Affiliate Terms & Conditions
THE HABERDASH GROUP, INC, DBA TWILLORY.COM (“TWILLORY”) AFFILIATE PROGRAM AGREEMENT (“Agreement”)
PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY.
Twillory requires Publishers (as defined below) to accept and comply with the additional terms and conditions in this Agreement for participation in our Affiliate Program.
This Agreement is entered into by and between Twillory, located at 181 S. Franklin Ave, Suite 203, Valley Stream, NY 11581, and the person or entity identified in the Insertion Order (“Affiliate” or “Publisher”) (also individually referred to herein as a “Party” and collectively as the “Parties”). This Agreement, together with the Insertion Order (“IO”), constitutes the “Agreement.” The Agreement shall be effective as of the earlier of the Campaign Launch Date listed in the IO, the date of the last signature below, or the date of the last signature on the IO (the “Effective Date”). The Agreement sets forth the Parties’ rights and obligations with respect to the Twillory Campaigns identified in the IO. If any term in this Agreement conflicts with the terms and conditions set forth in the IO, this Agreement shall control. Twillory reserves the right to change or terminate this Agreement, an IO, its Affiliate Program, its Terms and Conditions, or any portion of the program at any time at its sole discretion without prior written notice.
TERMS AND CONDITIONS:
A “Qualified Sale” is a sale based on a user’s genuine interest in purchasing a product and to Publisher’s knowledge, has not previously opted in to any marketing program related to the Twillory Campaigns.
A “Billable Sale” is a Qualified Sale that has not been returned to Twillory as a Sale Return. In other words, a Billable Sale is a sale that has been accepted by Twillory and not returned for any specific reason.
A “Return” is a sale that has been returned to Twillory as a result of, without limitation, an unwanted product. Publisher shall not receive payment for any returns above 8%.
An “Email Amendment” is a modification to this Agreement through email communications between authorized agents of the respective Parties evidencing mutual assent to the modification(s); provided, however, that the subject of such modifications shall be limited to the following terms: (a) Daily Cap, (b) Cost Per Sale, and (c) Campaign Launch Date. Modifications of any other terms must be executed through a separate IO signed by both Parties.
A “Daily Cap” is the maximum number of Sales Twillory will accept for a specific Campaign in one calendar day. Publisher will not be compensated for sales generated in excess of the Daily Cap.
A “Campaign” is an online advertising campaign for a consumer product offered by Twillory.
“Campaign Guidelines” are specifics on how, and how not to promote Campaigns. These include but are not limited to Creative guidelines, restricted keywords for search campaigns, usage of logos Trademark search bidding; Incentive Programs in which users are given points, rewards, eligibility to win a prize, access to premium content, or similar incentives in exchange for participating in Twillory’s advertising offers.
A “Creative" consists of promotional and marketing content, text, artwork, images, graphics, and other materials (e.g., banners, landing pages) provided to Publisher by Twillory or developed by Publisher for the purpose of generating Billable Sales.
“Incentive Programs” are promotional programs in which users are given points, rewards, eligibility to win a prize, access to premium content, or similar incentives in exchange for participating in Twillory’s advertising offers. Incentive Programs are a prohibited form of content under this Agreement.
Publisher will direct Internet traffic to the Creatives for the purpose of generating Billable Sales for Twillory in accordance with this Agreement and any applicable IO (the “Services”).
- Invoicing and Payment:
Publisher will provide monthly invoices to Twillory. Publisher's invoices will be based on the payout rates listed in the IO and the number of Billable Sales, as determined by the number of Qualified Sales reported in Twillory’s affiliate interface, offset by any Sale Returns. Measurements or records other than those provided by Twillory will not be considered for the purpose of determining amounts owed under this Agreement. Publisher invoices should reflect a credit for any reported Sale Returns not previously accounted for, if any. If the credit balance in any given month exceeds the balance due, Publisher shall pay Twillory such credit balance Net 30, end of month, unless otherwise agreed in writing (including by email). Twillory shall make all payments to Publisher for undisputed invoices in excess of $250 within thirty days of the date the monthly invoice is transmitted to the Twillory billing contact listed in the IO. Balances of $250 or less will carry forward until such time as Publisher's balance exceeds $250. Publisher shall pay all applicable taxes or charges imposed on it by any governmental entity in connection with Publisher’s performance under this Agreement. If Publisher disputes any payment made by Twillory, Publisher shall notify Twillory in writing (including by email) within ten days of receiving payment; failure to do so will result in waiver by Publisher of any claim relating to such payment.
- Term and Termination:
The term of the Agreement will be one year from the Effective Date. The Agreement will automatically renew thereafter on a month-to-month basis. Either Party may terminate or suspend this Agreement, an IO or a Campaign for any reason by providing the other Party with written notice (including by email); provided, however, that Publisher must give thirty (30) days notice prior to terminating or suspending any Campaign. In all events except for a material breach by Publisher, Twillory shall remain liable for all Billable Sales generated prior to the effective date of termination. In the event of a material breach by Publisher, Twillory may immediately terminate this Agreement and retain all payments then due to Publisher. Upon termination by either Party, Publisher shall cease generation of Sales on behalf of Twillory and shall immediately remove all Creatives from its systems.
If Publisher, Publisher’s sub-affiliates, associated service providers, or any other agents of Publisher fraudulently generate sales or inflate sale counts by fraudulent traffic generation (as determined in Twillory’s sole reasonable discretion), through deceptive marketing practices, or through automated means, Publisher will forfeit its compensation for all Campaigns in which fraud was determined by Twillory, and this Agreement will be subject to immediate termination by Twillory.
- Prohibited Content:
Publisher will not place Creatives with sites, or include Creatives in emails, that contain or promote (or link to sites that contain or promote) sexually explicit or obscene materials; promote violence, hate, or discrimination of any type based on race, sex, religion, nationality, disability, sexual orientation, or age; or constitute or promote illegal activities; or are deemed to be offensive in nature, degrading, libelous, profane, or in bad taste. Publisher’s (and Publisher’s sub-affiliates’) sites and emails may not contain any material that infringes on the trademark, copyright, or patent of any person or that damages the reputation of Twillory, Twillory brands, including the reputation of Twillory’s advertising Publishers. Further, Publisher and Publisher’s sub-affiliates will not target minors for Twillory’s Campaigns and will not provide sales generated through Incentive Programs.
- Approved Creatives:
Publisher will only use Creatives solely provided by or approved by Twillory (the “Approved Creatives”). Publisher may not create its own Creatives (including banners, advertorial pages or landing pages) or modify Twillory’s Approved Creatives without prior written approval from Twillory.
- Customer Inquiries:
Upon request by Twillory, Publisher agrees to promptly provide full details regarding the source of any lead.
- Proprietary Rights.
Publisher agrees and acknowledges that Twillory or its licensors are the owner(s) of all right, title, and interest in and to: (a) Twillory’s Approved Creatives; (b) Twillory’s reporting platform and affiliate interface; (c) Twillory’s data validation filters and sale-distribution technology, and (d) all intellectual property rights (including without limitation copyrights, trademarks, database rights, and patent rights) in the foregoing. All data passed to Twillory as a Qualified Sales is the sole and exclusive property of Twillory and is deemed Confidential Information under this Agreement. Publisher agrees it has no rights in or licenses to any of the foregoing. Publisher shall refrain from registering any of Twillory’s trademarks, logos, domain names or brands, or substantially or confusingly similar trademarks, logos, domain names, or brands, anywhere in the world. Publisher shall not bid on the Twillory brand name, variations of the brand name, search terms or phrases containing the brand name, any common misspellings or confusingly similar names on any pay-for-placement search engines and their content networks, including but not limited to Google, Yahoo, Bing, and Ask.
As used herein, “Confidential Information” shall mean all information, in whatever form disclosed, accessed or acquired in connection with this Agreement, both specifically related to the purposes of this Agreement as well as any other proprietary and/or non-public information related to the past, present, and future, research, development, business activities, products, services, technologies and processes of Twillory, its affiliates, employees, customers, or third-party contractors. Each Party acknowledges that, as a result of the provision of services pursuant to this Agreement, each Party may disclose Confidential Information to the other Party. Therefore, each Party agrees that it will make no disclosure of Confidential Information to any third-party without obtaining the other Party’s prior written consent. Additionally, each Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s), or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in any Confidential Information disclosed under this Agreement. This Section shall survive any termination of this Agreement. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the recipient can demonstrate with clear evidence that the information: (a) was previously known to the recipient at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the recipient; (c) was rightfully received by the recipient from a third Party who was not bound under any confidentiality provisions; (d) was independently developed by the recipient without reference to or use of the Confidential Information of the disclosing Party or (d) was disclosed pursuant to judicial order, requirement of a governmental agency, or by operation of law.
- Representations and Warranties:
Each Party represents and warrants that: (a) it has the full right, power, and authority to enter into this Agreement; (b) it will comply with all applicable state and federal laws, rules, including without limitation, Federal Trade Commission implementing regulations, the Federal Communication Commission implementing regulations, the General Data Protection Regulation (GDPR), the Federal Trade Commission Act, the Children’s Online Privacy Protection Act, the CAN-SPAM Act of 2003, and all rules and regulations promulgated under any of the foregoing (together, the “Applicable Laws”).
- Publisher represents and warrants:
- to perform the Services using the standard of care and skill ordinarily used by members of its profession;
- to adhere to any specific instructions from Twillory;
- that the Services will not contain any false, untrue, or misleading information;
- that the Services will include appropriate disclaimers pursuant to all applicable law; and
- that the Services will not violate the intellectual property rights of any third parties including, but not limited to, copyrights, patents and trademarks.
- Limitation of Liability:
EXCLUDING PUBLISHER LIABILITY PURSUANT TO SECTIONS 6 (”FRAUD”), 7 “PROHIBITED CONTENT”), 8 (“APPROVED CREATIVES”), 12 (“CONFIDENTIALITY”), 10 (“PRIVACY”), AND 15 (“PUBLISHER INDEMNIFICATION”), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA, OR LOST PROFITS, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL TWILLORY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF REVENUE PAID BY TWILLORY TO PUBLISHER PURSUANT TO THE APPLICABLE IO UNDER WHICH THE CLAIM AROSE.
By Twillory. Twillory agrees to indemnify, defend and hold harmless Publisher, its affiliates, and their respective employees, directors, officers and agents, from any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees)(collectively, “Losses”) directly arising from a third-party claim, suit, judgment, or proceeding (a “Claim”) alleging that any Approved Creatives violate the intellectual property or proprietary rights of a third party, are defamatory or obscene, or violate any law or other judicial action or administrative regulation. Notwithstanding the foregoing, Twillory shall have no obligation with respect to any infringement claim based on any (a) materials provided by Publisher and used with Approved Creatives or (b) Approved Creatives provided by Twillory modified by Publisher.
By Publisher. Publisher agrees to indemnify, defend and hold harmless Twillory, its affiliates, and their respective employees, directors, officers and agents, from any and all Losses due to, arising from, or in connection with any Claim, alleging (a) any breach by Publisher of this Agreement, including, without limitation, display or delivery of any Creative in breach of this Agreement or the terms of an IO; (b) Publisher’s conduct pursuant to or in performance of this Agreement; (c) any violation by Publisher of the Applicable Laws; (d) that materials provided by Publisher, or Approved Creatives provided by Twillory and modified by Publisher, violate the intellectual property or proprietary rights of a third party, are defamatory or obscene, or violate the Applicable Laws.
Process. Each Party’s indemnity obligations are contingent on the Party seeking indemnity (the “indemnified party”) giving the Party from whom indemnity is sought (the “indemnifying party”) prompt written notice of any such Claim, permitting the indemnifying party sole and exclusive control of the defense and settlement of such Claim with counsel of the indemnifying party’s choosing (although the indemnified party will be entitled to participate at its own expense in the defense of any such Claim), and reasonably cooperating with the indemnifying party in connection with such defense. The indemnifying party will not enter into any settlement that affects the indemnified party’s rights or interests without the prior written consent of the indemnified party. For the avoidance of doubt, any settlement entered into by Publisher with respect to any alleged violation of the Applicable laws shall also release such claims as to Twillory.
- Campaign Guidelines.
In the event Publisher violates the Campaign Guidelines, Twillory may demand, chargeback, or setoff, the following liquidated damages: (a) For the first violation, the greater of an amount equal to all sums paid or payable by Twillory to Publisher in each month in which the violation was ongoing, or $5,000.00; (b) For the second violation, the greater of an amount equal to twice the sums paid or payable by Twillory to Publisher in each month in which the violation was ongoing, or $10,000.00; and (c) For all other violations, the greater of an amount equal to three (3) times the amount paid or payable by Twillory to Publisher in each month in which the violation was ongoing, or $25,000.00, and Twillory may terminate this Agreement. Both parties acknowledge that the damages resulting from Publisher's violation the Campaign Guidelines may not be readily ascertainable at the time of the violation but that the parties reasonably believe multiple violations could result in increasing penalties imposed upon Twillory by government authorities and or clients. This Section shall not apply to any violation by Publisher of the Applicable Laws.
- No Class Actions:
- Governing Law; Venue:
This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court located in New York, and each party irrevocably submits to the exclusive jurisdiction of and venue in any such court in any such action or proceeding. Publisher agrees to waive the personal service of any process upon them by agreeing that service may be effectuated by overnight mail (using a commercially recognized service) or by U.S. Mail with delivery receipt to the last address provided by each party hereto.
A party that prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs.
- No Assignment:
Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; except in connection with a merger, sale of assets, sale of stock, or other transfer of all or substantially all of that party’s business and assets. Any prohibited assignment shall be null and void.
- Independent Contractor:
Each Party is an independent contractor and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, representation, joint venture, or employment relationship between the parties. Except as set forth in this Agreement, neither Party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the Party’s prior written consent.
If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
- Entire Agreement, Modification:
This Agreement constitutes the entire agreement between the Parties and supersedes any prior or inconsistent agreements, negotiations, representations, or promises, written or oral, regarding the subject matter of this Agreement. No modification, course of conduct, amendment (other than a valid Email Amendment), supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the Parties unless made in writing and duly signed by both Parties.
- No Waiver:
The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect. Neither Party shall be liable for, or considered in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to payment obligations) as a result of any causes or conditions which are beyond such Party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence; provided that the non-performing Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party.
Any obligations which expressly or by their nature are to continue after termination, suspension, cancellation, or expiration of the Agreement shall survive and remain in effect after such occurrence.
- Force Majeure:
Neither Party will be liable for, or be considered in breach of or default under this Agreement by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, electrical outages, network slowdowns or outages, failure of third-party-owned communications facilities.
- Agreement in Counterparts:
This Agreement may be signed in counterparts; facsimile signatures and electronic signatures shall have the same force and effect as an original signature.
- Notices: All notices and other communications shall be sent by email to the email addresses for Twillory and Publisher listed in the IO.