This Affiliate Marketing Services Agreement (the
"Agreement") is entered into by and between the undersigned
Publisher/Affiliate ("Affiliate") and ISLAFFILIATES S.L. and shall govern the relationship between the
parties with respect to the Affiliate's participation in the ISLAffiliates
Affiliate Network.
As used in this Agreement, the following terms shall have the respective meanings set forth below:
1.1. “Platform” Is a software technology for affiliate management
that provides the tools to collect and manage affiliate data.
1.2. The “Agreement" refers to the Publisher and ISLAFFILIATES S.L. or
Affiliate Network terms of collaboration and includes everything stated in this
Agreement.
1.3. "ISLAFFILIATES, S.L." can be referred to as Network, Affiliate Network,
Platform or ISLAffiliates, and refers to the Affiliate Network that supply the
services to be further detailed in section 1.6 of the present agreement, with
the aid of its technology for affiliate management or “platform”.
1.4. "Publisher/Affiliate" refers to a collaborator, website publisher, drop
shipper, company, or private entity that is the vendor to its customers of the
goods displayed on the platform. The "Publisher/Affiliate” will purchase
products from ISLAFFILIATES, S.L. and sell them to their consumers through
their website or microsites’ landing pages, using their own advertising
mechanisms.
1.5. "Advertiser" is a commercial company that has agreed with
ISLAffiliates to join the Platform in order to promote its products.
1.6. “Network Services” are the services that the Affiliate may choose to use
and may be provided if specifically hired, either entirely or partially, by the
Affiliates, to assist them in the management of their business, as described
herein:
1.6.1 The Placement of products and respective creative materials on the
platform.
1.6.2 Allow Affiliates the purchase of the products as displayed in 1.6.1.
1.6.3 Reception of leads, sales and reporting.
1.6.4. Purchase of the products by the Affiliates, at the same time that
products are delivered to the Affiliates’ customers, so that Affiliates do not
need to keep inventory.
1.6.5 Utilizing third party providers to pick and pack products and send them
by courier to the Affiliates’ customers.
1.6.6 On behalf of the Affiliates, collect the money or cash from the
Affiliate’s customer into a specific “affiliates pooling account”, either
through third party cash on delivery services (COD) or through other payment
methods.
1.6.6.1 ISLAFFILATES SL undertakes to manage funds raised on behalf of the
Affiliate (“Affiliate Funds”) through the use of bank accounts separate from
the Company’s own operating accounts or through virtual sub-accounts provided
by a regulated financial institution.
These accounts will be exclusively intended for the
management of the Affiliate's Funds, guaranteeing their accounting and
operational separation from the other funds managed by the Company.
1.6.6.2 Ownership of Affiliate Funds.
The Affiliate's Funds will remain under the Affiliates
ownership at all times. ISLAFFILIATES will act only as the administrator
of such funds, in accordance with the terms established in this agreement.
1.6.7 Unless the affiliate wishes not to be provided, ISLAFFILIATES will
provide an external third-party Call Center service, on behalf of the
Affiliates, to reconfirm delivery details and provide any other product
information.
1.6.8 Unless the affiliate wishes not to be provided, to Provide a third-party
customer service center, to handle customer problems and organize returns.
1.6.9 Send to customers, if necessary, invoices or receipts, on behalf of the
Affiliates.
1.6.10 Calculate the “payouts”.
1.6.11 Provide customer service and handle returns.
1.7 “Network Fees” are the fees associated with the contracted Services,
which may include all or part of the services described in section 1.6 of this
agreement. This fee for the use of the “network” is calculated by ISLAffiliates
SL by product and can be adjusted at any time. The price of the “Network fees”
is calculated, per product or product offer, which will determine the “payout”.
Therefore, the Affiliate will easily know the expected “payout” amounts to be
received and does not have to perform complicated calculations. The signing of
this agreement and the sending by the publisher/affiliate of customer details
to the platform, automatically entitles ISLAffiliates to be payed the “platform
fees” from the affiliates pooling account, at the prices that produce the
“payout” amounts shown on the platform.
1.7.1 The Network fees will also include the costs incurred, due to the
affiliate’s customers, who finally cancel their orders or return them.
1.8. “Return amounts”. The amounts that the network takes from the
affiliates accounts to return to unsatisfied customers.
1.9. “RODS amounts”. The amounts that the network takes from the affiliates
account to credit the customers that do not take delivery of the product and
cancel their order.
However, the pre-calculated “payouts” already include the
amounts of 1.9 up to a threshold of 35% of gross revenue and also all of 1.8. Therefore,
in essence, the network will always adjust the price of the Network fee monthly
or weekly per affiliate, ensuring that affiliates always receive the “payout”
amounts.
1.10 “Affiliate/Publisher Revenue” Total revenue from publisher/affiliate sales to its customers
of the goods including VAT.
1.11 “Affiliate/Publisher Net Revenue” Total revenue from publisher/affiliate sales to its
customers of the goods, less Return amounts (1.8) and RODS amounts (1.9),
including VAT.
1.12 “Price of goods sold” corresponds to the price of goods, including VAT if
applicable, to the publishers/affiliates for goods purchased to ISLAFFILITES,
S.L. to be subsequently sold to its customers.
1.13 “Net Price of goods sold” corresponds to the price of goods less Return amounts
(1.8) and RODS amounts (1.9), including VAT if applicable, to the
publishers/affiliates for goods purchased to ISLAFFILITES, S.L. to be
subsequently sold to its customers.
1.14. "Creative Material" means the advertisement and any component or element
thereof optionally provided by the Advertiser to ISLAffiliates, including
landing pages, advertising banners, e-mails, including the body, header and
subject lines, the text of the advertisement, images, videos, and/or any other
content forming part of the Creative Material. The Creative Material shall also
optionally include any advertising content, created by ISLAffiliates and
licensed for use by the affiliate;
1.15. "Landing page" is a web page or microsite showing the Advertiser's
product to which an Internet user is re directed, after clicking on a hyperlink
in the advertisement, which serves to convert the visitor into an order;
1.16 "Lead" is a customer who has expressed his/her interest in
the products promoted through the Affiliates’ advertising campaigns. This
customer has contacted the Affiliate through their website or microsite landing
page, filled out the electronic form on his landing page with their contact
details (name, surname, phone and address – checkout process-) and subsequently
purchased the product through the Affiliate’s website. Once the sale is
finished, the Affiliate will transmit the contact details of the purchaser to
ISLAffiliates. ISLAffiliates on behalf of the Affiliate or the Affiliate
directly, can then interact with the customer, through a subcontracted call
centre, in order to confirm all contact details are correct, advice about
logistics and answer any queries.
1.17 “Affiliate pooling account” is a specific bank account where ISLAffiliates keeps
the money received from the affiliate’s customers. As per this agreement, The
Affiliate's Funds in the Affiliate pooling account legally remain under The
Affiliates ownership at all times. ISLAffiliates will act only as the administrator
of such funds, in accordance with the terms established in this agreement. The
affiliates can withdraw their “payouts” from this account and as per this
agreement, permission is given by the affiliates to ISLAffiliates SL to pay
from the “Affiliate pooling account” all invoices made out by ISLAffiliates to
the affiliates, for ISLAffiliates platform fees and for the product costs, if
the product has been bought from ISLAffiliates.
1.18. "Payout" means the net cash received into the “affiliate
pooling account” of ISLAffiliates from the customer on behalf of the Affiliate,
from the sale of the product, utilizing the “network services”, after paying the
network fees, and the net price of the goods sold, plus VAT if applicable
according to the following formula:
Payout = Affiliate/Publisher Net revenue – Net price
of goods sold – network fees
This net amount or “payout” is withdrawn from the
“pooling account” to the Affiliate, for each customer generated via the
Affiliate's online marketing campaigns.
1.19. “CPA” (Cost-Per-Acquisition) refers to the “Payout” to be withdrawn by the
Affiliate from the Affiliate Pooling Account” for each confirmed sale.
1.20. “CPL” (Cost-Per-Lead) refers to the estimated “payout” to be withdrawn by
the Affiliate from the “Affiliate Pooling Account” for each confirmed sale of a
product to the customer by the Affiliate plus a 10% tolerence.
1.21. “Tolerance rate” means an estimated 10% of not converted (cancelled,
unreachable) leads out of the total amount of leads generated by the Affiliate;
The “increased CPL” platform fee imposed on the CPL calculation, should
compensate this “tolerance”.
1.22. "Offers/Campaigns" means different physical products or online services
listed in the ISLAffiliates Network Marketplace and made public for the
Affiliates registered in the Affiliate Network for the purpose of online
advertising and selling;
1.23. "Capping, CAP or Limit" means the maximum amount of goods available for sale.
The limit is set for each offer at the entire Affiliate Network level or for
each individual Affiliate;
1.24. "Device" means the devices (phone, tablet, desktop, smart TV,
smartwatch, etc.) for which the offers/campaigns are available or allowed;
1.25. "Territorial restrictions" means the countries or territories (cities/states)
where the offers/products are not allowed to be sold in any way or are not
available and for which, in case of promotion/advertising the sales will be
considered invalid and cancelled from the affiliate account;
1.26. "Pending Amounts" means the amounts that will be due to be withdrawn by
the Affiliate from the “pooling account” but which are kept pending in the
account for quality check before the final approval, when the approved amounts
will be moved to the Confirmed Credit.
1.27. "Confirmed Credit" means the confirmed amounts to be withdrawn by the
affiliate as listed in the ISLAffiliates Platform under the term
"Confirmed Credit"
1.24. “Upsells”, “Upgrades” and “Cross sales” means, respectively, additional auxiliary products or
improved products or other products that could be offered to consumers, by the
affilates, to be delivered together with the main product purchased on the
electronic page of the Affiliate. This offer and purchase could occur either on
the electronic page of the Affiliate or could be made by a third party call
center, on behalf of the affiliate.
2. PAYMENTS.
2.1
ISLAffiliates will provide the “affiliates” all the prices for the goods and
the prices for the “network services” at rate that is determined automatically
per product offer, to provide the “payout”, so that the affiliate can see the
final calculation of the total cash amount they can withdraw from the “pooling
account” per product offer and customer.
Amounts relating to 1.8 and 1.9 are deducted from the
affiliates account. However, the pre calculated “payout amounts” already take
into consideration 1.9 up to a 35% of gross revenue threshold and all of 1.8.
Therefore, in essence, the network will always adjust the price of the Network
fee 1.7 monthly or weekly per affiliate and product offer, automatically, so
that the affiliates always receive the “payout” amounts, once 1.7 is invoiced
and 1.8 and 1.9 are deducted.
2.2. The
PAYOUTS are displayed in EUR currency on the ISLAffiliates platform. In the
event the Affiliate wishes to withdraw funds in a different currency, the
currency will have to be agreed in writing with the Advertiser and the
conversion rate of the European Central Bank as of withdrawal date shall be
applied.
2.3.
ISLAffiliates works with Cash-on-Delivery (“COD”) offers in all countries
available in the network with two different conditions: CPL and CPA.
2.4. The
operators of the third-party Call Centers should usually call the customers
generated by the Affiliates within 10 minutes from the contact details arrival
time and repeat the attempt to contact the customer throughout 10 days if the
customer does not answer.
2.5. The
Company undertakes to manage funds raised on behalf of the Affiliate
(“Affiliate Funds”) through the use of bank accounts separate from the
Company’s own operating accounts or through virtual sub-accounts provided by a
regulated financial institution.
These accounts will be exclusively intended for the
management of the Affiliate's Funds, guaranteeing their accounting and
operational separation from the other funds managed by the Company.
2.6 Ownership
of Affiliate Funds.
The Affiliate's Funds will remain under your ownership
at all times. The Company will act only as the administrator of such
funds, in accordance with the terms established in this agreement.
2.7.
Withdrawals from the pooling account shall be made by the affiliates on a
weekly basis by Wire Transfer to the account indicated by the Affiliate within
five (5) business days, calculated on the basis of the total number of sales
generated each week, according to the following schedule:
Sales received from 1st to 7th: calculated and paid on
the 11th of the month;
Sales received from 8th to 15th: calculated and paid
on the 19th of the month;
Sales received from 16th to 23rd: calculated and paid
on the 27th of the month;
Sales received from 24th to 31st: calculated and paid
on the 4th of the following month.
2.8. If the
above dates fall on a public holiday, they will be carried out on the first
working day according to the Barcelona working calendar.
2.9. The price
of the platform fees accounts for a maximum monthly ROD of 35% per product for
orders sent to the publishers’ customers to be able to guarantee the payouts.
If the ROD amount at the end of the month exceeds the 35% of gross revenue for
those products, due to reasons not attributable to ISLAffiliates, payouts for
the confirmed orders above the 35% threshold will be automatically deducted. Additionally,
an extra platform fee of 25% on the portion of gross revenue that exceeds the
35% threshold will be applied to cover the fulfillment and call center costs
for the orders delivered but not picked up.
2.10. ISLAffiliates may change the established price CAPs or limitations by
prior written notice to the Publisher. All changes will enter in force within
the timeframe agreed between Parties in writing. For information purposes, any
CAPs or limitation of the number of products to be sold to be made, reduction
of the payouts due to changes in consumer prices, cost of goods or platform
fees cannot be applied retrospectively.
3. ACCOUNTING.
3.1 The
Affiliates mandates ISLAffiliates to issue and send invoices to the customers
on behalf of the Affiliates, whenever or wherever applicable. For this purpose,
the Affiliates have to provide ISLAffiliates with their tax ID or equivalent
registration number and complete address in the EU. If they are not resident in
the EU they will need to provide valid documentation regarding their tax ID or
equivalent, address and registration in their respective country.
In this regard, the Affiliate acknowledges that, under
the legal obligations established in this agreement, and regardless of the fact
that ISLAffiliates issues and sends invoices to customers on behalf of the
Affiliates, the Affiliate will remain solely responsible for the fulfilment of
all invoicing obligations.
3.2 The
“payouts” are the precalculated difference between the price paid by the
customers including any applicable VAT and the price paid by the Affiliate for:
The goods plus the price of the fees of network services, plus any applicable
VAT applicable VAT.
3.3
ISLAffiliates will issue the invoices for the total amount of goods sold, plus
VAT, and network fees, plus any applicable VAT to the Affiliate, once per
month. These two invoices will include:
A- Net price of goods sold.
B-network fee, according to the following formula:
Network fees = Affiliate/Publisher Net revenue – Net
price of goods sold –Payout
The above is because for the affiliates, the total net
revenue from their product sales to consumers less the total net product cost
less the total network Fee, has to be equal to their precalculated gross margin,
which is the total payout amount.
In addition, the platform will send the Affiliate/Publisher
a summary of all their invoices and credits raised to their customers on their
behalf, for sale of the goods. This invoice should have the same units and products
as per 3.3 A.
3.4 In case
of CPL or in case of returns, the additional platform fee or additional price
of the fee, covers the platform costs related to handling Affiliate sales that
do not result in a final collection of cash.
4. AFFILIATE`S RIGHT AND OBLIGATIONS
4.1. Affiliate
undertakes through its website(s), microsite landing page(s) or through social
networks to develop his/her own advertising strategies for the promotion of
Offers/Campaigns published on the Affiliate Network using the Creative
Material.
4.2. Affiliate
undertakes to make proper use of the Creative Material provided by the
Affiliate Network or Advertisers, and may not use it for purposes other than
those indicated in this Agreement, such as using the Creative Material for
promoting other similar products of third parties (third party Advertisers or
platforms).
4.3. Affiliate
shall not post materials that violate the privacy, private life, or any other
fundamental rights of persons, that are threatening, false, deceiving, abusive,
harassing, xenophobic, racist, discriminating, licentious, libelous, vulgar,
obscene, scandalous, instigating hatred, discrimination, or racism, profane, or
any other material that might be a crime or that encourages a behavior that
could favor committing crimes or that might lead to being held accountable or
that might in any way break the law.
4.4. Affiliate
shall not post any material that infringes intellectual property rights of
third parties.
4.5. Affiliate
shall not display the ISLAffiliates Network's own or Advertisers material in
places where its image can be associated with the above-mentioned restricted
materials.
4.6. All
fraudulent traffic is strictly forbidden.
4.7. The
delivery of traffic in conditions that violate the present offer, and its
addendums, will not be taken into consideration. Additional limitations can be
agreed upon by e-mail or other communication channels.
4.8. The
discovery of any such practices gives the ISLAffiliates Network the right to
suspend or, if the case, temporarily deny all withdrawals from the pooling
account until the situation is resolved.
4.9. Affiliate
shall be held legally responsible for his/her failure to comply with good
digital marketing practices, such as employing misleading tactics (e.g. false
claims, false advertising exaggerated benefits, or fabricated testimonials) to
entice consumers or advertising Offers as other products offered by third
parties. ISLAffiliates and/or Advertiser shall not bear responsibility for
these or any other fraudulent actions of the Affiliate.
4.10. The Affiliate shall be held legally responsible for any action taken by
him/her in violation of the present section 4 and which causes any damage to ISLAffiliates
and/or Advertisers.
4.11. Affiliate's participation in the ISLAffiliates Network. During the term
of this Agreement, Affiliate shall not directly or indirectly enter into, or
attempt to enter into, any contract or agreement (whether express or implied)
with any Advertiser without the prior written consent of ISLAffiliates.
4.12. The Affiliate acknowledges and agrees that, regarding the sales made to
its customers, the Affiliate is the sole party responsible for tax liabilities,
obligations, and contingencies arising from the sales. The Affiliate also
agrees to indemnify, defend, and hold harmless ISLAFFILIATES, S.L. from and
against all claims, demands, liabilities, damages, losses, costs, and expenses,
including any tax assessments, penalties, and interest (including where the tax
office may hold ISLAFFILIATES, S.L. subsidiarily or jointly accountable for the
Affiliate’s sale to its customer), arising from or relating to the Affiliate’s
sales activities. This indemnification obligation will survive the termination
or expiration of this agreement.
4.13. By signing this agreement, and regardless of the territory, the
Affiliate commits to fulfilling all tax obligations (including VAT) related to
its sales to its customers, including filing tax returns on time, paying taxes
due, and complying with all applicable tax laws and regulations. ISLAFFILIATES,
S.L. will not be held responsible for any tax-related obligations or
liabilities incurred by the Affiliate under any circumstances. The Affiliate acknowledges
that it is solely responsible for ensuring compliance with all tax requirements
and that ISLAFFILIATES, S.L. will not be liable for the Affiliate’s failure to
meet these obligations.
4.14. During the term of this Agreement, Affiliate shall not promote
third-party products similar to the Offers/Campaigns listed in the ISLAffiliates
Network Marketplace and send sales/leads generated by advertising the
Offers/Campaigns to other affiliate network platforms and/or other third party
Advertisers.
5. TERM AND TERMINATION
5.1. This
Agreement is concluded for an indefinite period from the date of creation of
the affiliate account, and the obligations of the parties take effect from that
date.
5.2. Either
Party may terminate the Agreement, subject to prior two-month notice sent by
e-mail to the other Party, unless there is a serious breach of the Agreement by
one of the Parties which has not been remedied and justifies immediate
termination of the Agreement.
5.3. Upon
termination of this Agreement, Affiliate shall immediately cease all use of the
ISLAffiliates Platform, Services, Offers, and Campaigns, and shall promptly
return or destroy all copies of any ISLAffiliates materials in its possession or
control.
6. CONFIDENTIALITY
6.1. Each
party agrees to keep confidential and not disclose to any third party any
confidential information concerning the other party's business, customers,
suppliers, or affiliates, which is marked or otherwise designated as
confidential, or which should reasonably be considered confidential given the
nature of the information or the circumstances of its disclosure
("Confidential Information").
6.2. The
parties agree that their obligations under this Section 5 shall survive
termination or expiration of this Agreement for any reason.
7. INDEMNIFICATION
Affiliate agrees to indemnify, defend, and hold
harmless ISLAffiliates Network, its parent, subsidiaries, affiliates, and their
respective officers, directors, employees, and agents, from and against any and
all claims, liabilities, damages, losses, or expenses, including reasonable
attorneys' fees and costs, arising out of or in any way connected with
Affiliate's breach of this Agreement or its negligence, misconduct, or
violation of any applicable law.
8. LIMITATION OF LIABILITY
Except as provided in sections 4.13 and 4.14 of this
agreement, neither party will be liable
to the other party for any indirect, incidental, consequential, special, or
exemplary damages, including but not limited to lost profits, even if advised
of the possibility of such damages, arising from the performance of this
Agreement or the provision of services hereunder.
9. MISCELLANEOUS
9.1. This
Agreement constitutes the entire understanding and agreement between the
parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, whether written or oral, relating thereto.
9.2. This
Agreement shall be governed by and construed in accordance with the Spanish
laws, without regard to its conflicts of laws principles. In the event of
disputes between the Parties arising out of or in connection with this
Agreement, the Parties undertake to seek an amicable solution before taking
legal action.
9.3. Any
waiver of any provision of this Agreement must be in writing and signed by the
party against whom the waiver is sought to be enforced. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision,
and any failure to enforce any provision of this Agreement shall not constitute
a waiver of such provision or any other provision.
9.4. Neither
party may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the other party, except that
ISLAffiliates may assign this Agreement to an affiliate or successor in
interest in the event of a merger, acquisition, or sale of all or substantially
all of its assets.
9.5. Any
notices or other communications required or permitted under this Agreement
shall be in writing and shall be deemed given when delivered personally or by
email, or when received by certified or registered mail, postage prepaid,
return receipt requested, or by a recognized overnight courier service. Notices
shall be addressed to the respective parties at the addresses provided in the
registration process, or at such other address as either party may designate by
notice to the other party.
9.6. If any
provision of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, or unenforceable for any reason, such provision shall be
modified to the extent necessary to make it valid, legal, and enforceable, and
the remainder of this Agreement shall continue in full force and effect with
such modification.
9.7. Nothing
in this Agreement shall be construed to create a partnership, joint venture, or
agency relationship between the parties. Neither party shall have the authority
to bind or obligate the other party in any manner without the prior written
consent of the other party.
10. DATA PROTECTION AND PRIVACY
10.1. Each party shall comply with all applicable data protection and privacy
laws, including but not limited to the provisions of Organic Law 3/2018, of 5
December, on Personal Data Protection and guarantee of digital rights and EU
General Data Protection Regulation (GDPR), in the performance of their
obligations under this Agreement and in the collection, use, storage, and
transfer of any personal data.
10.2. Each party shall implement appropriate technical and organizational
measures to ensure a level of security appropriate to the risk involved in
processing personal data under this Agreement and to protect personal data
against unauthorized or unlawful processing, accidental loss, destruction, or
damage.
10.3. The Affiliate's personal data will be included in an automated personal data file in order to manage the commercial relationship. ISLAFFILIATES, S.L. is the controller of the data processing. Data subjects are informed of their right of access, rectification, opposition, deletion, limitation and portability, which they may exercise by sending a request to ISLAFFILIATES, S.L. If you consider that your request has not been adequately addressed, you have the right to file a complaint with the Spanish Data Protection Agency.
11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, civil unrest, labor strikes, or any other unforeseen event or circumstance. In such cases, the affected party shall promptly notify the other party and use its best efforts to resume performance as soon as practicable.
12. METHOD OF VALID SIGNATURE AND ACCEPTANCE OF ENTIRE
AGREEMENT.
By signing the Affiliate
Agreement" on the registration page of the ISLAffiliates Network,
Affiliate acknowledges and agrees to be bound by the terms and conditions of
this Agreement. If Affiliate does not agree with this Agreement, Affiliate should
not sign-up for or access the ISLAffiliates Network Platform or Services, and
should delete their account immediately.