Affiliate Terms and Conditions
Affiliate Program Agreement
By [clicking “I agree”] you, the affiliate agree to enter into this Affiliate Program Agreement (“Agreement” and to be bound by the Terms and Conditions set forth herein.
1. Definitions
“Affiliate Program” means our affiliate program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.
"Agreement" means this Affiliate Program Agreement and all materials referred or linked to in here.
“Commission” means an amount earned for each Customer Transaction.
“Customer” means an actual customer who has purchased one or more Raw Sugar products.
"Customer Data" means all information that Customer submits or is collected via the Raw Sugar website and all materials that Customer provides or posts, uploads, inputs or submits for public display.
"Raw Sugar Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
"We", "us", “our”, and “Raw Sugar” means Raw Sugar, LLC, our affiliated companies, and our website.
“You” or “your” refers to the Affiliate.
2. Non-Exclusivity
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
3. Affiliate Acceptance
Once you complete an application to become an Affiliate via the Impact affiliate platform, we will review your application in accordance with the Impact Affiliate Terms and Conditions.
You will comply with the terms and conditions of this Agreement and the Impact Affiliate Terms and Conditions at all times.
4. Trademarks
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, in the event that we make our trademark available to you within the Impact affiliate platform, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; (iii) comply with any Trademark Usage Guidelines that we provide to you; and (iv) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
5. Confidentiality
As used herein, “Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, (ii) Raw Sugar customer and prospect information, whether or not otherwise designated as confidential ,and (iii) any other information that by its nature would reasonably be considered confidential by the Disclosing Party. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
6. Opt Out and Unsubscribing
You will comply promptly with all opt out, unsubscribe, "do not call" and "do not send" requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, "do not call" and "do not send" requests.
7. Term and Termination
a) Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.
b) Termination Without Cause. Both you and we may terminate this Agreement at any time for any reason upon fifteen (15) days written notice to the other party.
c) Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
d) Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you acting in violation of applicable laws, rules, or regulations with respect to conduct or content in connection with this Agreement, or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
e) Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect. Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program in all your content.
8. Affiliate Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.
You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are a Raw Sugar Affiliate on any posts you make where you make an Affiliate Link available) and with the rules of the relevant social media platforms; (ii) you will create content based upon the briefing materials provided by the Company, (iii) you will not attempt to mask the referring URL information; and (iv) you will abide by the guidelines attached hereto as Schedule A (the “Guidelines”). You acknowledge and agree that the Company will be monitoring the content you create for compliance with this Agreement. Company may address any noncompliant content by taking any of the following actions alone or in combination: : (a) requiring you to change or modify the content; (b) withholding payment of the Commission; or (c) terminating the Agreement for breach in accordance with Section 8(d).
9. Indemnification
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, or (d) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10. Disclaimers; Limitations of Liability
a) Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE AFFILIATE PROGRAM FOR ANY PURPOSE.
b) No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c) Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
11. General
a) Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be sent to you by email. The updated Agreement will become effective and binding on the next business day after we have notified you. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b) Applicable Law. This Agreement shall be governed by the laws of the State of Delaware without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Broward County, Florida.
c) Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; or government restrictions. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d) Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
e) Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
f) Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury.
g) Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
h) Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
To Raw Sugar, LLC: 21500 Biscayne Blvd, Suite 600, Aventura, FL 33180, Attn: Legal Department.
To you: your address as provided in our affiliate account information for you.
We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
i) Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us.
j) Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
k) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
l) No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, our trademarks, or any other property or right of ours.
m) Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
n) Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.
Schedule A
GUIDELINES
With respect to promotional messages, photos, or other communications made on social media platforms about the Company and our products and brands, all Affiliates must adhere to the following guidelines:
- Affiliate must clearly and conspicuously disclose any "material connection" with Company, making it clear that Affiliate is a paid influencer and has received free or discounted products. Affiliate must place the disclosure in plain sight in close proximity to any audio or visual communications that Affiliate makes about Company, its brands, and its products. Affiliate may not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures. Company requires this disclosure regardless of any space limitations of the platform (like Twitter), where Affiliate can use hashtags for the disclosure (like #ad or #sponsored). If a platform does not allow for a clear and conspicuous disclosure, Affiliate should not use that platform.
- Posts must comply with the Federal Trade Commission's (the "FTC") Guides Concerning Endorsements and Testimonials (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf), including making:
Ø statements that reflect the Affiliate’s honest beliefs, opinions, and experiences; and
Ø clear and conspicuous disclosure about the Affiliate’s connection to the Company in all posts.
- To better understand the Affiliate’s responsibilities under the Endorsement Guides, the Affiliate must review:
Ø The FTC's Endorsement Guides: What People Are Asking (https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking).
Ø FTC: The Do's and Don'ts for Social Media Influencers (https://www.ftc.gov/news-events/press-releases/2017/09/csgo-lotto-owners-settle-ftcs-first-ever-complaint-against).
Ø FTC: Disclosures 101 for Social Media Influencers (https://www.ftc.gov/system/files/documents/plain-language/1001a-Affiliate-guide-508_1.pdf).
Ø FTC: Do you endorse things on social media? (https://www.ftc.gov/news-events/audio-video/video/advice-social-media-Affiliates).
- Affiliates may not:
Ø make deceptive or misleading claims about Company products or our competitors' products;
Ø make any claims about Company products or our competitors' products that are not backed up by evidence;
Ø disclose any Company confidential information;
Ø disparage Company or our brands or products;
Ø engage in any communication that is defamatory or infringes upon the copyright, trademark, privacy, publicity, or other intellectual property rights of others;
Ø offer for sale or solicit products on behalf of Company;
Ø make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
Ø post content that promotes bigotry, racism, or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age;
Ø use ethnic slurs, personal insults, obscenity, or other offensive language; and
Ø make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving Company's consumers or other individuals.
- Affiliate must adhere to:
Ø the posted policies, guidelines, and terms of use on any platform on which the Affiliate posts content on behalf of Company, understanding that any these platforms' disclosure requirements about Affiliate’s connection to Company do not necessarily satisfy FTC disclosure requirements; and
Ø any additional guidelines provided by Company, such as product or brand-specific program requirements and our Social Media Endorsement Policy.
- Affiliates must not create fake followers or engagement on social media platforms, such as:
Ø buying followers;
Ø using bots to grow audience size by automating account creation, following, commenting, and liking; or
Ø posting fake sponsored content.
- Once the campaign is finished the Affiliate will provide screenshots and metrics that are viewable through their profile on Affiliate and Company collaborated content.
- The Affiliate content should only make factual statements about Company and its products which Affiliate knows for certain are true and can be proven or verified.
- Although the content should be authentic and based on Affiliate’s own opinions, beliefs, and experiences, the content should rely on the Campaign Materials to accurately use Company trademarks, describe the Campaign, and describe Company products.
- The content will be original and created solely by Affiliate.
- The content will not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans.
- The content will not include any person, or personally identifiable information about anyone, other than Affiliate.
- The content will comply with Company’s standards of conduct set out in Schedule A and any other policies provided to Affiliate.