This agreement describes the terms and conditions for participation in the DieSmart Affiliate Program. The terms “Affiliate,” “you,” and “your” are referring to you, the applicant. “We” and “our” refer to DieSmart. We are independent parties and Affiliate is solely an Independent Contractor when acting as an Affiliate. No partnership, joint venture or other legal entity is created between DieSmart and Affiliate.
AGREEMENT DURATION
This agreement will begin upon our acceptance of your affiliate application and will end when terminated by either party. Termination may happen at any time, with or without cause, by giving the other party written notice of termination.
MODIFICATION
By posting a Change Notice or a new agreement on this site, we may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. These modifications may include, but not be limited to changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. If any of the modifications are UNACCEPTABLE TO YOU, your only recourse is to terminate this Agreement. If you CONTINUE PARTICIPATION IN THE PROGRAM following the posting of a Change Notice or new agreement, it will be considered as your acceptance of the change.
COMMISSION FEES
You will receive 20% of the revenue as a commission from orders placed through your Affiliate Site. For a sale to generate a commission to an Affiliate the customer must complete the order form, remit full payment for the service ordered and have received their product. Referral fees can only be earned between the acceptance of the Affiliate application and notice of termination.
All Affiliate payments will be made in U.S. dollars. DieSmart will pay Affiliate the Commissions earned which payments will be calculated on a monthly basis. Approximately forty-five (45) days following the end of each calendar month during the agreement, DieSmart will send Affiliate a check for the Commissions earned in such month, less any other fees or reduction for returns that DieSmart is required by law to withhold, and excluding fraudulent, redundant, or non-qualifying Commissions. If the Commissions payable to Affiliate for any calendar month are less than $50.00, DieSmart will hold those fees until the total amount due is at least $50.00 (unless this Agreement is terminated).
Any returned checks, chargebacks, or fees from a returned order will be adjusted in the following fee payment. If no fee payment is due a billing invoice for the amount will be issued. DieSmart reserves the right to deduct in subsequent months, any commissions paid for a product that is subsequently returned or refunded, or for any reason where the previous monthly commission was overpaid or later subject to reduction pursuant to DieSmart’s terms and condition of sale.
Affiliate shall be responsible for any and all tax liability arising out of your accrual or receipt of Commissions and Affiliate hereby agrees to indemnify and hold DieSmart harmless from any and all claims, damages and expenses (including, without limitation, attorneys’ fees) arising from such tax liability. Affiliate may be taxed on the accrual of Commissions, depending on the tax laws of Affiliate’s federal, state and local jurisdictions.
Affiliates must have an active link on their website. Affiliate links may not be placed in newsgroups, unsolicited e-mail, banner networks, counters, chatrooms or guestbooks. Any Affiliate link placed must be placed so that it is not misleading to any Affiliate Originated Visitor and is done so with the intention of delivering users to the DieSmart Site for that Link. In order to qualify for commissions on sub-affiliate sales in any given month, an affiliate must personally sell at least one order during that month.
DieSmart will only pay commissions on sales that are tracked through our tracking system and indicate Affiliate as the source of the visit to DieSmart’s Web Site. Affiliate has no right to commissions based upon subsequent sales, or where “cookies” are used, overwritten or deleted even where the customer arrived at the DieSmart site through the Affiliate link. Commissions will only be paid when the customer makes a purchase on the same visit using the Affiliate link or with the Affiliate “cookie” indicating you as the Affiliate.
DieSmart will not pay commissions on deposits, net revenue or traffic generated at DieSmart.com through illegal means or in bad faith to defraud us, regardless of whether or not it actually causes us harm. This traffic includes but is not limited to spam, false advertising, deposits generated on stolen credit cards, collusion, manipulation of the service, system, bonuses or promotions and any other unauthorized use of any third party accounts, copyrights or trademarks.
Please note that NO COMMISSION is paid on your original purchase of DieSmart. In other words you cannot buy from yourself or be your first purchase for the sole purpose of discounting your own product purchase.
ORDER PROCESSING
DieSmart will be solely responsible for processing every order placed by a customer on the Affiliate and sub-affiliate sites. Customers who purchase products and services through the DieSmart will be deemed to be customers of DieSmart. Prices and availability of our products and services may vary from time to time. DieSmart policies will always determine the price paid by the customer. We reserve the right to reject any order that does not comply with our rules, operating procedures and policies.
WEBSITE RESTRICTIONS
DieSmart reserves the right not to accept any site into the DieSmart Affiliate Program based on site content. Sites that Do Not Qualify for the DieSmart Affiliate Program include sites such as those that:
- Promote X- rated and sexually explicit materials.
- Promote violence and discord.
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Promote illegal or questionable activities.
- Violate intellectual property rights.
SPAM (UCE) Unsolicited Commercial E-mail
DieSmart in no way participates in mass unsolicited e-mailing (i.e. spamming), and all Affiliates are expected to adhere to this policy as well. For the purpose of this Agreement SPAM is defined as e-mailing anyone, in bulk or by single mailing, about DieSmart, DieSmart products or services, who has not specifically requested the information directly from Affiliate. Violation of this policy will result in the termination of this contract and immediate dismissal from the DieSmart Affiliate Program, with no refund.
Affiliate agrees to comply with all U.S. Federal and state laws, including but not limited to the Federal CAN-Spam Act.
Because damages are often difficult to ascertain, if actual damages cannot be reasonably calculated then the Affiliate agrees to pay DieSmart liquidated damages of $500 for each piece of spam or unsolicited e-mail transmitted from or otherwise connected with Affiliate or actual damages, whichever is higher, to the extent actual damages can be reasonably calculated.
DISCLAIMER
We make no express or implied warranties or representations with respect to the Affiliate Program or your potential to earn income from the DieSmart Affiliate Program. In addition, we make no representation that the operation of our site or the Affiliate Sites will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or down time.
This Agreement will be governed by the laws of the United States and the State of California without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the Federal or State courts located in San Mateo County, California, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
By submitting the DieSmartAffiliate Agreement form, you acknowledge that you have read this agreement and agree to all its terms and conditions. You have independently evaluated this program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
I have read the terms of this agreement and I accept.