This Agreement is made and entered into by and between Budsies Co LLC (the owner of the Petsies brand, “Budsies”, “we”), and our Affiliates (“Affiliate”, “you”), whereby Affiliate will market Company’s products services in exchange for Referral Fees.
Budsies produces collectibles, toys, and related products and services (“Services”). Budsies hereby grants to Affiliate a nonexclusive, nontransferable right to market and otherwise promote the Services to customers.
Budsies will pay you referral fees on our Services sales to customers. For a Services sale to be eligible to earn a referral fee, the customer must follow a Special Link to our site, select and purchase the Services using our automated ordering system, accept delivery of the Services, and remit full payment to us. We will make best efforts to determine your customers returning to our website for up to 30 days after your initial referral, either through a cookie placed in customers' browser and/or through their email address. We cannot, however, guarantee the payment of referral fees on any Services that are purchased after the customer has reentered our site (other than through a Special Link), as determined by us, even if the customer previously followed a link from your site to our site, if for any reason we are unable to identify you as the Affiliate (for example if the customer returns to our site using different computer and/or email address). In cases where the customer re-enters our site more than once referred by multiple Affiliates, only the last referring Affiliate will earn the commission.
You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. Such purchases may result (in our sole discretion) in the withholding of referral fees or the termination of this Agreement. Services that are eligible to earn referral fees under the rules set forth above are referred to as "Qualifying Services."
In addition, you may not: (a) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity; (b) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of our site; (c) make any orders or subscription requests, or engage in other transactions of any kind on our site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so; (d) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) are occurring; (e) post or serve any advertisements or promotional content around or in conjunction with the display of our site (e.g., through any "framing" technique or technology or pop-up windows), or assist, authorize, or encourage any third party to take any such action; (f) intercept or divert any traffic intending on visiting our site; (g) utilize search engine marketing or search engine optimization tactics that compete with us or divert traffic searching for our brands or services; or (h) list your referral link on a discount or coupon website. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
You will earn referral fees based on Qualifying Revenues. "Qualifying Revenues" are revenues derived by us from our sales of Qualifying Services, excluding costs for shipping, handling, taxes, and service charges.
Your current referral fee rate is determined by the specific program you are enrolled in.
Budsies may, at its sole discretion, refuse service to any customer. Budsies may also, at its sole discretion, refuse or terminate any Affiliate.
License Grant of Budsies Marks
Subject to all the terms and conditions of this Agreement, Budsies hereby grants Distributer a nonexclusive, non-transferable license to use the Budsies trademarks, logos, and copyrighted material ("Budsies Marks") solely in connection with promoting the Services. Partner hereby acknowledges and agrees that (i) the Budsies Marks are owned solely and exclusively by Budsies or its affiliates, (ii) except as set forth herein, Affiliate has no right, title or interest in or to the Budsies Marks; and (iii) all use of the Budsies Marks by Affiliate shall inure to the benefit of Budsies and its subsidiaries. Affiliate agrees that it shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of Budsies or of any Budsies Mark.
Use and Display of Budsies Marks
Affiliate acknowledges and agrees that the presentation and image of Budsies Marks should be uniform and consistent with respect to all services, activities and products associated with the Budsies Marks. Accordingly, Affiliate agrees to use the Budsies Marks solely in the manner in which Budsies shall specify from time to time in Budsies’ sole discretion.
Affiliate further agrees: (i) to be solely responsible for all expenses and fees incurred in connection with this program; (ii) use best efforts to successfully market, advertise and sell Budsies Services during the term of this Agreement; (iii) not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Budsies or its products or services; (iv) not make any representations, warranties, or guarantees on behalf of Budsies, or otherwise concerning Budsies Services that are inconsistent with or in addition to any such representations, warranties, or guarantees made by Budsies; and (v) use the then-current name as used by Budsies (but will not represent or imply that Affiliate is a partner or employee of Budsies).
Term & Termination
The term of this Agreement shall continue until it is terminated. Either party may terminate this Agreement at any time upon providing written notice to the other party. Budsies may terminate this agreement For Cause, with or without notice, if it deems, at its sole discretion, that affiliate is violating the terms of this Agreement.
Upon expiration or termination of this Agreement for any reason, all rights and obligations of the Parties under this Agreement shall be extinguished, except that: (a) all accrued payment obligations hereunder shall survive such expiration or termination, if applicable; and (b) any other provisions of this Agreement that should reasonably survive expiration or termination shall survive such expiration or termination. Affiliate waves all Budsies' accrued payment obligations in the case of For Cause Terminations.
Affiliate shall defend, indemnify, and hold Budsies, its affiliates, and any of their officers, directors, agents and employees harmless from and against any action, claim or suit brought against Budsies or its affiliates, including any and all losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising from or out of: (a) any breach or alleged breach by Affiliate of any representation, warranty or other obligation of Affiliate under this Agreement; (b) any alleged or actual violation by Affiliate of any laws, policies, guidelines, regulations, ordinances, rules and/or orders of any governmental authority or regulatory body having jurisdiction over Company and the subject matter hereof; (c) the negligence or willful misconduct of Affiliate, its employees or agents; or (d) Affiliate’s advertising, marketing, promotion, sale, or distribution of any of the Qualifying Services.
Budsies reserves the right to modify this Affiliate Agreement, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Budsies affiliate website ("Affiliate Website") so that they are accessible via a link on the Affiliate Website, and that your use of the Affiliate Program after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this User Agreement on a regular and frequent basis. The Updated Terms will be effective as of the time that Budsies posts them on the main page of the Affiliate Website, or such later date as may be specified in them.
Affiliate shall not, directly or indirectly, disparage Budsies, any Budsies Mark (including trademarks, service marks and other such marks, registered or not and/or the Budsies Services, during the term of this Agreement and for a period of twelve months thereafter. Furthermore, Affiliate shall not solicit or hire any employee or consultant of Budsies to leave their employment or consulting relationship with Budsies during the term of this Agreement and for a period of twelve months thereafter.
NON-COMPETITION & NON-SOLICITATION
In order to protect the legitimate business interests of Budsies, Affiliate agrees that during the term of this Agreement and for a period of 24 months thereafter, Affiliate or its stakeholders will not directly or indirectly, whether as owner, sole proprietor, partner, shareholder, director, member, consultant, agent, founder, co-venture partner or otherwise, (i) do anything to divert or attempt to divert from Budsies any business of any kind, including, without limitation, solicit or interfere with any of Budsies' customers, clients, members, business partners or suppliers, (ii) engage, invest or participate i n any business that is similar to those which Budsies has created or has under development during the business relationship.
BUDSIES HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PROGRAM AND THE BUDSIES SERVICES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THE BUDSIES SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
LIMITATION OF LIABILITY
BUDSIES SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH THIS AGREEMENT, EVEN IF BUDSIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUDSIES BE LIABLE TO DISTRIBUTOR OR ANY THIRD PARTY IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT PAID TO DISTRIBUTOR BY BUDSIES HEREUNDER DURING THE THREE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. Headings are used for convenience of reference only and in no way define, limit, construe or describe the scope or extent of any section, or in any way affect this Agreement.
This Agreement does not confer on either Party any rights that are exclusive. Each Party is free to contract with others with respect to the subject matter of this Agreement.
Relationship of the Parties
The Parties are independent contractors and nothing in this Agreement shall make them joint venturers, Companys, employees, agents or other representatives of the other Party. Neither Party shall make any representation that suggests otherwise.
This Agreement will be governed by the laws of the United States and the state of Florida, without reference to rules governing choice of laws. This Agreement may not be assigned by either party without the prior written consent of the non-assigning party. Notwithstanding the foregoing, Budsies may assign this Agreement to the surviving entity in the case of a merger, acquisition or sale of all or of substantially all of its assets without the consent of the Affiliate. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be 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.