Last Modified on October 11, 2023
PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the “Affiliate”) and us (“HomeoLux”). It describes how we will work together and other aspects of our business relationship.
The Affiliate Program Agreement applies to your participation in our Affiliate Program (the “Affiliate Program”).
We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of another program. If we update or replace the terms we or the Affiliate Tool will let you know via electronic means. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
“Affiliate” means the individual or entity that participates in the Program and promotes BEACON40 Products in accordance with this Agreement.
“Affiliate Program” means our affiliate program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you via the Affiliate Tool.
“Affiliate Link” means the unique tracking link you promote through your channels.
“Affiliate Tool” means the tool that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.
“Agreement” means this Affiliate Program Agreement and all materials referred to.
“Commission” means an amount described in the Affiliate Tool for each Customer Transaction.
“Customer” means any individual or entity referred to BEACON40 by Affiliate through Affiliate’s unique tracking links and who has purchased BEACON40 Products.
“Customer Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the ‘Customer Transactions’ section of this Agreement.
“BEACON40 Products” means all Products available for purchase on our website.
“We”, “us”, “our”, and “HomeoLux”, “BEACON40” means HomeoLux, Inc.
“You” and “Affiliate” means the party, other than HomeoLux, Inc., entering into this Agreement and participating in the Affiliate Program.
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to work with other parties.
Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program, or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected.
If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.
Your acceptance and participation in the Affiliate Program does not mean that you will be accepted into any other BEACON40 programs.
You will comply with the terms and conditions of this Agreement at all times.
- Affiliate Program Limits. We will pay you Commission as described in the Affiliate Tool for each new Customer who completes an applicable Customer Transaction after clicking on an Affiliate Lead made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The Affiliate will not be entitled to receive Commission on any additional purchases of BEACON40 Products by that same Customer. The Affiliate will not be entitled to receive Commission on returned orders of BEACON40 Products.
- Eligibility. To be eligible for Commission (i) an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, (ii) a Customer Transaction must have occurred, (iii) a Customer must remain a customer during the locking period in the Affiliate Tool. You are not eligible to receive Commission or any other compensation from us based on transactions if: (i) customer has returned the BEACON40 Product; (ii) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (iii) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program, misuse of the Affiliate Tool or by any other means that we deem to breach the spirit of the Affiliate Program, or (iv) the Customer participates in any of our partner programs and is eligible to receive commission in relation to the Customer Transaction under any of these programs. In competitive situations with other affiliates, we may elect to provide the Commission to the affiliate that we deem to be the most eligible for Commission, at our discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
- Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by BEACON40. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead in our reasonable discretion. An Affiliate Lead is not considered valid if its first click on the Affiliate Link is after this Agreement has expired or terminated.
- Engagement with Prospects. Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between HomeoLux and an Affiliate Lead will be at HomeoLux’s discretion.
- Commission and Payment. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement (generally completed through the Affiliate Tool); (ii) completed all steps necessary to create your account in the Affiliate Tool in accordance with our directions, (iii) have a valid and up-to-date payment method in the Affiliate Tool with such account (iv) completed any and all required tax documentation in order for the Affiliate Tool to process any payments that may be owed to you.
- Commission Payment. We will not pay more than one Commission payment or other similar referral fee on any given Customer Transaction (unless we choose to in our discretion). Taxes. You are responsible for payment of all taxes and fees applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us. Commission Amounts. We reserve the right to alter or change the Commission amount as per the Affiliate Tool.
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display visual assets created by you for BEACON40 in connection with the Affiliate Program and this Agreement.
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, in the event that we make our trademark available to you within the Affiliate Tool, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; (iii) comply with our Trademark Usage Guidelines; and (iv) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
- HomeoLux’s Proprietary Rights. No license to BEACON40 Products is granted by this Agreement. The BEACON40 Products are protected by intellectual property laws. The BEACON40 Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the BEACON40 Products. BEACON40 logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) HomeoLux customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Term and Termination
- Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated. You must return BEACON40 Product samples, unless a different arrangement has been mutually agreed upon in writing.
- Termination Without Cause. Both you and we may terminate this Agreement on fifteen (15) days written notice to the other party.
- Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
- Termination for Cause. We may terminate this Agreement: (i) upon ten (10) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) immediately, if you breach the terms of this agreement (iii) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
- Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration. Upon termination or expiration, you will discontinue all use of the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your channels and other collateral.
Affiliate Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements.
You further represent and warrant that: (i) you will not use your own Affiliate Link to purchase BEACON40 Products for yourself; and (ii) you will not use any mechanisms to deliver leads other than through an intended consumer.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of the Affiliate Tool, or (e) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
Disclaimers; Limitations of Liability
- Disclaimer of Warranties. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE BEACON40 PRODUCTS, BEACON40 CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE TOOL FOR ANY PURPOSE. THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, OUR AFFILIATE TOOL IS PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE AFFILIATE TOOL.
- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
- Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
- Affiliate Tool. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
- Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version at https://beacon40.com/affiliate-program-agreement/. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Applicable Law. This Agreement shall be governed by the laws of the New York state, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in New York, New York.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
- Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. You will not directly or indirectly market the BEACON40 Products to prohibited countries.
- Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- Notices. Electronic notices will be sent to firstname.lastname@example.org.
To you: your email address as provided in our affiliate account information for you.
- Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you.
- Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the BEACON40 Products, our trademarks, or any other property or right of ours.
- Sales by BEACON40. This Agreement shall in no way limit our right to sell the BEACON40 Products, directly or indirectly, to any current or prospective customers.
- Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Indemnification’, ‘Limitation of Liability’, and ‘General’.