Affiliate Agreement

AFFILIATE AGREEMENT

Effective as of 21 March 2019

This is an Affiliate Agreement (“Agreement”) that binds every affiliate (“Affiliate”) who agrees, and is accepted by us, to join our marketing affiliate program (“Program”) relating to our website at https://tryclearly.com (“Website”).

By submitting the online application to be our Affiliate, you acknowledge, accept and agree to the terms and conditions of this Agreement and be bound by them. You are advised to seek independent legal advice on this Agreement. If you cannot accept, or do not wish to be bound by, this Agreement, whether in whole or in part, please do not proceed to submit your application for the Program to be our Affiliate.

  1. Introduction
    This Agreement sets out the terms and conditions (“Terms”) that apply and bind on the Affiliate (“you”, “your”, or “yours”) joining the Program managed by Clearly Pte. Ltd. (collectively, “Clearly”, “we”, “us” or “our”).
  1. Enrolment for the Program
    1. To enroll for the Program, you may complete and submit the application at https://tryclearly.com/affiliate/. All information that you provide in your application is subject to our prevailing Privacy and Security Policy available on the Website. You represent, warrant and undertake that the information you provide in the application is true, accurate and complete and you will immediately update and notify of any subsequent changes to such information.
    2. We will review your application and if we find you suitable and fit to be our Affiliate, we will accept your application. Your application to join the Program does not guarantee that you will be accepted. We may reject your application at our sole discretion and for any reason.
  1. The Program
    1. Under the Program, we will provide each Affiliate with a unique coupon code (“Code”) to share with its customers, readers and/or followers (“Referrals”).
    2. As our Affiliate, you will invite each of your Referrals to use the Code to purchase any or certain existing products and/or services offered by Clearly on the Website (“Products”).
    3. You will use the HTML code for each banner, text link or other link (“Links”) we provide you with for display on your website. You will prominently display the Links on your website so that the Referrals may click the Links to visit the Website. We reserve the right, at any time, to review your placement and approve the use of the Links and require that you change the placement or use to comply with the guidelines provided to you.
    4. You will need to use the given HTML code for our accurate tracking of the use of the Code. We will computerized track each use of the Code by your Referrals for purposes of calculating the commissions due to you. You agree that your commission is calculated and based on your proper use of the Links and the given HTML code.
    5. We will provide you with a secure affiliate account interface. You will create a password for such account for your use only. From this account, you will be able to view your reports that will describe our calculation of the Commission due to you.
  1. Term
    1. This Agreement will start upon on the date of notification to you of our acceptance of your application to join the Program.
    2. This Agreement will continue unless it is being terminated by either Party as provided for under this Agreement.
  1. Your Obligations
    1. In addition to your other obligations set out elsewhere in this Agreement, you warrant, undertake and represent that your website will not, directly or indirectly,:
      1. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
      2. promote sexually explicit materials;
      3. promote illegal activities;
      4. incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
      5. contain software downloads that potentially enable diversions of commission from other affiliates in our program;
      6. include “Clearly” or variations or misspellings in its domain name; and/or
      7. be otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion;
    1. You shall not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads visitors to your website or the Referrals to believe you are us or any other affiliated business.
    2. You shall be solely responsible to maintain and update your website at all times at your sole cost.
    3. You shall comply with all applicable laws (in particular, intellectual property laws) for your website. It is your sole responsibility to ensure you have obtained all rights to use any and all materials for your website. We will neither be responsible nor liable to you or anyone for your breach of any intellectual property rights belonging to any third party.
    4. You shall not abuse in any way in your participation and/or use of the Program.
    5. You shall grant to us an irrevocable, royalty-free, worldwide, unrestricted, unlimited and perpetual license and right to use in whole or part, anywhere and at any time and in any platform and/or media whatever materials and/or information you have provided in your social media pages and/or written, or will provide or write and/or will send to us, about us and/or the Products (“Materials”). To the fullest extent permitted by law, you irrevocably waive any moral rights or similar rights you may have in any or whole of the Materials throughout the world. You also undertake not to object to any use of the Materials by us or our agent.
  1. Our Rights
    1. We reserve the right to (i) monitor your website and/or (ii) request you to make changes to your website, to ensure you are complying with the Terms of this Agreement. If you disagree to make changes to your website following our suggestion, we may suspend your participation in the Program until the changes are made or we may terminate this Agreement.
    2. If any fraud or abuse is detected in your participation and/or use of the Program, we reserve the right to terminate this Agreement immediately and in such case, we shall not be liable to you for any commissions for such fraudulent sales.
  1. Commission
    1. The Parties agree that for a start, the commission amount payable by us to you under this Agreement (“Commission”) is based on a total of eight percent (8%) of the Sales. In the event the Sales later becomes high volume, we may increase the Commission to a maximum of twelve percent (12%) of the Sales.
    2. In this Clause and Agreement, “Sales” means such total monthly sales volume of the Products purchased and sold using the Code on the Website less any shipping or delivery charges levied on the Products, payment collection fees or charges, refunds and any Goods and Services Tax (or value added tax).
  1. Taxes
    1. You shall be solely responsible to pay for any incomes taxes on the Commission paid or payable by us to you.
    2. If we need to withhold taxes on the Commission, we will be entitled to deduct such withholding taxes and pay you the balance of the Commission.
  1. Payment
    1. At the end of each calendar month, we will calculate the Commission, if any, payable to you for the month via a PayPal account that you designate and notify us. Our report on the Commission amount payable to you for the preceding month will be posted on your a secure affiliate account.
    2. Subject to your compliance with the Terms of this Agreement, we will pay you the Commission each time after it exceeds United States Dollars Three Hundred (USD300) (“Minimum Sum”) cumulatively.
    3. Any amount of the Commission that is less than, or equal to, the Minimum Sum will be valid on a rolling basis for up to one (1) year only. Such amount will be accrued for up to one (1) year only. The amount that remains unpaid for a year will become invalid and will not be subject to any payment. For example only, if the Commission for February 2019 is USD50, such Commission amount is valid for payment so long there is any payment of the Minimum Sum during the year up till the end of January 2020. If there is no such payment, then the Commission amount of USD50 is not payable anymore after January 2020.
    4. All payments under this Agreement will be subject to our standard payment terms and policy.
  1. Restrictions on Promotions
    1. You may lawfully and ethically promote your website or solicit visitors to your website through any generally accepted means. As our Affiliate, you shall not promote your website through (i) spamming or the use of unsolicited commercial email or (ii) effectively concealing or misrepresenting your identity, your domain name, or your return email address.
    2. In your promotion, you will clearly represent yourself and your website as independent from us.
    3. If you fail to adhere to any of the restrictions on promotions, it will be a cause for immediate termination of this Agreement. Any outstanding Commission will not be paid to you if this Agreement is terminated due to any unacceptable advertising or solicitation.
  1. Grant of Licenses
    1. As our existing Affiliate and for the duration of the Term only, we grant you a limited, non-exclusive, non-transferable, revocable right to (i) access our site through the Links solely in accordance with, and subject to, the Terms of this Agreement and (ii) solely in connection with the Links, to display our logos, trademarks and our materials (“Intellectual Property”) that we provide to you for such purpose.
    2. You expressly agree that your use of the Intellectual Property will be on our behalf and the goodwill associated with such use will inure to our sole benefit.
    3. You shall not use the Intellectual Property in any manner that is misleading, disparaging, obscene or otherwise portrays us in a negative light.
    4. Except for the limited rights licensed to you under this Agreement, we reserve and retain all right, title, and interest in the Intellectual Property and no interest is transferred to you.
  1. Disclaimer
    THE LINKS, THE WEBSITE, THE PRODUCTS AND THE PROGRAM (“PROPERTIES”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOUR USE OF THE PROPERTIES IS AT YOUR SOLE DISCRETION AND RISK. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE. WE MAKE NO WARRANTY THAT OUR PROPERTIES WILL MEET WITH YOUR REQUIREMENTS OR THAT THE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROPERTIES. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF THE PROPERTIES. WE DO NOT WARRANT THAT THE PROPERTIES ARE ACCURATE, COMPLETE, RELIABLE, UPDATED, CURRENT OR ERROR-FREE. WE SHALL NOT BE RESPONSIBLE FOR THE INTERNET, DATA BANDWIDTH OR SIGNAL OF YOUR COMPUTER OR MOBILE DEVICE. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE TO YOU FOR ANY LIABILITY OR DAMAGES RESULTING FROM OR ARISING OUT OF YOUR USE OF THE PROPERTIES.
  1. Limitations of Liability
    TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, REPRESENTATIVES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF THE PLATFORM OR PRODUCTS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PROPERTIES, OR THE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PROPERTIES OR TERMINATE THIS AGREEMENT. THE AGGREGATE LIABILITY OF US TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THE PROPERTIES IS LIMITED TO THE AGGREGATE AMOUNT OF COMMISSIONS ACTUALLY PAID BY YOU TO US.
  1. Representations and Warranties
    You represent and warrant that:

    1. This Agreement has been duly and validly executed and delivered by you;
    2. This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its Terms; and
    3. You have the full right, power, and authority to enter into and be bound by the Terms of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
  1. Indemnification
    You agree to indemnify, defend and hold harmless us and our officers, directors, employees, consultants, representatives and agents from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising out of or related to (a) any claim that our use of your materials and/or trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party,  (b) your use of the Properties, (c) your violation of any provision of the Terms of this Agreement, (d) your violation of any rights of any other person or entity, or (e) any viruses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into the Properties (e) any claim related to your website, including, without limitation, content included in your website not attributable to us. You release us and our officers, directors, employees, consultants, representatives and agents from any and all claims, demands, losses, damages, rights, claims, and actions of any kind including, without limitation, personal injury, death, and property damage, that is either directly or indirectly related to or arises from your use of the Properties.
  1. Amendment
    1. In our sole discretion and at any time, we may amend any of the Terms in this Agreement with notice to you via email. Such amendments may include, but are not limited to, changes in the payment procedures and the Program rules.
    2. If you do not wish to accept any of our amendments, you may terminate this Agreement.
    3. Following the posting of the amendment notice or the revised Agreement on the Website, your continued participation in the Program will indicate your agreement to these amendments.
  1. Confidentiality
    1. You agree to keep all information, including but not limited to, any business, technical, financial, and customer information, disclosed by us to you or through the Properties confidential. Except as required by law, you shall not use or disclose our confidential information without our express written approval.
    2. You further agree that such confidential information remains, and will remain, our sole property.
  1. Independent Contractor
    You agree that you are an independent contractor and nothing in this Agreement will create between us any partnership, joint venture, agency, franchise, sales representation, or employment relationship. You shall have no authority to accept or make any offers or representations on our behalf.
  1. Assignment
    In the event of a merger, acquisition, consolidation, change in control, transfer of substantial assets, reorganization or liquidation, we may transfer, sell or assign our rights and obligations under this Agreement to third parties. Such third parties will assume the rights and obligations of this Agreement. The Terms of this Agreement shall be binding upon and inure to the benefit of our successors or assigns. You may not assign your rights under the Terms under this Agreement without our prior written consent, and any attempted assignment will be null and void.
  1. Severability and Construction
    If a court or an arbitral body of competent jurisdiction finds any provision of this Agreement to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect to the fullest extent permissible by applicable law and shall in no way be affected, impaired or invalidated. The headings in the Terms are for convenience only and shall not affect their meaning or interpretation.
  1. Entire Agreement
    This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
  1. Governing Law The validity, interpretation, construction and performance of this Agreement will be governed by the laws of Singapore, without giving effect to the principles of conflict of laws.

(Version 1)