WEB REFERRAL AGREEMENT
This agreement ("Agreement") is entered into by and between Experience Architects (“A/O Women's Bicycles” or “us”) and you or the entity you represent (“Referral Affiliate” or “you”), and contains the terms and conditions governing the relationship, under which Referral Affiliate will refer potential Buyers to the A/O Women’s Bicycle Co. Web Site, and A/O Women’s Bicycle Co. will provide Referral Affiliate a commission on any purchases made by the referred Buyer. The Agreement will be effective for all purposes upon the earlier of: (a) when you click the “I Accept” button; or (b) when you begin reselling any A/O Women’s Bicycle Co. products or service. You, Referral Affiliate, represent to us that you are lawfully able to enter into contracts, and that if you are entering into this Agreement on behalf of your employer, you have the legal authority to bind that entity.
- 1. 1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:
- 1. 1.1 "Buyer" means an individual or entity who purchases a A/O Women’s Bicycle Co. Product on the A/O Women’s Bicycle Co. Web Site using the Affiliate Promotional Code.
- 2. 1.2 "A/O Women’s Bicycle Co. Web Site" means A/O Women’s Bicycle Co.’ web site where the A/O Women’s Bicycle Co. Product is available for purchase. This includes www.A/O Women’s Bicycle Co..com only.
- 3. 1.3 "Affiliate Promotional Codes" means the code that has been assigned to Referral Affiliate by A/O Women’s Bicycle Co. for use in Referral Affiliates’ promotional activities.
- 4. 1.4 "Referral Affiliate Web Page" means a web page that contains an advertisement which, when clicked, redirects to the A/O Women’s Bicycle Co. Web Site.
- 5. 1.5 "A/O Women’s Bicycle Co. Product" means A/O Women’s Bicycle Co. any products sold by A/O Women’s Bicycle Co. through the A/O Women’s Bicycle Co. Web Site products.
- 6. 1.6 "Net Sales" means the total amounts actually received by A/O Women’s Bicycle Co. for A/O Women’s Bicycle Co. Products sold through the A/O Women’s Bicycle Co. Web Site by users entering the Affiliate Promotional Code in the “Discount Code” box of the checkout page; less commissions, taxes paid by customers, withholding taxes, discounts, bad debts and other write-offs, a reserve for returns, and currency exchange fees, if any.
- 7. 1.7 "Trademark" means the logo attached in Exhibit A.
- 8. 2. Appointment.
Subject to the terms and conditions of this Agreement, A/O Women’s Bicycle Co. hereby appoints Referral Affiliate as its non-exclusive sales agent to refer Buyers as described hereunder. Referral Affiliate understands that Referral Affiliate does not have authority to make or accept any offers, or make any representations on behalf of A/O Women’s Bicycle Co.. Referral Affiliate may not make any statement, whether on Referral Affiliate’s web site or otherwise, that would be considered in contradiction to information contained this Section 2.
- 1. 3. Affiliate Web Page.
Referral Affiliate will place advertisement links on Referral Affiliate Web Pages that direct prospective Buyers to the A/O Women’s Bicycle Co. Web Site, or distribute e-mails with a link to prospective Buyers that directs them to the A/O Women’s Bicycle Co. Web Site. A/O Women’s Bicycle Co. will use commercially reasonable efforts to cause the Affiliate Promotional Code to be pre-populated in the “Discount Code” box of the checkout page for prospective Buyers who arrive at the A/O Women’s Bicycle Co. Web Site using Referral Affiliate’s links. Referral Affiliate acknowledges that the “Discount Code” box may not always remain pre-populated for all prospective Buyers, for example if a prospective Buyer purchases the A/O Women’s Bicycle Co. Product more than 30 days after being directed from Referral Affiliate’s link. If Referral Affiliate wishes to use an advertisement or other custom graphic or content outside of the materials provided by A/O Women’s Bicycle Co., or otherwise outside of the Trademark Guidelines, Referral Affiliate must obtain A/O Women’s Bicycle Co.’ prior approval.
All affiliates and not permitted to use any discount codes to aid in the conversion of the referral. Any unauthorized discount used affiliate through coupon websites and the likewise will be disqualified and denied payment.
- 1. 4. Commissions.
No sooner that 60 days after the referral purchase has been made, A/O Women’s Bicycle Co. will pay you a commission based on the Net Sales received by A/O Women’s Bicycle Co. during such calendar quarter, as shown on the page where you registered as a Referral Affiliate. In the event that a successful chargeback occurs after commission on the corresponding original transaction has been paid, A/O Women’s Bicycle Co. is entitled to withhold an amount equal to the commission on the returned transaction from a subsequent payment to Referral Affiliate.
1. 1. 5.1 Unauthorized Discount Codes
Any sales attributed to the use of an unauthorized discount code or referral from 3rd party websites, such as discount coupon websites will not be counted or paid to the affiliate. Only A/O Women’s Bicycle Co. approved discount codes given to affiliate's accounts will be approved. All affiliates and not permitted to use any discount codes to aid in the conversion of the referral. Any unauthorized discount used affiliate through coupon websites and the likewise will be disqualified and denied payment.
- 1. 5. Reporting by A/O Women’s Bicycle Co..
A/O Women’s Bicycle Co. will audit and affiliate payment reports and assess the legitimacy of the attributed sale to affiliate's account. A/O Women’s Bicycle Co. Enterprise will provide reporting and any payment adjustment criteria upon request.
- 1. 6. Trademark License.
A/O Women’s Bicycle Co. grants to Referral Affiliate a nonexclusive right to display the Trademark on the Referral Affiliate Web Page. Before using the Trademark, Referral Affiliate must have any materials on which the Trademark appears approved by A/O Women’s Bicycle Co.. In addition, any use of the Trademark is subject to A/O Women’s Bicycle Co.’ Trademark Guidelines in Exhibit A. A/O Women’s Bicycle Co. retains the right to modify or change the Trademark Guidelines at any time. A/O Women’s Bicycle Co. reserves all rights in and to the Trademark. Referral Affiliate acknowledges that all goodwill generated through Referral Affiliate’s use of the Trademark will inure to the benefit of A/O Women’s Bicycle Co. and hereby assigns and shall assign to A/O Women’s Bicycle Co. any and all goodwill generated through Referral Affiliate’s use of the Trademark, without any payment or other consideration of any kind to Referral Affiliate, and Referral Affiliate further agrees to take all actions necessary to effect such assignment. Upon termination of this Agreement, Referral Affiliate shall cease to use the Trademark.
- 1. 7. Obligations Regarding Referral Affiliate’s Web Site.
Subject to any approval by A/O Women’s Bicycle Co. required under Section 3, Referral Affiliate is solely responsible for the development, operation and maintenance of the Referral Affiliate Web Page. Referral Affiliate agrees to indemnify and hold A/O Women’s Bicycle Co. harmless from all damages, claims, fees (including attorneys’ fees) and expenses relating to the development, operation or maintenance of Referral Affiliate’s web site and literature.
- 1. 8. Confidential Information.
"Confidential Information" shall include any information, whether oral, written or observed, regarding the terms of this Agreement or sales of the A/O Women’s Bicycle Co. Product. All Confidential Information shall remain the exclusive property of A/O Women’s Bicycle Co. and shall be immediately returned to A/O Women’s Bicycle Co. upon request, together with all copies thereof. Referral Affiliate shall hold Confidential Information in trust and confidence for A/O Women’s Bicycle Co. and shall not disclose such Confidential Information or use it for any purpose other than to perform as required by this Agreement. Referral Affiliate may not disclose Confidential Information to employees or third parties unless: (a) such employees or third parties have signed a A/O Women’s Bicycle Co.-approved confidentiality agreement; and (b) it is necessary for such employees or third parties to know such Confidential Information in order for Referral Affiliate to perform its obligations and duties pursuant to this Agreement.
- 1. 9. Term and Termination
- 2. 9.1 Term. This Agreement will become effective as of the Effective Date and remain effective until termination as provided below.
- 3. 9.2 Termination. A/O Women’s Bicycle Co. may immediately terminate this Agreement upon notice to Referral Affiliate. Referral Affiliate may terminate this Agreement by giving two weeks’ notice to A/O Women’s Bicycle Co..
- 4. 9.3 Effect of Termination and Survival. Within twenty-four (24) hours after termination (whether by Referral Affiliate or A/O Women’s Bicycle Co.), Referral Affiliate must remove all references to the Referral Affiliate URL from Referral Affiliate’s web site. A/O Women’s Bicycle Co. will pay Referral Affiliate any commissions earned before termination after the end of the current quarter. The provisions of Section 1 (Definitions), the last two sentences of Section 6 (Trademark License), and Sections 7 (Obligations Regarding Referral Affiliate’s Web Site), 9.2 (Effect of Termination and Survival), 11 (Limitation of Liability) and 12 (Miscellaneous Provisions) survive termination or expiration of the Agreement.
- 5. 10. Disclaimers.
A/O Women’s Bicycle Co. hereby expressly disclaims: (a) any and all warranties, express, implied or statutory; and (b) any and all warranties of merchantability, noninfringement or fitness for a particular purpose; with respect to the A/O Women’s Bicycle Co. Product. The warranties, if any, with respect to the A/O Women’s Bicycle Co. Product will run directly from A/O Women’s Bicycle Co. to Buyers.
- 1. 11. Limitation of Liability.
A/O WOMEN’S BICYCLE CO. WILL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF A/O WOMEN’S BICYCLE CO. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, A/O WOMEN’S BICYCLE CO.’ AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE TOTAL COMMISSION FEES PAYABLE TO REFERRAL AFFILIATE UNDER THIS AGREEMENT.
IN NO EVENT SHALL A/O WOMEN’S BICYCLE CO. BE LIABLE TO ANY PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED, AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY REGARDLESS OF WHETHER A/O WOMEN’S BICYCLE CO. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES.
- 1. 12. Miscellaneous Provisions.
THIS AGREEMENT WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA AND THE UNITED STATES OF AMERICA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. Referral Affiliate and A/O Women’s Bicycle Co. are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative or employment relationship between Referral Affiliate and A/O Women’s Bicycle Co.. Notice as required or permitted under this Agreement must be provided by e-mail. Any notice to A/O Women’s Bicycle Co. must be sent to [finance@A/O Women’s Bicycle Co..com. Any notice to Referral Affiliate will be sent to the e-mail address or other contact information provided by Referral Affiliate when registering online as a referral agent. All disputes arising out of or related to this Agreement shall be subject to the exclusive jurisdiction and venue of the California state courts of Santa Clara County (or, if there is federal jurisdiction, a United States Northern District Court of California), and the parties consent to the personal and exclusive jurisdiction of these courts. This is the entire Agreement between Referral Affiliate and A/O Women’s Bicycle Co. with respect to the subject matter hereof. Referral Affiliate may not assign this Agreement, by operation or law or otherwise, without A/O Women’s Bicycle Co.’ prior consent. 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. A/O Women’s Bicycle Co.’ failure to enforce Referral Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of A/O Women’s Bicycle Co.’ right to subsequently enforce that provision, or any other provisions of this Agreement. The headings and captions used in this Agreement are for convenience only and shall not in any way affect the interpretation of the provisions of this Agreement.
Trademark and Guidelines [Trademark guidelines]
Referral Affiliate may not change the proportion, color or font of the Trademark, or otherwise alter the Trademark in any manner.
Referral Affiliate may not display the Trademark in any manner that implies sponsorship or endorsement by A/O Women’s Bicycle Co., except of Referral Affiliate’s involvement in the Referral Affiliate Program described in this Agreement.
Referral Affiliate may not use the Trademark to disparage A/O Women’s Bicycle Co., its products or services, or in a manner which, in A/O Women’s Bicycle Co.’ reasonable judgment, may diminish or otherwise damage A/O Women’s Bicycle Co.’ goodwill in the Trademark.
The Trademark must appear by itself, with reasonable spacing (at least the height of the Trademark) between each side of the Trademark and other graphic or textual elements.