a.2. Acceptable promotion through other means of communication
You may use any other means of communication to promote our
products by communicating Links and/or Codes to your customers.
However, you MUST NOT advertise any Wine Cave Inc. link, code,
or use the Wine Cave Inc. name, or use the name of a product
from the Wine Cave Inc. product list within any e-mail sent
unsolicited to users or in postings to News Groups or Mailing
List.
SPAMMING NOT ALLOWED.
If you have any questions about whether a method of advertising
is allowed, contact us at affiliates@winecaveinc.com
b. Wine Cave Inc. Responsibilities
Wine Cave Inc. will be responsible for:
- providing all information necessary to allow you to make
appropriate Links from Your Web Site to our web site and/or
instruction for use of Codes.
- processing all orders for our products placed in our -online
store by a customer following a link from Your Web Site
and/or using your code;
- tracking the number and amount of sales generated by the
Link from Your Web Site and / or your code; and,
- providing information to you regarding sales generated
by your referral.
- Moreover, we will be responsible for credit card authorizations,
payment processing, and related customer service procedures
for Wine Cave Inc. products, provided that such activities
are for our account.
c. Affiliate Responsibilities
You are solely responsible for ensuring that the contents
of Your Web Site comply with all applicable copyright laws,
trademark laws, and all other laws. We will not be responsible
if you use another party's copyrighted or other proprietary
material on Your Web Site in violation of the law or any agreement.
3. Referral Fees
a. Affiliate Referral Fees
Wine Cave Inc. will pay an Affiliate an 8% referral fee for
each product sold. The referral fee will be paid within 30
days after the closure of a calendar month. If an Affiliate
account balance is under $100.00, the balance will be held
for 30 days after the close of calendar month where balance
is over $100.00. In other words, you will not receive your
first payment unless you have earned a threshold of $100.00.
Affiliate accounts that do not earn commissions for 3 months
may be terminated, and any unpaid commissions will be forfeited.
The Affiliate's entitlement to a referral fee will accrue
only if the customer (i) has access to our web site through
the use of a Link on Your Web Site and/or uses your code;
(ii) before exiting our web site purchases one or more of
our products from our online store; and (iii) remits full
payment to Wine Cave Inc. Wine Cave Inc. will pay referral
fees in a 30- day period on any products that a customer purchases
when the customer re-enters our web site (other than through
a link from Your Web Site), if the customer previously followed
a Link from Your Web Site to our web site.
b. Credit Card Charge-backs and Non-payments:
In the event of a charge-back by a credit card company or
other nonpayment for our products by an Affiliate or an Affiliate's
customer, you acknowledge and agree that no commission will
be earned. Should a credit card charge-back occur, all fees,
costs, or expenses incurred by Wine Cave Inc. shall be deducted
from previous commissions earned by the Affiliate.
4. Reports of Sales and Referral Fees:
You will use your preselected user name and password and have
the ability to enter a password-protected web site to receive
your sales and referral fee statistics. The reports are updated
on a daily basis.
5. Policies and Pricing
Customers who purchase product from Wine Cave Inc. through
the Affiliate Program will be considered Wine Cave Inc. customers.
Accordingly, all our rules, policies, and operating procedures
concerning customer orders, customer service, and sales of
our products apply to those customers. We may change our policies
and operating procedures at any time. For example, we can
determine the prices to be charged for Wine Cave Inc. products
sold through the Program in accordance with our own pricing
policies. Service prices may vary from time to time.
6. Licenses and Use of the Wine Cave Inc. Logos and Trademarks
We grant you a non-exclusive, nontransferable, revocable right
(i) to access our web site through the Links solely in accordance
with the terms of this Agreement and (ii) solely in connection
with such Links, to use our logos, trade names, trademarks
and similar identifiable material relating to us (collectively,
the "Licensed Materials") for the sole purpose of
establishing a Link and/or to promote your code to Our web
site so You or users of Your Web Site can purchase our products.
You may not alter, modify or change the Licensed Materials
in any way.
Other than establishing a Link from Your Web Site to ours
and/or promoting your code, you shall not make any use of
any Licensed Materials without our prior written consent.
You shall not use the Licensed Materials in any manner that
is disparaging or that otherwise portrays us in a negative
light. We reserve all of our rights in the Licensed Materials
and our other proprietary rights. In our sole discretion,
we may revoke your license at any time, by giving you a written
notice.
The licenses described in this Article shall expire upon
the written notification of either party.
7. Termination of this Agreement
This Agreement will begin upon our acceptance of your
Program application and may continue indefinitely:
a. You may terminate this Agreement at any time, with
or without cause, by giving us written notice.
b. We may terminate this Agreement at any time, with
or without cause, by giving you written notice.
c. You are only eligible to earn referral fees on
sales occurring prior to the termination of this Agreement.
Any referral fees earned prior to the date of termination
will remain payable, excluding amounts earned as a result
of credit card fraud, charge backs, bad debt and credits for
returned products. We may withhold your final payment, or
a portion thereof, for a reasonable time to ensure that the
correct amount is paid. Within one (1) day of any termination
of this Agreement, the Links established under this Agreement
shall be removed by you, and you shall discontinue the use
of the Licensed Materials provided under Article 7 above.
8. Modification
We may modify any of the terms and conditions contained in
this Agreement at any time and at our sole discretion. You
will be notified by e-mail. Modifications may include, but
are not limited to, changes in the referral fee schedule,
payment procedures and Program rules. If any modification
is unacceptable to you, you may terminate the Agreement at
any time by providing Wine Cave Inc. with written notice.
Your continued participation in the Program following a modification
shall constitute your binding acceptance of the change.
9. Relationship of Parties
You and Wine Cave Inc. are independent contractors, and nothing
in this Agreement will create any partnership, joint venture,
agency, franchise, sales representative or employment relationship
between the parties. Neither of us will have authority to
make or accept any offers or representations on the other's
behalf. You will not make any statement, whether on Your Web
Site or otherwise, that would contradict anything in this
Article.
10. Limitation Of Liability
You agree that our entire liability, and your exclusive remedy,
with respect to any Wine Cave Inc. products provided under
this Agreement and/or for any breach of this Agreement is
solely limited to the amount you paid for such product(s).
YOU FURTHER AGREE THAT, REGARDLESS OF CIRCUMSTANCES, WINE
CAVE INC. SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE,
EXEMPLARY, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF
ANY KIND (INCLUDING LOSS OF REVENUE, PROFITS, OR DATA) REGARDLESS
OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE, EVEN IF WINE CAVE INC. HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RESULTING FROM
THE USE OR INABILITY TO USE ANY OF WINE CAVE INC. SERVICES
OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES. If a jurisdiction
does not allow the exclusion or limitation of liability for
consequential or incidental damages, then Wine Cave Inc. liability
for consequential or incidental damages in such jurisdiction
is excluded or limited to the extent permitted by law.
11. Disclaimer of Warranties
THE SERVICES WE PROVIDE TO YOU ARE "AS IS." WE EXPRESSLY
DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN CONNECTION
WITH THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY IMPLIED WARRANTIES
ARISING OUT OF THE COURSE OF PERFORMANCE, DEALING OR TRADE
USAGE. WE MAKE NO WARRANTY THAT OUR SERVICE(S) WILL MEET YOUR
REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED,
TIMELY, SECURE, OR ERROR FREE. NOR DO WE MAKE ANY WARRANTY
AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR
SERVICE(S). TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT
APPLY TO YOU.
12. Indemnification
You agree to release, indemnify, defend and hold harmless
Wine Cave Inc. and the applicable registry administrator(s)
and their directors, officers, employees, agents, shareholders,
partners, members and other owners, against any and all claims,
actions, demands, liabilities, losses, damages, judgments,
settlements, expenses (including reasonable attorneys' fees),
and costs (any or all of the foregoing hereinafter referred
to as "Losses") insofar as such Losses (or the actions
in respect thereof) arise out of or are based on (i) your
customer's order of a particular products, or failure to purchase
a particular product, (ii) any claim that our use of the Affiliate
Trademarks infringes on any trademark, trade name, service
mark, copyright, license, intellectual property, or other
proprietary right of any third party, (iii) any misrepresentation
of a representation or warranty or breach of a covenant and
agreement made by you herein, (iv) the development, operation,
maintenance and content of Your Web Site and products and
services offered from Your Web Site, or (v) any claim related
to Your Web Site, including, without limitation, content therein
not attributable to us. These obligations shall survive any
termination of this Agreement.
13. Notification
All notices required to be given under this Agreement will
be deemed given if delivered by e-mail or fax, or sent by
certified mail, return receipt requested, or by UPS or other
recognized overnight delivery services to each of the parties
in accordance with the most current contact information you
have provided to us, and the contact information for us that
is posted on the Wine Cave Inc. web site. All notices shall
be effective upon receipt, except that e-mail and fax notices
shall be effective upon transmission.
14. Independent Investigation
You acknowledge that you have read this Agreement and agreed
to all its terms and conditions. You understand that we may
at any time (directly or indirectly) solicit customer referrals
on terms that may differ from those contained in this Agreement
or operate web sites that are similar to or compete with Your
Web Site. You have independently evaluated the desirability
of participating in the Program and are not relying on any
representation, guarantee, or statement other than as set
forth in this Agreement.
15. Construction
If for any reason a court of competent jurisdiction finds
any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced
to the maximum extent permissible so as to effect the intent
of the parties, and the remainder of this Agreement will continue
in full force and effect. 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 a provision
or any other provision of this Agreement.
16. INFANCY.
You attest that you are of legal age to enter into this Agreement.
17. Governing Law
This Agreement will be governed by the laws of Canada and
the Province of Ontario, without reference to rules governing
choice of laws. Any action relating to this Agreement must
be brought in the federal or provincial courts located in
Toronto, Ontario. You irrevocably consent to the personal
and subject matter jurisdiction of such courts. You may not
assign this Agreement by operation of law or otherwise without
our prior written 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.
18. Entire Agreement
This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter hereof and supersedes
all prior and contemporaneous communications.
19. Agreement To Be Bound
By applying to become an Wine Cave Inc. Affiliate, you acknowledge
that you have read and agreed to be bound by all terms and
conditions of this Agreement and any pertinent rules or policies
that are or may be published by Wine Cave Inc.
