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Terms and Conditions

In consideration of EMILY KIM LLC (“Company”) maintaining an Affiliate Program and you (“Affiliate”) desiring to participate in the Affiliate Program, it is agreed as follows:

1. Promotional Materials. Company may provide certain graphic or textual material for display and use on the Affiliate website and social media (the “Promotional Materials”). The Affiliate’s use and display of the Promotional Materials on the Affiliate’s website and social media shall conform to the following terms, conditions and specifications:
   1. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website, social media, and products or services.
   2. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from the Company for such alteration or modification.
   3. The Promotional Materials will be used to link only to the website and social media pages specified by Company.
   4. Affiliate may not create or design website, make claims, or operate in a manner which leads customers to believe they are Company.
2. Intellectual Property Use. Company grants Affiliate a revocable, non-exclusive, worldwide, royalty-free license to use the Promotional Materials provided by Company during the term of this Agreement. Affiliate grants Company a non-revocable, non-exclusive, worldwide, royalty-free license to use, alter, add to, subtract from, modify, or create derivative works from any audio, photo, video, or written content created by Affiliate under this Agreement.
3. Affiliate’s Duties. Affiliate may promote the Company’s products and services. Affiliate is responsible for disclosing that any links provided on its website or marketed to potential customers by other means are affiliate links in accordance with the Federal Trade Commission Act. Affiliate is responsible for all materials that appear on Affiliate’s website and for ensuring that such items do not infringe upon the rights of any third party including, but not limited to, copyright, trademark, privacy or other proprietary rights. This clause shall survive any termination of the Agreement.
4. Commissions. Affiliate will be paid a referral fee of 35% (“Commission”) for each customer who completes a purchase on the Company website using the unique link assigned to Affiliate (“Link”). Company reserves the right to reject any orders for any reason. The Affiliate shall be paid Commissions only on sales that are tracked through the Company’s online tracking system and indicate the Link as the source. Affiliate will not be paid a commission on purchases made by Affiliate or Affiliate’s business representatives. Company reserves the right to change and amend the commission rate structure at any time in the Company’s sole discretion. Commissions will be paid to the Affiliate on a biweekly basis. Commissions will be reduced for orders that are cancelled, returned, or where payment is otherwise refunded to the purchaser in the amount of the cancellation, return, or refund. All payments will be made by PayPal unless other arrangements are approved by the Company.
5. Customer Service. The Company will handle all aspects of customer service for customers who purchase through the Affiliate’s Link including customer inquiries, product orders, customer billing and collection, and product shipment/delivery. Company reserves the right to change the Company’s policies and procedures, pricing structure, add or cancel any special offers, discontinue products or services, or change the terms under which products or services are offered at any time without any advanced notice to the Affiliate or customers purchasing through the Affiliate’s Link. Affiliate shall not reach out to Company’s customers directly.
6. Cancellation. Company or Affiliate may cancel this Agreement for any reason by providing written notice to the other party. The date this notice is sent will be the Cancellation Date. Failure to comply with the terms of this Agreement will result in immediate cancellation of this Agreement by the Company and forfeiture by Affiliate of any accrued, unpaid commissions. Company shall pay any pending commissions owed to Affiliate through the Cancellation Date. Upon cancellation, Affiliate’s limited license to use the intellectual property of Company for the purpose of promoting the products and/or services offered through the Affiliate Program will cease as of the Cancellation Date.
7. Assignment. Affiliate acknowledges that this is a personal services agreement and there is no right to assign, transfer, delegate or subcontract any of the rights or obligations under this Agreement without the prior written consent of Company.
8. Independent Contractor. Affiliate’s relationship with the Company will be that of an independent contractor and not that of an employee. Affiliate shall be solely responsible for determining the method, details and means of performing the services under this Agreement. Affiliate acknowledges and agrees that they have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company. Affiliate is responsible for complying with all local, state and federal laws related to the performance of this Agreement, including obtaining and maintaining any or all necessary licenses or registrations. Company will not deduct or withhold any federal, state, or local income taxes, payroll taxes, disability insurance, social security payments, worker’s compensation funds, or FICA payments with respect to this Agreement, as these are the sole responsibility of Affiliate.
9. DISCLAIMER OF WARRANTIES

   Affiliate represents, warrants, and covenants that its website does not and will not contain any materials that are illegal and that the Affiliate’s site is not operated for an illegal purpose or in an illegal manner.

   AFFILIATE SHALL NOT PROVIDE OR AUTHORIZE THE PROVISION OF MEDICAL, LEGAL, OR OTHER PROFESSIONAL ADVICE WITH THE PROMOTION OF COMPANY’S PRODUCTS OR SERVICES.

   EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.

   This clause shall survive any termination of the Agreement.

10. Miscellaneous.
    1. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO AFFILIATE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND IN NO EVENT SHALL THE COMPANY’S LIABILITY EXCEED THE FEES PAID UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
    2. Indemnification. Affiliate agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to this Agreement.
    3. Venue; Governing Law. For any legal action regarding this Agreement, the exclusive venue shall lie in SUFFOLK COUNTY, MASSACHUSETTS. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of MASSACHUSETTS, without giving effect to principles of conflicts of law.
    4. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof.
    5. Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.