Affiliate Agreement - Template, Sample Form to Complete Pro · IN-law

AFFILIATE AGREEMENT

This Affiliate Agreement ("Agreement") is made and executed at ________ on ________ BY AND BETWEEN ________ (Company), a company incorporated under the Companies Act, 2013 bearing Corporate Identity Number (CIN) ________ and Goods and Services Tax Identification Number (GSTIN) ________, having its registered/principal office at ________, ________, Andaman and Nicobar Islands - ________ (which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its successors-in-business, permitted assigns, executors and administrators), hereinafter referred to as the ("Organization"/"________"/"We"/"Us"/"Our") of the ONE PART;

AND

________, residing at / having its place of business at ________, bearing PAN ________ and GSTIN (if applicable) ________ (which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its permitted assigns, heirs, legal representatives and executors), hereinafter referred to as the ("Affiliate"/"You"/"Your") of the OTHER PART.

The Organization and the Affiliate are hereinafter individually referred to as a "Party" and collectively as the "Parties".

WHEREAS

A. The Organization is engaged in the business of:

________

B. The Organization intends to promote its Products under the following brand name: ________ ("Organization"), using the services of the Affiliate.

C. The Service shall commence on the date the Organization confirms the selection of the Affiliate into the program.

D. This Agreement expressly incorporates by reference any Terms and Conditions, Privacy Policy, End-User Licence Agreements or other legal documents available on Our website, and the Parties agree to be bound by the same.

E. The Parties intend this Agreement to be a valid and binding contract under the Indian Contract Act, 1872, and have agreed to record the terms and conditions herein.

NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, the Parties agree as follows:

§ 1. AFFILIATE ACCEPTANCE

1.1. Upon completion of the application to become an Affiliate, We shall review your application and notify you of acceptance or non-acceptance to participate in the Affiliate Program.

1.2. Prior to accepting an application, We reserve the right to conduct further reviews and may contact you to request additional information.

1.3. Fulfilment of certain requirements or certification(s) may be necessary before acceptance of your application.

1.4. ________ reserves the right to accept or reject the Affiliate's application at its sole discretion.

1.5. If We fail to notify you of your acceptance into the Affiliate Program within ________ (________) calendar days from the date of your application, your application shall be deemed rejected.

§ 2. LEADS

2.1. Each accepted affiliate lead link shall have an expiration date as specified in the Affiliate tool or program policies. After expiration, the lead shall no longer be valid for commission purposes.

2.2. The Affiliate shall receive commission payment solely for that specific customer transaction, irrespective of any additional purchases made by the customer during their subscription service.

2.3. The Affiliate lead must be accepted and valid as per the affiliate policies or tools. Leads prohibited under applicable laws or the policies of ________ shall not be considered successful transactions.

2.4. ________ shall be responsible for all aspects of order processing and fulfilment, including confirmation, cancellations, processing, refunds and payment processing of referred users using Your referral link or codes. However, We reserve the right, at Our sole discretion, to reject orders that do not comply with the requirements of this Agreement and Our Terms and Conditions.

2.5. In competitive situations involving other affiliates, We reserve the right to determine which affiliate is most eligible for commission, at Our sole discretion.

§ 3. AFFILIATE DUTIES AND RESPONSIBILITIES

3.1. The Affiliate shall promote the following specific Products of the Organization:

________

3.2. The Affiliate is subject to entrepreneurial risk and shall be responsible for any losses incurred as an Affiliate.

3.3. The Affiliate has no authority to act on behalf of, or to bind, the Organization in any manner.

3.4. The Affiliate shall not abuse the goodwill of its association with the Organization to further promote other business interests without the prior written consent of the Organization.

3.5. The Affiliate shall not make disparaging remarks about other products, services, affiliates or companies.

3.6. The Affiliate shall not, orally or in writing, disclose to the public, issue any press, make any public statement or otherwise communicate to the media concerning the existence of this Agreement or its subject matter, without the prior written approval of the Organization.

3.7. The Affiliate shall have the following general responsibilities:

3.7.1. Maintain a sound understanding of the Organization, its Products, values, target audience and overall message.

3.7.2. Represent the Organization in a positive and professional manner.

3.7.3. Promote the Organization's Products to its audience.

3.7.4. Obtain pre-approval of the content from the Organization before posting such content on any platform.

3.7.5. Comply with all applicable laws, regulations and industry standards relating to advertising, marketing and promotional activities, including the Consumer Protection Act, 2019, the Consumer Protection (E-Commerce) Rules, 2020, and applicable advertising guidelines.

3.7.6. Accurately track and report all referrals and sales generated through the affiliate link, and promptly notify ________ of any discrepancies or issues related to tracking or reporting.

3.7.7. Adhere to the policies governing the observation of confidentiality and the handling of confidential information.

§ 4. RESPONSIBILITIES OF THE ORGANIZATION

4.1. The Organization shall be responsible for the following:

4.1.1. Timely and accurate delivery of Products to customers, adhering to all contractual obligations and specifications.

4.1.2. ________ shall comply with all applicable laws, regulations and industry standards governing its business operations and Products.

4.1.3. ________ shall handle customer data and personal information in compliance with the Digital Personal Data Protection Act, 2023, and the Information Technology Act, 2000 (together with rules made thereunder), implementing reasonable security practices and procedures to safeguard such data.

§ 5. COOKIES

5.1. When a prospective customer clicks on the affiliate link provided by the Affiliate, a cookie shall be set to facilitate tracking of whether the prospective customer subsequently signs up for the designated Products.

5.2. In the event the association between the cookie and the prospective customer is broken for reasons beyond the control of ________, and the prospective customer thereafter makes a qualified purchase, the Affiliate shall not be entitled to receive any commission on such purchase.

5.3. The cookies used under this Agreement shall have a validity period of ________ (________) calendar days, during which they shall remain active for the purpose of tracking customer referrals.

§ 6. REPORTING

Both the Affiliate and the Organization shall, as stipulated in this Agreement, reciprocally provide each other with periodic reports encompassing relevant data concerning the value derived from individual activities, including but not limited to traffic, completed sales, revenues and other pertinent metrics. The Affiliate may check the details of referred customers, commissions earned, payout details and the like on the dashboard provided, using the login id and password.

§ 7. REMUNERATION

7.1. The commission shall be paid based on the successful sales generated by the Affiliate.

7.2. The Affiliate shall be paid ________% of the total net sale value (exclusive of taxes) for each successful sale made by the Affiliate using the referral link or referral code provided by ________.

7.3. The Affiliate shall be entitled to raise an invoice on the Organization each Monday of every week.

7.4. The commission shall be processed ________ (________) calendar days after the end of the month in which it accrued, subject to deduction in respect of cancelled purchases.

7.5. The Organization shall pay the accrued commission within ________ (________) business days from receipt of the Affiliate's invoice, subject to the other terms of this Agreement.

7.6. The payment shall be made in the following manner: Internet Banking, to the bank account particulars notified by the Affiliate: Account Holder ________, Account Number ________, IFSC ________.

7.7. We or the affiliate tool shall determine the currency in which commission shall be paid to the Affiliate, as well as the applicable conversion rate, if any, for international transactions.

7.8. The Affiliate shall be responsible for the payment of all applicable taxes (including, where applicable, Goods and Services Tax), fees (including bank fees) and other levies related to the commission payment. The Organization shall be entitled to deduct tax at source under the Income-tax Act, 1961, where applicable, and provide the requisite certificate.

7.9. All amounts payable by Us to the Affiliate are subject to set-off against any outstanding amounts owed by the Affiliate to Us.

7.10. We reserve the right to alter or change the commission amount as displayed in the affiliate tool. Any modification shall be communicated to the Affiliate through the affiliate tool or other electronic means of notification.

§ 8. PAYMENT DISPUTES

In the event of any dispute regarding commission payments, the Affiliate shall notify the Organization in writing within ________ (________) business days of the disputed payment. The Organization shall review the dispute and make a determination in good faith. The records maintained by the Organization or the affiliate tool shall be considered final and conclusive in resolving any such dispute, save for manifest error. Any commission payment not disputed within the aforesaid period shall be deemed accepted by the Affiliate as accurate and final.

§ 9. PROHIBITED ACTIVITIES

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9.2. Any violation of the prohibited activities set out above shall constitute a material breach of this Agreement and may result in immediate termination of this Agreement, forfeiture of any unpaid commissions, and such other legal remedies as may be available to the Organization under applicable law.

§ 10. RELATIONSHIP OF PARTIES

The Affiliate at all times remains an independent contractor, and nothing in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship between the Parties.

§ 11. LIMITED LICENCE

________ hereby grants to the Affiliate, for the term of this Agreement, a limited, revocable, non-exclusive, non-transferable, royalty-free licence to use and reproduce the promotional content in strict compliance with this Agreement.

§ 12. TERM AND TERMINATION

12.1. The Service shall commence on the date ________ confirms the position ("Commencement Date"), and this Agreement may be terminated by either Party upon serving ________ (________) business days' written notice.

12.2. Should the Affiliate materially default in the performance of any of its duties and obligations hereunder, and such default is not substantially cured within ________ (________) business days, or such breach by its nature is incapable of being cured within such period, the Organization may, upon written notice to the Affiliate, terminate this Agreement.

12.3. Either Party may terminate this Agreement for cause by providing the other Party written notice if the other Party: (i) is in material breach of this Agreement and has failed to cure such breach within 7 (seven) business days after its receipt of written notice of such breach from the non-breaching Party; (ii) engages in any unlawful business practice related to that Party's performance under this Agreement; or (iii) files a petition for insolvency or bankruptcy, becomes insolvent, acknowledges its insolvency in any manner, or has a receiver, liquidator or trustee appointed in respect of its assets. A notice of 15 (fifteen) business days shall be given prior to such termination.

12.4. Upon termination of this Agreement, the Affiliate shall immediately cease using any affiliate links, banners or promotional materials associated with ________.

12.5. The Affiliate shall no longer be eligible to earn referral commissions after the date of termination.

12.6. In the event of termination, any unpaid commissions earned by the Affiliate up to the termination date shall be paid in accordance with the regular payment schedule set out in this Agreement.

12.7. ________ reserves the right to withhold unpaid commissions if there is a reasonable suspicion of fraudulent activity or breach of this Agreement by the Affiliate.

12.8. The Parties agree that, on expiry of the aforesaid duration, this Agreement may be extended for such period as may be mutually agreed in writing.

12.9. Clauses relating to confidentiality, intellectual property, limitation of liability, indemnity, dispute resolution and governing law shall survive the termination or expiry of this Agreement.

§ 13. NOTICES

13.1. Any notice, communication or other correspondence required or permitted to be given under this Agreement shall be in writing and shall be deemed duly given and received when:

13.1.1. Delivered personally, with acknowledgement of receipt;

13.1.2. Sent by registered post or courier to the address mentioned in this Agreement and the Affiliate application form;

13.1.3. Sent by email to the email address provided by the recipient in the Affiliate Application or as subsequently updated in writing; or

13.1.4. Provided through any electronic communication method agreed upon by both Parties.

13.2. Notice to ________ shall be addressed to ________ at the following address:

________, ________, Andaman and Nicobar Islands - ________

Email: ________

13.3. Notice to the Affiliate shall be addressed to the contact information provided by the Affiliate in the Affiliate application or as updated in writing.

13.4. Each Party shall promptly notify the other Party of any change to its contact information for notice purposes.

§ 14. LIMITATION OF LIABILITY

To the maximum extent permitted by applicable law, neither Party shall be liable to the other for any special, indirect, incidental, punitive or consequential damages arising out of or related to this Agreement, including loss of profits, revenue, data or business opportunities, even if such Party has been advised of the possibility of such damages. The foregoing limitation applies to all causes of action in the aggregate, including without limitation breach of contract, breach of warranty, negligence, strict liability and other torts. Notwithstanding the foregoing, the aggregate liability of either Party under this Agreement shall not exceed the total commission paid or payable to the Affiliate during the ________ (________) months immediately preceding the event giving rise to the claim.

§ 15. CONFIDENTIALITY

The Affiliate will have access to confidential information relating to the Organization's marketing strategies, promotional plans and other proprietary information. By accepting this Agreement, the Affiliate agrees to keep all such information strictly confidential and not to disclose it to any third party without the prior written consent of the Organization. This obligation of confidentiality shall remain in effect during the tenure of the Affiliate and for a period of ________ (________) years thereafter. Additionally, the Affiliate agrees not to use any confidential information for personal gain or to the detriment of the Organization. In the event of a breach of this clause, the Organization reserves the right to terminate this Agreement and to seek all legal remedies available, including injunctive relief.

§ 16. INTELLECTUAL PROPERTY

The Organization shall have the exclusive right to use, reproduce, distribute and create derivative works of any of its intellectual property for any purpose, and the Affiliate shall not retain any right or interest therein. The Affiliate further agrees that it shall not use any confidential information or any other intellectual property belonging to the Organization for personal gain or to the detriment of the Organization. The Affiliate grants the Organization the right to use the name, testimonials, photographs or videos of the Affiliate for promotional purposes. In the event of any breach of this clause, the Organization reserves the right to terminate this Agreement and to seek all legal remedies available.

§ 17. REPRESENTATIONS AND WARRANTIES

17.1. Both Parties represent that they are fully authorised and competent to contract under the Indian Contract Act, 1872, and to enter into this Agreement.

17.2. The performance and obligations of either Party shall not violate or infringe upon the rights of any third party.

17.3. The Affiliate represents that he/she/it is duly authorised to act as an Affiliate.

§ 18. EXCLUSIVITY

During the course of this Agreement, the Affiliate may represent any other company/organization of a similar nature. The Affiliate is required to inform the Organization before entering into any such relationship.

§ 19. INDEMNITY

Each Party agrees to indemnify and hold harmless the other Party against any claims, losses, damages, liabilities, penalties, expenses and costs of any kind or amount which result from the negligence, fraud, wilful misconduct or breach of this Agreement by the indemnifying Party.

§ 20. DISPUTE RESOLUTION AND GOVERNING LAW

20.1. The Parties agree that any dispute, controversy or claim arising out of or in relation to this Agreement, including its existence, validity, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration and Conciliation Act, 1996, and any statutory modification or re-enactment thereof for the time being in force. The arbitration shall be conducted by a sole arbitrator mutually appointed by the Parties. The arbitration proceedings shall be conducted in the English language. Each Party shall bear its own costs of the arbitration, and the fees of the arbitrator shall be borne equally by the Parties. The seat and venue of arbitration shall be Andaman and Nicobar Islands.

20.2. This Agreement shall be governed by and construed in accordance with the laws of India, and, subject to Clause 20.1, the courts at Andaman and Nicobar Islands shall have exclusive jurisdiction.

§ 21. FORCE MAJEURE

Neither Party shall be held liable for any failure or delay in the performance of its obligations under this Agreement where such failure or delay is caused by circumstances beyond the reasonable control of the affected Party. Such circumstances may include, but are not limited to, acts of war, hostility or sabotage, acts of God, epidemics or pandemics, electrical, internet or telecommunication outages not caused by the affected Party, governmental restrictions, or any other event outside the reasonable control of the affected Party.

§ 22. SEVERABILITY

If any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, that part shall be severed from the remainder of this Agreement, and the remaining provisions shall continue in full force as valid and enforceable.

§ 23. COMPLIANCE WITH APPLICABLE LAWS

23.1. The Affiliate shall ensure full compliance, and shall ensure that any third parties engaged in sales or referral activities on behalf of the Affiliate also comply, with all applicable foreign and domestic laws, including but not limited to export laws, laws governing the sending of unsolicited email, the Information Technology Act, 2000, and other governmental regulations, ordinances, and judicial and administrative orders.

23.2. The Affiliate shall refrain from engaging in any deceptive, misleading, illegal or unethical marketing activity that could be detrimental to ________, its customers or the public.

§ 24. SALE LIMITATION

This Agreement shall not impose any restriction on Our right to sell, directly or indirectly, the Products to any existing or prospective customers. ________ retains the freedom to engage in sales and marketing activities without limitation, whether or not such activities involve the Affiliate's participation in promoting the Products.

§ 25. MISCELLANEOUS

25.1. No collective agreements (otherwise applicable to workmen under the Industrial Disputes Act, 1947, or the applicable labour codes) apply to this Agreement.

25.2. This Agreement sets out the entire agreement and understanding between the Parties in connection with the Service and supersedes any previous contract or agreement between the Affiliate and the Organization.

25.3. The Organization may hold and process, whether electronically or manually, the data it collects in relation to the Affiliate in the course of the Service for the purposes of management and administration of its business and of other affiliates, and for compliance with applicable procedures, laws and regulations, and the Affiliate hereby consents to the same in accordance with the Digital Personal Data Protection Act, 2023. The Organization or its agents may transfer, store and process such data, whether in India or any other place, for the above purposes.

25.4. If at any time any term or provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any rule of law or enactment, such term, provision or part shall, to that extent, be deemed not to form part of this Agreement, but the enforceability of the remainder of this Agreement shall not be affected.

25.5. No amendment or modification of this Agreement shall be valid unless made in writing and signed by both Parties.

25.6. Neither Party shall assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party.

25.7. The Affiliate agrees, recognises and acknowledges that:

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25.7.2. if it violates any of the terms of this Agreement, the Organization will suffer irreparable injury and damage the amount of which cannot be adequately measured in monetary terms and for which an adequate remedy at law will not exist;

25.7.3. in view of the above, the Organization shall be entitled to injunctive relief, in addition to any other remedy available at law or in equity, in the event it violates any of the terms or conditions of this Agreement.

25.8. The Parties agree that electronic communications, including but not limited to email, electronic signatures and online messaging, shall be deemed valid and legally binding for all purposes under this Agreement, consistent with the Information Technology Act, 2000. Such electronic communications shall have the same force and effect as if they were in writing and signed by the Parties.

For any queries, You may contact Us at: ________.

IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first hereinabove written.

SIGNED for and on behalf of the ORGANIZATION:

Name: ________

Designation: ________

Signature: ____________________

Date: ________

SIGNED by the AFFILIATE:

Name: ________

Signature: ____________________

Date: ________

WITNESSES:

1. Name: ________, Address: ________, Signature: ____________________

2. Name: ________, Address: ________, Signature: ____________________