This Affiliate Program Operating Agreement (herein referred to as “Operating Agreement”) contains the terms and conditions that govern your participation in the Vervana, LLC (herein “VERVANA”) Affiliate Program (herein the “Program”).
For reference, and as used in this Operating Agreement, the words, “we,” “us,” and “our” mean VERVANA, and “you” and “your” mean you, the applicant; and “Your site(s)” means any site(s), including social media platforms and any software application(s) such as email broadcasts from which you link to Vervana.com.
Please read all of these terms and conditions carefully.
Your agreement is as follows:
- To be legally bound by this Operating Agreement;
- To acknowledge and agree that you have independently evaluated the desirability of participating in the Program, and are not relying on any representation, guarantee, or statement other than what is expressly set forth in this Operating Agreement; and
- To hereby represent and warrant that you are lawfully able to enter into contracts, and, if you are agreeing to these terms on behalf of a company or other legal entity, that you are authorized and lawfully able to bind that company or entity to this Operating Agreement.
To begin the enrollment process, you need to register as an affiliate. We reserve the right to reject any affiliation at our sole discretion.
1. About the Program: Purpose, Fees, Process and Enrollment
The purpose of the Program is to permit you to advertise products sold at Vervana.com (“Products”) and to earn Advertising Fees for Qualifying Purchases (as defined below) made by your end users.
For each Qualifying Purchase, you will earn an Advertising Fee of 10% of the total order price, less taxes and/or shipping fees. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when a customer purchases through a Special Link(s) we have provided you.
Special Links are links to Vervana.com that you place on Your site(s) in accordance with this Operating Agreement that properly utilize the special “tagged” link formats we provide, and that comply with the requirements herein. We may provide Special Links to you directly or indirectly via our Affiliate Account Center (where, once logged in, you may generate custom Special Links to specific pages at Vervana.com). Special Links permit accurate tracking, reporting, and accrual of advertising fees. You may generate custom Special Links to advertise all products except excluded products, specifically our gift cards and Grounding Sleep Mat.
You may earn Advertising Fees only with respect to activity on Vervana.com occurring directly through Special Links. Our cookie-based tracking allows you to still earn Advertising Fees on Qualifying Purchases made up to 90 days after a customer lands on our Site through a Special Link, unless the customer has cleared his or her cache or returns to our Site through another affiliate’s Special Link (i.e. the most recent affiliate referral earns Advertising Fees).
You may also provide your audience with a coupon code for 10% off their total purchase. This code may be used once per customer on all full-sized, regularly-priced items except those listed as Excluded Products (below), and cannot be combined with any other coupon codes or discount offers. We will provide codes to registered Affiliates.
We will process Product orders placed by customers who follow Special Links from Your site(s) to Vervana.com. We will track Qualifying Purchases for reporting and advertising fee accrual purposes, and will make available to you reports summarizing those Qualifying Purchases through our Affiliate Account Center.
Qualifying Purchases exclude, and we will not pay Advertising Fees on any of, the following:
(a) any Product purchase that is not correctly tracked or reported because the links from Your site(s) to Vervana.com are not properly formatted;
(b) any Product purchased for resale or commercial use of any kind;
(c) any Product purchased after termination of this Operating Agreement;
(d) any Product order that is canceled or returned;
(e) any Product you, yourself, purchase.
(f) and any excluded product: Vervana Gift Card (virtual and regular), Grounding Sleep Mat, discounted product or product bundle, or sample product.
We will pay you Advertising Fees on a quarterly basis for Qualifying Purchases shipped in a given quarter, subject to any applicable withholding or deduction (i.e. for excluded Qualified Purchases outlined directly above and per Program Requirements below). We will pay you by PayPal approximately 45 days following the end of each quarter, but may accrue and withhold Advertising Fees until the total amount due to you is at least $25, or the relationship is terminated (See Section 9 below), whichever occurs first. For reference, quarters end March 31, June 30, Sept 30, and Dec 31 of each year, should payments should be made by approximately May 15, Aug 15, November 15 and Feb 15 each year.
Should we determine that Advertising Fees are not economically feasible or beneficial to our business, we may, at any time change them. You will be given at least 30 days notice in the event of any fee changes.
To facilitate your advertisement of Products, we may make available to you images, text, Marks, link formats, links, and/or other linking tools and other information in connection with the Program (“Content”). “Marks” means all trademarks and service marks, logos, and other identifying material we provide as Content or otherwise use in conjunction with the promotion, marketing and/or sale of any Products. See also Section 6 (Limited License) below.
2. Program Requirements
In addition, you hereby consent to us:
(a) sending you emails relating to the Program;
(b) monitoring, recording, using, and disclosing information about Your site(s) and visitors to Your site(s) that we obtain in connection with your display of Special Links (e.g., that a particular customer clicked through a Special Link from Your site(s) before buying a Product on Vervana.com); and
(c) monitoring, crawling, and otherwise investigating Your site(s) to verify compliance with this Operating Agreement and the Operational Documentation.
3. Responsibility for Your Site(s)
You will be solely responsible for Your site(s), including its development, operation, and maintenance, and all materials that appear on or within it. For example, you will be solely responsible for:
(a) the technical operation of Your site(s) and all related equipment;
(b) displaying Special Links and Content on Your site(s) in compliance with this Operating Agreement and the 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(s)];
(c) 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 affiliate with Special Links);
(d) using the Content, Your site(s), and the materials on or within Your site(s) 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);
(f) any use that you make of the Content and Marks owned by Vervana, LLC, whether or not permitted under this Operating Agreement.
See also Section 11 (Indemnification) below.
4. Policies and Pricing
5. Identifying Yourself as an Affiliate
You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we or Dr. Sinatra support, sponsor, or endorse use of any products that are not sold at Vervana.com), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Operating Agreement.
However, to comply with FTC regulations, you must clearly and conspicuously state on Your site(s) on any pages where Product is directly marketed or sold that you have an affiliate relationship with Vervana. That is, you need to disclose that you earn commissions for sales of Products you promote or endorse on your site. See this FAQ page on the FTC web site for guidance.
If you wish, you may post this statement: [Insert your name/company name] earn advertising fees for products purchased via links in this post.
6. Limited License
Subject to the terms of this Operating Agreement and solely for the limited purposes of advertising Products that are on, and directing end users to, Vervana.com 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(s) pursuant to Section 1; and
(b) to use only those of our trademarks and logos that we may make available to you.
The license set forth here will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Operating Agreement or any Operational Documentation, or otherwise upon termination of this Operating Agreement. In addition, at our sole discretion, we may terminate this license in whole or in part upon written notice (via email) to you. If and when this license is terminated, you will promptly remove from Your site(s) and delete or otherwise destroy all of the Content and Marks owned by Vervana, LLC.
7. Relationship of Parties
You and we are independent contractors, and nothing in this Operating Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us. You will have no authority to make or accept any offers or representations on our behalf.
You will not make any statement, whether on Your site(s) 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 Operating Agreement, you will be deemed to have taken the action yourself.
8. Compliance with Laws
In connection with your participation in the Program you will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003).
9. Term and Termination
Either you or we may terminate this Operating Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon any termination of this Operating Agreement, any and all licenses you have with respect to Content will automatically terminate and you will immediately stop using the Content and promptly remove from Your site(s) and delete or otherwise destroy all links to Vervana.com, all Vervana Product advertisements, all other Content, and any other materials provided or made available by or on behalf of us to you under this Operating 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 cancellations or returns). Upon any termination of this Operating Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, and 15, together with any accrued but unpaid payment obligations of us under this Operating Agreement, will survive the termination of this Operating Agreement. No termination of this Operating Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Operating Agreement prior to termination.
We may modify any of the terms and conditions contained in this Operating 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 Vervana.com. We will promptly notify you via email of any such change.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS OPERATING AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE VERVANA.COM SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
We will have no liability for the matters mentioned above in Section 3 or for any of your end users’ claims relating to such matters, and you agree to defend, indemnify, and hold us, our 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(s) or any materials that appear on Your site(s), including the combination of Your site(s) or those materials with other applications, content, or processes;
(b) the use, development, design, manufacture, production, advertising, promotion, or marketing of Your site(s) or any materials that appear on or within Your site(s), and all other matters described above in Section 3;
(c) your use of any Content, whether or not such use is authorized by or violates this Operating Agreement, any Operational Documentation, or applicable law;
(d) your violation of any term or condition of this Operating Agreement or any Operational Documentation; or
(e) your or your employees’ negligence or willful misconduct.
12. 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 IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, VERVANA.COM OR THE 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 OPERATING AGREEMENT, THE PROGRAM, VERVANA.COM, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS OPERATING 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, VERVANA.COM, ANY PRODUCTS AND SERVICES OFFERED ON VERVANA.COM, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, VERVANA, LLC AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING VERVANA PRODUCT 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.”
WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. WE DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. WE WILL NOT 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(S) OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT.
VERVANA WILL NOT CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS OPERATING AGREEMENT. FURTHER, WE WILL NOT 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 OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
In the event of any dispute relating in any way to the Program or this Operating Agreement, and if the parties are unable to amicably resolve such dispute through negotiation, than the dispute will be resolved by binding arbitration, not in court. Either party may, by written notice to the other party (an “Arbitration Notice”), require that the dispute be resolved by binding arbitration, and the party initiating the arbitration will bear the cost of the arbitrator. The Federal Arbitration Act and federal arbitration law and the laws of the state of Connecticut, without regard to principles of conflict of laws, will govern this Operating Agreement and any dispute of any sort that might arise between you and us. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Notwithstanding anything to the contrary in this Operating Agreement, we may seek injunctive or other relief in any state, federal, or national 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:
(a) we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Operating Agreement or operate sites that are similar to or compete with Your site(s);
(b) you may not assign this Operating Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Operating Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns;
(c) our failure to enforce your strict performance of any provision of this Operating Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Operating Agreement; and
(d) 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 Operating Agreement, may be made, taken, or given in our sole discretion.