INDEPENDENT BRAND AFFILIATE AGREEMENT
This Independent Brand Affiliate Agreement (including any schedules, exhibits or addenda attached hereto, the “Agreement”), is made and entered into as of the date identified below (the “Effective Date”), by and between Cape Ann Blends LLC (“Wave Blends”), with an address of 319 Newburyport Turnpike Unit 210 Rowley MA, United States and the brand affiliate identified below (“Brand Affiliate” or “you”). In consideration of the mutual promises contained herein, the parties agree as follows:
The Brand Affiliate Program. Brand Affiliate agrees to provide to Wave Blends under the terms and conditions of this Agreement, services (the “Services”) in connection with Wave Blend's Brand Affiliate Program (the “Program”). As part of the Services, Brand Affiliate will generate and post content (including, without limitation, text, videos and images) regarding Wave Blends brand and Wave Blends products on brand Affiliates dedicated Web page (the “Affiliate Page”) and on Affiliates Instagram, Instagram Story, Twitter, Facebook, blog and potentially YouTube and Pinterest (the “Social Channels”) (collectively the “Content”) in an effort to generate sales. You will be given a unique 10% off Promotion code to share earning you 10% Commission of Net Revenue on all sales generated.
Brand Affiliate agrees to:
Devote such of his/her time, resources and best efforts to the Services as is reasonably necessary to perform them in a professional and diligent manner. Comply with all applicable laws and regulations. Determine, in his /her discretion, the time, place, manner, means, methods and independent/personal resources by which the Services are performed and achieved. Provide and utilize his/her own equipment, tools and other resources in performing the Services but Wave Blends will provide to Brand Affiliate certain informational materials to facilitate the creation of Brand Affiliate's created content to his/her Affiliate Page and/or Social Channels (such templates and other materials are collectively referred to as the “Wave Blend's Materials”).
Will be responsible for (i) creating and editing the Content and (ii) either emailing to Wave Blends such Content to upload to the Affiliate Page or posting such Content on the Social Channels. All such Content that is uploaded to the Affiliate Page will be posted to the Affiliate Page subject to prior review by Wave Blends. Wave Blends has the right to remove any Content from the Affiliate Page. It is understood and agreed that Brand Affiliate will be an independent contractor, is not and will not be considered an agent or employee of Wave Blends (or any of its affiliates or related entities), and shall have no authority to bind Wave Blends (or its affiliates or related entities) by contract or otherwise.
Brand Affiliate agrees that they will not: (i)
Make any derogatory statements about Wave Blends and/or Wave Blends products. Link to any third-party websites, other than the Social Channels, on the Affiliate Page or otherwise redirect visitors of the Affiliate Page to third-party websites. Resell or distribute any Wave Blends products, including those received for free or as gifts, for commercial purposes, other than via the Affiliate Page
Promote Wave Blends products, the Wave Blends brand, or the Program and/or the Affiliate Page via any paid media channels
Promote Wave Blends products, the Wave Blends brand, the Program and/or the Affiliate Page via any website, media, social media, or electronic presence or resource that may be considered pornographic, lewd, offensive, or discriminate. Engage in any fraudulent transactions, as reasonably determined by Wave Blends.
In consideration for the Services, Wave Blends will pay to Independent brand Affiliate a percentage of the Net Revenue (as defined below) collected by Wave Blends in accordance with the Commission Appendix below (the “Commission(s)”). For purposes of this Agreement, “Net Revenue” means gross fees received by Wave Blends from Qualifying Orders (as defined below), less amounts paid for using store credit or gift certificates, taxes, duties and transaction-based costs and expenses, including but not limited to payment process fees and shipping fees. For purposes of this Agreement, “Qualifying Orders” means purchases of Wave Blends product(s) via the Affiliate Page that are made by a method of payment accepted by Wave Blends. The Commission is also only paid to Brand Affiliate if the Qualifying Order is final -any returns will cause that specific Commission to be deducted out of the month payouts. The Commission will be calculated solely based on records maintained by Wave Blends using its standard methodologies. Wave Blends will calculate Brand Affiliate Commissions each month and pay the Affiliate within 60 days. Wave Blends is not responsible for making any payments based on any amounts which result from any fraudulent transactions, as reasonably determined by Wave Blends.
Definition. “Confidential Information” means all trade secrets and confidential or proprietary information, whether or not in writing, concerning Wave Blend's business technology, business relationships or financial affairs which Wave Blends has not released to the general public. By way of illustration, Confidential Information includes, but is not limited to, information or material which has not been made generally available to the public, such as: (i) corporate information , including plans, strategies, method, policies, resolutions, negotiations or litigation;(ii) marketing information, including strategies methods, customer identities or other information about customers , prospect identities or other information about prospects, or market analyses or projections; (iii) financial information, including cost and performance data (iv) operational and technological information , including plans, specifications, manuals, forms, templates, software, designs, methods, procedures, formulas, discoveries, inventions improvements, concepts and ideas; and (v) personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data. Confidential Information also includes information received in confidence by Wave Blends from its customers or suppliers or other third parties.
Non-Disclosure and Non-Use Obligations. Brand Affiliate will not, at any time, without Wave Blend's prior written permission, either during or after the term of this Agreement, disclose any Confidential Information to anyone outside of Wave Blends, or use or permit to be used any Confidential Information for any purpose other than the performance of the Services for or on behalf of Wave Blends. Brand Affiliate will cooperate with Wave Blends and use best efforts to prevent the unauthorized disclosure or use of any and all Confidential Information. Brand Affiliate will deliver to Wave Blends all copies of Confidential Information in Brand Affiliate's possession or control upon the earlier of a request by Wave Blends or termination of this Agreement for any reason.
Information of Third Parties. Independent Influencer understands that Wave Blends is now and may hereafter be subject to non-disclosure or confidentiality agreements with third persons which require Wave Blends to protect or refrain from use of Confidential Information. Brand Affiliate agrees to be bound by the terms of such agreements in the event Brand Affiliate has access to such Confidential Information.
Intellectual Property Rights.
Brand Affiliate hereby grants to Wave Blends and its subsidiaries, affiliates, licensees, agents, representatives, successors and assigns:
Unrestricted, fully-paid, royalty free, exclusive, transferable and irrevocable rights, power and authority to use, reproduce, publish, print, distribute, transmit, copy or otherwise use any of the Content, worldwide and perpetually, in whole or in part, in any medium known now or later discovered, for the purpose of its advertisements, promotions, marketing activities, public relations, educational and other commercial or non-commercial purposes, subject only to the payment made to Brand Affiliate in section 2 hereof.
Brand Affiliate shall have the revocable, unlimited, perpetual and worldwide right to use the Content, for Brand Affiliate's promotional purposes, in any and all media now known or hereafter developed. With respect to Content which portrays Brand Affiliate's face, body and voice (the “Restricted Materials”), Wave Blends shall have the right to use the Restricted Materials upon prior approval from Brand Affiliate.
Brand Affiliate hereby grants to Wave Blends and its affiliated companies, successors and assigns, the royalty-free, perpetual, unrestricted, transferable, irrevocable sub licensable, non-exclusive, worldwide right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any content or other materials, other than the Content, (i) submitted to Wave Blends in connection with the Program or (ii) otherwise created by Brand Affiliate in connection with the Services, (collectively, the “Other Developments”)
Wave Blends Materials and Trademark.
Except for Brand Affiliate's limited right to use the Wave Blends Materials solely in connection with performing the Services, Wave Blends retains all right title and interest in the Wave Blends Materials, including all related intellectual property rights. Wave Blends hereby grants to Brand Affiliate, a limited, non-exclusive, non-transferable license to use and display Wave Blend's name, website address, and logo, solely in connection with performing the Services.
Federal Trade Commission Requirements.
Brand Affiliate acknowledges and agrees that the provisions of the Federal Trade Commission's Guides Concerning Use of Endorsements and Testimonials in Advertising (the “Guides”) apply to Brand Affiliate's provision of the Services hereunder. Brand Affiliate represents and warrants that he or she has read and understands the Guides and their requirements, and that the Content and Other Developments (including, without limitation, social media communications regarding Wave Blends products, the Wave Blends brand and/or the Program) will contain clear and prominent disclosures compliant with the Guides.
Brand Affiliate Social Channels.
In connection with performing the Services, Brand Affiliate may link certain of his or her Social Channels to the Brand Affiliate Page. If Brand Affiliate so elects, Wave Blends may link to, and stream content from such Social Channels on its websites, social media channels and in other Wave Blends advertising and promotional materials.
Representations and Warranties.
Brand Affiliate represents and warrants that:
He or she is at least 18 year of age and legally allowed to live and work in his/her country of residence.
The Services will be performed in a professional, lawful and workmanlike manner, in accordance with any terms and conditions set forth herein and in the Wave Blends Materials; Brand Affiliate' s original work. Use of the Content and Other Developments by Wave Blends will not infringe or involve the misappropriation of any third party rights. All clearances and licenses relating to the use of the Content or Other Developments have been obtained by Brand Affiliate. Except as expressly set forth herein, no fee, compensation or any other payment whatsoever will be payable by Wave Blends for any Content or Other Developments or any content or material incorporated therein to any third party; He or she will comply with all applicable laws, rules and regulations, including the Guides.
Brand Affiliate shall indemnify and hold Wave Blends, its affiliates and their respective directors, officers, agents and employees harmless from and against all claims, demands, losses, damages and judgments, including court costs and attorneys' fees, arising out of or based upon the Services and/or Brand Affiliate's performance thereof including, but not limited to, (a) any claim that the Services provided hereunder or, any related intellectual property rights or the exercise of any rights in or to any Content, Other Development, Influencer IP or related intellectual property rights infringe on, constitute a misappropriation of the subject matter of, or otherwise violate any patent, copyright, trade secret, or trademark of any person or breaches any person' s contractual rights; and (b) any breach or alleged breach by Brand Affiliate of any representation, warranty, certification, covenant, obligation or other agreement set forth in this Agreement.
This Agreement will commence on the Effective Date and continue until terminated as set forth herein. Either party may terminate this Agreement for convenience upon at least seven (7) days' prior written notice thereof to the other party. Wave Blends may, in addition to any other rights it may have at law or in equity, terminate this Agreement immediately and without prior notice if Independent Influencer refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement. Upon any termination of this Agreement, all rights and duties of the parties toward each other shall cease, except that the following Sections shall survive: 2 (with respect to any Net Revenue accrued during the term of this Agreement but not yet paid); 3, 4(a), 4(b), 4(c) and 5 through 13 (inclusive).
Independent Contractor; No Agency.
Brand Affiliate is not and shall not be deemed an employee, agent, joint venture or partner of Wave Blends, and neither party shall have any right or authority to assume or create any obligation on behalf of or bind the other party in any manner whatsoever.
Limitation of Liability.
IN NO EVENT SHALL Wave Blends, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING FROM OR RELATED TO THIS AGREEMENT, THE Wave Blends PRODUCTS AND/OR THE PROGRAM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH Wave Blends PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH STATES, THE LIABILITY OF THE Wave Blends PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Governing Law, Jurisdiction and Venue.
The provisions of this Agreement will be construed and enforced in accordance with, and any dispute arising out of or in connection with this Agreement, including any action in tort, will be governed by, the laws of the Commonwealth of Massachusetts. Each party hereby irrevocably submits to the exclusive jurisdiction and venue of the courts within Essex County.
All notices or other communications, required or permitted to be given hereunder, shall be in writing and shall be delivered electronically, personally or mailed, certified mail, return receipt requested, postage prepaid, to the parties at their addresses as set forth above. Any notice given electronically shall be deemed received on the business day following transmission. Any notice mailed in accordance with the terms hereof shall be deemed received on the third day following the day of mailing. Either party may change the address to which such notices to such party may be given hereunder by serving proper notice of such change of address to the other party.
Brand Affiliate and Wave Blends agree that it would be impossible or inadequate to measure and calculate Wave Blend's damages from any breach by Brand Affiliate of this Agreement. Accordingly, Brand Affiliate and Wave Blends agree that if Independent Influencer breaches this Agreement; Wave Blends will have available, in addition to any other right or remedy available and notwithstanding anything to the contrary in Section 10 above, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach and specific performance of Sections 3, 4 and Section 8. Brand Affiliate and Wave Blends further agrees that no bond or other security shall be required in obtaining such equitable relief and Brand Affiliate and Wave Blends, hereby consent to the issuances of such injunction and to the ordering of such specific performance.
If any provision of this Agreement is found to be invalid by any court or arbitrator having competent jurisdiction, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect. Failure of Wave Blends to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision of this Agreement. No waiver shall be effective against Wave Blends unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Wave Blends and Brand Affiliate, this Agreement constitutes the entire agreement between Brand Affiliate and Wave Blends with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience, and shall not be given any legal import. Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by Brand Affiliate without the express written consent of Wave Blends. Wave Blends may assign any or all of its rights and obligations under this Agreement without Brand Affiliate's written consent to any affiliate or to another third party affiliate by way of merger, acquisition, consolidation, or sale or transfer of all or substantially all of Wave Blend's assets or capital stock. Any attempted assignment, delegation or transfer to a third party in violation hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on the parties and their successors and assigns.
Wave Blends could have promos that could go to higher percentages as incentive, all details of such promos to be at Wave Blend's sole discretion and communicated to Brand Affiliate in due time:
10% of Net Revenue