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Upperkut, Inc. Affiliate Program Agreement and Terms & Conditions
This Affiliate Agreement ("Agreement") contains the terms and conditions between us, Upperkut, Inc. which owns and operates (“Upperkutusa.com.") located at 7668 El Camino Real, Suite 104-273, Carlsbad, CA 92009 and you, regarding your application and participation as an affiliate of Upperkut, Inc. ("Affiliate"), and the establishment of links from your Web site to our Web site at "Upperkutusa.com."
Please read these terms and conditions carefully as they constitute a legal agreement between you and our company upon your acceptance into our affiliate program. By applying to and being accepted into our affiliate program, you agree to be bound by all of the terms and conditions set forth in this agreement relative to your participation in the affiliate program.
Affiliate Program Enrollment: To become a participant in Upperkut, Inc.'s Affiliate Program, you will have to submit a complete Affiliate Program Application. We will evaluate your application and notify you of your acceptance. We may reject your application if we determine, in our sole discretion, that your Web site is not suitable 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, which by way of example only, contains (i) sexually explicit, pornographic or obscene content (whether in text or graphics), (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), (iii) graphic violence (which may include certain types of game sites), or (iv) any unlawful behavior or conduct. If we reject your application, you are welcome to reapply to the Affiliate Program at any time, provided, you alter your Web site to delete all offending content.
Acceptable Use: The Client may use the Services only in accordance with this Agreement, applicable laws in the United States and the applicable laws of any other jurisdiction. Client agrees not to use the Services in any manner that violates the Upperkut, Inc. In addition, the Client agrees that it will not use the Services to:
· Engage in any illegal or tortuous activity;
· violate the patent, copyright, trademark, trade secret or other intellectual property rights of any third party;
· sell or distribute illegal adult oriented content that features nudity, sexual acts or adult-themed material; or
· publish or distribute in any manner any content that is harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable to Upperkut, Inc. in its sole discretion.
Description of Services: The Services may include any one or more of the following elements, depending upon the package and options selected by the Client during the ordering process:
·
A website controlled by the Client;
· Email marketing tools and services;
· Online advertising tools and services; and
· Affiliate marketing tools and services;
Setting Up Links: We will make available to you, banner advertisements and text links to our Web site ("Links"). In using the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. All Affiliate Web sites shall display such graphic images prominently throughout your Web sites as you see fit and with our consent. A Link may modified and/or expanded with our consent only. We have the right, in our sole discretion, to monitor your Web site at any time and from time to time to determine if you are acting in compliance with the terms of this Agreement.
Order Processing: We will process orders placed by customers who follow the Links from your web site to the Upperkut, Inc.'s web site www.upperkutusa.com. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements, which we may establish from time to time. All aspects of order processing and fulfillment, including order entry, customer service, cancellations, returns, and payment processing will be our responsibility. We will track the amount of sales generated by your Web site and will make this information available to you through our tracking website. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Links between your Web site and our Web site are properly formatted. You are responsible to inform Upperkut, Inc. of any suspected problems in the tracking code immediately.
Commissions: We will pay you a commission equal to twelve (12%) percent (after deduction of store returns/chargeback's and shipping cost) for all new customer purchases, utilizing the Links between your Web site and ours, for products which we deliver to such customer and for which we have received full payment. A commission will only be paid if the customer is tracked as originating from your Link from the time of the Link to the time of the sale. In addition, we will pay commission equal to three (3%) percent for tier 2 participants that join our affiliate program through your affiliate links.
For a sale to generate a commission, the customer must follow the Link for your Web site to our Web site, purchase the items in question using our online ordering system, accept delivery of the items at the shipping destination, and remit full payment to us. However, no commission will be paid for orders that are refunded, not paid for, undeliverable or payment for which is credited to any customer.
For a second tier affiliate, that affiliate must follow a link from your website or link and sign up to become an affiliate member.
Upperkut, Inc. shall set the price of any products at it's sole discretion.
Products referred to in this agreement, refer to individual inventory items available directly through www.upperkutusa.com No commission is due or payable on the sale of any other products, including but not limited to advertising subscriptions, supplies offered by or sold by Upperkut, Inc. or any other partners, affiliates, advertisers or sponsors. Affiliate Program: If Client checked the box to participate in the Upperkut, Inc. affiliate marketing program, or has otherwise been accepted by Upperkut, Inc. to participate in such affiliate marketing program, the following provisions apply:
Upperkut, Inc. will pay a commission (the "Commission") equal to twelve percent (12%) for 1st tier and three (3%) percent of the 2nd tier of amounts billed and received by Upperkut, Inc. from new customers who purchase services from Upperkut, Inc. within six (6) months after clicking on an approved Upperkut, Inc. affiliate marketing banner on a website owned or controlled by Client.
All tracking of referrals and clicks are as determined by Upperkut, Inc.'s systems. Upperkut, Inc. will not pay Commissions on sales that are subsequently rescinded or charged back and any Commissions paid on such sales must be repaid or debited from future Commissions due.
Payments: We will pay your commission on a monthly basis. Within approximately 30 days following the end of each month, Upperkut, Inc. will send you a check for the commission earned on the products shipped during the preceding month. If the commission payable to you for any month is less than twenty-five ($25.00) U.S. dollars, we will hold those commissions until such time as your commission earned equals at least twenty-five ($25.00) U.S. dollars. When the customer refunds a product sale that generated commission, we will deduct the corresponding commission from your monthly payment. We reserve the right to remit payments to you electronically , in our sole discretion. Upperkut, Inc. may change the commission rate and other terms and conditions of this affiliate marketing program at any time, with such changes to be effective when posted to the Upperkut, Inc. website.
After enrolling in the affiliate marketing program, a Client must click the referral program link within the Client's account and use the enclosed tracking link. Client may not use or display on the affiliate link any material that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of Upperkut, Inc. or does not have the written approval of Upperkut, Inc.
A Client enrolled in the affiliate marketing program will continue to earn Commissions even after the Client terminates Services. Upperkut, Inc. may offset against any Commissions earned, however, any due and unpaid amounts in respect of Services . Use of Client Data: Client agrees that Upperkut, Inc. may use data collected from the Client only as permitted by the Upperkut, Inc. Privacy Policy and Upperkut, Inc. agrees to use such data only as permitted by such Privacy Policy, the terms of which are incorporated herein by this reference as if fully stated herein.
Fraud: Upperkut, Inc. also retains the right to review all commissions for possible fraud. Any incidence of fraud constitutes a breach of this Agreement, and Upperkut, Inc. retains full authority to terminate this Agreement immediately.
Non-Exclusive: This is a non-exclusive agreement as to Upperkut, Inc. and Affiliate. Both parties may enter into similar agreements with other parties.
No Guarantee of Results: The Client acknowledges that Upperkut, Inc. does not guarantee, imply, or predict any type of profit or response from the Services. The Services may be subject to interruptions, loss of data, deletion of data and conditions that prevent the proper operation of the Services resulting from conditions of events outside the reasonable control of Upperkut, Inc. and for which Upperkut, Inc. will bear no responsibility. The Client irrevocably covenants, promises and agrees to indemnify Upperkut, Inc. and its assigns and to hold them harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature that they may sustain or to which they may become subject arising out of or relating in any way to the use of the Services, including, without limitation, in each case attorneys' fees, costs and expenses actually incurred in defending against any such claims or enforcing the prerogatives of Upperkut, Inc. under this Agreement.
Termination: Either Party This may terminate this agreement with 30 days written notice to the other party. The agreement can be terminated sooner by Upperkut, Inc. in the event of any breach by Affiliate. Notice: Upperkut, Inc. may give notice to Client of any matter under this Agreement (a) orally, by calling Client's representative or by leaving a voicemail for Client's representative at the telephone number in Client's profile, (b) by email to the email address provided by Client in Client's profile, or (c) by regular mail to Client's mailing address in Client's profile. Client may give notice to Upperkut,
Inc. by regular or certified mail to the following address: Upperkut, Inc. 7668 El Camino Real, Suite 104-273 Carlsbad, CA 92009 Provided, however, that Client may give notice of termination by calling Upperkut, Inc. at 1-760-494-6491
Validity: In the event that any one or more of the provisions of this Agreement for any reason shall be held to be invalid, such invalidity shall not affect any other provision of this Agreement.
Interruption of Service: Although Upperkut, Inc. will try to keep the service operational at all times, a certain amount of downtime and interruption of service is always possible and inevitable. Upperkut, Inc. is not responsible for any interruption of the service and Affiliate agrees not to hold Upperkut, Inc. liable for any consequences of interruption of any service.
Miscellaneous: Indemnification. Client will indemnify and defend Upperkut, Inc. against any third-party claim, action, suit, or proceeding arising out of or relating in any way to any alleged breach of this Agreement by Client. Upperkut, Inc. will indemnify and defend Customer against any third-party claim, action, suit, or proceeding alleging any breach of this Agreement by Upperkut, Inc.. In connection with any request for indemnification under this Agreement, the indemnified party must: (i) give the indemnifying party prompt, written notice of any claim, action, suit, or proceeding for which the indemnified party is seeking indemnity; (ii) grant control of the defense and settlement to the indemnifying party; and (iii) reasonably cooperate with the indemnifying party at the indemnifying party's expense. Limitation of Liability. IN NO EVENT WILL THE LIABILITY OF Upperkut, Inc. UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CLIENT DURING THE THREE (3) MONTH PERIOD BEFORE THE DATE ON WHICH SUCH LIABILITY AROSE. IN NO EVENT WILL Upperkut, Inc. BE LIABLE FOR ANY (A) LOSS OF USE, LOSS OF DATA, OR INTERRUPTION OF BUSINESS OR (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF Upperkut, Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND ABSENT SUCH LIMITATIONS, Upperkut, Inc. WOULD NOT ENTER INTO THIS AGREEMENT. Miscellaneous. This Agreement shall be governed solely by the laws of the State of California, excluding its principles of conflicts of laws. Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in Califoria, with sole venue in the courts located in San Diego County, and each party hereby submits to the personal jurisdiction of such Courts. Each party agrees that its performance under this Agreement shall in all respects conform to all applicable laws, rules, and regulations of the United States governing the export of technical information. Customer may not assign this Agreement without the prior, written permission of Upperkut, Inc.. Any purported assignment in violation of this will be void and without any effect. This Agreement may not be modified or amended except in writing, signed by both parties. Any purported oral modification or amendment of this Agreement in derogation of the foregoing shall be without any effect. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Services or this Agreement. Neither party may waive any right hereunder except expressly and in writing. This Agreement is the entire agreement between the parties with respect to this subject matter, and it supersedes all prior and contemporaneous discussions, negotiations, communications, and agreements with respect thereto.
Entire Agreement: This Agreement contains the entire agreement of the parties and no oral statements or prior agreements shall have any force and effect. Upperkut, Inc. may modify the terms of this agreement in writing by giving 10 days written notice to Affiliate.