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WHEREAS Affiliate wishes to include certain materials on Affiliate's Site promoting the sale of the Company's products, and to include a link to Company's website within those materials on Affiliate's website;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Definitions
"Affiliate Site" means any website that Affiliate will link to the Gold and Silver site.
"Company" or "Gold and Silver" means Gold and Silver, Inc.
"Completed Sale" means a sale of the Company's products for which each of the following have occurred and been completed: (a) a customer enters the Gold and Silver Site exclusively through a Gold and Silver banner on Affiliate's Site; (b) the customer makes a purchase without ever leaving the Gold and Silver Site or entering the Gold and Silver Site through any other portal or other site; (c) the customer makes proper payment for the purchase; and (d) the customer's payment clears the bank and the funds are deposited into Gold and Silver's account.
"Gold and Silver Link" means a link provided by Gold and Silver that is posted on Affiliate's Site which connects customers to the Gold and Silver Site.
"Gold and Silver Site" means the Gold and Silver.com website owned and operated by the Company, which has its primary home page identified by the URL www.GoldSilver.com.
"Promotional Materials" means any artwork, logos, displays, banners, advertising copy, advertising content, links, or other materials supplied by the Company to Affiliate for use in generating the sale of the Company's products or services.
"Proprietary Terms" shall mean any terms that use or incorporate any of Gold and Silver's trademarks, trade names, service marks, product names, or any derivatives, similarly spelled, or commonly misspelled derivatives of the foregoing.
2. Application. The Company reserves the right to reject any application if, in the Company's sole discretion, it deems Your Site to be unsuitable for the Company's program. The Company further reserves the right to cancel any Affiliate Application if, in the Company's sole discretion, it is not suitable for the Company's program. Unsuitable sites include, but are not limited to, those sites that contain or link to material identified in paragraph 13.b.
3. Promotional Materials. Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the "Promotional Materials"). Affiliate shall display the Promotional Materials on Affiliate's website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company's website, as specified by Company.
4. Use of Promotional Materials. The Affiliate's use and display of the Promotional Materials on the Affiliate's site shall conform to the following terms, conditions and specifications:
a. Affiliate may not use any graphic, textual or other materials to promote Gold and Silver Site, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
b. Affiliate may only use the Promotional Materials for the purpose of promoting Company's website (and the products and services available thereon), and for linking to the Gold and Silver Site.
c. The Promotional Materials will be used to link only to Company's website, to the specific page and address as specified by Company.
d. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
5. License. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the "License") to use the Promotional Materials as specified under the terms and conditions of this Agreement.
6. Affiliate Site Content Approval and Monitoring. Affiliate shall not use any content on Affiliate's site that relates to or references the Company or its management without the Company's prior written approval. Affiliate acknowledges that the Company may crawl or otherwise monitor any Affiliate Site for the purpose of ensuring the quality and reliability of Gold and Silver Links on Affiliate's Site, compliance with this Agreement and the Company's policies, and suitability for participation in the Program. Therefore, Affiliate agrees that the Company may take such actions, and that Affiliate will not seek to block or otherwise interfere with such crawling or monitoring (and that the Company and its service providers may use technical means to overcome any methods used on your site to block or interfere with such crawling or monitoring).
7. Email Contact. Affiliate Acknowledges that as a participant in the Program, the Company may from time to time send Affiliate email updates about the Program. By participating in the Program, Affiliate consents to receiving and acting upon such email updates.
8. Intellectual Property. Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Paragraphs 3 and 4.
9. Independent Contractor Relationship. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
10. Gold and Silver Policies and Procedures. Gold and Silver may change its policies, operating procedures and pricing at any time. Gold and Silver's policies shall be posted on Gold and Silver's website and are incorporated by reference into this Agreement. The Company reserves the right to amend its policies at its sole discretion at any time.
11. Affiliate Site Integrity. Affiliate acknowledges and agrees that Affiliate will:
a. Conspicuously post Affiliate's privacy policy on Affiliate's Site;
b. Prominently disclose that they are an independent Affiliate of Gold and Silver, Inc., but that Affiliates's Site is a private website owned and operated by Affiliate, and is not owed or operated by Gold and Silver, Inc.;
c. When a visitor to Affiliate's Site links to the Gold and Silver Site, a pop-up window shall appear indicating that the visitor is leaving the Affiliate's Site and is being directed to the Gold and Silver Site. The visitor must be asked if they wish to proceed, and must affirmatively respond that they wish to proceed before being directed to the Gold and Silver Site.
d. Promptly delete any Content that is no longer displayed on the Gold and Silver Site or that the Company notifies Affiliate is no longer available for Affiliate's use; and
e. Affiliate will not use any content on Affiliate's Site that relates to the Company or its management for which Affiliate has not received prior written approval.
12. Commissions.
a. In exchange for Affiliate's display of the Promotional Materials, and for Affiliate's compliance with and performance of the terms and conditions of this Agreement, the Company shall pay to Affiliate an affiliate commission for each Completed Sale of Gold and Silver's products according to the Gold and Silver Affiliate Commission Schedule, which is posted at http://goldsilver.com/affiliate_program.php commission. The Company may, at it sole discretion, amend the Commission Schedule at any time. Amendments shall become effective 30 days after posting on the Company's website.
b. To permit accurate tracking, reporting and commission accrual, each Affiliate must ensure that the Gold and Silver Links between the Affiliate's Site and the Gold and Silver Site are properly formatted. Gold and Silver will not be liable for paying affiliate commissions on purchases that are not correctly tracked and reported because the links between the Affiliate's Site and the Gold and Silver Site are not properly formatted.
c. The Company shall keep accurate and up-to-date records of Affiliate's sales to determine the total amount of Commissions owed to Affiliate. Affiliate may view his or her sales information in his or her back office website provided by the Company.
d. The Company shall pay Commissions within 14 days of the first day of each scheduled payment date for all Completed Sales in the preceding payment period as outlined at http://goldsilver.com/affiliate_program.php.
13. Affiliate's Representations and Warranties. Affiliate represents and warrants the following:
a. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement;
b. Affiliate's website does not contain, or link to or from any website that contains, any materials that:
i. Are sexually explicit, obscene, or pornographic;
ii. Are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Are graphically violent, including any violent video game images;
iv. Are solicitous of any unlawful behavior;
v. Are in violation of any intellectual property rights of the Company or any third party;
vi. Include any trademark of the Company or its affiliates, or variations or misspellings of any such trademarks, in their URLs to the left of the top-level domain name (e.g., .com, .net, .ca, etc.).
Affiliate Sites containing, or linking to or from, any of the foregoing shall result in the immediate termination of the license granted pursuant to this Agreement. The Company further reserves all rights to take further legal action against Affiliates who breach this provision as it deems appropriate.
c. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate's website. Nothing on Affiliate's website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
d. Affiliate will not use the Promotional Materials in any manner other than as set forth in this Agreement.
e. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
f. Affiliate shall not in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the Gold and Silver Site;
g. Affiliate shall not place any orders or engage in other transactions of any kind on the Gold and Silver Site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so;
h. Affiliate shall not take any action that could reasonably cause any customer confusion as to the Company's relationship with Affiliate, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring;
i. Affiliate shall not attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert commissions from, any web site that participates in the Program;
j. Affiliate shall not seek to purchase or register any keywords, search terms or other identifiers that include the words "goldsilver", "gold&silver", "goldandsilver", or any other trademark of Gold and Silver or its affiliates, or variations or misspellings thereof (for example "goldsilver ", "goldslvr", "gld&slvr, etc.), or the name of any Gold and Silver owners (e.g., "mikemaloney", "michaelmaloney", etc. for use in any search engine, portal, sponsored advertising service or other search or referral service.
14. Affiliate Strategies Subject to Legal Opinion. The Company reserves the right to require that Affiliate provide the Company with a legal opinion letter from an attorney qualified in the field of online and affiliate marketing representing that Affiliate's marketing strategies and methods are legal and in compliance with applicable State and Federal laws, as well as the laws of other jurisdictions into which Affiliate markets. The legal opinion letter shall specify that Gold and Silver, Inc. shall be entitled to rely on the opinion.
15. Noncompetition. During the term of this Agreement, any renewals thereof, and for a period of 24 calendar months thereafter, Affiliate shall not act as an independent affiliate, distributor, sales person, employee, independent contractor, agent, wholesaler, dealer, advertiser, promoter, website operator, or representative of any other nature for any online business that sells precious metals, including but not limited to gold and/or silver. This noncompetion provision shall not apply to any non-internet based precious metals business with which Affiliate may become involved.
16. Nondisparagement. If Affiliate has any criticisms of the Company, its business, or its management, Affiliate may voice such criticisms directly to the Company by email via admin@goldsilver.com. Affiliate shall not issue verbal or written negative comments or criticism to any third party relating to the Company, its management, or its business.
17. Indemnification. Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate's warranties set forth in this Agreement. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
18. Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be "Confidential Company Information." Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
19. Term.
a. This Agreement shall become effective on the date on which it is finally executed by all parties, and shall remain in full force and effect for one year, or until terminated by either party. The Agreement shall automatically renew for a subsequent one-year term unless one of the parties gives the other party written notice of its intent not to renew the Agreement at least 30 days prior to non-renewal.
b. Either Party shall have the right to terminate this Agreement at any time with or without cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination if without cause. If the termination is for cause, termination of the Agreement shall be immediate upon the terminating party's submission of written notice to the non-terminating party.
20. Taxes. Affiliate shall provide the Company with a properly executed IRS Form W-9 before Affiliate is eligible to receive commissions from the Company. Gold and Silver, Inc. shall not be responsible for any taxes owed by Affiliate arising out of Affiliate's relationship with Company as set forth in this Agreement.
21. Limitation of Liability. Company shall not be liable for any loss of profits, costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
22. Limitation of Actions. If an Affiliate has a claim or cause of action against the Company that arises from or relates to this Agreement, such action must be brought within one year from the date on which the claim arose, or the shortest time permissible under state law. Affiliate waives any claim that any other statute of limitations applies.
23. Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of Wyoming, without regard to conflicts of law principles.
24. Jurisdiction and Venue. For any dispute arising from or relating to this Agreement, the parties consent to exclusive jurisdiction and venue before the courts residing in Teton County, State of Wyoming.
25. Online Execution. Affiliate has reviewed Gold and Silver Affiliate E-Sign Notice, and acknowledges that by agreeing to these Terms and Conditions, Affiliate shall be bound as if this Agreement had been physically signed by an authorized officer of Affiliate.
26. Severability. If any part or parts of this Agreement is held unenforceable by a court of competent jurisdiction for any reason, such unenforceable part or parts of the Agreement shall be severed, and the remainder of this Agreement shall continue in full force and effect. The severed provision shall then be reformed only to the least extent necessary to make it enforceable, and such reformed provision(s) shall be be construed and enforces as so reformed.
27. Notice. Any notice required or otherwise given pursuant to this Agreement shall be transmitted via email, with a follow-up hard copy sent via U.S. Mail:
28. Headings. The headings for Paragraph herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
29. Entire Agreement. This Agreement, together with Gold and Silver's policies, which are incorporated by reference, constitute the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
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