This Affiliate Agreement (hereinafter the “Agreement”) is entered into by and between Uniblue Systems Ltd. of Uniblue, 62/64, Progetta House, Tower Road, Swatar, Birkirkara - BKR 4012, Malta, Europe (“Uniblue” or “We”) and you as an individual or the entity which you represent (“Affiliate”, “You” or “Your”).
This Agreement contains the terms and conditions that apply to Your activities as a sales affiliate of the Uniblue products (the “Products”) through the establishment of one or more Referral Links (defined below). This affiliate program is administered by cleverbridge AG (the “Billing Merchant”) with whom You have already or will be required to enter into a separate agreement regulating its relationship with You (the "Billing Merchant Agreement").
By ticking the box which says, “I have read and agree to this Affiliate Agreement”, You agree that You have read and understood the terms of this Agreement and any Uniblue policy referenced herein, and that You agree to comply with its terms once Your Affiliate Sign-Up Form has been accepted. The acceptance of Your Affiliate Sign-Up Form is within Uniblue’s sole discretion and this Agreement will not be binding unless You have been notified of Uniblue’s acceptance.
Affiliate Sign-Up Form
You must ensure that the information You provided in the Affiliate Sign-Up Form is true and complete and kept updated at all times. You may also be required to provide Uniblue with additional information from time to time concerning Your activities in connection with this Agreement and You agree to do so promptly upon request.
A “Referral Link” is a link that contains the specific tracking information provided to You by the Billing Merchant in connection with this Agreement that You have added to a website, email or other electronic location. The Referral Link’s tracking tool will track Your referrals which result in a purchase of any Product from the Uniblue online store hosted by the Billing Merchant following navigation of the purchaser through the Referral Link (a “Referral”).
You are solely responsible for the location within which the Referral Link is placed, and You shall not place any Referral Link in any inappropriate location such as on any website or page which: promotes or contains sexually explicit or defamatory materials; promotes violence or contains violent materials; promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; promotes or undertakes illegal activities; includes any trade mark of Uniblue, or a variant or misspelling of the same, in any domain name e.g. "unibleu.com"; or otherwise violates intellectual property. Furthermore, You may not place any Referral Links in newsgroups, message boards, unsolicited email or in any other location or manner which may (intentionally or unintentionally) mislead any customer or potential customer. Where the Referral Link is placed in such a way that the material connection You have with Uniblue is not reasonably expected by the customer, You must ensure disclosure of Your material arrangement with Uniblue. You must keep Uniblue informed of the primary domains where You place any Referral Link.
Uniblue will instruct the Billing Merchant to pay You a certain percentage of the aggregate Net Proceeds (the “Commission Percentage”) received from Referrals (the “Referral Fees”). “Net Proceeds” shall mean the amount of revenue actually collected by the Billing Merchant from Referrals excluding, if applicable, Charge-Backs, refunds, VAT, sales tax, shipping, handling or other such fees, taxes, or customs. "Charge-Backs" mean the return of funds to a customer's bank account, line of credit, or credit card, forcibly initiated by the issuing bank (e.g. following a dispute).
Uniblue reserves the right to vary the Commission Percentage at any time. Furthermore Uniblue cannot guarantee product pricing, and prices may be changed without notice.
All Referrals will be tracked and Referral Fees calculated by the Billing Merchant, who will pay You in accordance with the terms of the Billing Merchant Agreement. Uniblue shall in no way be held responsible for: (i) tracking issues; (ii) the Net Proceeds recorded by the Referral Link; (iii) the Net Proceeds recorded and/or reported by Uniblue’s Billing Merchant; (iv) any failure relating to or resulting from the Referral Link, including but not limited to cookie failure; (v) overwriting of the Referral Link; (vi) any default or liability of the Billing Merchant; and/or (vii) anything relating to the calculation or reporting of such Referral Fees.
In connection with the activities contemplated by this Agreement, You may acquire confidential, proprietary, technical or business information belonging to Uniblue (“Confidential Information”) which You may use solely for the purposes of this Agreement. You may not disclose such Confidential Information to any third party except (i) to Your representatives and employees on a need to know basis (and You shall ensure they keep such information confidential) (ii) to the extent necessary to comply with law, a court order or any relevant regulatory or government authority (iii) in order to enforce or exercise Your rights under this Agreement, or (iv) to the extent that information has come into the public domain through no fault of Yours.
You will not issue any press release or make any other public communication with respect to this Agreement or your relationship with Uniblue without Uniblue's prior written consent.
Representations and Warranties
You hereby represent and warrant that:
You are 18 years of age or older (if You are a natural person), and You have full power and authority to enter into this Agreement and perform Your obligations hereunder;
You will comply with any applicable laws, rules, codes and regulations in conducting Your activities under this Agreement.
You will not misrepresent Your relationship with Uniblue or make deceptive or unsubstantiated claims regarding or relating to the Products and You shall abide by Uniblue’s policies relating to the promotion of its Products.
You will only engage in Pay-Per-Click advertisements (“PPC”) of the Products with Uniblue’s prior written consent and strictly in accordance with Uniblue’s PPC Policy.
You will not bundle the Products with any other products unless You are given Uniblue’s express prior written consent to do so.
You will not register any domains made up of or including any marks which are identical or confusingly similar to those used by Uniblue in trade, whether registered or not.
You will remain solely responsible for the operation of, and for the accuracy and appropriateness of all materials posted on, Your Website and for ensuring that such materials, Your activities and communications are not defamatory, in violation of copyright laws or otherwise illegal.
You will not create or attempt to create a substitute or similar service or product to Uniblue's Products through use of, or access to, the affiliate program or Confidential Information belonging to Uniblue.
You will not alter or modify any content that is made available to You by Uniblue for the promotion of its Products.
You will defend, indemnify and hold Uniblue and its officers, directors, employees and representatives harmless on demand from and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including reasonable legal fees) resulting or arising (directly or indirectly) from:
Any breach of this Agreement by You;
Your negligent or willful acts or omissions;
The actual or alleged violation by You of any person or entity’s intellectual property or privacy rights; or
Your site or any materials that appear on Your site.
In addition to any other rights hereunder, Uniblue also has the right to:
Request You to remove any Referral Link placed in a location or in a way that Uniblue deems unsuitable, in its sole and absolute discretion, and You agree to comply promptly with any such requests.
Request You to stop promoting its Products in a way that Uniblue deems unsuitable, in its sole and absolute discretion, and You agree to comply promptly with any such requests.
Modify and/or discontinue any content, Product and/or any language in which a Product is made available at any time.
Uniblue expressly disclaims to the fullest extent allowed by law, any implied condition or warranties, including as to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, course of dealing or usage of trade with respect to all the Uniblue sites and all content, information, services and Products available therein or any content or material that it might make available to You and generally to all matters arising out of this Agreement. Without limiting the foregoing, Uniblue will not be liable for the consequences of any interruptions, downtime or errors howsoever arising nor will it be held responsible for any activities conducted by the Billing Merchant in relation to this Agreement, including without limitation the tracking, calculation or remittance of any amount due under this Agreement.
Limitation of Liability
NOTHWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL UNIBLUE BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,GOOD WILL, LOSS OF BUSINESS, REVENUE, PROFITS(WHETHER DIRECT OR INDIRECT), USE, DATA OR OTHER ECONOMIC ADVANTAGEUNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR BREACH OF STATUTORY DUTY INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE PRODUCT(S), ANY INTERRUPTIONS, DOWNTIME OR ERRORS OR ANY ACTIVITIES CONDUCTED BY THE BILLING MERCHANT.
SUBJECT TO CLAUSE 10.3, UNIBLUE’S TOTAL AGGREGATE LIABILITY IN RESPECT OF ALL CLAIMS, LOSSES OR DAMAGES, WHETHER ARISING FROM TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNT PAID TO THE AFFILIATE IN THE TWELVE MONTHS PRECEDING THE CLAIM.
NOTHING IN THIS AGREEMENT SHALL EXCLUDE UNIBLUE'S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION, OR ANYTHING ELSE WHICH IT CANNOT BY LAW LIMIT OR EXCLUDE ITS LIABILITY.
Intellectual Property Rights
Uniblue hereby grants to You during the Term (as defined below) a non-exclusive, non-transferable, royalty-free license:
To establish hyperlinks between Your and Uniblue’s web site(s); and
To use Uniblue’s trade names, logos, trademarks and service marks and any content it might make available to You, on Your website solely as is reasonably necessary to establish and promote the Referral Links and to otherwise perform Your obligations under this Agreement and only in the form provided to You by Uniblue for such limited purposes and that You will do so strictly in accordance with Uniblue’s policies.
Except as specifically stated above, each party reserves all of its respective rights in the proprietary materials belonging to such party. You acknowledge that any goodwill generated by Your use of Uniblue's trademarks etc. will inure to Uniblue's exclusive benefit.
The term of this Agreement will begin upon notification by Uniblue of its acceptance of Your Affiliate Sign-Up Form and will end when terminated by either party (the "Term"). Either party may terminate this Agreement at any time, with or without supplying a reason, through written notification.
Upon the termination of this Agreement for any reason, all licenses granted hereunder will immediately cease and You must immediately terminate use of the Referral Links, and stop using Uniblue’s trademarks, logos or other intellectual property or material provided by Uniblue in connection with this Agreement.
Without prejudice to Uniblue’s right to terminate this Agreement, in the event that Uniblue, in its final discretion, identifies any breach of any provision of this Agreement or any related policy, Uniblue may suspend Your participation in this affiliate program and reduce Your Commission Percentage to zero from the date of such breach until You have taken satisfactory action (in Uniblue's sole opinion) to cure the breach.
Rights and obligations under this Agreement which by their nature are intended to survive termination, including without limitation clauses 5 (Confidentiality), 7 (Indemnification), 10 (Limitation of Liability), 11 (Intellectual Property Rights) and 12 (Suspension & Termination), will remain in full effect after termination of this Agreement howsoever arising.
Information About Your Site
You hereby consent to Uniblue:
Monitoring, recording, using, and disclosing information about Your site and visitors to Your site that Uniblue obtains in connection with Your display of Referral Links (e.g. that a particular customer clicked through a Referral Link from Your site before buying a Product) in accordance with the terms of Uniblue's privacy notice, which can be found here ; and
monitoring, crawling, and otherwise investigating Your site to verify compliance with this Agreement or any Uniblue policy.
Sending you emails, including but not limited to, emails containing promotional resources, newsletters and other correspondence.
Disclosing your contact details and any other information requested from advertising or other regulators in connection with your advertisements, promotions or websites.
Independent Contractors. Nothing in this Agreement or in any document referred to in it shall create a partnership or joint venture between the parties or render a party the agent or employee of the other, nor shall a party hold itself out as such and save as expressly provided in this Agreement neither party shall enter into or have authority to enter into any engagement, or make any representation or warranty on behalf of, or otherwise bind or oblige the other party. You agree that You will be solely responsible for paying all expenses incurred by yourself. You understand that all rights You have hereunder are non-exclusive.
Non-Assignment. You may not assign any rights or delegate any duties under this Agreement without the prior written consent of Uniblue.
Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations are delayed or prevented by reason of any cause beyond the reasonable control of such party.
Applicable Law. This Agreement and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with it shall be governed by and interpreted in accordance with the laws of Malta without regard to the conflicts of laws rules. Any disputes arising in relation to this Agreement shall be settled by arbitration in accordance with the rules of the Malta Arbitration Centre. The seat of arbitration shall be in Malta. Uniblue retains the right, at its option and for its exclusive benefit, to institute proceedings regarding or relating to this Agreement, in the courts of the country in which You reside.
Non-waiver. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement of that or any other right.
Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any other provision hereof.
Entire Agreement. This Agreement constitutes the entire agreement between You and Uniblue with respect to its subject matter and supersedes any prior oral or written agreements. You understand and agree that Uniblue has the right to amend this Agreement and any related Uniblue policy at any time at its sole discretion, and You agree that any such amendment will apply to You from the date You are notified. Notification of amendments shall be sent by email to the most recent email address that You registered with Uniblue and Uniblue shall endeavor to also publish such notifications on its website. It is Your responsibility to advise Uniblue in writing of any changes to Your email address, to regularly check Your emails and to ensure that Your email settings do not filter out any messages from Uniblue. Email notifications will be deemed delivered when sent unless the sending party receives an automated delivery failure report to the contrary. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY REMEDY IS TO TERMINATE THIS AGREEMENT IN WRITING. Your continued participation in the program following notification of Uniblue’s modifications will constitute a binding acceptance of the change.