October 29, 2019
Thank you for participating in the Shogun Affiliate Program! To be eligible to participate as a Shogun Affiliate, you must review and accept this Shogun Affiliate Agreement (this “Agreement”) by clicking on the “Submit” button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THIS AGREEMENT OR PARTICIPATING IN THE SHOGUN AFFILIATE PROGRAM, YOU AGREE TO THESE TERMS AND CONDITIONS WITH SHOGUN LABS, INC. (“SHOGUN” OR “WE”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “SUBMIT” BUTTON AND YOU SHOULD NOT PARTICIPATE IN THE SHOGUN AFFILIATE PROGRAM.
If you are registering as a Shogun affiliate in your individual capacity, then references to “Affiliate” or “you” herein refer to you. If you are registering as a Shogun affiliate on behalf of an entity or other organization, you are agreeing to this Agreement for that entity or organization and representing to Shogun that you have the authority to bind that entity or organization to this Agreement (and, in which case, references to “Affiliate” or “you” herein refer to that entity or organization).
- SHOGUN DOES NOT PROVIDE WARRANTIES OR INDEMNITIES HEREUNDER, AND THESE TERMS LIMIT SHOGUN’S LIABILITY TO YOU.
- DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR SHOGUN MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
We may modify any of the terms and conditions within this Agreement at any time and at our sole discretion. These modifications may include without limitation changes in the scope of available referral fees, fee schedules, payment procedures and program rules. If any of the modifications are unacceptable to you, your only recourse is to terminate this Agreement. If you continue participation in the program, it will be considered as your acceptance of the modifications. Subject to the foregoing, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.
To enroll in the affiliate program, you must submit an affiliate application form to Shogun and be approved. Applicants will be notified of their acceptance status as soon as possible after their information is reviewed.
Subject to the terms of this Agreement, Shogun hereby grants Affiliate a non-exclusive license during the term of this Agreement to display a link specifically assigned to Affiliate (whether in the form of text, or a logo or other graphic) provided to Affiliate by Shogun (the “Affiliate Link”), which will link to your Affiliate URL (as defined below), in a manner consistent with Shogun’s trademark policies promulgated from time to time. If Shogun objects to the manner in which Affiliate displays the Link or any other content relating to Shogun or its software or services, Affiliate will remedy the issue in the manner requested by Shogun as soon as reasonably practicable. All use of Shogun’s name or its other trademarks will inure to the sole benefit of Shogun. Affiliate agrees to comply with any referral or opportunity registration process that Shogun may promulgate from time to time.
4. Affiliate URL
You will be issued a special URL (“Affiliate URL”) once you become an approved member of the Shogun Affiliate Program which will be unique to you and you only, and will allow you to be paid for affiliate referrals.
Affiliate will receive the percentage of Net Revenue (as defined below) received by Shogun, as set forth below:
● For customers that first install Shogun’s product via your valid Affiliate Link and then within 30 days after such installation sign up for an annual or multi-year enterprise plan, 10% of Net Revenue received for the first year after the commencement of such annual or multi-year enterprise plan, payable upon receipt of such Net Revenue by Shogun.
● For customers that first install Shogun’s product via your valid Affiliate Link and then within 30 days after such installation sign up for a self service plan, 20% of Net Revenue received for the first year after the commencement of such self service plan, payable on a monthly basis upon receipt of such Net Revenue by Shogun, provided that if:
- within 60 days after the commencement of such self service plan, such customer converts to an annual or multi-year enterprise plan, then the applicable commission will include an additional 10% of Net Revenue received for the first year after the commencement of such annual or multi-year enterprise plan, payable upon receipt of such Net Revenue by Shogun; or
- during the first year after the commencement of such self service plan, but after 60 days after such commencement, such customer converts to an annual or multi-year enterprise plan, then the applicable commission will be paid by calculating the remaining pro rata value of the original customer self service subscription over the remaining first year after commencement, payable on a monthly basis based on when the calculated Net Revenue would have been paid by such customer.
The foregoing commission terms may change from time to time, and may be subject to temporary or limited-time special promotions, challenges or bonuses. “Net Revenue” means license fees received by Shogun from a referred Shogun customer through a valid Affiliate Link (for clarity, excluding consulting, integration or other professional services), discounts, commissions, taxes, refunds and the like.
For example, if the then-applicable commission percentage were 20%, a monthly license fee of $99 would result in an affiliate payment of $19.80.
For a sale to generate a commission to Affiliate, the customer must click through your Affiliate URL and complete an install of Shogun within 30 days. Word of mouth referrals will not result in an affiliate commission being generated, except as otherwise agreed upon by Shogun in its sole discretion. Commissions will only be paid on sales that are made when the customer clicks through qualified, correctly structured Affiliate Links. Properly coded links are the sole responsibility of Affiliate. For clarity, and without limitation, referrals and Net Revenues collected as follows or in any of the following situations will not qualify for a commission hereunder:
- from third parties that were already customers of Shogun at the time of sign-up;
- from third parties that receive a discount for their license fees;
- from third parties that were referred to Shogun previously by you or any person or entity related to you (unless the subsequent referral is for the Shogun customer to convert from a self service to enterprise plan);
- from referrals of yourself;
- from referrals in violation of this Agreement; or
- if you have a marketing or consulting relationship with Shogun for which you receive any compensation.
Shogun may utilize third party payment processors or service providers in order to facilitate payments under the Shogun affiliate program. Affiliate is solely responsible for keeping its recipient address for the payment processor used by Shogun current. Shogun will have no liability for, and will not resend, payments returned due to incorrect payment email addresses. Payments will be made within forty five (45) days after the end of the month in which the corresponding amounts are collected by Shogun.
7. Customer Relationship
Customers who purchase products and services through the Shogun Affiliate Program will be deemed to be customers of Shogun. Accordingly, all rules, policies, and operating procedures concerning customer licenses and services will apply to those customers, and customers shall enter into a separate contractual relationship with Shogun for Shogun’s services. We may change our policies, pricing structure and/or operating procedures at any time and at our sole discretion.
8. Qualifying Sites
Shogun reserves the right to refuse any site entry into the Shogun Affiliate Program based on site content. Affiliate will not place any Links on any sites that do not qualify for or are otherwise refused for the Affiliate Program. Sites that do not qualify for the Affiliate Program include, but are not limited to, sites which:
- Promote sexually explicit materials
- Promote violence
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Promote illegal activities
- List coupon codes or discounts that were not officially provided to them by Shogun.
- Infringe or otherwise violate any copyright, trademark, or other intellectual property rights of Shogun or any third party.
9. Permitted Usage
The following are permitted uses of the Shogun brand and marketing resources
- Affiliate is permitted to use the graphical banners and design resources provided by us. If a specific size banner ad is not available, Affiliate may contact the Affiliate Program manager at firstname.lastname@example.org and request a new banner graphic be added to the available resources.
Our name and logo, and all related names, logos, product and service names, designs, and slogans are the property of Shogun or its corporate affiliates or licensors. You must not use such marks without the prior written permission of Shogun.
10. Prohibited Usage
Affiliate agrees to the following covenants, and any violation thereof is grounds for immediate termination of this Agreement by Shogun. Affiliate will not, directly or indirectly:
- use the term "Shogun" in any variation in its site URL (e.g., shogun.net, shogunscouponcodes.com, shogun.com, shopifyshogun.com, shogun.plugins.com, etc);
- promote coupons that were not provided to Affiliate by Shogun;
- host or promote "coupon stacking" sites where customers may combine coupons to receive additional discounts;
- use any advertising platform (e.g., Facebook ads, Google adwords, etc.) in connection with any of Affiliate’s activities related to this Agreement or the Shogun Affiliate Program – Affiliate must use only word of mouth or its own media (e.g., Affiliate’s YouTube channel, website blogs, etc.) to generate referrals hereunder;
- in connection with its activities hereunder, (i) violate or infringe any common law or statutory rights of any person or other entity (including, without limitation, proprietary rights, copyright rights, trademark, service mark or patent rights, or any rights of privacy or publicity); (ii) violate any law, rule or regulation; (iii) use any material or information that is obscene, pornographic, libelous, defamatory, slanderous; or (iv) use any false or deceptive material, or otherwise engage in any consumer or other fraud.
11. Shogun Anti-Spam Policy
Affiliate will not use spam e-mail or other forms of Internet abuse (including spamming forums, blogs, twitter, facebook and other social media outlets) to seek referrals. Spam includes, but is not limited to, the following:
- Electronic mail messages 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 opt in subscription;
- 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.
- 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.
- Solicitations posted to chat rooms, or to groups or individuals via Internet Relay Chat or "Instant Messaging" system;
- Certain off-line activities that are similar to spam, including distributing flyers or leaflets on private property or where prohibited by applicable rules, regulations, or laws.
Affiliate will perform its activities hereunder in compliance with all applicable laws (including the CAN-SPAM Act of 2003) and any other Federal Trade Commission laws or regulations, and Affiliate will only send e-mails containing a Link or message regarding Shogun’s products and services to person(s) who have been previously contacted and whom consented to the fact that Affiliate will be sending an e-mail containing such information.
Shogun may investigate any Affiliate conduct and, at its sole discretion and with or without cause or prior notice, terminate this Agreement. In addition, Affiliate will indemnify and hold harmless Shogun against any liability arising from Affiliate’s breach of any obligation, representation or warranty of Affiliate under this Agreement.
If you wish to report a violation of our Anti-Spam Policy, please forward all relevant evidence to our customer service department at email@example.com
12. Relationship of Parties
The parties are independent contractors, 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 our behalf. Affiliate will not make any statement, whether on its sites or otherwise, that reasonably would contradict the foregoing.
13. Disclosure of Affiliate Relationship
It is the sole responsibility of the Affiliate to disclose the nature of their relationship with Shogun to any customers and Affiliate shall indemnify and hold harmless Shogun against any liability arising from Affiliate’s lack of proper disclosure to an actual or potential customer.
14. Term and Termination
The term of this Agreement will begin when you accept and will end when terminated by either party. Either Shogun or Affiliate may terminate this Agreement at any time, with or without cause, upon written notice to the other (which notice may be sent by email (1) in the case of notices from Shogun to you, to the email address associated with your account, or (2) in the case of notices from you to Shogun, to firstname.lastname@example.org). Upon the termination of this Agreement for any reason, all licenses granted hereunder shall immediately terminate and you will immediately cease use of, and remove from all of Affiliate's sites, all links to the Shogun websites (including all Links), and all Shogun trademarks and logos, other Shogun marks and all other materials provided in connection with this Agreement. Termination results in the immediate closure of the Affiliate’s account and, if Affiliate breaches any term or condition of this Agreement, the loss of all rights regarding referrals and the forfeiture of any unpaid commissions. In addition, upon termination, all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including terms and conditions relating to intellectual property rights and confidentiality, disclaimers, indemnification, limitations of liability and termination, arbitration, class action waivers and the miscellaneous provisions below.
15. Limitation of Liability
SHOGUN WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, EXPENDITURES OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO THE AFFILIATE UNDER TO THIS AGREEMENT IN THE TWELVE(12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.
SHOGUN HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING THE SHOGUN SITE AND PRODUCTS, ANY LINKS, THE AFFILIATE PROGRAM OR AN AFFILIATE'S POTENTIAL TO EARN INCOME FROM THE AFFILIATE PROGRAM, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND/OR WARRANTIES ARISING FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE WEBSITES OR THE LINKS WILL BE UNINTERRUPTED OR ERROR-FREE, AND SHOGUN WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
SHOGUN WILL MAKE REASONABLE EFFORTS TO TRACK AND PAY COMMISSIONS TO AFFILIATE. HOWEVER, SHOGUN IS NOT RESPONSIBLE FOR TECHNICAL PROBLEMS, ACTS BY THIRD PARTIES, OR OTHER INACCURACIES OR EVENTS OUTSIDE SHOGUN’S REASONABLE CONTROL.
17. Proprietary Information
Affiliate acknowledges that, in connection with this Agreement or the Affiliate Program, it may obtain business, technical or financial information relating to Shogun (“Proprietary Information”). Affiliate and its employees and agents shall, at all times, both during the term of this Agreement and after its termination, keep in trust and confidence all such Proprietary Information, and shall not use such Proprietary Information other than in the course of its duties as expressly provided in this Agreement; nor shall Affiliate or its employees or agents disclose any such Proprietary Information to any person without Shogun’s prior written consent. Affiliate shall not be bound by this Section with respect to information it can document has entered or later enters the public domain as a result of no act or omission of Affiliate, or is lawfully received by Affiliate from third parties without restriction and without breach of any duty of nondisclosure by any such third party.
18. Agreement to Arbitrate; Class Action Waiver
You and Shogun agree to resolve any dispute arising under this Agreement by binding arbitration in San Francisco, California, or in another location that both parties agree to. This applies to all claims under any legal theory, unless the claim fits in one the exceptions below. It also applies even after termination of this Agreement. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.
You and Shogun agree that the parties will go to court to resolve disputes relating to your or Shogun’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents). Also, either party can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (“AAA”), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.
Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement.
Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. Neither party shall have any right or ability to assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of the other (and any such attempt shall be void), except that Shogun may assign this Agreement to any third party who succeeds to substantially all its related business or assets. This Agreement contains the entire understanding of the parties regarding its subject matter and can only be modified or waived by a subsequent written agreement signed by both parties.
If any of the provisions of this Agreement are determined by a court to be unenforceable, they shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
Any dispute or claim arising out of this Agreement or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provisions or rules.
By signing up with the Shogun Affiliate Program, you acknowledge that you have read this agreement and agree to all its terms and conditions. You have independently evaluated this program and are not relying on any representation, guarantee or statement other than as set forth in this agreement.