LOSHA (hereinafter “LOSHA”) and you, the affiliate (hereinafter “you” or “your” or “Affiliate”), are parties to this Affiliate Network Operating Agreement (“Agreement”).
“Affiliate” shall be further defined to mean any business, individual or entity whose application to participate in the LOSHA Affiliate Network has been accepted, and that displays and/or provides LOSHA Links from its site to the LOSHA Site in exchange for receiving remuneration from LOSHA for sales by LOSHA resulting from such linkage in accordance with this Agreement.
“Affiliate Site” means each Affiliate’s web site which, pursuant to this Agreement with LOSHA, provides LOSHA Links to the LOSHA Site.
“Affiliate Trademarks” means the then-current trademarks service marks and logos that Affiliate uses in connection with its business, products and services.
“Customer” means a visitor to the LOSHA Site that purchases a product on the LOSHA Site.
“Eligible Purchase” has the meaning provided in section 4 below.
“LOSHA Affiliate Network” means the Affiliate Sites of all LOSHA accepted Affiliates-collectively and the LOSHA Site as identified below.
“LOSHA Link” means a graphical or textual link image that, when clicked or activated on Affiliate’s site, points the user’s web browser to the Universal Record Locator or “URL” for one page of the LOSHA Site. The files containing these linked images will be provided to Affiliate by LOSHA.
“LOSHA Marks” the then-current trademarks service marks and logos that LOSHA uses in connection with its business, products and services.
“LOSHA Site” means LOSHA’ web site, www.losha.pk. LOSHA Site represents grouping of products within www.losha.pk domain.
“Licensed Materials” means any and all materials actively licensed to Affiliate by LOSHA.
- Enrollment in the LOSHA Affiliate Network
- LOSHA Links
- Once your web site has been accepted into the LOSHA Affiliate Network and becomes an Affiliate Site, LOSHA will make available to you a variety of LOSHA Links, which, subject to the terms and conditions hereof, you may display on your Affiliate Site. The LOSHA Links will identify your Affiliate Site as a member of the LOSHA Affiliate Network and will establish a link from your Affiliate Site to the LOSHA Site. You may display on your Affiliate Site any number or combination of LOSHA Links.
- You agree to:
(i) display LOSHA Links prominently in the relevant sections of your Affiliate Site and in accordance with LOSHA’s guidelines;
(ii) cooperate fully with LOSHA in order to establish and maintain the LOSHA Links;
(iii) display on your Affiliate Site only those LOSHA Links to the LOSHA Site that are provided to you by LOSHA;
(iv) upon request by LOSHA, promptly replace any LOSHA Link with a new LOSHA Link provided by LOSHA;
(v) maintain and use for the Affiliate Site a top-level domain name of .com, .net, .edu, .gov, .org or .biz; and
(vi) maintain the Affiliate Site so that it is fully functional at all time and at all levels (i.e. no “under construction” sites or sections).
(vii) to use the Licensed Materials only in the manner in which LOSHA has licensed to you. Upon notice from LOSHA, you agree to discontinue within twenty-four (24) hours any use of the Licensed Materials objected to by LOSHA as contrary to the terms of this Agreement or as to which LOSHA no longer has rights.
- You will receive commission fees in amounts established by LOSHA in its sole discretion (hereinafter “Commission(s)”) and located on the “Welcome to the Affiliate Program Page” on the LOSHA Site only with respect to “Eligible Purchases”, defined as those LOSHA products that are shipped by LOSHA and paid for by the Customer, and which are either:
(i) sold by LOSHA via the LOSHA Site during the term of this Agreement, OR
(ii) purchased by a Customer during a visit to the LOSHA Site that was accomplished either
(a) via a Qualifying Link on the day of the purchase, or
(b) within seven days after accessing the LOSHA Site via a Qualifying Link; provided that,
(1) the Customer used the same computer and browser during both the initial visit and the visit during which the purchase was made,
(2) the Customer did not, during the seven-day period following the initial visit, delete (or set the computer to automatically delete) the cookie placed by LOSHA on the Customer’s computer at the time of the initial visit, and
(3) your Qualifying Link is the last link to LOSHA Site that the Customer uses during a Session where a sale of a product occurs.
- Commissions will be paid through the LOSHA Site that the Customer uses as the point of entry to the domain. For further clarity and illustrational purposes, if the Customer enters through www.losha.pk and selects product from LOSHA and buys the products; then the commission for the entire order will be paid by LOSHA.
You acknowledge that LOSHA, in its sole discretion, may reject any order that it receives via your Affiliate Site without resulting liability or obligation to you. Eligible Purchases must occur during the term of this Agreement (i.e., before you give or receive notice of termination), and Commissions earned before the date of termination will remain payable only if the applicable orders are not canceled or returned. Commissions will be based on the aggregate amount actually paid to LOSHA for Eligible Purchases, excluding amounts collected by LOSHA for sales and other taxes, duties, gift-wrapping, shipping, handling, and similar charges and less amounts due to credit card fraud and bad debt, rebates and credits for returned products (“Net Sales”).
- Within thirty (30) days after the end of each calendar month, LOSHA will send you (i) a Commission check for applicable Commissions earned by you during such month (less any taxes required to be withheld under applicable law), and (ii) a statement of activity, provided, however, that LOSHA will not send you a Commission check unless you have accumulated at least PKR500 in Commissions. Notwithstanding the foregoing, if this Agreement terminates before you have accumulated at least PKR500 in Commissions, LOSHA will send you a check for the total Commissions accumulated by you after such termination, in accordance with the procedures set forth in Section 8(B)(ii).
- You shall be responsible for any taxes required to be paid with respect to Commissions LOSHA pays to you.
- LOSHA’ Obligations
- You shall not be a party to any transaction between LOSHA and a Customer. All Customers shall be subject to LOSHA’ standard applicable rules, terms, policies and procedures, as such policies and procedures may change from time to time. LOSHA will be solely responsible for all customer service related to any order placed by a Customer via your Affiliate Site.
- LOSHA will give you a password that will allow you to access a web site with a record of Eligible Purchases made via your Affiliate Site. Notwithstanding the foregoing, LOSHA may, at any time, change the method by which it informs you of sales activities generated by your Affiliate Site. To permit accurate tracking, reporting and Commissions, you must ensure that your Qualifying Links are properly formatted. LOSHA will not be responsible for improperly formatted links.
- LOSHA will be responsible for order processing and fulfillment of orders placed by Customers who follow your Qualifying Link(s) to the LOSHA Site. LOSHA reserves the right to reject orders for any reason.
- Licenses and Use of the LOSHA Logos and Trademarks
- LOSHA grants to you a non-exclusive, non-transferable, revocable, limited right and license during the term of this Agreement to: (i) display the LOSHA Links (or any other text or graphics that LOSHA explicitly grants you permission to display) (the “Licensed Materials”) on your Affiliate Site, solely for the purposes of this Agreement. You may not alter, modify or change the Licensed Materials. You are entitled to display the Licensed Materials only during the term of this Agreement.
- You shall not use any Licensed Materials (i) in any manner that disparages LOSHA or otherwise portrays LOSHA in a negative light, or (ii) for purposes other than advertising the LOSHA products on your Affiliate Site without obtaining the prior written consent of your LOSHA account executive. You agree to follow all policies regarding Licensed Materials provided to you by LOSHA from time to time. LOSHA reserves all of its rights in the Licensed Materials and in all other LOSHA copyrights, trademarks, tradenames, and other intellectual property.
- You grant to LOSHA a non-exclusive license during the term of this Agreement to utilize your name and the names, titles, and logos used on your Affiliate Site, as the foregoing may be changed or altered by you from time to time (the “Affiliate Trademarks”), solely for the purposes of advertising, marketing, promoting, and publicizing in any manner LOSHA’ rights hereunder; provided, however, that LOSHA shall not be required to advertise, market, promote, or publicize the Affiliate Trademarks.
- These licenses shall terminate upon expiration or earlier termination of this Agreement.
- Obligations Regarding Your Affiliate Site
- You shall be solely responsible for the creation and operation of your Affiliate Site and for all materials that appear on your Affiliate Site. Such responsibilities include, but are not limited to (i) the operation, design and coding of your Affiliate Site, (ii) the operation and maintenance of your computer equipment, (iii) uploading and displaying the LOSHA Links, (iv) the accuracy and propriety of materials posted on your Affiliate Site, (v) the legality of your use of information about your users that you collect via your Affiliate Site, and (vi) ensuring that materials posted on your Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous, obscene, illegal or otherwise objectionable to LOSHA.
- You shall not:
(i) cause your Affiliate Site to be a copy of or to resemble the look and feel of the LOSHA Site;
(ii) create the impression that your Affiliate Site is the LOSHA Site or any part of it;
(iii) frame any page of the LOSHA Site with your Affiliate Site (including but not limited to pages of the LOSHA Site opened by users of your Affiliate Site via a LOSHA Link) or otherwise create an appearance that a visitor to your Affiliate Site is visiting the LOSHA Site or the appearance that a visitor to the LOSHA Site is visiting your Affiliate Site;
(iv) include price information regarding any LOSHA products on your Affiliate Site;
(v) infringe, misappropriate or violate any third party’s copyrights, trademarks or other intellectual property rights on your Affiliate Site;
(vi) make any representations, warranties (express or implied) or covenants regarding LOSHA, the LOSHA Site or the LOSHA products on your Affiliate Site;
(vii) send unsolicited commercial advertisements using LOSHA Marks (as hereinafter defined);
(viii) publish or distribute any statement or written material that makes reference to LOSHA or this Agreement without first submitting such material to LOSHA and receiving its written consent;
(ix) violate any federal, state or local law, rule or regulation or LOSHA prohibition with respect to the subject matter of this Agreement including, but not limited to claims for unsolicited email (spamming) or under the CAN-SPAM Act of 2003, or other violations of third party intellectual property rights, rights of privacy, including but not limited to the Children’s Online Privacy Protection Act of 1998 (“COPPA”), or publicity rights;
(x) directly or indirectly provide any incentives, kickbacks, discounts or other forms of consideration for purchasing from LOSHA via your Affiliate Site; or
(xi) set up your site in such a manner that pulls Internet traffic away from the LOSHA site;
(xii) “scrape” or “spider” the LOSHA site or its affiliates’ sites for content (such as images, logos or text);
(xiii) employ the use of any type of software download or technology which attempts to intercept or redirect traffic or Commissions to or from any website or fabricate the use of Qualifying Links;
(xiv) install spyware on another person’s computer or cause spyware to be installed on another person’s computer;
(xv) engage in any link cloaking or link masking;
(xvi) upload, post, email, otherwise transmit or post links to any material that contains software viruses, worms, trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of any internet user’s equipment or the LOSHA Site;
(xvii) post, upload, email, otherwise transmit or post links to any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar or obscene, pornographic, invasive of privacy or publicity rights, hateful or racially, sexually, ethnically or otherwise objectionable; or
(xviii) attempt to modify or alter the LOSHA Site in any way.
- Except to the extent that you have received permission from LOSHA in writing, your Affiliate Site shall not contain any content from the LOSHA Site or any materials which are proprietary to LOSHA, other than the Licensed Materials. You further agree that:
(i) you will not use (except as provided in this Agreement) and have not registered and will not register any LOSHA or its affiliates’ name, domain name or trademark.
(ii) you will not purchase or otherwise contract with a third party to exploit any of the LOSHA Marks for the purpose of causing your Affiliate Site to appear as a search result in any search engine or for any other reason.
(iii) you will not use or incorporate any LOSHA Marks or misspellings or variations thereof in the domain name(s) of your site(s) or any meta tags of web pages comprising your site(s), in hidden text or source code, or searchable keywords, or otherwise cause your Affiliate Site to appear as a search result in any search engine using LOSHA Marks or misspellings or variations thereof;
(iv) if your Affiliate Site donates any portion of its Commissions or other referral fees to any school, foundation or charitable organization, you will not state or imply that LOSHA in any way endorses such activities or is responsible in any way for the inclusion and donation of funds associated with your Affiliate Site.
- You will make available to traffic to your Affiliate Site only those discount codes that have been authorized for your use by the express written consent of LOSHA.
- LOSHA has the right in its sole discretion to monitor your Affiliate Site to determine if you are in compliance with the terms of this Agreement. If LOSHA determines in its sole discretion that you are not in compliance, LOSHA may terminate this Agreement immediately.
- Agreement Term
- The term of this Agreement will begin upon LOSHA’ acceptance of your application to the LOSHA Affiliate Network and will end immediately upon termination by either party. Either party may terminate this Agreement at any time, in its sole discretion and for any or no reason, by providing the other party with written notice of termination.
- Upon termination by either party:
(i) You shall immediately remove from your Affiliate Site and cease your use of all LOSHA Links, Licensed Materials and LOSHA Marks.
(ii) The terms of Sections 9, 10, 11, 12, 13 and 14 shall survive the expiration or termination of this Agreement for any reason.
THE LOSHA SITE, THE LOSHA AFFILIATE NETWORK, THE LOSHA LINKS AND THE LICENSED MATERIALS ARE PROVIDED “AS IS WHERE IS” WITHOUT ANY WARRANTY OF ANY KIND. LOSHA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE LOSHA SITE, THE LOSHA LINKS, THE LICENSED MATERIALS, THE LOSHA AFFILIATE NETWORK OR ANY LOSHA PRODUCTS SOLD THROUGH THE LOSHA AFFILIATE NETWORK, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. IN ADDITION, (I) LOSHA MAKES NO REPRESENTATION THAT THE OPERATION OF THE LOSHA SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND (II) LOSHA DISCLAIMS ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO THE OPERATION AND CONTENT OF YOUR AFFILIATE SITE.
- Representations and Warranties
You represent and warrant to LOSHA as follows:
- This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
- The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation (if applicable), or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
- You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to LOSHA the license to use the Affiliate Trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
- No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
- There is no pending or, to the best of your knowledge, threatened, claim, action, or proceeding against you, or any of your affiliated persons, entities or companies, with respect to the execution, delivery, or consummation of this Agreement, or with respect to the Affiliate Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
- Content and material on your Affiliate Site will not (i) infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (ii) violate any publicity or privacy right of any third party; (iii) violate any applicable law, statute, ordinance, rule or regulation; (iv) be defamatory or libelous; (v) be lewd, pornographic or obscene; (vi) promote violence or contain hate speech; (vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; or (viii) contain viruses, trojan horses, worms, time bombs, cancelbots or other harmful or deleterious programming routines.
- If you are a natural person (as opposed to a corporation or other entity), you are at least 18 years of age.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each party (the “Receiving Party”) agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning the other party (the “Receiving Party”) or its affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by the Receiving Party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than the Disclosing Party or its affiliates. Notwithstanding the foregoing, the Receiving Party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process.
- Limitation of Liability
LOSHA WILL NOT BE LIABLE FOR INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE LOSHA AFFILIATE NETWORK, EVEN IF LOSHA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LOSHA’ TOTAL LIABILITY TO YOU FOR DAMAGES SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL COMMISSIONS PAID TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
You shall indemnify and hold harmless LOSHA, its subsidiaries, affiliates, and their respective directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and expenses) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereto) arise out of or are based on: (a) any claim that LOSHA’ or its affiliates’ use of the Affiliate Trademarks infringes any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary, publicity or privacy right of any third party; (b) any breach of your warranties, representations or covenants contained herein; (c) any claim related to your Affiliate Site, including, without limitation, the development, operation or maintenance of your Affiliate Site or content contained therein; (d) any third party claim against you; or (e) any claim that you have breached a duty to, or otherwise wronged or harmed, any third party.
- This Agreement will be governed by the laws of the United States and the State of North Carolina, without reference to its rules regarding choice of law. Any dispute relating to this Agreement which is not settled between the parties must be determined in an action brought in the federal or state courts located in Winston-Salem, North Carolina, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without LOSHA’ prior written consent. Subject to that restriction, this Agreement will be binding on and inure to the benefit of the parties and their respective permitted successors and assigns. LOSHA’ waiver of your breach of this Agreement shall not be deemed a waiver of any other or subsequent breach.
- Nothing in this Agreement shall be construed to constitute either party as a partner, employee or agent of the other, and no employee or agent of either party shall be deemed to be the employee or agent of the other. Neither party shall have the authority to make any agreement or commitment, nor incur any liability on behalf of the other, nor be liable for any acts or omissions of the other, except as specifically provided herein.
- This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. LOSHA may modify any of the terms and conditions (including without limitation terms and conditions related to Commission rates and usage of the Licensed Materials or LOSHA Marks) contained in this Agreement at any time in its sole discretion upon written notice to you. You will be notified of any such changes by e-mail to the last e-mail address provided to LOSHA and a change notice will be posted on the LOSHA Site. IF YOU DO NOT AGREE TO THE TERMS OF SUCH MODIFICATION, YOU SHALL PROVIDE NOTICE OF TERMINATION TO LOSHA. OTHERWISE, YOUR CONTINUED PARTICIPATION IN THE LOSHA AFFILIATE NETWORK FOLLOWING ANY SUCH MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION. YOU MAY NOT MODIFY THIS AGREEMENT.
BY CLICKING THE “I ACCEPT”, YOU ARE ENTERING INTO A BINDING LEGAL AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND ACCEPT THE TERMS AND CONDITIONS OF SAME