PETWILL AFFILIATE PROGRAM TERMS
To participate in the PETWILL Affiliate Program, Affiliate hereby agrees to the following:
This Affiliate Program Agreement ("Agreement") contains the complete terms and conditions between PETWILL LLC (“PETWILL”), and the person or entity applying to participate as an affiliate of PETWILL (“Affiliate”) in the “Affiliate Program” in connection with which Affiliate establishes links from the Affiliate’s website, blog posts, social media platforms, emails and email newsletters (the “Affiliate Site”) to PETWILL’S website, https://www.mypetwill.com (the “Website”).
BY SUBMITTING AN APPLICATION TO JOIN THE AFFILIATE PROGRAM (THE “APPLICATION”), AFFILIATE CONFIRMS THAT HE/SHE/IT HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
"PETWILL Products and Services" shall mean products and services that are available for purchase through the Website.
"Commission Fees" or "Commissions" shall mean the commission fee paid by PETWILL to the Affiliate for each Qualified Purchase by a Referred Customer that the Affiliate refers to PETWILL in accordance with this Agreement.
"Qualified Purchase" shall mean the sale of PETWILL Products and Services by PETWILL, with a term of 12 months or longer, to a Referred Customer which meets the criteria set forth in Section 5, below.
"Referred Customer" shall mean each new customer, who has never registered an account with PETWILL before, referred by Affiliate through a Link (defined in Section 2 Section below) provided by or approved by PETWILL, and who meets all the criteria set forth in Section 5, below.
“PETWILL Registration Form” shall mean the online order form submitted by a Referred Customer in connection with making a Qualified Purchase.
“Affiliate Console” shall refer to a platform hosted by Performance Horizon Group (“PHG”) on behalf of PETWILL, at https://phgconsole.performancehorizon.com/login/petwill, where an Affiliate may (i) view the statistics on Affiliate’s Referred Customers and Qualified Purchases made via the Affiliate Site; (ii) store Affiliate’s contact and banking information; and (iii) the platform through which Affiliate will get paid.
1. Enrollment in the Affiliate Program
To commence enrollment in the Affiliate Program, the prospective Affiliate must submit a completed Affiliate Program application (the “Application”), which can be found at https://signup.performancehorizon.com/signup/en/petwill.
PETWILL will evaluate the Application in good faith and will notify the applicant of acceptance or rejection of the Application in a timely manner. PETWILL e may reject the Application if PETWILL determines, in its sole discretion, that the applicant’s site is unsuitable for the Affiliate Program for any reason, including, but not limited to, inclusion of content that is, in PETWILL’S opinion, unlawful or otherwise does not meet PETWILL’S internal policies.
If PETWILL rejects the Application, for any reason, the applicant may not reapply to the Affiliate Program. PETWILL has sole discretion whether to notify any prospective Affiliate of its rejection of an Application or an Affiliate of a removal from the Affiliate Program.
2. Promotion of the Affiliate Relationship
Upon approval of the Application, PETWILL will make available to the Affiliate a unique PETWILL Affiliate ID and a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"). The Links will serve to identify the Affiliate Site as a member of the Affiliate Program and will establish a Link from the Affiliate Site to the Website. The Links may connect to any area of the Website. In utilizing the Links, Affiliate agrees to cooperate fully with PETWILL in order to establish and maintain such Links.
Affiliate also agrees to display on the Affiliate Site only those graphic or textual images (indicating a Link) provided by PETWILL or text messages expressly approved in advanced in writing by PETWILL. The Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of the Affiliate Site. Affiliate further agrees not to use cookie stuffing techniques that set the Affiliate tracking cookie without the Referred Customer's knowledge (for example: iframe). Any information with respect to PETWILL will be displayed on the Affiliate Site shall be provided and expressly approved by PETWILL in writing in advance of any display.
EXCEPT AS PERMITTED ABOVE OR IN SECTION 13 BELOW, AFFILIATE SHALL NOT AND IS NOT AUTHORIZED TO (i) USE THE PETWILL TRADEMARK, NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) (ALL OF THE FOREGOING, INCLUDING WITHOUT LIMITATION, THE "LINKS" AND THE "LICENSED MATERIALS" (DEFINED BELOW), ARE REFERRED TO HEREIN AS "PETWILL IP"), WITHOUT PETWILL’S EXPRESS PRIOR WRITTEN CONSENT; (ii) USE PETWILL IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) CAUSE OR CREATE OR ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY "INITIAL INTEREST CONFUSION" OVER THE USE OF PETWILL IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. AFFILIATE’S USE OF PETWILL IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER, IN ADDITION TO BEING A BREACH OF THIS AGREEMENT, SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF PETWILL IP, AND MAY SUBJECT AFFILIATE TO CLAIMS FOR DAMAGES (INCLUDING WITHOUT LIMITATION, TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY PETWILL’S ATTORNEY’S FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING FROM A BREACH OF THIS PARAGRAPH AND/OR INFRINGEMENT OF PETWILL IP.
All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Affiliate is not allowed to post any refunds, credits or discounts, or other content concerning PETWILL, without PETWILL’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and Links. Each Link connecting users of the Affiliate Site to the pertinent area of the Website will in no way alter the look, feel, or functionality of the Website. Any violations of the terms surrounding Links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in Affiliate’s termination from the Affiliate Program and/or withholding of Commissions.
3. FTC Endorsement Compliance
It is the intent of PETWILL to treat our customers fairly and to comply fully with all Federal Trade Commission's regulations related to advertising. As such, we require our Affiliates to comply with these regulations. This includes, but is not limited to, Federal Trade Commission 16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising, which requires, among other criteria, that material connections between advertisers and endorsers be disclosed. This means that directories, review/rating sites, blogs and other websites, email or collateral that purport to provide an endorsement or assessment of an advertiser (in this case PETWILL) must prominently disclose the fact that financial or in-kind compensation is provided from the advertiser.
For more information and suggestions about how to comply with these guidelines, please visit the page entitled "Affiliate Disclosure Requirements and Examples." (Please note: this page is only intended to provide guidance. It does not purport to provide legal advice, nor does it guarantee that Affiliate will be in compliance with FTC regulations should Affiliate follow the suggestions presented there.) Affiliate is advised to seek and obtain legal advice on how these rules apply to the Affiliate Site or other promotional activities for which Affiliate may receive compensation.
PETWILL reserves the right to withhold commission fees and cancel the affiliate relationship with Affiliate should PETWILL determine, in its sole discretion, that Affiliate is not in compliance with any FTC regulations/guides.
4. Order Processing
PETWILL will process orders placed by Referred Customer who follows the Links from the Affiliate Site to the Website. PETWILL reserves the right, in its sole discretion, to reject orders that do not comply with certain requirements that PETWILL may establish from time to time. All aspects of order processing and fulfillment, including PETWILL service, cancellation, processing, refunds and payment processing will be PETWILL’s responsibility. PETWILL will track the Qualified Purchases generated by the Affiliate Site, and will make this information available to Affiliate through the Website. To permit accurate tracking, reporting, and Commission accrual, Affiliate must ensure that the Links between the Affiliate Site and the Website are properly formatted.
5. Commission Determination
Under the Affiliate Program, Affiliate will be paid a Commission Fee for each Qualified Purchase by a Referred Customer that Affiliate refers to PETWILL under and in accordance with the terms of this Agreement. Each Referred Customer and each Qualified Purchase must meet the following criteria (the "Criteria"):
- Each Referred Customer must be a new customer of PETWILL who has never registered with PETWILL, and who must register by completing and submitting the PETWILL Registration Form using a valid and unique account and email address, valid credit card and billing information.
- Each Referred Customer must make a Qualified Purchase, and provide a valid payment for the purchased PETWILL Products or Services. To generate a Commission Fee, each Referred Customer must be an active, qualified customer of PETWILL and must be current on all payments at the time the Commission Fees are processed and not subject to a refund, credit, cancellation, suspension or chargeback.
- Each Referred Customer must sign up in a manner, which in PETWILL’s sole judgment, definitively establishes that the Referred Customer was referred directly from Affiliate to PETWILL, in accordance with this Agreement.
- Each Referred Customer must remain in compliance with PETWILL’s Terms of Service, and other policies that are active at the time the Commission Fees are processed.
- Commission Fees may not be paid for the Qualified Purchase if the Referred Customer has been offered or received coupons, refunds, credits or discounts from the Affiliate or if the Referred Customer has joined a business-opportunity program (as determined by PETWILL in its sole discretion) that is managed by Affiliate or in which Affiliate participates, unless PETWILL has provided its prior written consent.
- If a Referred Customer visits the Website through the Affiliate ID Link on the Affiliate Site and does not make the purchase at that time, and returns another time to make the purchase, PETWILL will not pay Commission Fees on the purchase.
- If a Referred Customer has received a popup with a discounted offer, while leaving the Website during their purchase, PETWILL will not pay Commission Fees on the purchase.
- If a Referred Customer has received a discount offer, gift card, or an alternate discounted offer, from PETWILL or another source and visits the Website, PETWILL will not pay Commission Fees on the purchase.
PETWILL reserves the right to withhold initial Commission Fees for Affiliates who are new to the Affiliate Program, or who have commissions that are potentially fraudulent as determined by PETWILL, in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.
PETWILL reserves the right to suspend payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms in this Agreement by the Affiliate or a Referred Customer(s). PETWILL reserves the right to deduct from Affiliate's current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled PETWILL purchases. Where no subsequent Commission Fee is due and owing, PETWILL will send Affiliate a bill for the balance of such refunded purchase, upon termination of the Affiliate from the Affiliate Program, or termination of the Referred Customer.
PETWILL, in its sole discretion, reserves the right to withhold indefinitely any Commission Fee, and/or to reverse, deny or reject any Commission Fee, to:
- Any account/sale which has not been in an approved status in good standing as an account of PETWILL for a period of at least thirty (30) days.
- All commissions generated for accounts that may be fraudulent, including but not limited to the use of software that generates real and fictitious information.
- If PETWILL deems orders to be fraudulent or sees a pattern of potentially fraudulent activity, including, without limitation, where there are multiple accounts from the same customer, or referral of accounts which do not comply with this Agreement. PETWILL reviews account information (including site content) to assess referrals.
- Any Affiliate that alters PETWILL’s Links in any way.
- Any Affiliate that alters PETWILL trademarks, graphics, text or any other PETWILL content.
- Referred Customers that have been offered or received coupons, refunds, credits or discounts from the Affiliate, or for Referred Customers who have joined a business opportunity program that is managed by Affiliate or in which Affiliate participates, unless PETWILL has provided written consent.
- Affiliates who PETWILL believes may be artificially submitting Referred Customers, engaging in the advertisement of business-opportunity sites (as determined by PETWILL, in its sole discretion), using marketing practices that PETWILL deems to be unethical or likely to attract fraudulent signups and/or signups with a very low likelihood of renewal.
PETWILL reserves the right to immediately cancel or withhold for later review any Commission Fee based on the foregoing or that otherwise fails to meet the Criteria. It is the responsibility of the Affiliate to monitor the payment, denial and withholding of Commission Fees; PETWILL is not obligated to actively notify Affiliates of the status of Commission Fees. If an Affiliate has a question about a Commission Fee that has been cancelled or withheld, that Affiliate has 30 days from the day the payment was due to contact PETWILL to discuss or reclaim the Commission Fee. Any changes to decisions about cancelled or withheld Commission Fees are strictly at PETWILL's discretion.
Commissions may exclude payment for any Referred Customer who is associated with any PETWILL reseller, referral or other program. In other words, Affiliate may not receive double commissions or compensation
Affiliate may not receive double Commission Fees.
Affiliate is entitled to Commission Fees only on the initial Qualified Purchase by a Referred Customer, and shall not receive any Commission Fees on any subsequent purchases made by that Referred Customer .
In the event that the Referred Customers who are referred to PETWILL by a specific Affiliate are determined to have an excessive cancellation rate (as determined by PETWILL, in its sole discretion), PETWILL reserves the right to withhold or decline pending and future Commission Fees to Affiliate.
Any attempt by Affiliate to manipulate, falsify or inflate Referred Customers, Qualifying Purchases or Commission Fees to intentionally defraud PETWILL or a violation of any of the terms of this Agreement constitutes immediate grounds for PETWILL to terminate the Affiliate’s from the Affiliate Program, and this Agreement, and will result in forfeiture of any Commission Fees otherwise due to Affiliate at the time of termination.
6. Commission Fee Accrual and Payments
Subject to the terms of this Agreement, PETWILL will pay a 15% Commission Fee on each Qualified Purchase by a Referred Customer. PETWILL reserves the right to change the percentage of the Commission Fee at any time and without notice to Affiliate.
Affiliate shall be paid its Commission Fees via ACH only. Affiliate is responsible for informing PETWILL of its bank account information. Affiliate may only receive Commission Fees in the form of ACH transfer directly into its legally valid and acceptable bank account based in the United States made payable in U.S. currency. The bank(s) used to issue payments to Affiliate for earned Commission Fees require Affiliate to have a minimum threshold of $30.00 USD in Commission Fees before issuing payment. PETWILL is not responsible for any third-party fees charged by Affiliate’s bank, payment processing companies, Performance Horizon Group, other banking and financial institutions used to receive or process Affiliate Commission Fees. Commissions will accrue and only become payable once Affiliate (i) provides all relevant tax and address documentation pursuant to Section 8 below and (ii) reaches a commission threshold of $30.00 (the "Commission Threshold") based on the commission rates stated on the Website, all as applied only to Qualified Purchases which occurred within three (3) months of when the Qualified Purchases occurred. For example, if Affiliate provide sign-ups which result in Qualified Purchases that meet the Commission Threshold on January 10th, Affiliate must provide all relevant tax and address documentation by April 30th of the same year in order for Commission Fees to accrue and become payable. All Qualified Purchases eligible to result in Commissions under this Section 6 must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual. Once a Commission has accrued under this Section 6, the amount of such Commission shall be due and payable to Affiliate. PETWILL reserves the right to change the Commission Threshold by amending this Agreement and will notify Affiliates of any such amendment pursuant to the terms of this Agreement.
Commission Fees payments will be processed within 30-45 from the date of the Qualified Purchase. Cancellation fees may apply in the event that a Qualified Purchased is cancelled or refunded.
A summary report of Affiliate’s Commission Fees shall be generated and stored in each applicable Affiliate Console.
PETWILL, in its sole discretion, reserves the right to modify the terms of this Commission payment method or schedule at any time. Such changes shall take effect when posted in accordance with Section 16.
7. Taxes/Address Changes
Affiliate is solely responsible to report its earnings as income to be taxed accordingly by its State and/or the United States Federal Government.
Affiliate provide to PETWILL accurate tax and payment information that is necessary to issue a Commission Fee. If PETWILL does not receive the necessary tax or payment information within 90 days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue and no Commission Fees will be owed with respect to such Qualified Purchase.
Each Affiliate may be required to submit a W8/W9 tax form.
Affiliate shall pay all taxes related to the Commission Fees that it receives under this Agreement. In compliance with U.S. tax laws, PETWILL may issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold.
Affiliate shall inform PETWILL about changes to postal and e-mail addresses, as well as any changes to its name, email address, contact information, tax identification number, or other personal information that will impact PETWILL's ability to issue a valid Commission Fee payment.
Any address changes must be made in the Affiliate Profile in the Affiliate Console at least 15 business days prior to the end of the calendar month in order for Commission Fees for that month to be processed.
8. Reports of Qualified Purchases
Affiliate may log into its Affiliate Console to review any potential Qualified Purchases statistics on a daily basis. The potential Qualified Purchases shown in this report have not been reviewed to confirm they meet all criteria for Qualified Purchases. As such, Commission Fees may not be issued on all Referred Customers that appear in the Affiliate Console.
Affiliate expressly agrees to file any tracking or commission disputes as well as any other disputes and discrepancies within 30 days after the end of the month in which the Qualified Purchase that is disputed occurred. Disputes filed after 30 days of the date on which the Qualified Purchase occurred will not be accepted by PETWILL, and Affiliate hereby forfeits any rights or claims arising therefrom.
9. Obligations Regarding Affiliate Site
Affiliate shall be solely responsible for the development, operation, and maintenance of the Affiliate Site and for all materials that appear on it. Such responsibilities include, but are not limited to, the technical operation of the Affiliate Site and all related equipment; creating and posting product reviews, descriptions, and references on the Affiliate Site, and linking those descriptions to the Website; the accuracy and propriety of materials posted on the Affiliate Site (including, but not limited to, all materials related to PETWILL Products and Services); ensuring that materials posted on the Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. PETWILL disclaims all liability and responsibility for such matters.
PETWILL has the right, in its sole discretion, to monitor signups through the Affiliate Site at any time e to determine if Affiliate is in compliance with the terms of this Agreement. If Affiliate is not in compliance, PETWILL may terminate this Agreement immediately.
10. PETWILL Responsibilities
PETWILL will provide all information necessary to allow Affiliate to make appropriate Links from the Affiliate Site to the Website. PETWILL will be solely responsible for (i) processing Qualified Purchases placed by a Referred Customer following a Link from the Affiliate Site; (ii) tracking the volume and amount of Qualified Purchases generated by Affiliate Site; and (iii) providing statistical information to Affiliates regarding Qualified Purchases. PETWILL will processing all orders, including but not limited to, handling payment processing, cancellations, refunds. Any determination made by PETWILL regarding the foregoing shall be binding, absent manifest error.
11. Policies and Pricing
Referred Customers who buy PETWILL Products and Services through the Affiliate Program will be deemed to be PETWILL’s Customers. Accordingly, all of PETWILL’s rules, policies, and operating procedures concerning PETWILL orders, PETWILL service, and PETWILL Products and Services sales will apply to those Customers. PETWILL may change its policies and operating procedures at any time. For example, PETWILL will determine the prices to be charged for PETWILL Products and Services sold under the Affiliate Program in accordance with its own pricing policies. Prices and availability of PETWILL Products and Services may vary from time to time, from Affiliate to Affiliate, and from region to region. Because price changes may affect products that Affiliate features on an Affiliate Site, Affiliate shall not include prices of PETWILL products on the Affiliate Site.
By applying to the Affiliate Program, Affiliate agrees to be bound by this Agreement and PETWILL’s Terms of Service.
12. E-mails, Publicity and Link Placement
Affiliate shall not create, publish, transmit or distribute, under any circumstances, any bulk electronic mail messages (also known as "SPAM") without prior written consent from PETWILL for each and every day when any bulk mailing will occur. PETWILL, in its sole discretion, reserves the right to reject each and every e-mail mailing.
Additionally, Affiliate may only send e-mails containing a PETWILL Link and or a message regarding PETWILL or PETWILL's Affiliate Program to person(s) who have been previously contacted and who consented to receiving e-mails regarding PETWILL or the PETWILL Affiliate Program. Failure by Affiliate to abide by this section, CAN-SPAM Act of 2003 or our Anti-Spam Policy , in any manner, will be deemed a material breach of this Agreement by Affiliate and foreclose any and all rights Affiliate may otherwise have to any Commission Fees.
If Affiliate’s account has excessive clicks in a very short period of time as determined by PETWILL, in its sole discretion, the Affiliate relationship may be terminated.
Affiliate may place and remove PETWILL Links on Affiliate Site and in acceptable locations subject to the following limitations:
- Affiliate may Place PETWILL’s merchants banners anywhere on the Affiliate Site, or within non-spam emails.
- Any page that contains PETWILL links, banners, or code must be written in English.
- Affiliate cannot SPAM. PETWILL will terminate Affiliate’s account on the first offense of SPAMMING. Affiliate may not send emails to lists or groups that it does not have permission to send to.
- Affiliate may not place PETWILL Links or banners on any adult, hate, or other related sites.
- Affiliate may not place PETWILL Links or banners in or on newsgroups, chat rooms, Skype, ICQ, Snapchat, Faebook messenger, group smartphone texts, message boards, banner networks, hit farms, counters, or guestbooks.
- Affiliate may not place PETWILL Links or banners in or on any "Desktop" advertising scheme. This includes any and all 3rd party advertising platforms that use a desktop application to display ads in any form.
- Affiliate may not display a PETWILL merchant window that is not the result of a direct click by the end-user.
- Subject to the limitations set forth in Section 2, above, and otherwise in this Agreement, PETWILL grants Affiliate a limited, non-exclusive, non-transferable, revocable license to (i) access the Website through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use the PETWILL trademark and logo and similar identifying material relating to PETWILL (but only in the form(s) that they are provided by PETWILL) (collectively, the "Licensed Materials"), for the sole purpose of selling PETWILL Products and Services on an Affiliate Site and as approved in advance by PETWILL. Affiliate may not alter, modify, or change the Licensed Materials in any way. Affiliate is entitled to use the Licensed Materials only to the extent that it remains a member in good standing of the Affiliate Program.
- All images, technology and content provided for Affiliate’s use is and shall remain the sole property of the Merchant, and no part thereof shall be deemed assigned or licensed to Affiliate, except as explicitly provided for herein. All intellectual property rights, including trademarks, copyrights, patent rights or applications, tradenames and service marks related to the foregoing shall remain the PETWILL's sole property, including rights in and to any derivatives thereof.
- Affiliate shall not make any specific use of any Licensed Materials for purposes other than selling PETWILL Products and Services, without first submitting a sample to PETWILL and obtaining the express prior written consent of a PETWILL account executive, which consent shall not be unreasonably withheld. Affiliate agrees not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays PETWILL, any hosted member of PETWILL or any PETWILL employee or representative in a negative light. PETWILL reserves all rights in the Licensed Materials and all other proprietary rights. PETWILL may revoke the Affiliate’s license granted under this Section 13 at any time, for any reason, by giving written notice. If not revoked, this license shall terminate upon expiration or termination of this Agreement.
- Affiliate grants PETWILL a non-exclusive license to utilize Affiliate’s names, titles, and logos (“Affiliate IP”) to advertise, market, promote, and publicize in any manner PETWILL’s Products and Services; provided, however, that PETWILL shall not be required to so advertise, market, promote, or publicize Affiliate’s products and services. This license shall terminate upon the expiration or termination of this Agreement.
PETWILL acknowledges that in the course of this Agreement it shall have access to confidential and proprietary information (“Confidential Information”) of Affiliate. PETWILL agrees not to disclose or disseminate the Confidential Information without Affiliate’s prior express written consent. The term “Confidential Information” shall not include information that is or becomes part of the public domain through no action or omission of PETWILL, that becomes available to PETWILL from third parties without knowledge by PETWILL of any breach of fiduciary duty, or that PETWILL had in its possession prior to the date of this Agreement. PETWILL does not collect information about a Merchant’s customer transactions, other than what is passed to us through the installed tracking code and displayed on Affiliate’s own transaction reports. Any information PETWILL receives is used solely for tracking and payment of Commission Fees. PETWILL reserves the right to utilize this data in aggregate to analyze Service trends, monitor Service efficiencies, and perform such other analysis as PETWILL deems appropriate.
15. Term of the Agreement
The term of this Agreement will begin upon submission of Affiliate’s application to the Affiliate Program, and will end when terminated by either party. Either PETWILL or Affiliate may terminate this Agreement at any time, with or without cause. Affiliate is eligible to earn Commission Fees on Qualified Purchases occurring during the Term, and Commission Fees earned through the date of termination will remain payable only if the orders for the related PETWILL Products and Services are not cancelled and comply with all Terms of this Agreement. PETWILL may withhold Affiliate’s final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers is legitimate, as determined by PETWILL, in its sole discretion.
PETWILL reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in PETWILL’s sole discretion.
Any Affiliate who violates either this Agreement, PETWILL’s Terms and Conditions, or any applicable law or regulation having the force of law, will immediately forfeit any right to any and all accrued Commissions Fees and will be removed from the Affiliate Program.
PETWILL reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at a time for any reason, in PETWILL's sole discretion.
Without limitation, Affiliate's participation in the Program, and this Agreement, shall be deemed automatically terminated immediately and all commissions forfeited upon Affiliate's violation of any of the terms of this Agreement or of any applicable law or regulation having the force of law.
PETWILL may modify any of the terms and conditions contained in this Agreement at any time, in its sole discretion. Such modifications shall take effect when posted on the Website. Although PETWILL, in its sole discretion, may notify Affiliates of any modifications by e-mail, it is and shall be the sole responsibility of the Affiliate to check the Website for any updates. Modifications may include, but are not limited to, changes in the scope of available Commissions, Commission amounts/percentages, payment procedures, Commission Fee payment schedules, and Affiliate Program rules. If any modification is unacceptable to Affiliate, its only recourse is to terminate this Agreement. Affiliate’s continued participation in the Affiliate Program following the posting of a change notice or new agreement on the Website will constitute binding acceptance of the change.
PETWILL makes no express or implied warranties or representations with respect to the Affiliate Program or any PETWILL Products and Services sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, PETWILL makes no representation that the operation of the Website will be uninterrupted or error free, and PETWILL will not be liable for the consequences of any interruptions or errors, including the tracking of information about Referred Customers during the period of interruption.
18. Relationship of Parties
Affiliate and PETWILL are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on PETWILL’s behalf. Affiliate will not make any statement, whether on Affiliate Site or otherwise, that would reasonably contradict anything in this Section 18.
19. Affiliate’s Representations and Warranties
Affiliate hereby represents and warrants as follows:
- This Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid, and binding obligation, enforceable against Affiliate in accordance with its terms.
- The execution, delivery, and performance by Affiliate of this Agreement and the consummation by Affiliate of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which Affiliate is subject, (ii) any order, judgment, or decree applicable to Affiliate or binding upon its assets or properties, (iii) any provision of Affiliate’s by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to Affiliate or binding upon its assets or properties.
- Affiliate is the sole and exclusive owner of the Affiliate Trademarks and has the right and power to grant to PETWILL the license to use its trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to Affiliate or binding upon its assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
- No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by Affiliate in connection with the execution, delivery, and performance of this Agreement or the taking by Affiliate of any other action contemplated hereby.
- To the best of Affiliate’s knowledge, there are no pending threatened claim, action, or proceeding against Affiliate with respect to the execution, delivery, or consummation of this Agreement, or with respect to Affiliate’s trademarks, and, to the best of Affiliate’s knowledge, there is no basis for any such claim, action, or proceeding.
- During the term of the Agreement, Affiliate will not include in the Affiliate Site content that is, in PETWILL’s opinion, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or is in violation of PETWILL’s Terms of Service.
- Affiliate is at least eighteen (18) years of age.
- Each Referred Customer and each Qualifying Purchase referred or submitted by Affiliate to PETWILL, is valid, genuine, unique and not fraudulent, and meets each of the Criteria for generating a Commission Fee as provided in this Agreement.
20. Limitation of Liability
PETWILL WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF PETWILL HAs BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, PETWILL AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
Affiliate hereby agrees to indemnify and hold harmless PETWILL and its subsidiaries, affiliates, directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that PETWILL’s use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by Affiliate herein, or (iii) any claim related to the Affiliate Site, including, without limitation, its development, operation, maintenance and content therein not attributable to PETWILL.
Each of the parties here to agrees that all information including, without limitation, the parties’ business and financial information, PETWILL’s vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement, except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
23. Independent Investigation
Affiliate’s application submission acknowledges that Affiliate has read this Agreement and agrees to be bound by all its terms and conditions. Affiliate understands that PETWILL may at any time (directly or indirectly) solicit PETWILL relationships on terms that may differ from those contained in this Agreement. PETWILL may also solicit PETWILL relationships with entities that operate websites that are similar to or compete with an Affiliate Site. Affiliate has independently evaluated the desirability of participating in the Affiliate Program and is not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
24. Governing Law
This Agreement shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions. Affiliate hereby agrees that any and all disputes, claims, causes of action, or controversies (“Claims”) arising out of or in connection with this Agreement shall be resolved, by arbitration under the auspices of JAMS Alternative Dispute Resolution ("JAMS"), pursuant to its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Francisco, or any other jurisdiction on which the parties mutually agree. NEITHER PETWILL OR AFFILIATE WILL HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR OTHER PERSONS SIMILARLY SITUATED, OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT ENTRANT WOULD HAVE IF ENTRANT WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. The arbitrator’s authority to resolve Claims is limited to Claims between PETWILL and Affiliate alone, and the arbitrator’s authority to make awards is limited to awards to PETWILL and Affiliate, alone. Furthermore, claims brought by either party against the other may not be joined or consolidated in arbitration with Claims brought by or against any third party, unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
This page was last modified on 8/22/2016.