SUGAR MAMA AGREEMENT
SUGAR MAGNOLIA
This Agreement is between Sugar Magnolia (hereafter “Company”), and Affiliate (hereafter “Affiliate”) (collectively the “Parties”, or in the singular “Party”), for the purpose of Affiliate becoming a partner affiliate for Company’s Sugar Mama Affiliate Program (“Affiliate Program”). This Agreement shall become effective upon the date of both Parties’ signatures below.
- Scope of Affiliate Program
Affiliate understands and agrees that their business was evaluated by Company and determined by Company to be a proper fit as an affiliate marketer for Company’s Sugar Mama Affiliate Program. Affiliate shall comply with this Agreement at all times, and Company reserves the right to terminate Affiliate at any time for any reason. Company shall provide Affiliate with a specific link and/or code for Affiliate to use and give to their respective audience.
- Use of Affiliate Link
Company shall provide Affiliate with a unique tracking link that you promote through your social media and other channels (“Affiliate Link”). Affiliate agrees to ONLY use this Affiliate Link to refer its audience to either the homepage of Company or a webpage(s) of the Affiliate’s choice. Company reserves the right to change the Affiliate Link at any time if misuse of the Affiliate Link has occurred.
Affiliate understands and agrees that discretion must be exercised when providing the Affiliate Link, and should only be sent via private message.
- Compensation for Referred Traffic and Sales
Company agrees to pay Affiliate a 10% commission on each retail sale [after all fees are deducted, including, but not limited to, all online platform fees and online payment processing fees, shipping and fulfillment, and sales promotions] (“Payout”). Payouts are 10% of purchase credited to your account.
Company reserves the right to change Payout procedures in its sole and exclusive discretion. If Company does so, Affiliate will be notified.
- Affiliate Discount
Affiliates are eligible for a 10% discount off of Company’s products. Affiliates will receive 10% of purchase credited to your Sugar Magnolia account to use on future purchases.
- Affiliate Obligations
Further, Company monitors Affiliate’s account and all clicks and/or purchases coming through the Affiliate’s account. Affiliate link needs to be used by self or others at least one time every 30 days to maintain affiliate. Thereafter, Affiliate is required to make at least one sale every 30 days to stay active in the Affiliate Program. In the event Affiliate does not reach these requirements, Company reserves the right to terminate Affiliate from the affiliate program in its sole discretion. Further, if Company determines that Affiliate is not in compliance with the terms of this Agreement or improperly uses the Affiliate Link, Company reserves the right to immediately terminate Affiliate’s participation in Affiliate Program. The affiliate is responsible for ensuring operation and maintenance of the Affiliate sites, Affiliate Link, including technical operations, written claims, and accuracy of materials. Affiliate must ensure that these do not infringe upon the intellectual property rights of any third-party or otherwise violate any legal rights
- Reports
Affiliate will receive reports of all sales each month from Company and/or through the affiliate program. In the event Company uses a third-party affiliate program, Affiliate may login to their personal portal to review all sales and statistics. In such case, Affiliate must ensure access is maintained to their personal portal, and notify Company within 5 business days if access is lost.
- Copyright
Affiliate agrees that the intellectual property owned by Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to Company (“Company IP”).
Subject to the limitations listed below, Company hereby grants to Affiliate a non-exclusive, non-transferable, revocable license to access Company’s websites in conjunctions with the Affiliate Program and use the Company IP solely and exclusively in conjunctions with identifying Company and brand on the Affiliate Site to send customers to the Affiliate links Company provides. Affiliate may not modify the Company IP in any way and only Affiliate is permitted to use the Company IP. Company may revoke this license at any time.
Affiliate is advised that any unauthorized use of Company IP shall constitute unlawful infringement and Company reserves all its rights, including the right to pursue an infringement suit against Affiliate.
Affiliate hereby provides Company a non-exclusive license to use their name, company name, trademarks, and service marks if applicable and other business intellectual property to advertise Company’s Affiliate Program.
- Work Relationship
Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. Affiliate is an independent contractor of the Company and will remain so at all times. Affiliate will be provided a 1099-NEC form by Company, or a 1099-K form by a payment settlement entity, if applicable.
- Affiliate Representations and Warranties
Affiliate represents and warrants that:
- It will accurately provide all websites and domains you own where you intend to use Affiliate Links to generate affiliate leads upon request by Company;
- It will not use your Affiliate Link directly in any pay-per-click advertising;
- It will not use or encourage any means of delivering fraudulent traffic, including, but not limited to, use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links;
- It will not use direct linking to any page on Company website, without prior written permission from Company;
- It will not mask its referral sites or use deceptive redirecting links; and
- It will not use any mechanisms to deliver leads other than through an intended consumer.
- FTC Compliance
Company requires Affiliate to comply with all applicable statues, regulations, and guidelines set by the federal government, through the Federal Trade Commission, as well as state and local governments as mandates. The FTC requires that affiliate relationship, such as the relationship between Affiliate and Company, by clear and conspicuously disclosed to consumers. Company recommends that Affiliate seeks independent legal counsel to advise on disclosure obligations.
Affiliate is required to post a conspicuous notice on its website regarding the Affiliate Program. The notice does not have to contain the following precise wording, but should be similar:
“We engage in affiliate marketing whereby we receive commission funds through clicks and codes to our affiliate program through purchases made through this website and/or link. This disclosure is intended to comply with the U.S. Federal Trade Commission Rules on marketing and advertising, as well as any other legal requirements which may apply.”
Company further requires Affiliate to comply with any and all applicable data privacy and security laws and regulations, including all of those which may impact your country of residence or your visitors. Such regulations include, but are not limited to, the General Data Protection Regulations and California Consumer Protection Act.
- Reverse Engineer and Security
Affiliate agrees not to (1) reverse engineer or attempt to reverse engineer or disassemble any code or software from or on any of Company’s websites or affiliate programs/services; (2) violate the security of any of Company’s websites or affiliate programs/services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user, or network.
- Data Loss
Company does not accept responsibility for the security of Affiliate’s account or content. Affiliate agrees that their participation in the Affiliate Program is at their own risk.
- No Guarantees and No Warranties by Company
Company does NOT guarantee that the Affiliate Program will provide any specific outcome, such as monetary gain, to Affiliate’s business. Company hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to, the implied warrant of fitness for a particular purpose and the implied warranty of merchantability. Company makes no warranties that the Affiliate Program will meet Affiliate’s needs or that it will be uninterrupted, error-free, or secure. Company also makes no warranties as to the reliability or accuracy of any information. Affiliate agrees that any damages that may occur to him/her is Affiliate’s sole responsibility and Company is not liable for any such damage or loss.
- Term and Termination
The term of this Agreement will begin when Company accepts you into the Affiliate Program, and will continue for the period which the Affiliate remains in good standing as long as the terms in Section 5 are met. It can be terminated by either Party at any time with or without cause.
Affiliate may only earn Payouts as long as Affiliate is in good standing during the term. If Affiliate terminates this Agreement, Affiliate will qualify to receive only payouts earned prior to the date of termination.
If Affiliate fails to follow the terms of this Agreement or any other legal terms, Affiliate forfeits all rights, including the right to any unclaimed payout.
Company reserves the right to terminate this Agreement if Affiliate violates any of the terms outlined herein.
- Non-Disparagement
Company and Affiliate agree that, at all times during this Agreement and in perpetuity, they shall use reasonable and good faith efforts to ensure that neither Party engages in any vilification of the other, and shall refrain from making any false, negative, critical or disparaging statements, implied or expressed, concerning the other, including, but not limited to, methods of doing business, the quality of products and services, role in the community, or treatment of one another. The Parties further agree to do nothing that would damage the others business reputation or goodwill; provided, however, that nothing in this Agreement shall prohibit either party’s disclosure of information which is required to be disclosed in compliance with applicable laws or regulations or by order of a court or other regulatory body of competent jurisdiction.
- Confidentiality
Affiliate shall not (i) disclose to any third-party any details regarding the business of the Company, including, without limitation, the names of any of its customers, the prices it obtains, the prices at which it sells products, its manner of operation, its plans, its marketing and advertising strategies, any of the Company’s trade secrets or any other information pertaining to the business of the Company (the “Confidential Information”), (ii) make copies of any Confidential Information or any content based on the concepts contained within the Confidential Information for personal use or for distribution unless requested to do so by the Company, or (iii) use Confidential Information other than solely for the benefit of the Company.
- Force Majeure
No Party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control that are unforeseen and unpredictable at the time of contracting, including, but not limited to, the following force majeure
events (“Force Majeure Events”): (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), outbreak, or epidemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Impacted Party shall give Notice (as defined in Section 27) within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days following Notice given by it, the other Party may thereafter terminate this Agreement upon Notice.
- Indemnification
Affiliate shall indemnify, release, discharge and hold harmless Company, its heirs, legal representatives, assigns, employees, contractors, or any persons or corporations acting under permission or authority of Company from and against any and all losses, damages, liabilities, and expenses and costs, including reasonable legal expenses and attorneys’ fees, to which Company may become subject as a result of any claim, demand, action or other legal proceeding by any third-party to the extent such losses arise directly or indirectly out of activities performed by Company pursuant to this Agreement, except to the extent such losses result from the gross negligence, willful misconduct, or intentional acts of Company.
- Maximum Damages
Affiliate agrees that the maximum amount of damages they are entitled to in any claim relating to this Agreement or services provided in this Agreement are not to exceed the total cost paid to Affiliate or promised to be paid to Affiliate under a client contract with Company.
- Entire Agreement
This is a binding Agreement that incorporates the entire understanding of the Parties, supersedes any other written or oral agreements between Company and Affiliate, and any modifications must be in writing, signed by both Parties, and physically attached to the original Agreement.
21. Venue and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws. The Parties agree that any dispute or lawsuit arising out of, or concerning, this Agreement that is not first resolved by arbitration shall be resolved exclusively in a federal or state court of competent jurisdiction located in San Diego County, CA. The Parties assume responsibility for their own collection costs and legal fees incurred should enforcement of this Agreement should it become necessary.
- Arbitration
Any and all disputes or disagreements arising between the Parties out of this Agreement upon which an amicable understanding cannot be reached, shall be decided by arbitration in accordance with the procedural rules of the American Arbitration Association. The Parties agree to be bound by the decision of the arbitrator(s). The arbitration proceeding shall take place in San Diego, County, unless another location is mutually agreed to by the Parties. The cost and expenses of the arbitrators shall be shared equally by the Parties. Each Party shall be responsible for its own costs and expenses in presenting the dispute for arbitration.
- Severability and No Waiver
In the event that any part of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable. Any failure by one or both Parties to enforce a provision of this Agreement shall not constitute a waiver of any other portion or provision of this agreement.
- Transfer
This Agreement cannot be transferred or assigned to any third-party without written consent of both Parties.
- Headings
Headings and titles are provided in this Agreement for convenience only and will not be construed as part of this Agreement.