AFFILIATE MARKETING AGREEMENT for TOGENIT LLC ("TOGENIT LLC") THIS APPLICATION FOR ENROLLMENT AS A TOGENIT LLC ("TOGENIT LLC") MARKETING AFFILIATE, IF ACCEPTED BY TOGENIT LLC, WILL BECOME A LEGALLY BINDING AGREEMENT THAT WILL GOVERN YOUR PARTICIPATION IN THE "TOGENIT LLC AFFILIATE PROGRAM". BY CLICKING THE "I ACCEPT" BUTTON BELOW, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. AFFILIATE MARKETING AGREEMENT Effective Date: DECEMBER 1, 2013
To Review Material Modifications Since DECEMBER 1, 2013, Scroll To The Bottom of The Page 1. Parties. The parties to this Agreement are you, and the owner and operator of this website, Togenit LLC ("Togenit LLC"). If you are not acting on behalf of yourself as an individual, then "you" means your company or organization. All references to "your site" refers to the site that will link to this site (and which you will identify in your application). All references to "we", "us", "our", "this website" or "this site" shall be construed to mean Togenit LLC.
3. Modification of Agreement. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible on this page and/or by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
4. Eligibility. We do not allow minors to participate in the Program. Additional eligibility requirements for participation in the Togenit LLC Affiliate Program are determined in our sole discretion.
5. Non-Exclusive Appointment of Affiliate And Restrictions. Effective upon our acceptance of your affiliate application and subject to the terms and conditions hereof, Togenit LLC hereby authorizes you to be a non-exclusive participant in the Togenit LLC Affiliate Program (also referred to as the "Program") for purposes of promoting and marketing our through your website.
5.1 This Agreement does not establish you as Togenit LLC's agent or representative for any other purpose other than those purposes expressly provided herein. Affiliate is not authorized to accept orders or to enter into contracts or to create any obligation in Togenit LLC's name, or to transact any business on behalf of Togenit LLC.
5.2 The relationship of Togenit LLC and you shall be and 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 of you by Togenit LLC as a condition to enter into this Agreement.
5.3 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 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.
6. Referrals. The term "Referrals" means users who access this site through tracking URL(s) that we provide to you.
7. 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.
8. 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 the settings in your online account. 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.
9. Order Processing And Fulfillment. We will be solely responsible for all aspects of processing and fulfillment for orders for Togenit LLC Services placed by Referrals. We reserve the right to reject orders that do not comply with our requirements.
10. 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. If we determine, in our solediscretion, that you have engaged in any of the foregoing activities or, as the case may be, refused promptly to comply with a request from us to exclude Proprietary Terms from any keyword as provided above, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
11. Monitoring Rights. You acknowledge that we may crawl or otherwise monitor your site by visitation(either directly by us or by a third-party service provider) for the purpose of ensuring the quality and reliability of your links to this site. You agree that we may monitor your marketing methods, procedures, and communications. You agree to add an email address designated by us to your mailing list for each of your email marketing campaigns so that we may follow the progress of your campaign emails. You also agree that we have the right to require you to modify or cease any of your marketing methods, procedures, and communications.
12. No-Spam Policy. You may engage in general email promotions; provided, however, that as a condition of your participation in our Affiliate Program, you agree to comply strictly with all applicable laws (federal, state, and otherwise) that govern marketing email, including without limitation, the U.S. CAN-SPAM Act of 2003 and all other 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 our No-Spam Policy.
13. Federal Trade Commission Rules Regarding Endorsements and Testimonials. 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. Refer to the following FTC publications for guidance: (i) Guides Concerning the Use of Endorsements and Testimonials in Advertising (http://www.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf), and (ii)Dot Com Disclosures (http://ftc.gov/bcp/edu/pubs/business/ecommerce/bus41.pdf). You may also contact us if you have questions regarding these requirements.
14. Federal Trade Commission Rules Regarding Truthful and Non-Deceptive Advertising. The Federal Trade Commission (FTC) and various state laws prohibit advertising that is false or misleading. Accordingly, you are required to substantiate your advertising claims prior to dissemination to state these claims in clear language that is both true and also not misleading. You agree to comply strictly with all FTC and state law requirements in your affiliate marketing activities. Refer to the following FTC publication for guidance: Advertising and Marketing on the Internet: Rules of the Road (http://ftc.gov/bcp/edu/pubs/business/ecommerce/bus28.shtm). You may also contact us if you have questions regarding these requirements.
15. Consent to Release of Information. You agree that we may provide information about you and your affiliate relationship with us (i) to any governmental or regulatory agency that is investigating your affiliate marketing methods, procedures, or communications, and (ii) to any private person or organization which we believe may have a good faith claim based on your affiliate marketing methods, procedures, or communications.
16. Your Representations And Warranties. You agree to make no representation or warranty regarding this site or Togenit LLC Services which is inconsistent with or in addition to information provided on this site.
17. Warranty Disclaimer. ALTHOUGH TOGENIT LLC RESERVES THE RIGHT TO MAKE A LIMITED WARRANTY TO THE USER, TOGENIT LLC MAKES NO WARRANTY TO YOU. TOGENIT LLC PROVIDES THE TOGENIT LLC SERVICES AND/OR PRODUCT(S) "AS-IS" AND WITH ALL FAULTS. NEITHER TOGENIT LLC NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO YOU. TOGENIT LLC AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE TOGENIT LLCSERVICES AND/OR PRODUCT(S) WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THE TOGENIT LLC SERVICES AND/OR PRODUCT(S) WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, THAT TOGENIT LLC HAS NO CONTROL OVER THE INTERNET, AND THAT THIS SITE IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF TOGENIT LLC'S SERVICES AND/OR PRODUCT(S). THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO MARKETING OF THE TOGENIT LLC SERVICES OR PRODUCT(S) IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
18. Disclaimer of Incidental and Consequential Damages. EXCEPT FOR INDEMNITIES PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY 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 THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. Liability Cap. In no event shall the aggregate liability of either party, 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 Togenit LLC.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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: Togenit LLC, _____, , _____, ___ _____, 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.
25. 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 Wilmington,, DE, 19808. The arbitrator shall apply the laws of the State of Delaware 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.
26. 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.
Material Modifications Since December 1, 2013: none.