THE AGREEMENT: This Affiliate Agreement (hereinafter called the "Agreement") is provided by 3 Key Elements, Inc. doing business as 3 Key Elements (hereinafter referred to as "Company"). This Agreement is a legal document between you (hereinafter referred to as "Affiliate") and the Company that describes the affiliate relationship that you are entering into if accepted into the Affiliate Program by Company. The purpose of this Agreement covers your responsibilities as an affiliate and our responsibilities to you. Please ensure you read and understand the entirety of this Agreement. We recommend that you consult an attorney if you have any questions about the terms of this Agreement.
1. DEFINITIONSThe terms referred to in this Agreement shall be defined as follows:
A. Affiliate Application The fully completed form, in conjunction with your review and agreement with this Agreement, submitted to us for consideration of your application to become an Affiliate in the Affiliate Program.
B. Affiliate Center Area of the primary website, located at https://3keyelements.com/my-affiliate-center/ (“Website”), dedicated to the Affiliate Program.
C. Affiliate Link An Affiliate Link is one or more specific URLs that are assigned to the Affiliate by Company to record purchases made by Prospects through Affiliate or Affiliate’s Site.
D. Affiliate Program The program We have set up for our affiliates for the purpose of marketing the Company’s Offerings through websites, social media and internet advertising.
E. Affiliate Site Websites, bridge pages, landing pages or social media belonging to Affiliate.
F. Company, Us, We As we describe above, we'll be referred to as the Company. Us, we, our, ours and other first-person pronouns will also refer to the Company, as well as all employees or legal agents of the Company.
G. Parties Collectively, the parties to this Agreement (the Company and You) will be referred to as "Parties" or individually as "Party."
H. Products The products, services and accounts offered for sale by the Company which include, but are not limited to, Captain of Your Soul, Master Your Influence, Breakthrough Coaching, Coach Fast Track, and other future programs.
I. Prospect A prospect is a customer that clicks through Affiliate’s Site for Affiliate’s Link and purchases a Product from Company.
J. You, Affiliate You may be referred to as the "Affiliate." You'll also be referred to throughout this Agreement with second-person pronouns such as You, Your, or Yours. As an Affiliate, you may earn Commissions (defined below) that are paid based on sales resulting from your direct online marketing, promotional and advertising efforts of the Products.
2. SUBMISSION OF THIS AGREEMENT AND AFFILIATE APPLICATION
A. Application If you submit an Affiliate Application and this Agreement, the Company may, in its sole discretion, offer You an opportunity to become an independent Company Affiliate. In submitting your Affiliate Application, You represent and warrant that (i) all information that you provide is truthful and accurate and (ii) You have read and agree to the terms of this Agreement. This Agreement will govern any participation in the Affiliate Program if accepted by Company.
B. Incorporation of Terms You understand and agree that this Agreement incorporates by this reference the Company’s Terms of Service and any Terms and Conditions, Privacy Policies, End-User License Agreements, or other legal documents which we have, or as modified or added from time to time, on our Website including, but not limited to, https://3keyelements.com/terms, and https://3keyelements.com/privacy/.
C. Acceptance not Guaranteed Submission of this Agreement through the Website does not guarantee that You will be accepted by Company into the Affiliate Program. We may also ask for additional information to complete Your Affiliate Application or for You to undertake additional steps to ensure eligibility in the Affiliate Program.
D. Evaluation of Applications We evaluate each submission individually. We are the sole and exclusive decision makers on whether We accept You into the Affiliate Program. If We do not confirm your acceptance into the Affiliate Program within a reasonable amount of time after submission, You may assume that You have not been accepted by Company as an affiliate. If your Affiliate Application is rejected, You may not reapply.
E. Affiliate Account If accepted by Company into the Affiliate Program, You are responsible for ensuring Your Affiliate Link and affiliate account are properly set up, including submitting and verifying Your payout information and location (such as a bank or online account which We may use to post payment). In doing so, You hereby authorize Company’s third-party payment vendors to contact you. We are not responsible for late payments or non-payment if Your account or other information is not accurate or is not set up in a timely manner.
3. AGE REQUIREMENTYou must be at least 18 (eighteen) years of age to join our Affiliate Program or use the Website. If You submit this Agreement and Affiliate Application to our Affiliate Program, You represent and warrant that you are at least 18 years of age and that You may legally enter into and be bound by this Agreement.
4. YOUR CONSENT TO BE CONTACTED BY USYou expressly consent to be contacted at the email address and the phone number You provide in the Affiliate Application, including authorizing Company to contact with You through automated dialing systems, texts, and artificial or pre-recorded messages. This consent is a material condition of this Agreement and may not be revoked except in writing by both Parties.
5. INDEPENDENT CONTRACTORYou, as an Affiliate, are an independent contractor of Company and not an employee, agent, partner, or joint venturer. You have no right to act on behalf of or bind Company in any way, nor share in the profits or losses of Company. The only compensation available to You is set forth in this Agreement. You are not eligible for medical insurance, retirement, or other employee benefit programs. You are obligated to pay your own federal, state and local income taxes, payroll taxes, self-employment taxes, social security taxes, Medicare taxes and other taxes related to the compensation you receive. Company will not: (i) withhold, match or pay any of Your taxes; (ii) make state or federal unemployment insurance contributions on Your behalf; or (iii) obtain workers’ compensation insurance on Your behalf. You are solely and exclusively responsible and liable for all of Your acts or omissions.
6. NON-EXCLUSIVITYThis Agreement does not create an exclusive relationship between You and Us. You are free to work with similar affiliate program providers in any category at any time. Furthermore, this Agreement imposes no restrictions or requirements on Us to work with any individual or company.
7. SERVICE INTERRUPTIONSYour access to the Affiliate Program, Affiliate Site, Affiliate Link, or Your internet service may be interrupted at any time due to outages, disconnection, maintenance, emergency services or any other scheduled or unscheduled event. You agree that if you are unable to access the Affiliate Program, Affiliate Site, Affiliate Link, or Your internet service for any reason, whether caused by the Company or otherwise, that the Company shall have no liability for any damage or loss caused as a result of such event.
8. DATA LOSSThe Company does not accept responsibility for the security of Your account, Affiliate Link, Affiliate Site or content. You agree to take all responsibility, including all reasonable and necessary precautions, to keep Your access to Your account, Affiliate Site, and Affiliate Link confidential, secure and protected. You agree that Your participation as an Affiliate is at Your own risk.
9. AFFILIATE PROGRAM
A. Affiliate Links We will provide You with a specific link or links which correspond to certain products we are offering for sale (collectively, the "Affiliate Link"). The Affiliate Link will be keyed to Your identity; the Affiliate Link will send online users to the Company's website or websites.You agree to comply with this Agreement and all terms related to the use of the Affiliate Link at all times. We may modify the Affiliate Link and will notify You if We do so. In the event that a Prospect has multiple Affiliate cookies (“Cookies”), the most recently acquired Cookie will determine which Affiliate is credited with a Sale (defined below).
B. No Cookie Stuffing You agree not to use cookie "stuffing," or other techniques which may incorporate a tracking code without specific knowledge of the online user. You agree not to install adware or spyware that redirect all search queries for Products to Affiliate’s Site or the Website. You may not utilize fake or stolen information to generate Sales.
C. No Fraudulent Practices Affiliate is not permitted to engage in any unlawful or deceptive actions with respect to search engine optimization, including, but not limited to, using any technique that generates paid search results based on any trademarks of Company, any brand name of Company, or based on the trademarks or brand name of any competitor of Company, or any other third party.
D. Qualified Purchases In order to be eligible for payment, a Prospect’s purchase must be a "Qualified Purchase". A Qualified Purchase is each time a Prospect clicks through the Affiliate Link posted on the Affiliate Site and completes a sale (“Sale”) of the Product through the Company’s Website, however, Qualified Purchases:
i. Must not be referred by any other partner or affiliate links of the Company (in other words, Qualified Purchases are only available through Your specific Affiliate Link);ii. Must not be purchased by an already-existing partner or affiliate of the Company;iii. Must not be purchased prior to the Affiliate being accepted into the Affiliate Program;iv. Must only be purchased through a properly-tracking Affiliate Link;v. Must not be purchased in violation of any of our legal terms or Service Agreement;vi. Must not be fraudulent in any way, in the Company's sole and exclusive discretion;vii. Must not have been induced by the Affiliate offering the Prospect any coupons, discounts, cash rebates, or other monetary incentives.
For each Qualified Purchase You will be eligible to receive a percentage of the sale (“Commission”) as described in the Commission Schedule located in the Affiliate Center portion of our Website. The Company may unilaterally change or modify the Commission Schedule at any time, for any reason, with or without notice. A change to the Commission Schedule will be effective as of the date the new Commission Schedule is posted, and such changes will not be retroactive (i.e., for Sales completed prior to a change the governing Commission Schedule at the time of the Sale will control).
Commissions are paid only for transactions that actually occur between Company and a Prospect and in which payment is actually received by the Company. You will not be paid a Commission on a Product that is returned, refunded or canceled. If You are paid a Commission on a Product that is later returned, refunded or canceled, Company may deduct the amount of the Commission previously paid to You from future Commissions
You will not be paid any Commissions for purchases made on Your own account(s). You are not permitted to make Product purchases from Company under the name of another person or entity, under a fictitious name, or under any name merely for the purpose of obtaining Commissions. You may not pay for another person’s or entity’s Product purchase.
E. Company Discretion We will determine in our sole and exclusive discretion whether a Sale is a Qualified Purchase eligible for Commission. We reserve the right to reject Sales that do not comply with the terms of this Agreement.
If the Company, in its sole and exclusive discretion, determines that any Sale was procured fraudulently or as a result of any violation of this Agreement or applicable law, no Commission will be paid for such Sale and for past sales determined to be in violation, and such payments may be deducted from your future Commissions. For a violation by You under this Section, Company may terminate this Agreement immediately and Company shall have no further obligation or liability to You.
10. ADVERTISING RULESThese Advertising Rules apply to all activities of Affiliate for the Affiliate Program:
A. Prior Approval You agree to only use Affiliate Links which have been assigned by Us and to display the Affiliate Link prominently on Your Affiliate Site as described in Your Affiliate Application. All information which will be displayed on the Affiliate Site regarding the Company must be approved by Us in writing prior to display.
B. General Compliance
i. Affiliate shall publish or otherwise distribute advertisements in strict compliance with all applicable laws and regulations, including without limitation, laws prohibiting deceptive and misleading advertising and marketing, email marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701)), laws governing testimonials (including the FTC’s Revised Endorsements and Testimonials Guides (16 CFR Part 255 of the Code of Federal Regulations)), and all guidelines issued by the FTC.ii. Affiliate is solely responsible for ensuring Affiliate’s compliance with all laws.iii. Affiliates are strictly prohibited from making claims concerning the products and services offered by Company that are inconsistent with, or beyond the scope of marketing materials produced and made available by Company on Company’s Website.iv. Affiliate is prohibited from publishing or otherwise distributing advertisements by telemarketing, fax, or text messaging in any form to any device.v. Affiliate shall not offer monetary incentives, such as rewards points, cash, or prizes to Prospects in return for their response to an advertisement and purchase of Products.vi. Company’s approval of use of Company’s name and materials on an Affiliate Site does not constitute legal or compliance advice which shall remain the sole responsibility of Affiliate.vii. The recommended disclosures provided in this Agreement by Company shall not be considered legal advice or relied on for determining compliance with the law. Company does not warrant that the recommended disclosures are compliant with the laws Affiliate is responsible for following.
C. Disclosure On any Affiliate Site that advertises any Company Product, Affiliate must plainly display (i.e., not in a link, or in small font) in a clear and conspicuous manner the following disclaimer: I am an independent 3 Key Elements Affiliate, not an employee. I receive commission payments from 3 Key Elements for product sales. The opinions expressed here are my own and are not official statements of 3 Key Elements.
D. Non-Disparagement Affiliate agrees not to publish any statements or comments via any writing, recording, photograph, or video, whether privately or publicly, that defame or disparage the Company, its Products or any other person or entity, including without limitation the products or services of a Company competitor. Affiliate’s obligations under this Section shall survive the termination of this Agreement and shall continue in perpetuity. Affiliate acknowledges that this non-disparagement provision is a material term of this Agreement , the absence of which would have resulted in Company refusing to enter into this Agreement.
E. Social Media If Affiliate advertises on social media including, but not limited to, Instagram, YouTube, Facebook, TikTok, X, etc., each Affiliate post must comply with all of the following:
i. Each post must contain @3keyelements or #3keyelements.ii. Each post must contain #ad in a clear and conspicuous location before the text of the description and in all events before the “More” button.iii. Each post must use the “Paid Partnership” tool if available on the social media platform.iv. Each video post must contain the word “Ad,” “Advertisement,” “Promotion,” or “Paid Partnership” within the video itself in a font size that is clearly recognizable to the viewer, and which appears persistently throughout the length of the video in the top right-hand portion of the video.v. Affiliate must comply with all rules of each social media platform that Affiliate uses.
F. Income and Business Opportunity Claims Affiliates are expressly prohibited from making any express or implied claims that Company is or provides a business opportunity, franchise opportunity, a “business-in-a-box,” or an assisted marketing plan. Affiliates are expressly prohibited from making any claims that use of Company’s offerings will guarantee that the user will make money. If Affiliate’s recruiting efforts include claims related to income Affiliate has made from using Company’s offerings or as an Affiliate, the following guidelines must be adhered to by the Affiliate:
i. Affiliate’s statements must be completely true and accurate and supported by evidence of Affiliate’s actual experience; andii. Affiliate’s statements must be accompanied by the following disclaimer in clear and conspicuous font and placement: “These were my results. Your results will vary based on a variety of factors including your education, effort, and market factors. There is no guarantee you will make any money.”
11. INTELLECTUAL PROPERTY
A. Ownership of Company IP/ License Company owns all right, title and interest in and to its logos, copyrights, trademarks, service marks, trade secrets, patents, and other intellectual property belonging to the Company ("Company IP"). The license granted herein to Affiliate does not transfer title, or any proprietary or intellectual property rights in the Company IP. All rights not expressly granted herein are reserved to Company.
B. License Subject to the limitations listed below, We hereby grant You a non-exclusive, non-transferable, non-sublicensable, revocable license to access our Websites in conjunction with the Affiliate Program and use the Company’s Trademark “3 Key Elements” (Registration No. 85755407) (“Trademark”) exclusively in conjunction with identifying our company and brand online on the Affiliate Site to send Prospects to Company Website via the Affiliate Links We provide. You may not modify the Trademark in any way and You are only permitted to use the Trademark if such use has been approved in writing by Company.
We may immediately revoke this license at any time with or without notice and in Company sole discretion, if We find that You are using the Trademark, or the unauthorized use of other Company IP, in any manner not contemplated by this Agreement. We reserve the right to terminate this Agreement in conjunction with the revocation of the license.
Upon termination of the license granted herein or this Agreement, Affiliate must immediately remove the Trademark completely from all Affiliate Sites, Affiliate Links or any other usage by Affiliate. Affiliate must immediately return or destroy any copies of materials containing the Trademark or Company IP. Affiliate shall furnish Company with a certificate signed by Affiliate verifying that the foregoing has been done.
Other than as provided herein, You are not permitted to use any of the Company IP or any derivative or confusingly similar variation of the Company IP without our express prior written permission of Company. You are strictly prohibited from using the Trademark and Company IP in any URL, domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion. Affiliate shall not promote or provide services to any other business or person that is infringing on any of Company’s IP and Affiliate shall immediately notify Company of such infringement.
C. Infringement Please be advised that Your unauthorized use of any Company IP shall constitute unlawful infringement and We reserve all of our rights, including the right to pursue an infringement suit against You in federal court. You may be obligated to pay monetary damages or legal fees and costs.
D. Affiliate License to Company You hereby provide Company a non-exclusive revocable license to use Your name, trademarks, and service marks, if applicable, and other business intellectual property to advertise our Affiliate Program.
E. Trademark Brand Standards Any time Affiliate uses the word “3 Key Elements” it must be immediately followed by “®”.
F. Complaint Notification Affiliate must notify Company of any complaint received by Affiliate regarding any advertisements or potential infringement within twenty-four (24) hours of receiving such complaint. Notice should be sent to email@example.com.
12. PAYOUT INFORMATION
A. Commissions All Commissions are paid in U.S. Dollars (USD) or otherwise in currencies offered by the payment provider. Some payment methods may incur processing fees that may be deducted from Your Commissions payment. Each calendar month, Your Commissions earned must equal or exceed Ten and 00/100 Dollars ($10.00) (USD) before you receive a payment from Company. If Your combined Commissions in a rolling 4-month period do not exceed $10.00 (USD) Your Commissions will be forfeited.
B. W-9 In order to receive your Commissions, You will be required to submit a completed W-8 or W-9 tax form, as well as any supporting documentation requested by the Company or our third-party payment provider. Failure to timely submit the required tax documentation will result in You waiving all rights to Commissions that were earned 4 months or more prior submitting a completed W-8 or W-9 tax form or any ancillary supporting documentation that is requested to confirm the information on your tax form.
C. Account Information You may be required to provide certain accounting information, including the routing and account number of a bank where You wish to post a direct deposit or an email address for an online method of payment (i.e., PayPal, Venmo, etc.).
D. Foreign Affiliates If You are not a resident of the United States, you must notify the Company of any foreign requirements for withholding or taxes (including without limitation VAT) related to payment of Commissions. You are solely responsible for complying with all tax laws in your respective jurisdiction(s) including, but not limited to, the payment of all required taxes, and filing of all returns and other required documents with, the applicable governing body(ies).
E. Commission Payment Schedule Except as otherwise provided herein, Commission payments will be paid on the 20th of each calendar month for the Qualified Purchases that occurred during the previous calendar month, subject to the other terms of this Agreement. In the event the 20th of the month falls on a holiday, Commission payments will be paid on the business day preceding the holiday. All Commission payments are based on the Commission Schedule posted in the Affiliate Center, as specified in Section 9(D) above.
F. Changes to Accounts For any changes in Your address or payment information, You must notify us immediately and We will endeavor to make the changes to Your account as soon as possible.
G. Commission Disputes For any disputes as to Commissions, the Company must be notified within thirty (30) days of Your receipt of the Commissions. We will review each dispute notification as well as the underlying Sales to which it is related. Disputes filed after thirty (30) days of Commission payout will not be addressed.
13. REPORTSYou may log into your account with us to review reports related to Your affiliation, such as payout reports and Qualified Purchase information. Please be advised however, that not all listed qualifying purchases have been fully reviewed for accuracy in the reports viewable by You in real-time and therefore may be subject to change prior to payout.
14. NO WARRANTY; NO LEADS
A. No Representations or Warranties You agree that Your use of the Affiliate Program is at Your sole and exclusive risk and that any services provided by us are on an "As Is" basis. The Company hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to the implied warranty of fitness for a particular purpose and the implied warranty of merchantability. The Company makes no representations or warranties that the Affiliate Program will meet Your needs or that it will be uninterrupted, error-free, or secure. The Company also makes no representations or warranties as to the reliability or accuracy of any information. You agree that any damage that may occur to You, through Your Affiliate Site, or results in a loss of Your data from Your use of the Affiliate Program, is Your sole responsibility and that the Company is not liable for any such damage or loss.
B. No Guarantee of Sales Company does not promise, guarantee, or warrant Your success, income, or sales.
C. No Leads or Referrals; No Reimbursement of Expenses You understand and acknowledge that Company will not at any time provide sales leads or referrals to You. You understand and agree further that this is not a business opportunity, a franchise opportunity, a “business-in-a-box,” or an assisted marketing plan. You are responsible for procuring and paying for any and all costs, expenses, materials and resources necessary to operate as an Affiliate as You determine in Your sole discretion.
15. ACCEPTABLE USE
A. Use of Affiliate Program You agree not to use the Affiliate Program or our Company for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Affiliate Program in any way that could damage our websites, products, services, reputation or the general business of the Company. You further agree not to use the Affiliate Program:
i. To harass, abuse, or threaten others or otherwise violate any person's legal rights;ii. To violate any intellectual property rights of the Company or any third party;iii. To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;iv. To perpetrate any fraud;v. To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;vi. To publish or distribute any obscene or defamatory material;vii. To publish or distribute any material that incites violence, hate, or discrimination towards any group; orviii. To unlawfully gather information about others.
16. SPAM POLICYYou are strictly prohibited from using the Affiliate Program for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails.
17. AFFILIATE OBLIGATIONS & FTC COMPLIANCE
A. Affiliate Site You are responsible for ensuring operation and maintenance of Your Affiliate Site, including technical operations, written claims, links, and accuracy of materials. You must ensure, as noted above, that the Affiliate Site does not infringe upon the intellectual property rights of any third party or otherwise violate any legal rights.
B. Review of Affiliate Site We may monitor Your Affiliate Site, as well as clicks and/or purchases coming through Your Affiliate Site and Affiliate Link. If We determine You are not in compliance with any of the terms of this Agreement, We have the right to immediately terminate Your participation in the Affiliate Program.
C. Compliance with Laws We require all of our Affiliates to comply with all applicable statutes, regulations, and guidelines set by the federal government, through the Federal Trade Commission, as well as state and local governments as mandated. The Federal Trade Commission requires that affiliate relationships, such as the relationship between You and the Company, be disclosed to consumers. We recommend that You seek independent legal counsel to advise You of our obligations to disclose in this manner.
D. Privacy, Data and Security Compliance We also require You, as the sole responsible party for such compliance, 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, any applicable laws in the United States or the General Data Protection Regulation of the European Union. We also require that You implement adequate organizational and technical measures to ensure an appropriate level of security for the data that You process. Further, You hereby agree to comply with any requests and provide information we request from You regarding Your data, privacy and security compliance measures.
E. Non-Compliance Termination If We are notified that You are not in compliance with any of the requirements of this Section, We may immediately terminate our relationship with You at our sole and exclusive discretion.
18. REVERSE ENGINEERING & SECURITY
A. Company IP Security You agree not to undertake any of the following actions:
i. Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on any of our websites or services;ii. Violate the security of any of our websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
19. ADDITIONAL REPRESENTATIONS AND WARRANTIESIn addition to Your other representations and warranties herein, You further represent and warrant that there are no prior or pending government investigations or inquiries of, or prosecutions against You by the Federal Trade Commission (“FTC”), any other federal or state governmental agency, or any industry regulatory authority, anywhere in the world, nor any prior or pending private lawsuits against You which relate to alleged intentional torts or alleged violation of any consumer protection or advertising laws. If You become the subject of such an investigation, inquiry, prosecution, or lawsuit any time after this Agreement is executed, You are required to notify Company of the same within 24 hours. Company, in its sole and exclusive discretion, may immediately terminate Your participation in Company’s Affiliate Program, as well as immediately terminate this Agreement, based on any investigation, proceeding, or lawsuit identified pursuant to this paragraph.
20. LIMITATION OF LIABILITYDIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE TERMS OF SERVICE, THE PRODUCTS, YOUR OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY SOFTWARE, SERVICE, OR PRODUCT, REGARDLESS OF WHETHER COMPANY HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.
IN NO EVENT SHALL COMPANY’S LIABILITY TO YOU OR YOUR BUSINESS EXCEED THE AMOUNT OF ONE (1) TIMES THE PAYMENTS PAID BY COMPANY TO YOU FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST COMPANY OCCURRED OR ONE-HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
21. INDEMNITYYou agree to protect, defend, indemnify and hold harmless Company, its officers, directors, employees, owner(s), and parent company(ies) and assigns from and against all claims, demands, and causes of action of every kind and character without limitation arising out of Your conduct, acts, or omissions related to Your performance under this Agreement including, but not limited to, any breach of this Agreement. Your indemnity obligation includes, but is not limited to, any third-party claim against Company for liability or payments for damages caused by, or other liability relating to, You and your performance under this Agreement. You agree that the Company shall be able to select its own legal counsel and may participate in its own defense if the Company wishes. This provision expressly survives the termination of this Agreement.
22. TERM AND TERMINATION
A. Commencement Date The term of this Agreement will begin when Your participation in the Affiliate program is approved by the Company.
B. Term; Termination Your participation in the Company’s Affiliate Program will continue month-to-month until terminated. Either Party may terminate this Agreement at any time, with or without cause, by giving the other Party written notice of termination.
C. Termination/Suspension for Breach If, in our sole discretion, You fail, or we suspect that You have failed, to comply with any term or provision of this Agreement, or violated any law, whether in connection with Your use of Company IP or otherwise, we may terminate the Agreement or suspend Your access to the Website, Affiliate Link and Affiliate Center at any time with or without notice to You.
D. Forfeiture This Agreement will terminate automatically if You earn less than ten dollars ($10) in Commissions over a twelve (12) month period.
23. MODIFICATION/AMENDMENTSYou understand and agree that this Agreement (including other terms and conditions incorporated by reference herein) may be amended or modified by Company at any time, with or without prior notice to You. You agree that new versions of the Agreement or other terms and conditions incorporated herein will replace any prior version of this Agreement, unless prior version is specifically referred to or incorporated into the latest amendment or modification of this Agreement, and that you will be bound by the latest version upon posting by the Company on the Website or Affiliate Center. You understand and agree that the Company is not required to email you directly or obtain your consent or agreement to make such amendments and modifications. Your continued acceptance of Commission payments constitutes Your acceptance of any amendments or modifications to this Agreement.
24. GENERAL PROVISIONS
A. Language All communications made or notices given pursuant to this Agreement shall be in the English language.
B. Entire Agreement This Agreement, along with other terms and conditions incorporated by reference herein, represents the entire agreement between the Parties and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
C. Survival If and when this Agreement is terminated, all provisions that, by their nature, should survive, will survive, including, but not necessarily limited to, all limitations of liability, disclaimers of warranties, and indemnity obligations. All representations and warranties undertaken by You shall also survive termination of this agreement.
D. Jurisdiction, Venue & Choice of Law Through your participation in the Affiliate Program, you agree that Utah shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the Company, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts of the following county: Salt Lake County, Utah. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.
E. Arbitration In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the following county: Salt Lake County, Utah. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of Utah. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this Section include, but are not limited to, contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this subpart, be litigated. WITH RESPECT TO INTELLECTUAL PROPERTY CLAIMS THAT ARE LITIGATED, THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY.
F. Assignment This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by You. Should this Agreement, or the rights granted hereunder, be assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.
G. Severability If any term, condition, or provision of this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
H. No Waiver Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action.
I. Headings for Convenience Only Headings of parts and subparts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
J. Force Majeure Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by embargoes, floods, acts of civil or military authority, fuel crisis, acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, pandemic, state or federal executive order, fires and explosions, but the inability to meet financial obligations is expressly excluded ("Force Majeure"). The time for performance will be extended for a period equal to the duration of the delay, but in no event longer than one hundred eighty (180) days. If, as a result of a Force Majeure, a party is unable to resume performance within such one hundred eighty (180) day period, the other party will have the right to terminate this Agreement.
K. Rights and Remedies No exercise or enforcement by either party of any other right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
L. Electronic Communications Permitted Electronic communications are permitted to both Parties under this Agreement, including email or fax. For any questions or concerns, please email us at the following address: firstname.lastname@example.org.
3 Key Elements, Inc.By: Wayne TuretzkyProduction Director
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Signed by Wayne Turetzky
Signed On: 2024-01-23
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Document Name: Affiliate Agreement
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