ATTENTION! BY CLICKING THE DISPLAYED “APPLY” BUTTON, THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU PERSONALLY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON YOUR OWN BEHALF, OR UPON THE COMPANY OR OTHER LEGAL ENTITY ON BEHALF OF WHICH YOU ACT (HEREINAFTER “YOU” OR “YOUR” OR “AFFILIATE”). CAREFULLY READ THE FOLLOWING AGREEMENT GOVERNING THE ARK CRYSTAL, LLC AFFILIATE PROGRAM BEFORE CLICKING “APPLY.”
ARK CRYSTAL LLC AFFILIATE PROGRAM TERMS AND CONDITIONS
ARK Crystal manufactures and markets certain products and desires to increase the sales of such products, and will provide technical and sales support and assistance to the Affiliate to sell the ARK Crystal products in the assigned territory;
Affiliate has demonstrated that it possesses the financial capability and the necessary expertise, facilities and marketing organization to promote and sell the ARK Crystal products and provide storage of customer property or ARK Crystal supplied products as required;
You are willing to accept appointment as an Affiliate for ARK Crystal products and perform such services as set out in this Agreement;
THEREFORE, this ARK Crystal LLC Affiliate Program Terms and Conditions (“Agreement”) is entered into as of the date on which You click the “I Agree” button, between You and ARK Crystal LLC, a Delaware Limited Liability Company (“ARK Crystal”).
- AGREEMENT SUBJECT TO APPROVAL
The effectiveness of this Agreement is subject to ARK Crystal’s approval in writing (via mail or e-mail) (“Approval”) and this Agreement shall commence on the date of the Approval (“Effective Date”). ARK Crystal may reject or decline to accept this Agreement for any or no reason at its sole discretion. ARK Crystal may conduct background checks and other screening measures of any sort in connection with this Agreement. If ARK Crystal grants an Approval, You will be eligible to earn a Commission based on Customer purchases of ARK Crystal products (“Products”) made directly through Your assigned link.
- LIMITATIONS ON ACTIVITIES
- Limitations on Activities. Your activities under this Agreement shall be limited as follows:
- You shall conduct all of Your business in Your own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all laws, and not perform any act which would or might reflect adversely upon the Products or the business, integrity or goodwill of ARK Crystal. Affiliate shall promptly deliver to ARK Crystal a copy of any notice or instrument alleging violation of the foregoing. Moreover, Affiliate shall be responsible for determining the applicability of any laws or regulations within the Territory and shall take all steps, at its expense, to ensure compliance with the same.
- You shall not be, or purport to be, authorized to legally represent ARK Crystal or to conduct negotiations on behalf of ARK Crystal. You shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of ARK Crystal or register this Agreement under local registered agency law nor shall ARK Crystal be liable for any acts, omissions to act, contracts, commitments, promises or representations made by You.
- You shall not use any trademarks, logos, names or other identifiers owned or used by ARK Crystal (“Marks”), except that You may refer to ARK Crystal and its Products in conversations and written correspondence with potential Customers in the same manner as ARK Crystal does in its own marketing materials and website. Any other use of Marks (e.g., on a website) must be designed in compliance with ARK Crystal trademark usage guidelines, including but not limited to ARK Crystal’s marketing guidelines as posted on its website or provided to you upon request and be pre-approved by ARK Crystal in writing.
- You are an independent contractor, and nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other; (b) create a principal-agent or employer-employee relationship; or (c) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking.
- All financial and other obligations associated with You or Your business are solely your responsibility. As an independent contractor, the mode, manner and method used by You shall be under Your sole control and You shall be solely responsible for risks incurred in the operation of Your business and the benefits thereof. You shall bear all of Your own expenses in connection with the performance of this Agreement and will not be entitled to reimbursement of any such expenses by ARK Crystal.
- You shall not make any representations or other statements about ARK Crystal Products, prices or business practices, except that You shall forward to potential Customers (i) unmodified marketing materials provided by ARK Crystal and (ii) references to ARK Crystal’s standard conditions of sale, as may be published by ARK Crystal on its website or otherwise.
- Delivery schedules are approximate only. ARK Crystal responsibility ceases upon delivery to any common carrier. Unless otherwise expressly agreed in writing, ARK Crystal will not insure shipments beyond the point of delivery to a carrier. All materials for export will be packed to avoid damage in transit.
- No License to Intellectual Property; Confidential Information
- Limitations on Activities. Your activities under this Agreement shall be limited as follows:
You acknowledge and agree that no license is granted under this Agreement to use or access any Products, any of ARK Crystal’s proprietary technologies embodied therein, or any data, information or other content provided thereby. ARK Crystal retains all right, title and interest in and to the Products and all technology, data, information or other content embodied therein or provided thereby, as well as any intellectual property rights or similar rights in connection therewith, and You acknowledge that You neither own nor acquire any rights in or to the Products. In the event any Confidential Information is disclosed to You, voluntarily or inadvertently, You agree not to disclose such Confidential Information to any third parties without written consent from ARK Crystal.
- Nonexclusive Agreement and Limitations
Each party acknowledges that this Agreement does not create an exclusive agreement between the Parties. Each Party shall have the right to work with other parties’ goods and services. Notwithstanding the foregoing, once You receive a commission from ARK Crystal, You will not refer a direct competitor of ARK Crystal to that Customer. You will not enter into an agreement with a third party the effect of which would prohibit Customers from engaging with ARK Crystal Products or would divert Customers to third party competitors of ARK Crystal.
3.1 ARK Crystal utilizes a third-party affiliate tracking system (“tracking system”) which automatically records when a Customer made a purchase through Affiliate’s link. In the event that You are the responsible for directing Customer to a sale, You will get credit for the sale and receive a commission.
3.2 Affiliate agrees to use all reasonable efforts to promote the sale of ARK Crystal Products in accordance with ARK Crystal guidelines and agrees to protect ARK Crystal interests with the diligence of a responsible and zealous affiliate. Affiliate will not cause the sale of ARK Crystal Products for less than the authorized prices as provided at any given time through Your assigned link or promotional materials.
- Qualifications and Payment
- Subject to compliance with all terms and conditions of this Agreement, ARK Crystal will pay commissions according to the terms included in this Agreement and as specified under “Contract Details” on Your dashboard as an Affiliate.
- Qualifications and Payment
- Affiliates, regardless of whether or not they were trained on the ARK Crystal platform, are those whose activities result in Customer purchase of Products.
- Affiliates must maintain Active Accounts in order to receive commissions. An Inactive Account is one that has not resulted in any Qualified traffic for a period of six (6) months or as otherwise determined by ARK Crystal. Qualified traffic excludes visits by Affiliate and any spiders, bots, web crawlers, robotic or programmed activity. After an account is deemed Inactive, ARK Crystal will close the account and commission payments will cease. You may reactivate the account by executing a new Agreement. Terms and conditions may change. In the event that Inactivity was due to death or incapacity, the same terms apply; in no event will commission accrue post termination to heirs, beneficiaries or estates.
- Commission rates are provided on Your dashboard as an Affiliate.
ARK Crystal automatically refreshes Your online web portal with any changes in activity. This dynamic report (“report”) will reflect any activity and the commissions generated. Each report shall be deemed final and accepted by You unless ARK Crystal receives a detailed written objection within thirty (30) days of any posted disputed material.
Upon thirty (30) calendar days’ written notice, ARK Crystal may modify the qualification parameters for Affiliates, the commission percentage amounts and conditions relating to commissions. Such changes will apply to referrals recorded after the thirty (30) day period.
- Commissions After Termination
- Termination of the Agreement by You
Termination by You includes Inactivity as defined in 4.1.1 (c) and as defined in Sections 6.2, 6.3. Following termination of the Agreement by You for any reason, ARK Crystal will tabulate earned commission up until the date of termination by You and will issue complete and final payment at the end of 30 business days. ARK Crystal will continue to issue reports in accordance with Section 4.2 through such time of payment.
- Termination of the Agreement by ARK Crystal
Termination by ARK Crystal shall be accompanied with Notice, as provided by Sections 5.2 and 5.3. If 30 days’ Notice is provided, commissions earned up until the termination date will be tabulated and complete and final payment will be issued. If immediate termination occurs, commission for the remainder of the payment cycle will be tabulated and final payment will be issued at the conclusion of that payment cycle.
- No Other Payments
Except as expressly provided in this Section, You are not entitled to any fees, reimbursements or other payments.
- TERM AND TERMINATION
- This Agreement shall commence on the Effective Date and shall continue in effect until terminated.
- Termination for Convenience. This Agreement may be terminated by either party for any or no reason upon written notice to the other party thirty (30) days prior to the desired termination date (or with such minimum advance notice as required by mandatory applicable law). Neither party shall have any expectation as to the minimum term of this Agreement.
- Termination for Cause. Either party may terminate this Agreement, effective immediately, (a) in the event of a material breach by the other party, which the other party fails to cure within five (5) business days of receipt of a written request to cure from the other party, (b) if You or Your Business becomes insolvent, (c) if You or Your Business makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or (d) if You or Your Business seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code or any similar statute. If, at the time of Your acceptance of this Agreement or any time thereafter, ARK Crystal would be prohibited from doing business with You under United States export regulations and controls, this Agreement shall automatically be null and void.
- Effect of Termination. Sections 2, 4.5 and 5 shall survive termination of this Agreement. Upon termination of this Agreement for any reason, You shall immediately cease the use of all ARK Crystal brochures, literature, documentation and other materials. You shall have no rights or claims against ARK Crystal in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, You hereby irrevocably waive any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law.
- GOVERNING LAW AND ARBITRATION
- This Agreement and any dispute arising out of or in connection with this Agreement (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of California, USA, without giving effect to conflict of laws principles thereof.
- Each party agrees that before it seeks mediation, arbitration, or any other form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of the Agreement which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the Dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, or trade secrets.
- Except as provided herein, any and all Disputes arising out of or relating to this Agreement shall be submitted to an approved dispute resolution body like JAMS or JudicateWest for mediation before arbitration or any other form of legal relief may be instituted. A Party may commence Mediation by providing the dispute resolution body a written request for mediation setting forth the subject of the Dispute and the relief requested. The parties will cooperate with the dispute resolution body in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes. The parties agree that they will participate in the mediation in good faith and share equally in its costs. The mediation shall take place in Orange County, California.
- Except as provided herein, any Dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Orange County, California and before a single arbitrator. The arbitrator selected shall be a retired judge who has had experience with technology disputes. In any arbitration arising out of or related to this Agreement, the parties agree the arbitrator is not empowered to award punitive or exemplary damages, and the parties waive any right to recover any such damages. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures if the amount in dispute exceeds $250,000 USD and its JAMS Streamlined Arbitration Rules and Procedures when lesser amounts are in issue. The arbitrator shall issue a written reasoned decision. Each party shall bear their own costs in connection with the arbitration, although the arbitrator shall award the prevailing party its reasonable costs and attorneys’ fees.
- ARK Crystal may protect its Intellectual Property by, at its sole discretion, seeking preliminary judicial relief in any court of competent jurisdiction including, but not limited to, preliminary injunctive relief. Also, the provisions of this Section may be enforced by any court of competent jurisdiction.
- Except in the case of resolution by Mediation, if it is necessary for either party to retain the services of an attorney or attorneys to enforce the terms of this Agreement or to file an action to enforce any of the terms, conditions or rights contained herein, or to defend any action, then the prevailing party in any such action will be entitled to recover from the other party its reasonable fees for attorneys and expert witnesses, plus such court costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.
- NO WAIVER
The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Neither party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the party against which such waiver is asserted.
If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent possible to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.
All notices, approvals, consents and other communications required or permitted under this Agreement will be invalid unless made in writing and given (a) by ARK Crystal via mail, fax or e-mail (to the address or number You provide) or by way of a post on ARK Crystal’s Website (available at affiliiate@TorusTech.com), or (b) by You via email.
You may not assign, subcontract or delegate this Agreement or any of Your rights or obligations hereunder, in whole or in part, including without limitation by operation of law, without ARK Crystal’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void. ARK Crystal may assign this Agreement and subcontract or delegate its obligations hereunder to any third party with or without Your consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
- You represent and warrant that (a) You will conduct Your business activities in a legal and ethical manner; (b) You have submitted and will submit complete and truthful information in connection with your application and all referrals; (c) You will submit all filings and obtain any approvals that may be necessary for You to perform Your obligations under this Agreement, (d) You will commit no act that would reflect unfavorably on ARK Crystal; and (e) You will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with Your performance of this Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws.
- You acknowledge that any sums paid to You under this Agreement are for Your own account and that, except as appropriate to carry out Your duties set forth herein in a legal manner, You did not, have no obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of Your referral activities hereunder. In particular, without limitation, You agree not to take any actions that would cause You or ARK Crystal to violate the United States Foreign Corrupt Practices Act or any other antibribery law.
You shall indemnify and hold ARK Crystal harmless from and against any and all third party claims against ARK Crystal arising out of any act, default, misrepresentation or any omission on Your part (including, without limitation, negligence and breach of this Agreement), or any of Your agents, employees or representatives, directly or indirectly relating to this Agreement, including without limitation any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.
To the extent permissible under applicable law, you are prohibited from soliciting any of the employees of ARK Crystal (either directly or through agents), without written permission of ARK Crystal, during the term of this Agreement.
This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
- ENTIRE AGREEMENT AND AMENDMENT
This Agreement, including any exhibits hereto, constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations, discussions, negotiations, and agreements, whether written or oral, relating to its subject matter. Any amendments or renewals to this Agreement shall be invalid unless made in writing that is signed by duly authorized representatives of both parties. In the event of any additional or inconsistent terms contained in any other communications, the terms and conditions in this Agreement shall prevail unless ARK Crystal specifically identifies the section(s) of this Agreement that ARK Crystal intends to override in a writing signed by ARK Crystal.
- LIMITATIONS OF LIABILITY
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ARK CRYSTAL WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL ARK CRYSTAL’S LIABILITY UNDER THIS AGREEMENT EXCEED THE PAYMENTS PAID BY ARK CRYSTAL TO YOU DURING THE PRECEDING TWELVE MONTHS. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
“Confidential Information” means all trade secrets, know-how, business and financial information and other proprietary information or data marked or indicated to be confidential and as otherwise defined by California and Federal laws.
“Territory” refers to the Affiliate’s Customer base as established by Affiliate’s pattern and practice of marketing and sales, and which shall be determined in ARK Crystal’s sole discretion, and may be updated from time to time.
“Written” or “writing” shall include fax, mail delivered by United States Postal Service, UPS or FedEx, electronic mail correspondence, posts made by ARK Crystal onto its website and updates ARK Crystal makes directly to You through reports.
BY CLICKING THROUGH TO PROCESS THIS AGREEMENT, YOU ARE REPRESENTING THAT (1) YOU HAVE SUBMITTED TRUE AND COMPLETE INFORMATION AND (2) YOU ARE ENTERING INTO THIS AGREEMENT ON YOUR OWN BEHALF OR THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT WISH TO ENTER INTO THIS AGREEMENT ON YOUR OWN BEHALF. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, DO NOT PROGRESS PAST THIS PAGE AND YOU WILL NOT BE ELIGIBLE FOR PARTICIPATION IN THE ARK CRYSTAL AFFILIATE PROGRAM.