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Affiliate Agreement

AFFILIATE AGREEMENT

1.0 AGREEMENT. Thank you for being an Affiliate for Mighty Kind. We are happy to have you! This agreement outlines our working relationship so we can both have clear expectations. 

This license agreement is made between You, the Affiliate, and the Company Mighty Kind, LLC, owner of MightyKindKids.com and related domains, a LLC hereafter referred to as the “Company.” The purpose of this Agreement and program is to permit Affiliate to earn money by advertising and promoting Company’s products on Affiliate’s site and/or social media platforms and/or in-person, hereafter known as “Site” and to earn fees for purchases made by Affiliate’s end users through a specific unique url assigned to Affiliate, (“Link”) and/or discount code that tracks the Affiliate’s related sales, (“Discount Code”). This agreement also licenses the rights to the use of certain physical or digital assets that may be made available to Affiliate.

2.0 ENROLLMENT AND PROHIBITED CONTENT. Affiliates may not have objectionable content on their sites or platforms at any time. If any affiliate content contains objectionable content, the company may terminate this agreement. Objectionable content includes content that:

  1. promotes or contain sexually explicit materials;

  2. promotes violence or contain violent materials;

  3. promotes or contain libelous or defamatory materials;

  4. promotes discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;

  5. promotes or undertakes illegal activities;

  6. include any of Company’s trademarks or copyrights, or a variant or misspelling of a trademark or copyright of ours, in any domain name, subdomain name, or in any username, group name, or other identifier on any social networking site without explicit permission; or

  7. otherwise violates intellectual property rights.

3.0 AFFILIATE DUTIES. We value transparency in our marketing activities, which includes influencer and affiliate marketing practices. Affiliate is responsible for disclosing that any links or coupon codes provided on the Affiliate Site, blogpost, media, post, story, slide, or platform are affiliate links in accordance with Section 5 of the Federal Trade Commission Act. Affiliates must clearly disclose that they are Affiliates and that they may earn fees for purchases made through the Link. This disclosure must be clear and conspicuous and must be made in close proximity to the placement of a link or discount code and must be present on each slide/story and spoken verbally at the beginning and end of long-form video/audio content. Disclosures can be with the text “affiliate”or #affiliate, and/or other natural language equivalents that clearly discloses the relationship between Affiliate and Company. Don’t try to be cute or coy here -- please be transparent with your audience about your experience with Company’s products and how you want to solve a problem and support your own content/business in the process at no extra cost to the customer.  

The Affiliate is solely responsible for the development, maintenance and operation of the Affiliate’s Site and for placing links or coupon codes on Affiliate’s Site in compliance with the terms of this Agreement. Affiliate is responsible for all materials that appear on Affiliate’s Site and for ensuring that such items do not infringe upon the rights of any third party including, but not limited to, copyright, trademark, privacy or other proprietary rights.

The Affiliate will be provided a digital copy of each magazine release to promote at their discretion. If Affiliate would like a single hardcopy of the Company’s magazine each quarter, the Affiliate agrees to produce a static dedicated post about the new Mighty Kind product received. Static posting meaning a blog post, Instagram/Facebook post, reel, or other content that does not disappear from the platform outside a 24-hour timeframe This post should be published within 5 business days of receiving the Company’s product. 

4.0 PROHIBITED USES. The following are prohibited and are grounds for immediate termination of Affiliate’s participation in the Program: 

4.1.Using the logo, logo marks or other Company Site/branding imagery without permission from the Company, other than using the provided graphics/talking points/media to promote offerings;

4.2.Using Company’s name, domain, product names, collection, slogans, or any other intellectual property " in ANY variation in an Affiliate Site URL;

4.3. Failing to clearly and conspicuously disclose Affiliate status in communications to users (whether it is on your site, social media outlets, emails, or otherwise), including using the language required in Paragraph 3 above;

4.4. Misrepresenting or embellishing the relationship with the Company (including by expressing or implying that Company supports, sponsors, endorses, or contributes to any charity or other cause), or expressing or implying any relationship or affiliation with the Company except as expressly permitted by Agreement or implying any third-party celebrity or influencer endorsements without express written permission;

 

4.5. Using spam email and other forms of Internet abuse (including spamming forums, blogs, Twitter, Facebook, and other social media outlets) to seek sales. Spam is defined as including, but not limited to, the following:

  1. Email addressed to a recipient with whom the sender does not have an existing business or personal relationship or is not sent at the request of, or with the express consent of the recipient through an affirmative opt-in subscription (do not harvest email addresses without consent from the users to opt-into marketing messages);

  2. Messages posted to Usenet, forums, Twitter, Facebook and message boards that are off-topic (unrelated to the topic of discussion), cross-posted to unrelated newsgroups, posted in excessive volume, or posted against forum/message board rules. If a forum owner or moderator complains that an Affiliate has spammed, the Affiliate account may be permanently terminated after investigation.

  3. Content posted on free blog websites for the sole purpose of keyword spamming, or comments posted to legitimate blogs that violate the comment policy of the blog owner.

  4. Solicitations posted to chat rooms, or to groups or individuals via Internet Relay Chat or "Instant Messaging" system;

  5. Certain offline activities that, while not considered Spam, are similar in nature, including distributing flyers or leaflets on private property or where prohibited by applicable rules, regulations, or laws.

5.0 PROMOTIONAL MATERIALS. Company may make available to Affiliate certain button links, text links, and/or other graphic or textual material for display and use on the Affiliate Site  (the “Promotional Materials”) as appropriate.  Affiliate can also include a link or tag from the Promotional Materials to Company’s Site, as specified by the Company. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s Site shall conform to the following terms, conditions and specifications:

5.1. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s Site (and the products and services available thereon), and for linking to Company’s Site.

5.2. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from the Company for such alteration or modification.

5.3. The Promotional Materials will be used to link only to Company’s Site, to the specific web site page specified by Company.

5.4 Affiliates are not limited to provided materials by the Company. Affiliates have permission to generate original content that resonates with their brand so long as it follows the Company’s agreement guidelines. 

6.0 LIMITED LICENSE TO USE INTELLECTUAL PROPERTY. Upon acceptance into the Affiliate Program, Company grants the Affiliate a revocable, non-exclusive, worldwide, royalty-free license to use the Promotional Materials, including hashtags, logos, taglines, slogans and graphics. The Affiliate may display these materials on the Affiliate’s Site for the sole purpose of participating in the Program. The Affiliate is prohibited from distributing, reproducing, modifying, amending, or creating derivative works of the Promotional Materials for any other purpose other than promoting Company. Upon termination by either party, Affiliate’s limited license to use the Promotional Materials for the purpose of promoting the products and/or services offered through the Affiliate Program, will cease as of the termination date. Upon the termination date, Affiliate must immediately cease any use of the Promotional Material. The Affiliate is not granted a license to use any of the Company’s intellectual property or proprietary material, other than the Promotional Materials discussed above.

7.0 CUSTOMER SERVICE. The Company will handle all aspects of customer service for customers who purchase through the  Link or Discount Code including customer inquiries, product orders, customer billing and collection, and product shipment/delivery. Company reserves the right to change the Company’s policies and procedures, pricing structure, add or cancel any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advance notice to the Affiliate or customers purchasing through the Link or Discount Code.

8.0 FEES. Affiliate will be paid a referral fee (“Fee”) or commission (“commission”), for each customer who completes a purchase on the Company Site using the unique Link/Discount Code assigned to Affiliate.  The Affiliate shall be paid Fees only on sales that are tracked through the Company’s online tracking system and indicate the Link as the source. 

The Fee rate will be 15% (fifteen percent) of the price of each completed purchase made through the Link and actually paid to the Company. Cookie length is 30 days. Company reserves the right to change and amend the Fee rate structure at any time. Company will notify Affiliate of any such changes at the email address then-currently associated with the Affiliate.

Fees will be paid to the Affiliate approximately 90 days following the end of each calendar quarter. Calendar quarters run January-March, April-June, July-September, and October-December.  If a contracted Affiliate earns more than $100 (one-hundred U.S. dollars) in a 30 day period, fees will be paid every 30 days, by the 15th of the following month.  Fees will be adjusted for orders that are cancelled, returned, or where payment is otherwise refunded to the purchaser. All sales and Fees are tallied by Company, and credit due to Affiliate and all the final sales and Fees are at the sole discretion of Company. All payments will be made to the Affiliate’s PayPal account unless other arrangements are approved by the Company. If the Affiliate’s PayPal email changes, it is Affiliate’s responsibility to notify the Company of any changes to the Affiliate email. Company will not resend payments that were sent to an incorrect outdated email address. Affiliate payments must reach a minimum of $100 for a monthly payment, otherwise payments shall be made on a quarterly basis. 

9.0 RELATIONSHIP OF PARTIES. Affiliate is an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Affiliate has no authority to make or accept any offers or representations on Company’s behalf. Affiliate will not make any statement, whether on its Site or otherwise, that reasonably would contradict this statement. 

10.0 COMPLIANCE WITH LAWS. In connection with the Affiliate’s participation in the Program, Affiliate 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). Affiliate is responsible for all taxes arising from compensation and other amounts paid under this Agreement.

11.0 TERM AND TERMINATION. The term of this Agreement begins when Affiliate accepts or begins participating in the Program. Either Company or the Affiliate may terminate this Agreement at any time, with or without case by providing written notice (email is sufficient) to the other party. The date the notice is sent will be the Termination Date. Failure to comply with the terms of this Agreement will result in immediate termination of this Agreement by the Company and forfeiture by Affiliate of any accrued, unpaid commissions. Company shall pay any pending commissions owed to Affiliate through the Termination Date, if a cancellation of this Agreement occurs for any reason other than a violation of this Agreement on the part of the Affiliate. Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and Affiliate will immediately cease use of, and remove from the Affiliate site, all Links to the Company Site, and all trademarks and logos, other marks and all other materials provided in connection with this Program.

12.0 MODIFICATION. Company may modify any of the terms and conditions within this Agreement at any time and at its sole discretion. These modifications may include, but not limited to changes in the scope of available referral fees, fee schedules, payment procedures and the Program rules. If any of the modifications are UNACCEPTABLE TO AFFILIATE, your only recourse is to terminate this Agreement. If Affiliate CONTINUES PARTICIPATION IN THE PROGRAM, it will be considered as acceptance of the change by the Affiliate.

13.0 LIMITATION OF LIABILITY

13.1. IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO AFFILIATE FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND

13.2. IN NO EVENT SHALL THE COMPANY’S LIABILITY EXCEED THE FEES PAID UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.

13.3 THE FOREGOING LIMITATIONS IN THIS PARAGRAPH  SHALL NOT APPLY TO THE OBLIGATIONS UNDER PARAGRAPHS 6 or 7. 

14.0 INDEMNIFICATION. The Affiliate hereby indemnifies and holds harmless the Company, its officers, directors, employees, contractors, affiliates, agents, successors and assigns from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Company may incur and which are based in whole or in part upon the Affiliate’s participation in the Program, any claims that any of the Affiliate trademarks and other intellectual property and proprietary material infringe upon the rights of any third party, the Affiliate breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Program, or any claim related directly or indirectly to the Affiliate use, operation, or the content of the Affiliate’s Site.

15.0 DISCLAIMERS. Company makes no express or implied warranties or representations with respect to the Program or an Affiliate's potential to earn income from the Program. In addition, Company makes no representation that the operation of the websites, platforms, Links, or Discount Codes will be uninterrupted or error-free. 

16.0 SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 

17.0 WAIVER. The failure of any Party to require strict compliance with the performance of any obligations and/or conditions of this Agreement shall not be deemed a waiver of that Party’s right to require strict compliance in the future, or construed as consent to any breach of the terms of this Agreement.

18.0 APPLICABLE LAW AND JURISDICTION. Any dispute relating in any way to the Program or this Agreement will be resolved by binding arbitration according to the AAA rules of Arbitration, rather than in court. The laws of the State of Texas shall govern this Agreement. 

19.0 ASSIGNABILITY AND PARTIES OF INTEREST. No Party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other Party. Nothing in this Agreement, express or implied, will confer upon any person or entity not a Party to this Agreement, or the legal representatives of such person or entity, any rights, remedies, obligations, or liabilities of any nature or kind whatsoever under or by reason of this Agreement, except as expressly provided in this Agreement. 

By executing this agreement, Affiliate acknowledges that she or he has read this Agreement and agrees to all its terms and conditions. Affiliate independently evaluated this program and is not relying on any representation, guarantee or statement other than as set forth in this Agreement.