Sensationally Silver

Marketing Affiliate Program Agreement

THIS AGREEMENT (hereafter the “Agreement”) is entered into by and between Sensationally Silver, Inc., a California corporation (the "Company") and the individual who agreed to these terms via the relevant internet portal (the "Contractor" or “You”).

Our Affiliate Program (also referred to as “Ambassador Program”) is meant to encourage you to promote our products, to bring us to new audiences and to make sure that you are rewarded for your activity. It does not create any relationship between us apart from independent contractors; you are not our employee, nor do we have a partnership: if we approve your participation in this program, you are an independent contractor.

This means you should pay all applicable taxes, make sure that you have proper insurance, and not make any statement on our behalf. It also means that we will pay you the sums we agree upon on specific dates.

Please understand that our liability to you is limited, as stated in our terms of service, and that we are non-exclusive; we will search out other affiliates, and you are free to market other products.

These terms are so important that we cannot have you participate in our Affiliate Program unless you agree to them.

We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes in their entirety, for example, if the Affiliate Program changes, ends, or becomes part of an existing program, including our partner programs.

If we update or replace the terms, we, or the Affiliate Tool, will let you know via electronic means, which may include an in-app notification or by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below. The Company and Contractor agree as follows:

  1. Term of Agreement (Affiliate Acceptance)

    Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program, or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected.

    If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below. Further, you will need to complete any enrollment criteria set out in the Program Policies Page, if applicable. Failure to complete any enrollment criteria within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Affiliate Program.

    You will comply with the terms and conditions of this Agreement at all times, including any applicable Program Policies.

    This Agreement shall be effective on the date Contractor agree to the terms of service in the relevant internet portal and shall remain in effect until all obligations set forth in this Agreement have been satisfactorily fulfilled, or the Agreement has been terminated as provided in this Agreement, whichever occurs first.

    We reserve the right to terminate your affiliation with Sensationally Silver (i.e., your membership in the Program), at any time, by providing you with notice of such termination (to the email account with which you applied to the Program), and with immediate effect, at Sensationally Silver’s sole discretion. When we terminate our relationship, you must cease using all of our Intellectual Property Rights.

    In any case we suspect any breach of these terms, we may also suspend your account until we receive sufficient evidence from you that shows that no breach of these terms occurred. In such a case, we may require review of your books and records prior to reinstatement.

    Upon termination due to breach (save for termination due to inactivity), we shall retain all funds in your account.

    By accepting these Affiliate program terms, you agree to receive marketing and promotional offers from us.

    Contractor shall have a continuing obligation, after said Contract period, to comply with any provision of this Agreement intended for the Company's protection or benefit, or that, by its sense and context, is intended to survive the completion, expiration or termination of this Agreement. CONTRACTOR UNDERSTANDS THAT NO WORK SHOULD BEGIN UNDER THIS AGREEMENT UNTIL ALL REQUIRED PARTIES HAVE AGREED TO THE TERMS OF THIS AGREEMENT. ANY WORK PERFORMED BY CONTRACTOR PRIOR TO SUCH TIME SHALL BE CONSIDERED AS HAVING BEEN PERFORMED AT THE CONTRACTOR'S OWN RISK AND AS A VOLUNTEER.

    1. Bad Practices

      Without limiting our Trademark Guidelines, we consider the following as “bad practices” which are prohibited and will cause automatic termination of your participation in this program, as well as forfeiture of all sums you are entitled to. Please note that if at any time we believe that you acted in bad faith or illegally, we may also cancel your participation and withhold all payments.

      The following are considered bad practices: (i) using deceptive practices, encouraging users to click banners or use of any automated means to create traffic; (ii) presenting yourself as a part of Sensationally Silver; (iii) using the Sensationally Silver brand, either in violation of the Trademark Guidelines while presenting unpermitted banners, or when using the Sensationally Silver Brand as a part of your domain name, website name, banners or in any form of paid advertising (for example, PPC campaigns); (iv) using domain names that imply any link to the Sensationally Silver brand including the word “Sensationally Silver” or similar sounding, looking or typed names; (v) spamming; (vi) buying traffic; (vii) using paid search or keyword advertising using our Intellectual Property Rights or brand name to drive traffic to your site or to the banners; (viii) making any changes to the Sensationally Silver plugin or including the tags, pixels and codes in items not related to Sensationally Silver; (ix) offering coupons or discounts without our consent; (x) offering others a part of your commission; (xi) placing your unique affiliate link in themes, templates, the “Go Pro” button on the WordPress Dashboard and/or any other WordPress software; (xii) using words like “deal”, “sale” or “discount” in a deceptive manner or in a way stating that there is any discount, rebate, cash-back or other reduced payment for the services when there isn’t. All websites which you use to promote Sensationally Silver must have a prominent privacy policy, which is acceptable under the relevant privacy protection laws, as well as provide a prominent notice on the collection of data made by us using the tag, pixel, and code.

      This list is non-exhaustive, and we may block any practice that we believe is bad and terminate or suspend your account due to it. Bad Practices also include any illegal or unauthorized advertising, infringing intellectual property rights, invading users’ privacy, or otherwise using any advertising in violation of local laws and regulations.

  2. Scope of Work

    When joining the program, and upon our approval, you will be appointed as a non-exclusive affiliate, and you shall act to refer new potential customers to purchase our products and services. As our affiliate, you may not present yourself as a part of Sensationally Silver, and may not create any obligation on behalf of Sensationally Silver. Your participation is personal, meaning that you cannot have sub-affiliates or share your affiliate fees with anyone else.

    You shall invest reasonable time in promoting our products and services, and do it with good quality; if we find that your promotional material is problematic, offensive, illegal or otherwise objectionable, we may terminate your participation in the program. You represent and warrant that you are able to participate in the program, that you will only act in a legal, bona fide manner and that you will not infringe on any intellectual property right or act in any deceptive practice when participating in it.

  3. Consideration and Terms of Payment

    The consideration for all services (and goods if any) performed or supplied by Contractor under this Agreement shall be paid by the Company as follows:

    1. Total Obligation

      Each affiliate will be provided with a fixed affiliate commission that we will notify in writing. We may change this commission at any time based on our own discretion. Such changes will not be retroactive. We pay our commission for qualified leads; a qualified lead is a new customer, who subscribed to our platform within a certain duration of days of clicking a permitted banner you placed, and who made a purchase of any of our goods and services; all, provided that we were not introduced to this customer by any other affiliate or that he did not subscribe to our website of his own volition prior to his click. We will not pay a commission for self-dealing, i.e using the affiliate program to get discounts. The commission shall be calculated out of our net revenues from your qualified leads, which means our total revenues, minus taxes, chargebacks, cancellations, bad debt, collection costs, clearing costs and payments made in order to collect the payment. The means of tracking your qualified leads shall be done at the sole discretion of Company. You agree that our books and records are deemed as accurate and that our tracking is final.

      Your commission is calculated only upon payment to you. Until then, the expected payment is not an obligation from us to you, but an estimation of future revenues. We pay our affiliates on a monthly basis. The payment shall be made via Venmo, PayPal, or any other method we agree upon.

      Until the payment is made, the sums specified on your account are not considered debt. You shall bear all taxes and expenses relating to the payment, including any fees which may be incurred by your bank.

      If we provide a qualified lead with a refund, then we may deduct the commission from your future payment, or request that you return such fees. You also agree that we may offset any sums that you may owe us from any future payments.

      Each party shall bear its own expenses, and the commission you are entitled to is the sole payment you receive in relation to your services.

    2. Additional Terms of Payment

      Company may withhold payment in whole or in part for goods or services found by the Company to be defective, untimely, unsatisfactory, or otherwise not conforming to this Agreement, or not in accordance with all applicable federal, state, and local laws, ordinances, rules and regulations.

  4. General Terms and Conditions
    1. Access to Records

      Contractor shall maintain books, records documents, and other evidence and accounting procedures and practices sufficient to reflect properly all costs of whatever nature claimed to have been incurred and anticipated to be incurred in the performance of this contract. Company and its duly authorized representatives shall have access to the books, documents, papers, and records of Contractor which are directly pertinent to this contract for the purpose of making audit, examination, excerpts, and transcripts. Such books and records shall be maintained by Contractor for three years from the date of contract expiration unless a shorter period is authorized in writing. Contractor is responsible for any audit discrepancies involving deviation from the terms of this contract and for any commitments or expenditures in excess of amounts authorized by Company.

    2. Assignment

      Contractor shall not assign or transfer its interest nor delegate its obligation in this contract without the express written consent of the Company.

    3. Captions

      The captions or headings in this contract are for convenience only and in no way define, limit, or describe the scope or intent of any provisions of this contract.

    4. Compliance with Applicable Law

      Contractor agrees to comply with all federal, state, county, and local laws, ordinances, and regulations applicable to the work to be done under this contract. Contractor specifically agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. Contractor also shall comply with the Americans with Disabilities Act of 1990 (Pub. L. No. 101-336), [citation to applicable local statute], and all regulations and administrative rules established pursuant to those laws. Failure or neglect on the part of Contractor to comply with any or all such laws, ordinances, rules, and regulations shall not relieve Contractor of these obligations nor of the requirements of this contract. Contractor further agrees to make payments promptly when due, to all persons supplying to such Contractor, labor or materials for the prosecution of the work provided in this contract; pay all contributions or amounts due the Industrial Accident Fund from such contractor incurred in the performance of this contract; not permit any lien or claim to be filed or prosecuted against the state on account of any labor or material furnished; pay all sums withheld from employees pursuant to [citation to applicable local statute]. If Contractor fails or refuses to make any such payments required herein, the appropriate Company official may pay such claim to such payment. Any payment of a claim in the manner authorized in this section shall not relieve the Contractor or Contractor's surety from obligation with respect to any unpaid claims.

    5. Conflict of Interest

      Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services hereunder. Contractor further covenants that in the performance of this contract no person having any such interest shall be employed.

    6. Execution and Counterparts

      This contract may be executed in several counterparts, each of which shall be an original, all of which shall constitute but one and the same instrument.

    7. Governing Law

      This contract shall be governed and construed in accordance with the laws of the State of California. Any claim, action, or suit between Company and Contractor that arises out of or relates to performance of this contract shall be brought and conducted solely and exclusively within the State of California, County of Santa Barbara.

    8. Indemnity, Responsibility for Damages

      Contractor shall be responsible for all damage to property, injury to persons, and loss, expense, inconvenience, and delay which may be caused by, or result from, the conduct of work under this contract, or from any act, omission, or neglect of Contractor, its subcontractors, or employees. Contractor shall save, defend, indemnify, and hold harmless the Company and its officers, agents, or employees from all claims, suits, and actions of any nature resulting from or arising out of the activities or omissions of Contractor or its subcontractor's, officers, agents, or employees acting under this contract.

    9. Independent Contractor Status

      The service(s) to be rendered under this contract are those of an independent contractor. Contractor is not to be considered an agent or employee of Company for any purpose, and neither Contractor nor any of Contractor's agents or employees are entitled to any of the benefits that Company provides for its employees. Contractor will be solely and entirely responsible for its acts and for the acts of its agents or employees during the performance of this contract. If Contractor is providing personal services as an individual, Contractor: (1) is engaged as an independent contractor and will be responsible for any Federal or State taxes applicable to this payment; (2) will not be eligible for any Federal Social Security, State Workers' Compensation, or unemployment insurance; (3) is not an officer, employee, or agent of the Company and will not be under the direction and control of Company; (4) is not currently employed by the Federal Government and the amount charged does not exceed his normal charge for the type of service provided if payment is to be charged against Federal funds; and (5) must furnish Form CO-477 in duplicate with this contract if contractor is a nonresident alien and claims exemption from Federal withholding tax.

    10. Insurance

      Contractor shall secure at its own expense and keep in effect during the term of this contract general liability insurance. Insurance policies, which cannot be excess to a self-insurance program, are to be issued by an insurance company authorized to do business in the State of California. The Company and its officers and employees shall be included as an additional insured in said insurance policy. If any of the liability insurance is arranged on a "claims made" basis, "tail" coverage will be required at the completion of this contract for a duration of 24 months.

    11. Notices and Representatives

      All notices, certificates, or communications shall be delivered or mailed postage prepaid to the parties at their respective places of business as identified in the signature block of this contract, unless otherwise designated in writing. Copies of such correspondence shall also be sent all other contract signatories.

    12. Ownership of Work Product

      All work products or any form of property originated or prepared by Contractor which result from this contract are the exclusive property of Company.

    13. Severability

      If any term or provision of this contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the particular term or provision held to be invalid.

    14. Subcontracts and Assignments

      Contractor shall not enter into any subcontracts for any of the work scheduled under this contract, or assign or transfer any of its interest in this contract, without obtaining prior written approval from the Company.

    15. Successors in Interest

      The provisions of this contract shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and assigns.

    16. Terminations

      This contract may be terminated at any time by mutual consent of both parties, or by either party upon thirty (30) days' notice in writing and delivered by certified mail or in person to the other party. In addition, the Company may terminate this contract effective upon delivery of written notice to the Contractor, or at such later date as may be established by the Company, if: (a) Federal or state regulations or guidelines are modified, changed, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this contract; or (b) Any license or certificate required by law or regulation to be held by the Contractor to provide the services required by this contract is for any reason denied, revoked, or not renewed. This contract may also be terminated by Company for default (including breach of contract) if: (a) Contractor fails to provide services or materials called for by this contract within the time specified; or (b) Contractor fails to perform any of the other provisions of this contract, or so fails to pursue the work as to endanger performance of this contract in accordance with its terms, and after receipt of written notice from Company, fails to correct such failures within ten days. The rights and remedies of Company provided in the above clause related to defaults (including breach of contract) by Contractor shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.

    17. Force Majeure

      Neither Company nor Contractor shall be held responsible for delay or default caused by fire, riot, acts of God, or war where such cause was beyond, respectively, Company's or Contractor's reasonable control. Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this contract.

    18. Data Processing and Protection

      The parties acknowledge that in connection with the Affiliate Program, each party may provide or make available to the other party Personal Data. To the extent that any Personal Data is processed in connection with the Program the terms set forth in the Sensationally Silver Privacy Policy (posted at: https://sensationallysilver.com/privacy-policy/), which are hereby incorporated by reference, shall apply. Each party shall process the copy of the Personal Data in its possession or control: (i) in accordance with the Sensationally Silver (ii) as an independent controller (not as a joint controller with the other party) (iii) for the purposes described in this Agreement; and/or (iv) as may otherwise be permitted under Applicable Data Protection Law. For the avoidance of doubt and without prejudice to the foregoing, Sensationally Silver shall be an independent controller of any Personal Data that it receives or shares with Affiliate.

    19. Intellectual Property

      We reserve all our Intellectual Property Rights; and we provide our affiliates a limited, temporary, non-exclusive, non-transferrable, non-sublicensable license to use our trademark, brand name, and promotional materials, and such license is limited only to the use in promoting our products and services with our permitted banners according to our Trademark Guidelines.

      This means that you cannot use our Intellectual Property Rights with another brand name or as a bundled project. It also means that you cannot allow others to use the content we licensed to you.

      You may only use the permitted banners and promotional material that we provide you as a part of our gallery. All promotional materials showing prices should reflect updated prices and discounts at any time.

      “Sensationally Silver” (hereafter the “Mark”) is registered, internationally, with the United States Patent and Trademark Office. Contractor agrees and acknowledges that Sensationally Silver, Inc. is the sole owner of the Mark and that USER shall not use the Mark or any trademarks that are confusingly similar to the Mark and/or likely to cause confusion to any consumer, including any trademark that has a similar pronunciation and/or is confusingly similar (e.g., visually or in writing) to the Mark. The assessment of similarity will be based on the totality of the circumstances including the strength of the Mark in the relevant territory. If Contractor, for any reason, uses the aforementioned Mark, or any “similar” trademark, that would constitute an infringement on Sensationally Silver Inc's trademark rights, USER will be subject to potential claims for injunctive relief or compensatory damages, or, depending on the relevant forum, other claims for penalties, damages, or attorney’s fees.

    20. Waiver

      The failure of Company to enforce any provision of this contract shall not constitute a waiver by Company of that or any other provision.

    21. Merger

      THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS CONTRACT. NO AMENDMENT, CONSENT, OR WAIVER OF TERMS OF THIS CONTRACT SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY ALL PARTIES. ANY SUCH AMENDMENT, CONSENT, OR WAIVER SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. CONTRACTOR, BY AGREEING TO THE TERMS HEREIN, ACKNOWLEDGES HAVING READ AND UNDERSTOOD THE CONTRACT AND CONTRACTOR AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.