THESE TERMS AND CONDITIONS REPRESENT A LEGAL AGREEMENT BETWEEN YOU AND PINK LOTUS POWER UP, LLC. BY SIGNING UP FOR A PINK LOTUS POWER UP AFFILIATE PROGRAM ACCOUNT, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
2. Affiliate Obligations
2.1. To become an Affiliate, you must complete and submit a short application. You must be 18 years old and cannot be a current employee of the Company, and/or be an employee or associated or affiliated with the Company in any way, including its parent, subsidiaries, sister organizations and their respective affiliates. After you submit your Affiliate application, your account will be confirmed via e-mail. We may reject your application at our sole and absolute discretion. We may cancel your application and/or affiliate account if we determine that your website or promotional tactics are not suitable for our Program, including, but not limited to, if it:
2.1.1. Promotes sexually explicit materials 2.1.2. Promotes violence 2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age 2.1.4. Promotes illegal activities 2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate any laws 2.1.6. Includes “Pink Lotus”, “Pink Lotus Power Up” or variations or misspellings thereof in its domain name 2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion. 2.1.8. Contains promotional tactics that potentially enable diversions of commission from other affiliates in our program. 2.1.9. Contains website design explicitly or implied to resemble our own website or is designed in a manner which leads customers to believe you are the Company or an affiliated business.
2.2. As a member of Company’s Program, you will have access to an Affiliate Account dashboard. There, you will be able to review the Program’s details and obtain standard or customized referral links which link to web pages within the Company’s web site. In order for us to accurately keep track of all guest visits that come from your referral link(s), you must use the proper referral link that we provide you with. If you create additional or custom referral links via your Affiliate dashboard, you are solely responsible to assure such additional or custom links are fully functional. The Company is not responsible to check any of your custom referral links and is not liable for any lost commissions as a result of the use of an invalid custom link.
2.3. Company reserves the right, at any time, to review your referral link placement and approve the use of your referral links and require that you change the placement or use to comply with the guidelines provided to you.
2.4. The maintenance and the updating of your website will be your responsibility. We may monitor your website or dial media accounts to see how you use your referral links and may notify you of any changes that we feel should enhance your sales performance.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other local, state or federal laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We are not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
3. Company’s Rights and Obligations
3.1. We have the right to monitor your public website and social media channels at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your website that we feel should be made, or to make sure that your links to our website are appropriate. If you do not make the changes to your website that we feel are necessary to comply with this Agreement, we reserve the right to terminate your participation in the Program.
3.2. Company reserves the right to terminate this Agreement and your participation in the Program immediately and without notice to you should you commit fraud in your use of the Program or should you abuse the Program in any way. If such fraud or abuse is detected, Company will not be liable to you for any commissions due for such fraudulent sales.
3.3. This Agreement will begin upon your submission of your Affiliate application, and will continue unless terminated in accordance with the terms and conditions hereof.
Either you or we may end this Agreement at any time, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. If any modification is unacceptable to you, you can terminate this Agreement. Your continued participation in the Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
6. Payment and Commissions
6.1 Company uses third party payment companies, Zelle and PayPal, to handle any payments due to Affiliate. You will be subject to such party’s terms and conditions. In order to receive commissions due to you, and in order to receive them timely, you must have an active Zelle or PayPal account, in good standing. Alternatively, you can opt to be paid by check. Payments of commissions occurs on the 10th day of each calendar month. If such day falls on a weekend, federal holiday or banking holiday, payments will be made on the next available business day.
6.2 Affiliates will earn a fifteen percent (15%) commission on each purchase made on our Site by a customer (a “Referred Customer”) so long as the Referring Customer making such purchase is making his, her or its purchase using (i) a valid Tracking URL issued by Affiliate; and (ii) such purchase was made within 30 days after Referred Customer first clicked on such Tracking URL. Please note that commissions are not paid on any donations made on the Site that fall under the CrowdCause fundraising platform. If a Referring Customer is making a donation to a fundraiser, no commission will be payable to Affiliate. Furthermore, Company shall have the option to enter into written amendments with certain Affiliates that provide for different commissions rates and/or payout timeline. Any such amendments shall not be valid unless duly signed by both an authorized representative of Company and Affiliate. 6.3 Company tracks customer referrals via cookies. When a new potential customer first visits the Site via a Tracking URL, an entry is stored via a text file on such potential customer’s web browser, also known as a cookie. The stored cookie identifies the respective Affiliate being responsible for the referral. Company’s cookies are valid for 30 days. Therefore, potential customers who click a Tracking URL but wait longer than 30 days to make their first purchase in the Store will not be recognized as a Referred Customer and no commissions will be earned on such purchases. Furthermore, web browsers allow cookies to be disabled and/or cleared, both manually and automatically depending on the web browser used. Company is not responsible for missed commissions and Affiliate indemnifies and holds Company harmless from missed revenue as a result of customers (i) blocking their cookies, (ii) limiting their cookies settings in such form that they are not recognizable by our website, (iii) clearing or removing their cookies via their web browser prior to making their purchase, or (iv) waiting longer than 30 days after first clicking on a Tracking URL to make their purchase in the Store.
7. Access to Affiliate Account Interface
You will create a user account and password so that you can access our secure affiliate account interface. If you previously had a user account on our website, it will not be necessary to create a new password and you can use your existing user account to sign up as an Affiliate. Our Affiliate Account Manager provides you with information and tools you will need to manage your account.
8. Promotion Restrictions
8.1. You are free to promote your own websites, but naturally any promotion that mentions the Company could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by the Company. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name and reputation. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups or social media groups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote the Company so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Program. Any pending balances owed to you will not be paid if your account is terminated due to unacceptable advertising or solicitation.
8.2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as pink lotus, pinklotus, pinnklotuspowerup, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from the Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our Program without prior notice, and on the first occurrence of such bidding behavior.
9. Grant of Licenses
9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our website and to link to it via your designated or custom referral links solely in accordance with the terms of this Agreement and (ii) solely in connection with such referral links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are an Affiliate in good standing of the Program. You agree that all uses of the Licensed Materials will be on behalf of the Company and the good will associated therewith will inure to the sole benefit of the Company.
9.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
COMPANY MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ITS SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF COMPANY’S ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Representations and Warranties
You represent and warrant that:
11.1. 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;
11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL COMPANY’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless the Company, its parent, 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, or (iii) any claim related to your website, including, without limitation, content therein not attributable to us.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and the Company. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on you website or otherwise, that reasonably would contradict your independent contractor relationship with us.
15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws and principles thereof.
15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
15.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect. Last updated: 10/08/19