Thank you for your interest in our A’cappella affiliate program!
DEBBAS GOURMET, LLC AFFILIATE PROGRAM AGREEMENT
Published Date: [December 3rd, 2021]This Debbas Gourmet, LLC Affiliate Program Agreement (“Affiliate Agreement”) contains the terms and conditions that govern Your participation in the Affiliate Program (the “Program”). (“We,” “Us,” or “Our”) means Debbas Gourmet, LLC, and all Debbas Gourmet, LLC Brands, Marks and Domains including but not limited to the (A’cappella) Brand, Marks, and Domains held by Debbas Gourmet, LLC.
(“You” or “Your”) means the Applicant, Affiliate Partner, or Advertiser. A (“Site”) means a website. (“Your Site”) means any e-commerce/retail site(s), any software application(s) and any Mobile Application (as defined hereinafter) that You own, use, and link to the Debbas Gourmet, LLC Domains. ("Advertising Fees") means commissions earned for a successful and verified sale of Product on Our Site(s) by a customer using Our Referral Link embedded on Your Site. (“ReferralCandy,” “ReferralCandy.com,” or Our “Partner”) means the entity We work with that will manage, administrate, and be responsible for payment of Advertising Fees under this Debbas Gourmet, LLC Affiliate Program Agreement. BY FILLING OUT YOUR REQUISITE INFORMATION AND SELECTING THE SUBMIT BUTTON INDICATING THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AFFILIATE AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED AFFILIATE AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION, YOU (A) AGREE TO BE BOUND BY THIS AFFILIATE AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, WARRANTY, OR STATEMENT(S) OTHER THAN AS EXPRESSLY SET FORTH IN THIS AFFILIATE AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR), AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS AFFILIATE AGREEMENT. IN ADDITION, IF THIS AFFILIATE AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AFFILIATE AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, You and We agree as follows:
1. DESCRIPTION OF THE PROGRAM
The purpose of the Program is to permit You to advertise Our Products on Your Site and to earn Advertising Fees and other consideration for Qualifying Purchases (defined in Section 7) made by Your end users. A “Product” is any item sold on or through Your Site, other than any products that are explicitly defined as excluded products (collectively, “Excluded Products”). In order to facilitate Your advertisement of Products, we may make available to You data, images, text, link formats, widgets, links, and other linking tools, and other information in connection with the Program ("Content"). Content specifically excludes any data, images, text, or other information or content relating to Products offered on any site other than Your Site.
To begin the enrollment process, You must submit a complete and accurate Program application. You must identify Your Site in Your application. We will evaluate Your application and notify You of its acceptance or rejection. We reserve the right to reject Your application in our sole discretion for any reason or no reason whatsoever. Furthermore, we will reject applications that:
- promote or contain sexually explicit materials;
- promote violence or contain violent materials;
- promote or contain libelous or defamatory materials;
- promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
- promote or undertake illegal activities;
- include any trademark of Debbas Gourmet, LLC, or a variant or misspelling of a trademark of Debbas Gourmet, LLC, in any domain name, subdomain name, or in any username, group name, or other identifier on any social networking site; or
- otherwise violate intellectual property rights of Debbas Gourmet, LLC or any other party.
If we reject Your application, You are welcome to reapply at any time. However, if we accept Your application and we later determine that Your site is unsuitable, we may terminate this Affiliate Agreement at any time in our sole discretion for any reason or no reason whatsoever.
You will ensure that the information in Your Program application and otherwise associated with Your account, including Your email address and other contact information and identification of Your Site, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and this Affiliate Agreement to the email address then-currently associated with Your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with Your account is no longer current, is redirected to a different email address, contains spelling or routing errors, or for any other reason Your email address becomes inoperative.
3. OUR LINKS USED ON YOUR SITE
After You have been notified that You have been accepted into the Program, You may display Our Links on Your site. (“Our Links”) are links to the Debbas Gourmet, LLC Site that You place on Your Site in accordance with this Affiliate Agreement, that properly utilize the special “tagged” link formats we provide, and that comply with the Affiliate Program Linking Requirements. Our Links permit accurate tracking, reporting, and accrual of Advertising Fees through our Partner ReferralCandy.com.
It is Your responsibility to familiarize yourself with all of the terms and conditions and policies of ReferralCandy.com. You may review this information at the following link: https://www.referralcandy.com/terms/ You may earn Advertising Fees only as described in Section 7 and only with respect to activity on Your Site occurring directly through Our Links. We will have no obligation to pay You Advertising Fees if You fail to properly format Our Links on Your Site, including to the extent that such failure may result in any reduction of Advertising Fee amounts that would otherwise be paid to You under this Affiliate Agreement.
If You wish to include Our Links in a software application designed and intended for use on mobile phones, tablets, or other handheld devices (“Mobile Application”), You must include the name of the Mobile Application and the link to Your Mobile Application in Your application to the Program. The suitability and other requirements of this Section 3 and the Mobile Application Policy will apply to Mobile Applications. We will evaluate Your application and notify You of its acceptance or rejection. A Mobile Application that is accepted will be an "Approved Mobile Application" for the purposes of this Agreement.
4. AFFILIATE PROGRAM REQUIREMENTS
By participating in the Program, You agree that You will comply with the Affiliate Program Participation Requirements and all pages, schedules, policies, guidelines, and other documents and materials referenced in this Affiliate Agreement (collectively, “Operational Documentation”).
You will provide us with any information that we request to verify Your compliance with this Affiliate Agreement or any Operational Documentation. If we determine that You have not complied with any requirements or restrictions described in the Operational Documentation or that You have otherwise violated this Affiliate Agreement, we may (in addition to any other rights or remedies available to us): (a) withhold any Advertising Fees payable to You under this Affiliate Agreement,; (b) close any other accounts associated with Us You may have or may open in the future, without payment of any Advertising Fees; (c) terminate this Affiliate Agreement; or (d) undertake all of the above actions. In addition, You expressly consent to Debbas Gourmet, LLC:
- sending You emails relating to the Program from time to time;
- monitoring, recording, using, and disclosing information about Your site and visitors to Your site that we obtain in connection with Your display of Our Links (e.g., that a particular customer clicked through Our Link from Your site before buying a Product); and
- monitoring, crawling, and otherwise investigating Your Site to verify compliance with this Affiliate Agreement and any Operational Documentation.
5. RESPONSIBILITY FOR YOUR SITE
You are solely responsible for Your site, including its development, operation, and maintenance and all materials that appear on or within it. For example, You will be solely responsible for:
- the technical operation of Your site and all related equipment;
- displaying Our Links and Content on Your site in compliance with this Affiliate Agreement and any Operational Documentation and any agreement between You and any other person or entity (including any restrictions or requirements placed on You by any person or entity that hosts Your site);
- creating and posting, and ensuring the accuracy, completeness, and appropriateness of, materials posted on Your site (including all Product descriptions and other Product-related materials and any information You include within or associate with Our Links);
- using the Content, Your site, and the materials on or within Your site in a manner that does not infringe, violate, or misappropriate any of our rights or those of any other person or entity (including copyrights, trademarks, privacy, publicity or other intellectual property or proprietary rights);
- using the Content, Your site, and the materials on or within Your site in a manner that is not harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous or otherwise in any manner whatsoever;
- any use that You make of the Content and the Debbas Gourmet, LLC Brand or Marks, whether or not permitted under this Affiliate Agreement.
We will have no liability for these matters or for any of Your end users’ claims relating to these matters, and You agree to defend, indemnify, and hold Us, our other Affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) Your Site or any materials that appear on Your Site, including the combination of Your Site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of Your Site or any materials that appear on or within Your Site, and all other matters described in this Section 5; (c) Your use of any Content, whether or not such use is authorized by or violates this Affiliate Agreement, any Operational Documentation, or applicable law; (d) Your violation of any term or condition of this Affiliate Agreement or any Operational Documentation; or (e) Your or Your employees' negligence or willful misconduct whether foreseeable or unforeseeable.
6. ORDER PROCESSING
We will process Product orders placed by customers who follow Our Links from Your site to Our Site. We reserve the right to reject orders that do not comply with any requirements on Our Site, as they may be updated from time to time. We will track Qualifying Purchases (defined in Section 7) for reporting and Advertising Fee accrual purposes and will make available to You reports summarizing those Qualifying Purchases.
7. ADVERTISING FEES & OTHER CONSIDERATION
We will pay You Advertising Fees and/or other consideration on Qualifying Purchases in accordance with Section 8 and the Affiliate Program Advertising Fee Schedule in accordance with Schedule 1 of this Affiliate Agreement. In the event any excess payment has been made to You for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent Advertising Fees payable to You under this Affiliate Agreement. Subject to the exclusions set forth below, a (“Qualifying Purchase”) occurs when (a) a customer clicks through Our Link on Your site to Our Site; (b) during a single Session that the customer adds a Product to his or her shopping cart and places the order for that Product no later than thirty (30) days following the customer’s initial click-through; or (c) the Product is shipped to, and paid for by, the customer.
A “Session” begins when a customer clicks through Our Link on Your site to Our Site and ends upon the first to occur of the following: (x) twenty-four (24) hours elapses from that click; (y) the customer places an order for a Product; or (z) the customer follows Our Link to Our Site that is not Our Link embedded on Your Site or any of Your online properties.
Qualifying Purchases exclude, and we will not pay Advertising Fees on any of, the following:
- any Product that, after expiration of the applicable Session, is added to a customer’s Shopping Cart, even if the customer previously followed Our Link from Your site to Our Site;
- any Product purchase that is not correctly tracked or reported because the links from Your site to Our Site are not properly formatted;
- any Product purchased for resale or commercial use of any kind;
- any Product purchased after termination of this Affiliate Agreement;
- any Product order where a cancellation, return, or refund has been initiated; and
- any Product purchased by a customer who is referred to Our Site through any of the following:
- a Prohibited Paid Search Placement; or
- a link to Our Site, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through Your submission of data to that site or otherwise.
- any Qualifying Purchase wherein You have offered any person or entity any consideration or incentive (including any money, rebate, discount, points, donation to charity or other organization, or other benefit) for using Our Links (e.g., by implementing any “rewards” or loyalty program that incentivizes persons or entities to visit Our Site via Our Links that are embedded on your site or online properties).
- any Product purchased through Our Link in a Mobile Application that was not an Approved Mobile Application.
“Prohibited Paid Search Placement” means an advertisement that You purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. “Proprietary Term” means keywords, search terms, or other identifiers that include the word “Debbas Gourmet, LLC” or any other trademark of “Debbas Gourmet, LLC” or its Affiliates, or variations or misspellings of any of those words. “Redirecting Link” means a link that sends users indirectly to Our Site via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage. “Search Engine” means Google, Yahoo, Bing, DuckDuckGo, or any other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks.
8. ADVERTISING FEE PAYMENT
We will pay You Advertising Fees in accordance with Schedule 1 of this Affiliate Agreement on a monthly basis for Qualifying Purchases shipped in a given month, subject to any applicable withholding or deduction described below. We will pay You approximately sixty (60) days following the end of each calendar month.
The Advertising Fee payable to You is inclusive of all taxes including applicable service tax (if any) or goods and services tax or other tax or levy that You may be required to remit in connection with such Products and/or services for which You will raise a valid invoice under applicable law(s) and regulations and report it in Your returns within the prescribed time limit so that We can take input tax credit of the taxes paid. You undertake to comply with any of the applicable provisions of such law including but not limited to:
- timely issuance of Gross Sales Tax compliant invoices;
- making the invoices available to Us (if necessary);
- depositing applicable taxes on a periodic basis; and
- correctly reporting them to the government under tax laws.
If at any time credit of taxes is denied or payment of taxes is sought from Us, due to, but not limited to, issuance of a deficient invoice, default in payment of taxes, inappropriate reporting in the returns filed or non-compliance of applicable laws and regulations by You, You shall indemnify Us from and against any denied credits or taxes recovered as well as any interest and penalties imposed on Us by any taxing authority or third-party. If required by applicable California tax law, we may deduct or withhold taxes, levies or any similar amounts from the Advertising Fees payable to You. If You are a California resident, Advertising Fees payable to You will be subject to income tax withholding at the rate stipulated under applicable law. If You are not a California resident or have not provided us Your EIN (Employer Identification Number), the rate of tax withholding applicable to You may vary so it is crucial that you confer with your tax advisor. Further, if You are a non-resident, You agree to provide necessary documentation, as may be required, for Us to satisfy any reporting or any obligations with respect to the Advertising Fee payable to You. If we deduct or withhold taxes from Advertising Fees payable to You, we will issue to You the relevant withholding tax certificate, if required under the applicable law, evidencing deposit of the taxes with the relevant regulatory authorities. You hereby agree that You will not pursue any claim against Debbas Gourmet, LLC, or any of its Domains, Affiliates, or other entities, and hereby waive all such claims You may now or in the future have, in respect of any taxes We deposit with a relevant taxing authority pursuant to this Affiliate Agreement.
9. POLICIES AND PRICING
Customers who buy products through the Program are customers of Debbas Gourmet, LLC with respect to all activities they undertake in connection with Us. Accordingly, as between You and Us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on Our Site will apply to those customers, and the same may be changed at any time.
10. IDENTIFYING YOURSELF AS AN AFFILIATE ADVERTISER
You will not issue any press release or make any other public communication with respect to this Affiliate Agreement, Your use of the Content, or Your participation in the Program. You will not misrepresent or embellish the relationship between Us and You (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between Us and You or any other person or entity except as expressly permitted by this Affiliate Agreement. You must, however, clearly state the following on Your Site: “[INSERT YOUR NAME] is a participant in the DEBBAS GOURMET, LLC Affiliate Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to the partner site”
11. THIS AFFILIATE AGREEMENT PROVIDES A LIMITED LICENSE
1. Subject to the terms of this Affiliate Agreement and solely for the limited purposes of advertising Products on Your Site, and directing end users to, Our Site in connection with the Program, We hereby grant You a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free License to (a) copy and display the Content solely on Your Site; and (b) use only those of our trademarks and logos that We may make available to You as part of the Content (those trademarks and logos, collectively, “DEBBAS GOURMET, LLC Marks”) solely on Your Site and in accordance with this Affiliate Agreement.
2. All Licenses set forth in this Section 11 will immediately and automatically terminate if at any time You do not timely comply with any obligation under this Affiliate Agreement or any Operational Documentation, or otherwise upon termination of this Affiliate Agreement. In addition, We may terminate the License set forth in this Section 11 in whole or in part upon written notice to You. You will promptly remove from Your Site and delete or otherwise destroy all of the Content and Debbas Gourmet, LLC Logo’s and/or Marks with respect to which the License set forth in this Section 11 is terminated or as we may otherwise request from time to time.
3. Affiliate Program IP License (“License”) A. By accepting this Affiliate Agreement, or by accessing or using the Product Advertising Content (as defined hereinafter), including the proprietary application programming interfaces and other tools (collectively, the “PA API”) that permit You to access and use certain types of data, images, text, and other information and Content relating to Products (“Product Advertising Content”) which We may make available to You, You agree to be bound by this License. B. Subject to the terms of this License and solely for the limited purposes of participation in this Affiliate Program in strict compliance with the Affiliate Agreement (including this License and the other Operational Documentation), we hereby grant You a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free License to: (a) copy and display Product Advertising Content solely on Your Site; (b) use only those of the Debbas Gourmet, LLC Logo’s and/or Marks we make available to You as part of the Product Advertising Content, solely on Your Site and in accordance with this Affiliate Program, and (c) access and use the PA API, Data Feeds, and Product Advertising Content solely in accordance with the Specifications and this License.
12. RESERVATION OF RIGHTS; SUBMISSIONS
Other than the Limited Licenses expressly set forth in Section 11, We reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and You do not, by virtue of this Affiliate Agreement or the Limited License hereunder otherwise, acquire any ownership interest or rights in or to, the Program, Our Links, link formats, Content, PA API, Data Feeds, Product Advertising Content, any Domain name owned or operated by Us, information and materials on any of our Partner Sites (if any) or any other Affiliate and/or Advertiser Sites, Our and Our Affiliates’ trademarks and logos (including the Debbas Gourmet, LLC Marks), and any other intellectual property and technology that We provide or use in connection with the Program (including any application program interfaces, software development kits, libraries, sample code, and related materials).
If You provide us or any of our Affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a Product or in connection with this Affiliate Agreement, any Content, or Your participation in the Program, or if You modify any Content in any way, (collectively, “Your Submission”), You hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if You have designated Your Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and License to (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of (including any moral rights if any) Your Submission for any purpose; (c) use and publish Your name in the form of a credit in conjunction with Your Submission (however, We will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, You hereby warrant that: (y) Your Submission is Your original work, or You obtained Your Submission in a lawful manner; and (z) Our and Our sublicensees’ exercise of rights under the License above will not violate any person’s or entity’s rights, including any copyright rights or (“Moral Rights”). You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission including but not limited to the execution of any transfer documents that may be necessary to perfect these rights.
For clarity, Moral Rights means those statutory rights that generally give an author of a copyrighted work the right to (a) be identified as the author of the work; and (b) the right to object to any distortion, mutilation, or other modification of the work.
13. COMPLIANCE WITH LAWS
In connection with Your participation in the Program You will comply with all applicable laws of the United States and the State of California including but not limited to ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over You.
14. MEDIATION AND ARBITRATION
If a dispute or controversy arises out of or relates to this Affiliate Agreement, including the scope of Products and/or services contained herein, or the breach thereof, and if the dispute cannot be settled through “good faith” and “best efforts” negotiations, then You and We agree first, to try and settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under the AAA Business and Related Services Arbitration Rules and Mediation Procedures before resorting to arbitration, litigation, or similar dispute resolution procedure. The mediator will be selected by mutual agreement between You and Us. If You and We cannot agree on a mediator, a mediator shall be designated by the AAA. You understand, acknowledge, and expressly agree that any mediation, arbitration, litigation, or other similar procedures shall be conducted in the State of California within the city of Fresno.
15. TERM AND TERMINATION
The term of this Affiliate Agreement will begin upon Our acceptance of Your Program Application by Our Partner and will end when terminated by either You or Us. Either You or We may terminate this Affiliate Agreement at any time, with or without cause, and with or without reason, by giving the other party written notice of termination. We may also terminate this Affiliate Agreement if: (a) You file for bankruptcy or dissolution; (b) You are acquired by another entity; or (c) You have all or substantially all of Your assets purchased by another entity while You are an Affiliate under this Affiliate Agreement.
Upon any termination of this Affiliate Agreement, any and all Licenses You have with respect to the Content will automatically terminate and You will immediately stop using the Content and Debbas Gourmet, LLC Logo’s and/or Marks and promptly remove from Your Site and delete or otherwise destroy all links to Our Site, all Debbas Gourmet, LLC Marks, all other Content, and any other materials provided or made available by or on behalf of Us to You under this Affiliate Agreement or otherwise in connection with the Program. We may withhold accrued unpaid Advertising Fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Affiliate Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 5, 9, 10, 12, 13, 14, 15,16, 17, 18, 19, 20, and 22, together with any accrued but unpaid payment obligations of Us under this Affiliate Agreement, will survive the termination of this Affiliate Agreement. No termination of this Affiliate Agreement will relieve You or Us from any liability for any breach of, or liability accruing under, this Affiliate Agreement prior to termination.
We may modify any of the terms and conditions contained in this Affiliate Agreement (and any Operational Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Operational Documentation on Our Site, or by sending notice of such modification to You by email to the email address then-currently associated with Your account (any such change by email will be effective on the date specified in such email and will in no event be less than two business days after the date the email is sent). Modifications may include, for example, changes to the Affiliate Program Advertising Fee Schedule, Affiliate Program Participation Requirements, payment procedures, and other Program requirements.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AFFILIATE AGREEMENT IN A TIMELY MANNER. YOUR CONTINUED PARTICIPATION IN THE PROGRAM (OR YOUR LACK OF TIMELY TERMINATION) FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON OUR SITE OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
17. RELATIONSHIP OF PARTIES
You and We are independent contractors, and nothing in this Affiliate Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between You and Us or our respective Affiliates. You will have no authority to make or accept any offers or representations on Our or Our Affiliates’ behalf. You will not make any statement, whether on Your site or otherwise, that contradicts or may contradict anything in this section. If You authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Affiliate Agreement, You will be deemed to have taken the action Yourself.
18. LIMITATION OF LIABILITY
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING FROM OR IN CONNECTION WITH THIS AFFILIATE AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, OUR PARTNER SITE, THE DEBBAS GOURMET, LLC DOMAINS OR THE PRODUCT/SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AFFILIATE AGREEMENT, THE PROGRAM, THE DEBBAS GOURMET, LLC DOMAINS, OUR USE AND OR RELATIONSHIP OF ANY PARTNER AND/OR PARTNER SITES, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS AFFILIATE AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
THE PROGRAM, THE DEBBAS GOURMET, LLC SITES, OUR PARTNER SITES, ANY PRODUCTS AND/OR SERVICES OFFERED ON OUR SITE OR OUR PARTNER SITES, ANY OF OUR LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, DEBBAS GOURMET, LLC DOMAINS, AND OUR AFFILIATES’ TRADEMARKS, TRADE DRESS AND LOGOS (INCLUDING THE DEBBAS GOURMET, LLC MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS", AND “WHERE IS.” NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO ANY SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PRODUCT AND/OR SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY PRODUCT AND/OR SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY PRODUCT AND/OR SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME IN OUR SOLE DISCRETION FOR ANY REASON OR NO REASON WHATSOEVER. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE PODUCT AND/OR SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION OR BE PROVIDED AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL MATERIALS AND/OR COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, OPERATIONAL DOCUMENTATION, THE DEBBAS GOURMET, LLC DOMAINS, OUR PARTNER SITES, OR THE AFFILIATE-PROGRAM SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AFFILIATE AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AFFILIATE AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR ANY TERMINATION OF THIS AFFILIATE AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
20. GOVERNING LAW AND DISPUTES
This Affiliate Agreement will be governed by the laws of the United States in the State of California, without regard to the principle of conflict of laws. The courts of the State of California in the city of Fresno shall have the exclusive jurisdiction over any dispute relating or arising in any way from the matter under the Program or this Affiliate Agreement.
Notwithstanding anything to the contrary in this Affiliate Agreement, We may seek injunctive or other relief in any court of competent jurisdiction for any actual or alleged infringement of Our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that Our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
You acknowledge and agree that We may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Affiliate Agreement or operate sites that are similar to or compete with Your site. You may not assign this Affiliate Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Affiliate Agreement will be binding on, inure to the benefit of, and be enforceable against the Parties and their respective successors and assigns. Our failure to enforce Your strict performance of any provision of this Affiliate Agreement will not constitute a waiver of Our right to subsequently enforce such provision or any other provision of this Affiliate Agreement. In the event of any conflict between this Affiliate Agreement and the Operational Documentation, the Affiliate Agreement will control, which will control over the remainder of the Operational Documentation. Whenever used in this Affiliate Agreement, the terms “include(s),” “including,” “e.g.,” and “for example” mean, respectively, “include(s), without limitation,” “including, without limitation,” “e.g., without limitation,” and “for example, without limitation.” Any determinations or updates that may be made by Us, any actions that may be taken by Us, and any approvals that may be given by Us under this Affiliate Agreement, may be made, taken, or given in our sole discretion. Any information relating to Us or provided by Us in connection with the Affiliate Agreement that is not known to the general public is considered ("Confidential Information"). You agree that: (a) all Confidential Information will remain Debbas Gourmet, LLC’s exclusive property; (b) You will use Confidential Information only as is reasonably necessary for Your performance under this Affiliate Agreement and ensure that persons who have access to Confidential Information will be made aware of and will comply with the obligations in this provision; and (c) You will not otherwise disclose Confidential Information to any individual, company, or other third party. You agree that We may, in our sole discretion, disclose or make available any information provided or submitted by You or related to Your performance under this Affiliate Agreement to any judicial, quasi-judicial, governmental, regulatory or any other authority as may be required by us to cooperate and/or comply with any of their orders, instructions or directions or to fulfill any requirements under applicable laws. You represent and warrant that You and Your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority.
22. SOCIAL MEDIA INFLUENCER & FTC GUIDELINES AND COMPLIANCE
If You are a social media influencer, Your Posts must comply with the Federal Trade Commission's (the "FTC") Guides Concerning Endorsements and Testimonials ("Endorsement Guides"), for which we have provided you a link in Exhibit B of this Affiliate Agreement. You must clearly and conspicuously disclose your "material connection" with Us, making it clear that you are a paid influencer and/or You have received free products, or travel from Us (if We have provided you the same). You must place the disclosure in plain sight in close proximity to any audio or visual communications that You make about Us, our Brands, Marks, and our Products. You may not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures. We require this disclosure regardless of any space limitations of the platform (like Twitter), where You can use hashtags for the disclosure (like #ad or #sponsored). If a platform does not allow for a clear and conspicuous disclosure, We recommend that You should not use that platform.
23. ELECTRONIC SIGNATURES
You agree that the electronic signatures, whether digital or encrypted, included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures, pursuant to the California Uniform Electronic Transactions Act (Cal. Civ. Code §§ 1633.1 to 1633.17) as amended from time to time.
24. MOBILE APPLICATION POLICY
These Mobile Guidelines (“Mobile Guidelines”) apply to Your inclusion of Our Links in Your Approved Mobile Application. ("We," "Us," or "Our") means Debbas Gourmet, LLC Domains, Brand and Marks, including but not limited to the A’cappella Domains, Brand and Marks owned by Debbas Gourmet, LLC, Our Partner Sites or any of its Affiliates, as the case may be. ("You") means the user agent for the associate account associated with the Approved Mobile Application. All capitalized terms used below that are not defined on this page have the meanings given to them in the Affiliate Agreement. Strict compliance with these Mobile Guidelines is required at all times, and any violation of these Mobile Guidelines will automatically terminate the Affiliate Agreement.Your Mobile Application:
- 1. must be free to download and all Referral links must be accessible without paying for access;
- 2. must have original content;
- 3. must not emulate Our Site’s own shopping app functionality (if any);
- 4. must not have price tracking and/or price alerting functionality, unless approved in advance by Debbas Gourmet, LLC in writing;
- 5. must not host or render Our Sites web pages in WebViews.
We may modify this Mobile Application Policy at any time and in our sole discretion by posting a change notice or revised or a revised Mobile Application Policy on the Debbas Gourmet, LLC Domains or Web Site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM IN A TIMELY MANNER. YOUR CONTINUED INCLUSION OF OUR LINKS IN YOUR APPROVED MOBILE APPLICATION FOLLOWING OUR POSTING OF A CHANGE NOTICE OR A REVISED MOBILE APPLICATION POLICY ON OUR SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE. We reserve the right, exercisable in Our sole discretion, to take appropriate action against any use without permission or any use that does not conform to this Mobile Application Policy.
SCHEDULE 1 AFFILIATE PROGRAM ADVERTISING FEE SCHEDULE
For all Qualified Purchases in accordance with sections 7, 8, and 9 of this Affiliate Agreement, You will earn fifteen percent (15%) on the Sales of Our Products.
All Sales of Our Products will be tracked, and all Advertising Fees will be paid by our Partner ReferralCandy.com.
You understand, acknowledge and agree to review all of the policies and adhere to all of the terms and conditions from, by, and through ReferralCandy.com.
IF ANY OF REFERRALCANDY.COM’S TERMS, CONDITIONS, OR PROVISIONS ARE UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM IN A TIMELY MANNER. YOUR CONTINUED INCLUSION OF OUR LINKS IN YOUR SITE OR APPROVED MOBILE APPLICATION WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE TERMS, CONDITIONS, OR PROVISIONS OF REFERRALCANDY.COM.
ELITE PROGRAM FOR $100,000 IN QUALIFYING PURCHASES
For Qualifying Purchases that meet or exceed $100,000 in sales of new Products, We will provide the following Elite Program:
- We will provide You with round-trip airfare for two people to Our chocolate factory in Fresno California.
- Round-trip airfare is limited to flights within the contiguous United States.
- Airfare and airline travel will be decided exclusively by Us.
- We will provide You with two nights of hotel accommodations in Fresno California.
- Hotel accommodations will be decided exclusively by Us.
- We will provide ground transportation to and from the airport, lodging, and Our chocolate factory.
- Ground transportation will be decided exclusively by Us.
Qualifying Purchases that meet or exceed $100,000 in sales of new Products must be completed within one year of the acceptance of your application in this Program.
- Trip dates must take place between August 1st - November 18th, 2022 - excluding weekends.
- Total Package costs must not exceed $1,500
- You will be responsible for all taxes related to this Elite Program.
- You will be issued an IRS Form 1099 for all taxes related to this Elite Program.
With respect to promotional messages, photos, or other communications made on social media platforms about Debbas Gourmet, LLC and Our Products, all influencers must adhere to the following standards:
- You must comply with the Federal Trade Commission's (the "FTC") Guides Concerning Endorsements and Testimonials (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf), including making:
- statements that reflect your honest beliefs, opinions, and experiences; and
- clear and conspicuous disclosure about your connection to us in all of your posts.
- To better understand your responsibilities under the Endorsement Guides, you must review:
- The FTC's Endorsement Guides: What People Are Asking (https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking).
- FTC: The Do's and Don'ts for Social Media Influencers (https://www.ftc.gov/news-events/press-releases/2017/09/csgo-lotto-owners-settle-ftcs-first-ever-complaint-against).
- FTC: Disclosures 101 for Social Media Influencers (https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf).
- FTC: Do you endorse things on social media? (https://www.ftc.gov/news-events/audio-video/video/advice-social-media-influencers).
- You may not:
- make deceptive or misleading claims about Our Products or Our competitors' products or services;
- make any claims about Our Products or Our competitors' Products that are not backed up by evidence;
- disclose any of our confidential information;
- disparage Debbas Gourmet, LLC or our Brand, Marks, or Products;
- engage in any communication that is defamatory or infringes upon the copyright, trademark, privacy, publicity, or other intellectual property rights of others;
- offer for sale or solicit Products on behalf of Debbas Gourmet, LLC;
- make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
- post content that promotes bigotry, racism, or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age;
- use ethnic slurs, personal insults, obscenity, or other offensive language; and
- make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving Debbas Gourmet, LLC’s consumers or other individuals.
- You must adhere to:
- any additional guidelines provided by Debbas Gourmet, LLC, such as Product or Brand specific program requirements and our Social Media Endorsement Policy.
- You must not create fake followers or engagement on social media platforms, such as:
- buying followers;
- using bots to grow audience size by automating account creation, following, commenting, and liking; or
- post fake sponsored content.
We’ll start packing a variety of our chocolate products—just for you!
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