesting approval.
14. Your Representations And Warranties. You agree to make no representation or warranty regarding this site or DANDY Services.
15. Warranty Disclaimer. ALTHOUGH DANDY RESERVES THE RIGHT TO MAKE A LIMITED WARRANTY TO THE END-USER, DANDY MAKES NO WARRANTY TO YOU. NEITHER DANDY NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO YOU. DANDY AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO MARKETING OF THE DANDY SERVICES OR PRODUCT(S) IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
16. Disclaimer of Incidental and Consequential Damages. IN NO EVENT SHALL WE BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Liability Cap. In no event shall our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, including without limitation any liability for direct damages, exceed the total amount of referral fees paid or payable by DANDY.
18. Confidential Information. You agree that all non-public information that we provide regarding the Program, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for purposes of exercising your rights as our affiliate while in strict compliance with this Agreement, and you further agree not to use or disclose this confidential information for a period of three (3) years after termination as our affiliate.
19. Disclosure of Personal Information. You agree to hold any personal information that we may disclose regarding a referred transaction in strictest confidence and to use such information only for purposes of monitoring that specific transaction.
20. Ownership. The material provided on this site and via our online services is protected by law, including, but not limited to, United States copyright law and international treaties. The copyrights and other intellectual property rights in this material are owned by us and/or others. Except for the limited rights granted herein, all other rights are reserved.
21. Term and Termination. The term of this Agreement will begin upon our acceptance of your 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 this site and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you in connection with the Program. You are eligible to earn referral fees only on sales to Referrals that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
22. Notices. We may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your e-mail address on record in your Registration Data, or (iii) by written communication sent by first class mail or pre-paid post to your address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us as follows: Dandy, Inc. 9891 Irvine Center Drive #200, Irvine, Ca 92618, in either case, addressed to the attention of “President of the Company”. Notices will not be effective unless sent in accordance with the above requirements.
23. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Orange County, California. The arbitrator shall apply the laws of the State of California to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
24. Continuing Obligations. The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (v) the payment of taxes, duties, or any money hereunder.