Operating Agreement
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS UPON WHICH OVANA CORPORATION, OVANA.COM, YOGASCULPTURES.COM AND YOGASCULPTURE.COM OFFERS YOU PARTICIPATION WITHIN THE OVANA AFFILIATE PROGRAM. BY APPLYING AND PARTICIPATING IN THE AFFILIATE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS HEREIN. ACCEPTANCE OF THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND OVANA CORPOATION THAT YOU WILL USE THE WEBSITE, LINKS AND ALL OTHR PROPERTY OF OVANA CORPORATION ONLY IN A MANNER THAT IS CONSISTENT WITH THIS AGREEMENT.
This agreement (“Agreement”) is by and between Ovana Corporation, a Connecticut company, (“Ovana Corporation”, "ovana.com" and all other domain names owned by Ovana Corporation, “we” or “us” and “our” shall be construed accordingly) and you (“Affiliate” or “you” and “your” shall be construed accordingly) (each individually a “Party” and collectively the “Parties”) as an online or studio Affiliate in Ovana Corporation's Affiliate Program and the establishment of links from your affiliate web site (“your site” or “Affiliate site”) to our web site, www.ovana.com (“our site”, "ovana.com" or all other domain names owned by Ovana Corporation).
1. Enrollment in the Affiliate Program
To begin the enrollment process, you shall submit a complete Affiliate Program application via our website. The Program is designed for participants aged 18 and above who can form legally binding contracts under applicable law. By accepting this Agreement and participating in the Program, you acknowledge that you are age 18 or above. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Program for any reason, including, but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable. If we reject your application, you are welcome to reapply to the Affiliate Program at any time subject to the removal of any content that may have been found objectionable to Ovana.
2. Promotion of Our Affiliate Relationship
As an Affiliate, we shall make available to you a variety of graphics and textual links (each of these links sometimes being referred to herein as “Links” or, individually, as a “Link”), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links shall serve to identify your site as a member of our Affiliate Program and shall establish a link from your site to ours. As an Affiliate, you are allowed to have one or more of the following types of Links to our site: product links, category links, search box links and a general link to the Ovana home page. In utilizing the Links, you agree that you shall abide by all Ovana guidelines and policies and cooperate fully with us in order to establish and maintain such Links.
You also agree that you shall display on your site only those graphic or textual images indicating a Link (“Ovana Images”) that are provided by us, and you shall substitute such Ovana Images as directed by us with any Ovana images provided by us from time to time throughout the term of this Agreement.
By loading or agreeing to have Ovana images loaded onto your site, you agree that you will cooperate fully with us and comply with this Agreement at all times in a manner consistent with our current policies including but not limited to our Content Policy and our policies regarding image resolution and proprietary notices, such as copyright and trademark notifications. The Affiliate Site shall display such Ovana Images prominently in relevant sections of its site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to our site shall in no way alter the look, feel, or functionality of our site.
3. Internet Affiliate Agreement
We will pay out a referral fee of a percentage of Net Sales for all completed sales of participating collections (each, a “Qualifying Purchase”) arising out of retail customer transactions directly linked from your site to ovana.com. "Net Sales" shall mean sales price minus (i) amounts collected by us for sales tax, duties, shipping, handling, and similar charges and (ii) amounts arising out of credit card fraud, bad debts, or credits for returned goods.
A. Referral Fee Payment Determination
Only products that we choose to offer through our website (“Products”) that are (a) sold by us, (b) purchased by users linking to our site from your site (as an approved affiliate) pursuant to a Link (“Linked Users”), (c) delivered to a customer, and (d) for which we have received full payment shall qualify for a referral fee payment (each, a “Qualifying Purchase”). For each Qualifying Purchase, a referral fee will be paid on the amount of the order less taxes, duties, shipping, discounts and/or promotions, amounts returned for credit card fraud, bad debts or for returned goods, charge backs and any royalty paid on Ovana products. Referral fees will only be paid in US dollars. If a product that generated a referral fee is returned by the customer, we will deduct the corresponding referral fee from your next payment. If there is no subsequent payment due you will be billed for and required to repay the referral fee. The amount of the Qualifying Purchase(s) minus the applicable deductions referenced in this Section II-A shall be considered as “Net Sales”. Affiliate Program referral fee percentages will be as displayed in your affiliate account. Sales of Gift Certificates do not earn commissions, however purchases made with gift certificates earn commission based on the basic rates.
B. Exclusions
Not all products or categories offered on the Ovana website are included as Qualifying Purchases.
1. Sales of Gift Certificates do not earn commissions, however qualifying purchases made with gift certificates earn commission based on the basic rates.
2. Only sales of products from participating collections are subject to payment of referral fees or commissions under this agreement. Current participating collections can be changed at any time at Ovana's sole discretion.
3. Collections currently excluded from the affiliate program on the Ovana website are:
a. Manduka products
b. OM Mani products
c. Laminated Yoga Posters
4. Referral Fees
A. In Ovana's sole and exclusive discretion, referral fees other than 20% of Net Sales may be available for (iii) completed sales in conjunction with certain promotions.
B. No referral fee will be paid if the visitor to our site cannot be tracked by our system. Referral fees will only be paid for completed sales arising out of retail customer transactions directly linked from your site to our site or your individually assigned affiliate code number, issued solely by Ovana Corporation, is entered into the discount code box at checkout on the Ovana website.
C. No referral fee will be paid if the customer does not directly use your link for that particular order except that, after a visitor accesses our site through your site, a "cookie" will be set to identify that user when he/she accesses our site again from any site within the next six months (180) days, and any sales to that visitor during such period will be credited to you for compensation purposes. Approximately thirty (30) days following the end of each month, we will send you a check for the net commissions earned. However, if referral fees earned do not sum to the minimum payout amount you have selected, then we will hold those fees until the following month.
D. All referral fees are paid in US dollars. International Affiliates are required to earn a minimum payout of at least $100 US before payment is made. Domestic Affiliates are required to earn a minimum payout of at least $30 US before payment is made.
E. If a customer returns merchandise for which you have already collected the commission, we will deduct the corresponding commission from your current commission balance. If the returned commission amount exceeds your current commission balance then you may be required to return the corresponding commission that you have already received. Affiliate Program enrollments that have been inactive (i.e., no traffic or sales) for six (6) months or more will be cancelled. Any account balance in such an enrollment that is below the minimum payout level will be forfeited.
F. Our Affiliate Program does not permit "sub-affiliates," and we will not be required under any circumstances to pay a referral fee for any particular sale more than once or to more than one affiliate.
B. Referral Fees Payment
When the total referral fee payment(s) due to you (based on Section IV above) exceeds your specified minimum payout level, at the end of any calendar month, you shall be paid by a company check for the applicable referral fee (less any taxes required to be withheld under applicable law). Such referral fee checks shall be sent approximately thirty (30) days after the end of each calendar month earned and shall be paid in US dollars only. If we determine, in our sole discretion, that you have breached this Agreement, we may (without limiting any other rights or remedies available to us) withhold any revenue sharing fees otherwise payable to you under this Agreement. As a condition to payment of a referral fee, you must provide Ovana all information reasonably necessary for Ovana to process payments to you in accordance with any and all applicable laws and regulations. This includes, but is not limited to the tax identification number (for businesses located in the US).
C. Reports of Sales
Through the application process, you shall have the opportunity to register an email address and password and shall have the ability to enter a password-protected site to receive your sales statistics on a daily basis.
5. Our Obligations
A. We shall be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We shall be solely responsible for processing every order placed by a customer following a special Link from your site to our site, for tracking the volume and amount of sales generated by your site, and for providing information to you regarding sales statistics via our reporting platform. We shall be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service.
B. Ovana will process all customer orders and sales. We reserve the right to reject orders that do not comply with any of the requirements we have established or will establish in the future. We will be responsible for all aspects of order processing and fulfillment. We will complete orders and invoices, process payments, cancellations, and returns, and handle all customer service related issues. We will track the volume and dollar amount of completed sales arising out of retail customer transactions directly linked from your site to the ovana.com site. We'll also provide monthly, non-audited reports that will be available to you through our site. To permit accurate tracking, reporting, and fee accrual, you must ensure that the links between your site and our site are properly formatted.
6. Obligations Regarding Your Site
a. If you qualify and agree to participate as an Affiliate Site, you shall display Links prominently throughout your site as you see fit and with our consent.
b. You shall be entitled to earn referral fee payments for customer sales as set forth in this document.
c. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, insert, read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Ovana by any other person or entity.
d. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, insert, read, intercept, record, redirect, interpret, append itself to, or otherwise intercept or interfere in any manner with any click-through or other traffic-based transaction that originated from any Ovana Affiliate affecting in any manner any compensation or other payment earned by or owing to any such Ovana Affiliate.
e. You shall not in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the Ovana website.
f. You shall not use any existing or future software product or service (including, without limitation, any computer programming code that is an add-on or bundled with any browser or other host application) that will replace, intercept, interfere, hinder, disrupt or otherwise alter in any manner a World Wide Web user’s access, view or usage of, or other aspect of such user’s experience at any Affiliate’s website in a manner that causes or otherwise results in a different experience from what was otherwise intended by such Affiliate. You shall not take any action that could reasonably cause any confusion to the user as to what website transactions or actions are occurring.
g. You shall not cause the creation or over-writing of any commission tracking cookie on a consumer’s computer unless it is the direct result of a click, on a link to the Ovana site. You shall not cause the creation of any commission tracking cookie on a consumer’s computer through the means of automatically popping up the Ovana site, through the use of “I-frames” nor through any other method, other than through a direct consumer-initiated click, on a link to the Ovana site.
h. Except for linking as described above, you shall not post or serve any advertisements or promotional content around or in conjunction with the display of Ovana (e.g., through any “framing” technique or technology or pop-up windows), or assist, authorize, or encourage any third party to take any such action.
i. You understand that the use of unsolicited commercial e-mail (“spam”) by Ovana affiliates is absolutely prohibited. Your participation in the Ovana Affiliate Program constitutes your specific and unconditional agreement to abide by this anti-spam policy. Use of any lists, whether purchased or created, compiled by means of automated tools are not permitted. Also, you must use valid e-mail headers at all times.
j. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities listed in Section 4a through 4i, we reserve the right (without limiting any other rights or remedies available to us) to withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement.
k. You will be solely responsible for all aspects of your site, including, but not limited its development, operation, maintenance, and contents, and all materials that appear on your site (collectively, "site matters").
l. Such responsibilities include, but are not limited to, (1) the technical operation of your site and all related equipment; (2) creating and posting product descriptions, and references on your site and linking those descriptions to our site; (3) the accuracy and propriety of materials posted on your site; and (4) ensuring that materials posted on your site do not violate or infringe upon, without limitation, the copyrights, trademarks, privacy or other personal or proprietary rights of any third party. Your site shall not (i) violate or infringe upon the rights of any third party, (ii) be libelous, (iii) advocate or promote sexually explicit material, (iv) advocate or promote violence, (v) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or (vi) otherwise be illegal.
m. We disclaim all liability for site matters, and you will defend, indemnify, and hold us and our successors, assigns, directors, officers, employees, agents, advisors, and customers harmless from all actions, claims, costs, losses, damages, and expenses (including, without limitation, attorneys' fees) arising out of, relating to, or connected with (i) site matters and/or (ii) your actual or alleged breach of any or all of the terms and conditions herein.
7. Policies and Pricing
Customers purchasing merchandise through our Affiliate Program will be deemed to be customers of Ovana and ovana.com. All of our rules, policies, and operating procedures concerning customer orders, customer service, and Product sales will apply to those customers. We may change our policies and operating procedures at any time, from time to time and without notice. Because prices change frequently, you may not include price information in your Product descriptions.
8. Advertising
You shall not create, publish, distribute, or permit any written or electronic material that makes reference to us (other than as permitted by our Affiliate Program) without first submitting such material to us and receiving our written consent, which we agree shall not be unreasonably withheld. Ovana will provide printed discount coupons expressly designed for Affiliate distribution upon assignment of individual Affiliate code.
9. Licenses and Use of the Ovana Logos and Trademarks; Reservation of Rights
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE OVANA TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (BUT ONLY IN THE FORM(S) AS PROVIDED BY OVANA) (COLLECTIVELY, THE “OVANA'S LICENSED MATERIALS”), FOR THE SOLE PURPOSE OF PROMOTING OVANA AND OVANA AND ITS PARTICIPATING COLLECIONS OF PRODUCTS ON YOUR SITE. YOU MAY NOT ALTER, MODIFY, OR CHANGE OVANA'S LICENSED MATERIALS IN ANY WAY. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS IF YOU ARE A MEMBER IN GOOD STANDING OF OUR AFFILIATE PROGRAM.
b. You shall not make any use of any Licensed Materials for any purpose other than promoting Ovana and Ovana's participating collections of Products on your site. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light.
c. You grant to us a non-exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time (“Affiliate’s Licensed Materials”), in Ovana's advertising, marketing, promotional and publicity activities; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
d. You may not register the words Ovana or Yoga Sculptures or variations thereof for use in any search engine, portal, advertising service or similar services. purchase or register search engine keywords, search terms or other identifying terms and domain names that include the word "Ovana" or "Ovana Yoga Sculptures & Jewelry" or any variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service. Specifically, this policy also prohibits you from bidding on any search engine keywords without prior written authorization from Ovana Corporation.
e. The rights granted by Ovana herein do not constitute any assignment of ownership or other transfer of ownership interests therein or in any property of Ovana, including without limitation, any domain name, website or in any intellectual property of Ovana to you. At no time during or after the term of this Agreement shall you challenge or assist others to challenge any Ovana trademark, logo, or trade dress (except to the extent expressly prohibited by applicable law) or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to any Ovana trademark, logo, or trade dress.
f. All licenses, rights and interests in, to and with respect to the Affiliate Program, the Website, Ovana's Licensed Materials, elements and parts thereof not specifically granted herein to Participant (including, without limitation, all rights of copyright) shall be entirely reserved, as between the Parties, to Ovana and may be fully utilized by Ovana without limitation and without regard to any licenses and rights granted herein. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with your website.
10. Independent Contractors
You and Ovana and ovana.com are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers on our behalf. You shall not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
11. Term of the Agreement
The term of this Agreement shall begin upon our acceptance of your Affiliate Program application and shall end when terminated by either party. Either Party may terminate this Agreement at any time, with or without cause, by giving the other Party notice of termination. You are only eligible to earn referral fee payment(s) on sales occurring during the term, and referral fee payment(s) earned through the date of termination shall remain payable only if the related Ovana Product orders are not canceled or returned, provided, however, we may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
12. Disclaimers
We make no express or implied warranties or representations with respect to the Affiliate Program or any Ovana Products sold through the Affiliate Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site shall be uninterrupted or error free, and we shall not be liable for the consequences of any interruptions or errors.
13. Representations and Warranties
You hereby represent and warrant to us as follows:
a. This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
b. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby shall 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, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
c. You are the sole and exclusive owner of Affiliate’s Licensed Materials and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not and shall 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.
d. 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.
e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
14. Confidentiality
During the course of your participation in the Program, you may receive business and financial information relating to Ovana or to the Affiliate Program that is not known to the general public ("Confidential Information"). Confidential Information includes, without limitation, product data feeds, customer lists, referral fee percentages and pricing and sales information. You agree (a) that all Confidential Information will remain Ovana’s exclusive property; (b) that you will use Confidential Information only as is reasonably necessary for your participation in the Affiliate Program; and (c) you will not disclose Confidential Information to any individual, company, or other third party.
15. Limitation of Liability
WE SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM SHALL NOT EXCEED THE TOTAL REFERRAL FEE PAYMENT(S) PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
16. Indemnification
You hereby agree to indemnify and hold harmless Ovana 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 attorneys' 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 (i) any claim that our use of Affiliate’s Licensed Materials infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
17. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
18. Governing Law
This Agreement shall be governed by the laws of the United States and the State of Connecticut, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Fairfield County, Connecticut, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement shall be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement shall not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
19. Disclosure for Legal Purposes
You hereby authorize us to disclose information pursuant to judicial and administrative proceedings, and in connection with law enforcement activities and as otherwise may be permitted by law, to law enforcement or government agencies if we believe the disclosure is necessary or appropriate. You also authorize us to disclose information if we believe the disclosure is necessary or appropriate in the event of an investigation of improper or illegal conduct in connection with your activities as an affiliate, such as fraud, misrepresentation, intellectual property infringement, or other activity that may put us at risk for liability. We will, whenever we believe reasonably possible, use our reasonable efforts to inform you if such information may be so revealed.
20. Severability
If any term, clause or provision of this Agreement shall be deemed invalid or unenforceable for any reason, the remainder of this Agreement shall remain valid and enforceable in accordance with its terms.
21. Waiver
Ovana’s failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
22. No Assignments
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent.
23. Ovana Studio Affiliates
Affiliates of this agreement who generate sales with the Ovana Discount Coupon Program without Websites and are held to provisions in all Sections pertaining to conducting business under the Ovana Affiliate Program.
24. Survival of Provisions
The provisions of Sections 9, 11, 13, 14, 15, 16, 18, 20, 23 and 24 hereof shall survive termination of this Agreement.