temi Affiliate Agreement
“Affiliate” means a registered member of the temi Affiliate Program (subject to receipt of e-mail confirmation of registration).
“temi Links” means unique referral links which can be offered on Affiliate’s Website or advertisement plugins to the Website.
“Website” means a web page or other portal that Affiliate hosts and maintains which can serve as a platform for temi Links.
2. Rights and Obligations.
2.1. Grant of Rights. Subject to the terms and conditions of this Agreement, temi USA Inc. (“temi”) hereby grants Affiliate the non-exclusive right to promote temi products to potential customers interested in purchasing temi products (each a “Prospect”) by engaging in the activities specified in Section 3 below (“Referral Services”). Affiliate shall use reasonable commercial efforts to promote sales of temi products to Prospects in a tasteful, respectful manner in compliance with this Agreement and all applicable laws.
2.2. Trademarks. temi grants to Affiliate a non-exclusive, limited and fully-revocable permission to use temi’s trademarks, service marks, logos, trade names, and other branding features (“Marks”) solely in connection with activities authorized by this Agreement. The use by Affiliate of temi’s Marks as permitted by this Agreement shall not create any right, title or interest, in or to the temi’s Marks in favor of Affiliate.
2.3. Affiliate Materials. temi may provide Affiliate, at no cost to Affiliate, with temi Links and materials that sufficiently describe the temi products for Affiliate to use in connection with the Referral Services (“temi Materials”).
2.4. Non-exclusivity. Nothing contained in this Agreement shall be construed as limiting in any manner either party’s development, marketing or distribution activities for the provision of the same or similar products or services as those provided under this Agreement.
2.5. Ownership. temi or its licensors shall at all times retain all right, title and interest in and to all intellectual property rights in the temi products, temi Materials, and temi’s Marks and any enhancements, improvements and derivatives thereof.
3. Referral Services.
Affiliate may display temi Links and temi Materials on its Website or on social media platforms. In order to be entitled to commissions for sales of temi products via temi Links hosted by Affiliate on its Website or published by Affiliate on various social media platforms, Affiliate must be able to demonstrate that it is the owner of such Website or registered user of the applicable social media platform where the relevant temi Link was posted.
4.1. Commissions. Affiliate will be entitled to a commission payment equal to $150 (USD) for an actually received payment order by temi for sale of a temi product as a result of the Affiliate’s Referral Services (in other words via a temi Link posted or hosted by Affilate).
4.2. Payments. temi shall make direct payment of the commission to Affiliate’s bank account by wire transfer (according to bank details provided by Affiliate at registration), provided that the temi product is not returned within 30 days from the date payment is received by temi.
5. Indemnification. Affiliate shall indemnify and hold harmless temi against all costs, claims, damages, losses or expenses (including reasonable attorneys’ fees), arising directly from (i) any willful or negligent misrepresentation by Affiliate in respect of temi and or temi ‘s product(s) and or any of temi’s other activities, products and services; and (ii) any misuse of temi Marks and/or temi Materials.
6. Disclaimer. Each party disclaims all warranties, express or implied, including, without limitation, warranties of title, merchantability, fitness for a particular purpose, non-infringement, accuracy, integration, and all warranties arising out of usage of trade, course of dealing or course of performance.
7. Liability Limitation. Except for confidentiality obligations in this Agreement and the indemnification obligations in Section 5 above, neither party will be liable (i) for any special, indirect, incidental, exemplary, punitive, reliance or consequential damages, including loss of profits, revenue, data or use, in connection with this Agreement; or (ii) amounts that in the aggregate exceed the amounts paid to Affiliate pursuant to this Agreement during the twelve (12) months prior to the event giving rise to such liability.
8. Term and Termination.
8.1. Term; Termination. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect for 1 year unless earlier terminated pursuant to this Section 8.1 (the “Term”). Either party may terminate this Agreement (i) upon fourteen (14) days written notice to the other party if the other party breaches this Agreement in any material respect and fails to cure such breach within such thirty-day period and (ii) for convenience upon thirty (30) days written notice to the other party.
8.2. Effect of Termination. Upon any termination or expiration of this Agreement, (i) all rights and obligations of temi and Affiliate in this Agreement shall terminate, except those provisions meant to survive termination as set forth in this Section 8.2; (ii) Affiliate shall cease all promotion of the temi products and use of the temi Materials and temi Links; (iii) Affiliate shall cease use of temi’s Marks; and (iv) all rights to payment accrued prior to termination and Sections 5, 6, 7, 8.2, 9, and 10 shall survive such termination or expiration.
9. Confidentiality. During the course of performing this Agreement, each party may have access to confidential or proprietary information of the other party (“Confidential Information”). Without derogating from the generality of the foregoing, the temi products, temi Materials and temi Marks and any and all information in connection therewith are deemed temi Confidential Information. Each party agrees to use the other party’s Confidential Information only as necessary to perform its obligations under this Agreement and to maintain the confidentiality of the other party’s Confidential Information using at least the same degree of care in safeguarding the other’s Confidential Information as it uses in safeguarding its own Confidential Information, but no less than reasonable care, to prevent any unauthorized copying, use, distribution, installation or transfer of possession of such information. If required by law, the receiving party may disclose Confidential Information of the disclosing party, provided the receiving party gives adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment for the Confidential Information.
10. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the provisions of New York’s conflict of laws rules. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the State of New York, and each party consents to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. All notices under this Agreement shall be in writing, in English and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted during normal business hours by e-mail to the address provided by such party; the business day after it is sent, if sent for priority or next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to a party at its address set forth on the Cover Page. Neither party may assign or transfer, without the prior written consent of the other party, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part; except that this Agreement may be assigned by a party without the consent of the other to a successor to all or substantially all of the business to which this Agreement relates, whether by merger, consolidation, sale of equity or assets, or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns. The parties are independent contractors and are not partners, joint ventures or otherwise affiliated and neither party may enter into any agreement, provide any representations or warranties or undertake any covenants or undertakings on behalf of the other party. Any provision of this Agreement that is determined to be unenforceable or unlawful shall not affect the remainder of this Agreement and shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement (together with all attachments hereto) constitutes the entire agreement between the parties and supersedes any and all prior agreements between them, whether written or oral, with respect to the subject matter of this Agreement. This Agreement may not be amended, modified or provision waived, except in a writing signed by the parties. No waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach of this Agreement, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision of this Agreement.
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