PLEASE READ THE ENTIRE AGREEMENT.
THIS IS A LEGAL AGREEMENT BETWEEN 2380055 ONTARIO INC. (“ART BY ERIN ROTHSTEIN,” “WE,” “US” OR “OUR”) AND YOU (“YOU,” “YOUR,” “YOURS,” OR “YOURSELF”) AS AN INDIVIDUAL OR THE ENTITY WHICH YOU REPRESENT. BY INDICATING ON THE APPLICATION PAGE FOR OUR PARTNERSHIP PROGRAM THAT YOU HAVE READ AND AGREE TO THESE TERMS, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT, THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR COMPLIANCE WITH EACH AND EVERY TERM AND CONDITION, AND THAT YOU ARE AUTHORIZED TO BIND YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT IF YOU ARE NOT THE AGE OF MAJORITY IN YOUR PLACE OF RESIDENCE, THEN YOU HAVE THE AUTHORITY OF A LEGAL GUARDIAN TO ENTER INTO THIS AGREEMENT.
- PARTNERSHIP OBLIGATIONS
2.1. This Agreement will become effective upon your acceptance of the Agreement as indicated above. To the extent we might auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion at any time, including after your acceptance, and for any reason in our sole discretion. For example, we may reject your application if we determine (at our sole discretion) that your website, social media accounts or promotion of our business is unsuitable for the Program. Examples of unsuitable activities include but are not limited to those that:
- 2.1.1. promote pornography and/or sexually explicit materials;
- 2.1.2. promote violence or use of illegal substances;
- 2.1.3. promote discrimination based on race, gender, religion, nationality, disability, sexual orientation or age;
- 2.1.4. promote hate, crime or other illegal activities;
- 2.1.5. incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights, or to violate the law;
- 2.1.6. are in any way unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable to us at our sole discretion;
- 2.1.7 gratuitously solicit sales in a manner that could be considered aggressive, “spammy,” or otherwise create a negative impression on a potential customer;
- 2.1.8 are competitive with our business;
- 2.1.9 violate or assert ownership over any of intellectual property of Art By Erin Rothstein, or take any action that would create confusion in the marketplace with respect to the intellectual property of Art By Erin Rothstein;
- 2.1.10 are otherwise inconsistent with the brand values as we may set out from time to time.
2.2. By participating in the Program you agree that you will not engage in any such activities. You should also note that if we accept your application and your promotion (including your website or social media accounts) is thereafter determined, at our sole discretion, to be unsuitable for the Program, we may terminate your Agreement immediately and without notice.
- RELATIONSHIP OF PARTIES
The parties acknowledge and agree that you shall, from a legal perspective, act as and shall be an independent contractor and not an employee or agent of Art by Erin Rothstein. Nothing in this Agreement shall create a partnership (not withstanding that the word “partnership” is used herein, joint venture, agency, or franchise between the parties. You may not sign any document in the name of, or on behalf of Art by Erin Rothstein nor shall you hold yourself out as being an agent of Art by Erin Rothstein or as having apparent authority to contract for or bind Art by Erin Rothstein.
- YOUR PROMOTIONAL METHODS
4.1. You shall be solely responsible for all materials that appear on your website, social media accounts or anywhere else where you conduct online activities related to the Program. You shall strictly adhere to all applicable laws and regulations in conducting your business and activities, and more specifically in marketing and advertising Art by Erin Rothstein. You are solely responsible for the accuracy and appropriateness of all materials posted by you, and for ensuring that your activities, including materials posted by you, and communications with Art by Erin Rothstein and our potential customers, are not defamatory, in violation of copyright laws or otherwise illegal. You further agree that your activities, including communications with our potential customers and us, regarding or relating to Art by Erin Rothstein in any way, are in full compliance with all applicable laws in your jurisdiction.
4.2. You agree not to use any predatory advertising methods designed to generate traffic from websites that you have not contracted with in the online promotion of Art by Erin Rothstein or the Program. Predatory advertising is defined as any method that creates or overlays links or banners on websites, spawns browser windows, or any method invented to generate traffic from a website without that website owner's knowledge, permission, and participation. Examples include, but are not limited to, keyword parsing, browser plug ins such as TopText and Surf+, banner replacement technology such as Gator, browser spawning technology that is not website dependent.
4.3. Without restricting the generality of the foregoing, you shall not send unsolicited email and shall not send email or any other communication to a recipient if the recipient has requested that you discontinue such communication.
4.4. You agree to defend, indemnify and hold Art by Erin Rothstein harmless for any violations of the foregoing. Art by Erin Rothstein disclaims all liability for these matters.
- ART BY ERIN ROTHSTEIN RIGHTS AND OBLIGATIONS
5.1. Art by Erin Rothstein shall have the right to monitor your website, social media account and activities at any time to determine if it is in compliance with the terms and conditions of this Agreement. We may notify you of any changes we feel should be made regarding your promotion of Art by Erin Rothstein, or to make sure that your links to our website are appropriate.
5.2. Art by Erin Rothstein reserves the right to terminate this Agreement and your participation in the Program immediately and without notice to you should you commit fraud in connection with the Program or should you abuse this Program in any way. If such fraud or abuse is detected, Art by Erin Rothstein shall not be liable to you for any Fees related to such fraudulent sales.
- PARTNERSHIP COMISSIONS, RIGHTS AND PAYMENT
6.1. Subject to all terms of this Agreement, Art by Erin Rothstein will pay you Fees paid for sales made by Art by Erin Rothstein that are trackable to new customers you refer to us.
6.2. The Fee is determined in accordance with the settings set forth in the Partnership Marketplace, which forms an integral part of this Agreement, and which may be updated from time to time in our sole discretion.
6.3. Art by Erin Rothstein does not pay Fees on any revenue we generate for services or products we sell that are not trackable to your referrals. The tracking activity is conducted exclusively through the Partnership Marketplace and we disclaim any and all liability in connection with the tracking of new sales.
6.4. Art by Erin Rothstein will not pay Fees on amounts paid to us from any individuals or businesses who have previously were customers of Art by Erin Rothstein, even if the existing referred customer's record contains a different email address, credit card number, or other information different from the individual's or business' previously used information. In the event that more than one individual acting pursuant to this Agreement claims the same Fee for a sale, Art by Erin Rothstein shall select the individual or entity to receive the compensation based on our best efforts to determine which party was responsible for the initial referral.
6.5. YOU SHALL NOT RECEIVE FEES FOR ANY SALE MADE DIRECTLY OR INDIRECTLY FOR YOURSELF.
6.6. All Fees are based upon the paid price of a product before tax. If any amount is paid, which is later refunded or determined to have been charged the customer in error, the amount paid as Fees to you will be adjusted and/or deducted from future Fees if any are due, or an invoice in the amount of the adjustment paid to you will be issued and payable by you to Art by Erin Rothstein within 10 days.
6.7. Payment of Fees will otherwise be made in accordance with the terms set out in the applicable Partnership Marketplace.
6.8. You shall be responsible for all taxes and other similar levies applicable to the Fee pursuant to any law or regulation. You shall report the Fee to its taxation authorities as required by law. Art by Erin Rothstein shall not be responsible for any taxes owed by you arising out of your relationship with Art by Erin Rothstein as set forth in this Agreement.
Art by Erin Rothstein may modify any of the terms and conditions in this Agreement, including terminating this Agreement or the Program at any time, and in its sole discretion. Modifications may include, but are not limited to, changes in the scope, amount of Fees, payment procedures, and the Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AS SET FORTH BELOW. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE POSTING OF THE CHANGE NOTICE OR NEW AGREEMENT WILL CONSTITUTE YOUR AGREEMENT TO THE CHANGES.
- TERMS AND TERMINATION
The term of this Agreement will begin upon your acceptance of the Agreement as indicated above, approval into the Program by Art by Erin Rothstein, and will end when terminated by either party. Either Art by Erin Rothstein or you may terminate this Agreement at any time, with or without cause, and in the case of your termination, by giving us written notice of termination. Upon the termination of this Agreement for any reason, all licenses granted hereunder, if any, shall immediately terminate and you will immediately cease use of, and remove from your website or websites, all references to Art by Erin Rothstein and all links to the Art by Erin Rothstein's website. Violation of the terms of this Agreement by you may result in the forfeiture of certain Fees.
ART BY ERIN ROTHSTEIN MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ART BY ERIN ROTHSTEIN SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN. ANY IMPLIED WARRANTIES OF ART BY ERIN ROTHSTEIN'S ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITE OR OF OUR REFERRAL TRACKING LINK TECHNOLOGY WILL BE FREE FROM DEFECT OR WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY DEFECTS, INTERRUPTIONS OR ERRORS.
- LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ART BY ERIN ROTHSTEIN WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR ACTUAL OR ANTICIPATED REVENUE, PROFITS OR LOST BUSINESS), EVEN IF ART BY ERIN ROTHSTEIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL ART BY ERIN ROTHSTEIN'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) BREACH OF WARRANTY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL FEES PAYABLE TO YOU UNDER THIS AGREEMENT.
- REPRESENTATIONS, WARRANTIES AND COVENANTS
You represent, warrant and covenant that:
- 11.1 you have full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
- 11.2 the material posted on your website, social media accounts or in other places does not and will not defame any third party or violate or infringe upon the rights of any third party or any applicable copyright and other laws that pertain to it;
- 11.3 you shall not make any representations or warranties regarding the products or services provided by Art by Erin Rothstein other than those set forth on our website or otherwise approved by us; and
- 11.4 you shall not at any time prior to or following the expiration or termination of this Agreement make or publicize any statements that are disparaging, slanderous, defamatory, libelous or derogatory of the Program, Art by Erin Rothstein, its directors, officers, employees, partners, products or services, or that otherwise portray Art by Erin Rothstein in a negative manner.
You hereby agree to indemnify, defend and hold harmless Art by Erin Rothstein, and its subsidiaries and affiliates, and their 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 attorney fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on any claim that our use of your trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, any misrepresentation of a representation or warranty or breach of a covenant and Agreement made by you herein, or any claim related to your website, including, without limitation, content therein not attributable to us.
In connection with the activities contemplated by this Agreement, you may acquire confidential technical or business information of Art by Erin Rothstein, which is not generally known to the public, including without limitation proposals, ideas or research related to possible new products or services; financial statements and other financial information; any reporting information required by the Agreement; and the existence and terms of this Agreement and the relationship between the parties (collectively, "Confidential Information"). You agree not to disclose the Confidential Information or use the Confidential Information for your own benefit or for the benefit of any third party. Your obligations in this Section shall not apply to any information that you can prove was in the public domain at or subsequent to the time it was communicated to you through no fault of yours; was rightfully in your possession free of any obligation of confidence owed to Art by Erin Rothstein at or subsequent to the time it was communicated to you by Art by Erin Rothstein; was in response to a valid order by a court or other governmental body or was otherwise required by law. Upon the termination or expiration of this Agreement, you shall return upon Art by Erin Rothstein's request or otherwise destroy all Confidential Information of Art by Erin Rothstein in your possession.
14.1. You may not assign your rights or obligations under this Agreement to any party.
14.2. You may not create, publish, distribute, or permit any written or electronically transmitted publicity material (including without limitation, advertisements and press releases) that makes reference to Art by Erin Rothstein, or the Art by Erin Rothstein website without first submitting the material to Art by Erin Rothstein and receiving its approval, authorization and consent in writing. You shall not issue any public statement(s) regarding the relationship with Art by Erin Rothstein without the prior written approval of Art by Erin Rothstein.
14.3. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada without regard to the conflicts of laws and principles thereof.
14.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
14.5. This Agreement represents the entire Agreement between you, and us, and shall supersede all prior Agreements and communications of the parties, oral or written.
14.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
14.7. Art by Erin Rothstein reserves the right, at its full discretion, to disqualify any individual it suspects of undermining or manipulating the registration and/or qualifying process, the operation of the Program by attempting to circumvent the commission schedule or artificially increasing your commissions or by other fraudulent methods or results, or to be acting in violation of this Agreement. Art by Erin Rothstein may, at its sole discretion, cancel the Program. In the event of your non-compliance with any requirement stated herein, Art by Erin Rothstein may withhold or reduce any payments due to you until resolution of all disputes.
14.8. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this Agreement shall have full force and effect.
- GENERAL CONDITIONS
YOU HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND AND HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL AND ACCEPT THE OBLIGATIONS WHICH IT IMPOSES UPON YOU WITHOUT RESERVATION. YOU HAVE ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO YOU TO INDUCE YOU TO ACCEPT THIS AGREEMENT. YOU AGREE TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.