SALES AFFILIATE AGREEMENT
This Sales Affiliate Agreement (this "Agreement"), dated as of [Auto Generated], is entered into by and between Shaman Productions, a Puerto Rican Incorporated company ("Supplier"), producer of Abeytu’ Naturals Product Line, and
, an located at Individual Business ("Sales Affiliate," and together with Supplier, the "Parties," and each, a "Party").
WHEREAS, Supplier is in the business of selling the Products (as defined in Section 1);
WHEREAS, Sales Affiliate has the experience, capability, and capacity to act as an independent sales and marketing representative; and
WHEREAS, Supplier wishes to engage Sales Affiliate and Sales Affiliate is willing to act as an independent sales and marketing representative to solicit orders for the Products in the Territory (as defined in Section 1) under the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1.Non-Exclusive Appointment. Supplier hereby appoints Sales Affiliate, and Sales Affiliate accepts such appointment, to act as a non-exclusive independent sales and marketing representative of the products listed on Schedule 1, which Schedule 1 is attached hereto and is hereby incorporated herein by reference in its entirety, as may be amended by Supplier in its sole discretion from time to time (collectively, the "Products") to customers in throughout the world (the "Territory"), solely in accordance with the terms and conditions of this Agreement. Supplier may in its sole discretion directly, or indirectly through other representatives, sell the Products to any third party. Supplier shall have the right to limit the Territory, the Products, and the type of customers solicited by Sales Affiliate within the Territory, as Supplier deems advisable in its sole discretion, upon written notice to Sales Affiliate.
2.Status as Independent Contractor. Sales Affiliate is an independent contractor pursuant to this Agreement. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any customer or other third party.
3.General Sales Affiliate Obligations.
3.1 Market the Products. Sales Affiliate shall use its best efforts to market, advertise, promote, and solicit the sale of the Products to prospective and existing customers in the Territory. Sales Affiliate and its staff shall conduct themselves in a professional manner and shall engage in no activities which reflect adversely on Supplier or the Products. If Sales Affiliate becomes aware of any actual or potential claim against Supplier by any person or entity, Sales Affiliate shall notify the Supplier immediately. Affiliate shall refrain from making any medical /health claims regarding products and will utilize affiliate assets provided by supplier to assist with sales and marketing.
3.2 Costs and Expenses. Sales Affiliate shall be solely responsible for any and all costs or expenses that it may incur in the performance of its obligations hereunder.
3.3General Cooperation. To the extent not otherwise required herein, Sales Affiliate shall provide complete cooperation to Supplier to assist Supplier in maximizing Supplier's success within the Territory.
3.4 Obtain Government Approvals. Sales Affiliate shall at its own expense remain in good standing and maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to its obligations hereunder.
3.5 Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Sales Affiliate nor its staff shall directly or indirectly: (a) make any representations or warranties on behalf of Supplier or with respect to the Products, except such as are expressly authorized by Supplier or are set forth in Supplier's literature or other promotional materials; (b) engage in any unfair, anti-competitive, misleading, or deceptive practices with respect to the Products, Supplier, or any third party, including product disparagement and any trade libel of Supplier or any third party; or (c) sell, market, advertise, promote, solicit the sale of, or offer to sell any goods that compete with the Products, except to the extent this restriction is prohibited by applicable law; (d) make any medical/health representations beyond what is provided by supplier in Affiliate Assets; (e) register as an affiliate and use friend/family member/same household members’ affiliate link and /or coupon code for personal additional discount. An Affiliate may only use his/her own personal link for discount/commission only. If Affiliate is caught violating this policy, they will be terminated permanently without notice.
4.1 Supplier shall provide Sales Affiliate with any information and support about the Products that Supplier, in its sole discretion, deems necessary or appropriate for Sales Affiliate to carry out its responsibilities hereunder.
4.2 Supplier shall provide Sales Affiliate with samples, prototypes, documentation, brochures, and other promotional materials that Supplier, in its sole discretion, deems necessary or appropriate for the promotion and sale of the Products in the Territory. Supplier shall retain all rights, title, and interest in and to all samples, prototypes, and other promotional materials. Sales Affiliate shall promptly return all samples and prototypes to Supplier on the expiration or earlier termination of this Agreement as provided for in Section 10. 5.Customer Purchases. Sales Affiliate shall supply all potential customers with their unique code (“Sales Code or Coupon Code”) and or (“Affiliate Link”) through Sales Affiliate’s marketing efforts. Supplier reserves the right, in its sole discretion, to: (a) accept, reject, or negotiate directly with the customer any purchase order for Products received from any third party whether or not solicited by Sales Affiliate; (b) cancel, terminate, or modify any customer contract previously accepted by Supplier; or (c) negotiate any terms and conditions of the customer contract, including modifying Product features, quantities, purchase price, or payment terms. Sales Affiliate acknowledges that Supplier's exercise of discretion may result in no Commissions (as defined in Section 6.1) earned, or a reduction, or delay in the payment of Commissions earned under this Agreement.
6.1 Commission Rate. Subject to Section 6.2, Sales Affiliate shall earn commissions ("Commissions") for first time sales described by the following: The customer must
(1) Utilize the Sales Code Assigned to Affiliate. This Sales Code is only good for one use. The Commissions a Sales Affiliate shall receive from completed FIRST TIME sales of the Products utilizing the Sales Code in the Territory that were solicited by Sales Affiliate at the rate of ten percent (10%) of the Net Sales Price under the applicable customer contract. For the purposes of this Agreement, "Net Sales Price" means the gross invoice price less all taxes, shipping, handling, and insurance charges, credits (arising from returns or other adjustments), discounts, rebates, or allowances of any kind (if any). Sales Coupon Code will NOT work on a subscription.
(2) Utilize the unique Affiliate Link so the customer is “cookied” back to Affiliate for each purchase by customer as long as customer is purchasing using the same device. Unique Affiliate Link provides Affiliate with a 10% commission upon any purchase that is NOT a subscription. Subscriptions are compensated to Affiliate at the rate of 5% of net sales price, and for each renewal month.
(3) If your Affiliate Account goes dormant whereby gross sales generated are not above $500/month we reserve the right to terminate your account upon review within 30 days.
6.2 Commission Payment Terms. Commissions shall become earned and payable to Sales Affiliate thirty (30) days following the last day of the month in which Supplier receives unconditional payment from a customer under the corresponding customer contract (each, a "Payment Date"). For example, Commissions corresponding to customer payments received by Supplier between May 1 and May 31 shall be become earned and payable to Sales Affiliate on June 30. It is Affiliates responsibility to track all commissions in the affiliate portal. Affiliate may ask for a review from Supplier’s IT team by submitting a support ticket email to [email protected]
6.3 Monthly Reports. Supplier shall keep records of all completed sales of Products through Sales Affiliate hereunder and submit to Sales Affiliate on each Payment Date a report ("Monthly Report") indicating: (a) all sales as to which Sales Affiliate has earned Commissions pursuant to Section 6.2; (b) the amount of payments received by Supplier with respect to such sales; and (c) the amount of Commissions due on the Payment Date. Sales Affiliate shall notify Supplier in writing of any dispute regarding any Monthly Report within thirty (30) days from the date of such Monthly Report. Sales Affiliate will be deemed to have accepted all Monthly Reports for which Supplier does not receive timely notification of a dispute. Affiliate will utilize the affiliate portal for this information.
6.4 Payment of Commissions on Termination. Upon the termination of this Agreement, Supplier shall continue to pay Sales Affiliate Commissions on orders for Products received prior to the termination date for which customer payments are received on or before ninety (90) days after the termination date. OTHER THAN AS SET FORTH IN THIS SECTION 6.4, SALES AFFILIATE WAIVES ANY RIGHT IT MAY HAVE TO FURTHER COMPENSATION UPON TERMINATION OF THE AGREEMENT.
7. Compliance with Laws. Sales Affiliate shall at all times comply with any and all applicable federal, state, and local laws and regulations in performing its responsibilities hereunder. THIS INCLUDES SUBMISSION OF YOUR SOCIAL SECURITY NUMBER AT THE END OF A CALENDAR YEAR FOR REGISTRATION OF PAYMENTS.
8.1 Ownership. Sales Affiliate acknowledges and agrees that Sales Affiliate shall not acquire any ownership interest in any patents, trademarks, copyrights, domain names, works of authorship, trade secrets, or any other intellectual property (collectively, "Intellectual Property") owned by or licensed to Supplier under this Agreement. Sales Affiliate shall use Supplier's Intellectual Property solely for the purposes of performing its obligations under this Agreement.
8.2 Supplier's Trademark License Grant. Supplier hereby grants to Sales Affiliate a non-exclusive, non-transferable, and non-sublicensable license to use Supplier's trademarks in the Territory during the term of this Agreement solely in connection with the marketing, promotion, advertising, and sale of the Products.
9. Term. This Agreement shall commence as of the date hereof and shall continue for an initial term of one (1) year unless sooner terminated pursuant to Section 10. After the end of the initial term, this Agreement will be automatically renewed for successive one (1) year periods (collectively as applicable, the “Term”).
10.Termination. Either Party may terminate this Agreement with or without cause by providing written notice to the other Party at least thirty (30) days prior to the effective date of the termination.
11.Confidentiality. All non-public, confidential, or proprietary information of Supplier ("Confidential Information") disclosed by Supplier to Sales Affiliate, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for Sales Affiliate's use in performing its obligations under this Agreement and may not be disclosed or copied unless authorized by Supplier in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Sales Affiliate's breach of this Agreement; (b) is obtained by Sales Affiliate on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; or (c) Sales Affiliate establishes by documentary evidence, was in Sales Affiliate's possession prior to Supplier's disclosure hereunder. Upon Supplier's request, Sales Affiliate shall promptly destroy and certify or return all documents and other materials received from Supplier. Supplier shall be entitled to injunctive relief for any violation of this Section 11.
12.Indemnification; Insurance. Sales Affiliate shall indemnify, defend, and hold harmless Supplier and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (each, an "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to any claim of a third party or Supplier arising out of or occurring in connection with Sales Affiliate's negligence, willful misconduct, or breach of this Agreement. Sales Affiliate shall not enter into any settlement without Supplier's or Indemnified Party's prior written consent. For the Term of this Agreement, Sales Affiliate shall, at its own expense, maintain and carry any and all commercially reasonable insurance coverage that might be commercially reasonable regarding fulfillment of its obligations under this Agreement in full force and effect with financially sound and reputable insurers. Upon Supplier’s request, Sales Affiliate shall provide Supplier with a certificate of insurance and policy endorsements for all insurance coverage required by this Section 12 and shall not do anything to invalidate such insurance. The certificate of insurance shall name Supplier as an additional insured. Sales Affiliate shall provide Supplier with ninety (90) days' advance written notice in the event of a cancellation or material change in Sales Affiliate’s insurance policy. Except where prohibited by law, Sales Affiliate shall require its insurer to waive all rights of subrogation against Supplier’s insurers, Supplier, and any and all other Indemnified Parties.
13.Limitation of Liability. IN NO EVENT WILL SUPPLIER BE LIABLE TO SALES AFFILIATE FOR: (A) ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) DIRECT DAMAGES OF MORE THAN THE AGGREGATE AMOUNT OF COMMISSIONS PAID TO SALES AFFILIATE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE TRANSACTION OR OCCURRENCE GIVING RISE TO THE CLAIM.
14.Entire Agreement. This Agreement constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
15.Survival. Section 6.4, Section 8.1, Section 11, Section 12, Section 13, Section 16, and Section 21 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination.
16.Notices. All notices under this Agreement shall be made in writing and shall be deemed duly given if delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service. All notices shall be addressed to the Parties at their respective addresses first set forth above (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Notices shall be effective on receipt.
17.Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
18.Amendment.The Parties may not amend this Agreement except by written instrument signed by all Parties.
19.Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
20.Assignment; Successors and Assigns. Sales Affiliate may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Supplier. Any purported assignment or delegation in violation of this Section 20 is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. Supplier may assign any of its rights or delegate any of its obligations to any parent or subsidiary corporation of Supplier or to any purchaser acquiring all or substantially all of Supplier's assets. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
21.Choice of Law; Choice of Forum. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of Puerto Rico, USA, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement and all contemplated transactions shall be instituted exclusively in the state or federal courts of Puerto Rico. EACH PARTY IRREVOCABLY: (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS; AND (B) WAIVES ANY OBJECTION TO SUCH COURTS BASED ON VENUE OR INCONVENIENCE; AND (C) WAIVES ANY RIGHT TO TRIAL BY JURY. Service of process, summons, notice, or other document by certified or registered mail, return receipt requested and postage prepaid shall be effective service of process for any suit, action, or other proceeding brought in any such court.
22.Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding Section 16, a signed copy of this Agreement delivered by email is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
23.Force Majeure.No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Sales Affiliate to make payments to Supplier hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; (i) regional, national, or global spread of disease, virus, or other communicable ailment or illness, resulting in an outbreak, epidemic, pandemic, or otherwise; or (j) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of one hundred twenty (120) days following written notice given by it under this Section 23, the other Party may thereafter terminate this Agreement upon thirty (30) days’ written notice.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
By___Install my Name_______________
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