AFFILIATE PROGRAM AGREEMENT
PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT (THE “AGREEMENT”) CAREFULLY.
This Affiliate Program Agreement (the “Agreement”), is made by and between You, your agents, your affiliates or sub-affiliates (“You” “Your” or “Affiliate”) and the Aterian Group, Inc. (together with its affiliates, “Aterian” “We” or “Our”). By participating in the Aterian Affiliate Marketing Program (the “Program”), You agree to be bound and abide by the terms and conditions of this Agreement.
1. REGISTRATION AND ACCOUNT
1.1 Eligibility. To participate in the program, You must (i) be at least 18 years old or the age of majority where You reside; (ii) if you are under 18 or the age of majority in Your jurisdiction, have the consent of the parent or guardian and they agree to be bound by the terms of this agreement; or (ii) have the full right and authority to enter into, execute, and perform the obligations under this Agreement.
1.2 Refersion Account. For participants in the Program through the Refersion platform, You are required to create a Refersion Account for tracking and reporting purposes. You are solely responsible for, without limitation, (i) maintaining Your account; (ii) all activity on Your account; and (ii) any loss, theft, or unauthorized disclosure of Your account information. You are encouraged to review the Refersion terms of service prior to opening an account.
1.3 Amazon Attribution. For participants in the Program through the Amazon Attribution program, You are solely responsible for, without limitation, (i) maintaining Your account; (ii) all activity on Your account; and (ii) any loss, theft, or unauthorized disclosure of Your account information. You are encouraged to review the Amazon Attribution terms and conditions prior to opening an account.
1.4 Accurate Information. You must provide accurate and truthful information and are solely responsible for maintaining complete and accurate information about You, including Your payment and tax information, contact information, etc. We are entitled to rely on any and all such information, and are not responsible for any misrepresentations, errors, omissions, or inaccuracies made by You.
2. THE PROGRAM
2.1 Qualifying Transactions. You may be eligible for a commission on purchases made by end users pursuant to the applicable fee schedule that We set forth for You as a result of your participation in the Program (“Qualifying Transaction”). We reserve the right to review and disqualify any Qualifying Transactions, including but not limited to, diluting, tarnishing, blurring or adversely affecting Aterian’s proprietary rights (“Abuse”) of our brand or false advertising.
2.2 Tracking. For Aterian to track Qualifying Transactions, You must include and maintain the original link provided to You by Aterian within Your buttons, banners, widgets, text, website, social media, or other creative content (“Promotional Materials”) You use to promote Aterian brands and products, and may not modify, amend, or change the tracking code provided to You. Although Aterian strives to track all Qualifying Transactions accurately, there may be instances where We fail to track all Qualifying Transactions. In such instances, We shall exercise best efforts to determine the discrepancies between intended and actual Qualifying Transactions and resolve the discrepancies.
2.3 Reporting. Aterian reserves the right to review and validate all Qualifying Transactions. For Affiliates on the Amazon Attribution platform, reports will be provided on a monthly basis for review. Reporting is not available on a real-time basis and may be subject to delay. Aterian Transaction Reports are the sole and definitive measure of Our payment obligations.
2.4 Changes to Commissions. We reserve the right to change the applicable fee schedule or Program details with respect to Qualifying transactions at our discretion. Notice of any changes will be provided at least (48) hours before effective.
2.5 Link Promotion. Affiliates must use the custom URL or UTM parameters provided by Aterian in your Promotional Materials. Aterian reserves the right to refuse commissions to, or terminate this Agreement with, any Affiliate that does not have the proper UTM or link parameters without notice.
2.6 Product Discounts. You may not offer any discounts or coupons or make any representations with respect to our products without our prior express written approval.
2.7 Aterian Trademarks. Accepted Program participants will be granted a non-exclusive, non-transferable, non-sublicensable, limited license to publicly display the Aterian name, trademarks and logos (collectively, the “Marks”) on Your Promotional Materials solely for the purpose of marketing Our products (the “License”). All other uses of the Marks shall be subject to Aterian’s prior written approval in each instance. Upon termination of this Agreement or in the event you are no longer a participant in this Program (the “Termination Date”), all rights granted hereunder shall expire effective as of such Termination Date. The Aterian name, marks and logos are the sole property of Aterian and are protected by trademark and copyright law.
2.8 Prohibited Use. You may not place the Program [link, banner or logo] on any website that (i) contains sexually explicit materials; (ii) promotes violence, discrimination or illegal activities; (iii) infringes the copyright, trademark, trade secret or other intellectual property rights of others; (iv) violates the privacy or publicity or other personal rights of others; (v) is fraudulent, deceptive, defamatory, obscene, threatening, harassing, abusive or hateful; or (vi) violates applicable laws, as determined by Aterian in our sole discretion.
2.9 Use of Pay-Per-Click (“PPC”): PPC campaigns that send people directly to the affiliate’s aterian.io affiliate link are NOT allowed. Only Affiliate PPC campaigns that direct traffic to the Affiliate’s own website or content is allowable. Under no circumstances can Affiliate use PPC to drive traffic to any of Aterian’strademarks or branded terms, including but not limited to (i) aterian.io; (ii) Aterian; (iii) any variations, misspellings, or derivatives of our trade name or domain keywords. In the event that Aterian becomes aware of any unethical behavior, tactics or violations to this requirement, the Affiliate will be immediately banned from the Program. We reserve the right to expel any violator from the Program at any time following the first occurrence of a violation of this provision.
2.11 Third-Party Links and Information. Aterian may use or contain links to third-party materials, sites, information, products, or applications (collectively “Third Party Services”) that are not owned or controlled by Aterian. We do not assume any responsibility for any such Third Party Services. If you access a Third Party Service or share your information on or through any Third Party Service you do so at your own risk, and you understand that You should review and agree to any agreements and or policies of these Third Party Services. You expressly relieve Aterian from any and all liability arising from your use of any Third Party Services. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services from the Program. We’re not liable to you for any such suspension, disabling or removal.
3.1 Timing. Commission payments on positive account balances, that exceed the minimum account balance of $100 USD, will be paid on a monthly basis, only after all requested tax forms are submitted to us, and may be subject to Your approval. The number or amount of transactions, credits for payments and debits for non-payment, withholding, or reversals as calculated by Aterian shall be final and binding on You.
3.2 Form of Payment. Payments will be made in United States dollars to the Account specified in Your Application.
3.3 Taxes. You are responsible for any taxes that may be due in connection with your participation in the Program or otherwise. Aterian does not pay additional compensation to you for taxes. If the withholding of any tax is required in respect of any payment to you, Aterian will (1) withhold the applicable amount from such payment and (2) pay such amount to the relevant authorities in accordance with any Applicable Law in the relevant jurisdiction(s). You agree to complete and provide to us or to the applicable taxing authority such forms, certifications or other documents as may be reasonably requested by Aterian, to reduce or exempt withholding taxes with respect to payments made to you when and where required by law. If it is later determined that Aterian should have withheld and/or paid additional tax but did not withhold or pay such tax, then you shall pay the applicable tax and hold Aterian harmless from any penalties or interest thereon.
3.4 Non-Payment, Withholding, Reversal and Chargebacks. We shall have no duty to pay You for Qualifying Transactions during any current or previous month, due to
(i) order cancellations or returns; (ii) erroneous order duplications or errors; (iii) non-bona fide transactions or other fraudulent activity; (iv) orders we reject or cannot fill; or (v) Your failure to comply with the terms of this agreement.
4.1 Termination. Either party may terminate this Agreement at any time. After termination, You will remain entitled to payment for any commissions that accrue or have accrued for referrals made prior to termination subject to the payment terms in Section 3. You will disable all links and discontinue any use of the Aterian brand names, trademarks, or logos.
4.2. Termination by Aterian . We may terminate this Agreement or Your participation in the Program at any time in our sole discretion, with or without cause. Termination of this Agreement for cause may include, but is not limited to (i) improper use of Program Materials; (ii) Abuse; or (ii) deceptive practices or false advertising.
4.3. Termination of Programs. Programs may be discontinued at any time at our discretion
5. REPRESENTATIONS, WARRANTIES, AND DISCLAIMER OF WARRANTIES
5.1 From Affiliate. You represent and warrant that (i) You have the full right and authority to enter into, execute, and perform Your obligations under this Agreement, or are an entity authorized to do business pursuant to applicable law on behalf of Your company; (ii) You accurately identified Yourself and have not provided any inaccurate information; (iii) You are and shall be in full compliance with all laws, regulations, and best practices applicable to You; or (iv) You have all appropriate rights and authorities to operate and provide content in your Promotional Materials, and use any trade names or trademarks or other intellectual property applicable to you, do not and shall not infringe upon the any third party’s or Aterian’s intellectual property rights.
5.2 From Aterian. Aterian represents and warrants that it is the owner of the Program, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights under this Agreement without the further consent of any third party.
5.3 Warranty Disclaimers. EXCEPT AS SET FORTH IN THIS AGREEMENT, ATERIAN MAKES NO OTHER REPRESENTATION OR WARRANTY, WRITTEN OR ORAL, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
5.4 Liability Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO YOUR PARTICIPATION IN THE PROGRAM, EVEN IF FORESEEABLE, OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE FOREGOING PROVISION(S), ATERIAN’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
5.5 Dollar Cap. THE TOTAL LIABILITY OF Aterian AND ITS AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, CONTRACTORS AND AGENTS (EACH A “RELEASED PARTY”) FOR ALL CLAIMS ARISING OUT OF OR RELATED TO YOUR PARTICIPATION IN THE PROGRAM WILL NOT EXCEED ONE DOLLAR ($1.00).
6. INDEMNITY AND RELEASE
6.1 You shall defend, indemnify, hold harmless, and release Aterian and each Released Party against any third party claims, suit, or proceedings arising out of or related to Your alleged or actual use or misuse of the Program whether direct or indirect (“Indemnified Claim”), including without limitation, (i) suits or proceedings directly resulting from Your infringing the intellectual property or other rights held by a third party; (ii) claims that Your use of the Program harasses, defames, or defrauds a third party; or (iv) violates the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 or any other law or restriction on electronic advertising.
6.2 California Civil Code §1542. If You are a California resident, You are aware of, and understand, the provisions of California Civil Code Section 1542 (”Section 1542”), which provides: ”A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release.
7.1 Choice of Law & Jurisdiction. This Agreement will be governed by and construed under the laws of the State of New York, without giving effect to (i) conflicts of law principles that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (ii) the United Nations Convention on Contracts for the International Sale of Goods; or (iii) any other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York County, New York.
7.2 Assignment & Successors. Aterian may assign this Agreement, in addition to any rights or obligations hereunder, in whole or in part, (i) to any of its affiliates under common control or (ii) in connection with a change of control or a sale of all or substantially all of Aterian’s assets (an “Aterian Assignment”). You may not assign this Agreement or any of its rights or obligations hereunder without Aterian’s express written consent. In the event of an Aterian Assignment or an assignment of this Agreement by You (subject to the limitations set forth in this Section 7.2), this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
7.3 Severability. If any provision of this Agreement is held to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by law, and the remaining provisions of this Agreement will continue in full force and effect.
7.4 Waiver. A waiver of any breach of any provision under this Agreement by any Party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
7.5 Amendment. This Agreement may be amended unilaterally by Aterian at any time by notice to the e-mail address noted in Your account or Application. Aterian may revise this Agreement from time to time by posting a new version online; any such new version will become effective on the date it is posted.