HOMESTYLER AFFILIATE PROGRAM AGREEMENT
Updated on May 12, 2023
PLEASE READ THE ENTIRE AGREEMENT CAREFULLY. BY CLICKING TO ACCEPT OR AGREE TO THE AGREEMENT WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THIS AGREEMENT. IF YOU DO NOT WANT TO AGREE TO (OR UNABLE TO COMPLY WITH) THIS AGREEMENT, YOU MUST NOT PARTICIPATE IN THE HOMESTYLER AFFILIATE PROGRAM.
This Affiliate Program Agreement (hereinafter, the “Agreement”) is made by and between Topping Homestyler (Shanghai) Technology Co, Ltd, 【每平每屋（上海）科技有限公司】a legal entity duly incorporated and existing under the laws of the People's Republic of China, company address: Fl 4, No 12 Building, Lujiazui Software Park, Pudong District, Shanghai, China (hereinafter, the “Company”), and a party having a registered user account on the Company’s website www.homestyler.com and willing to become a Homestyler affiliate partner under the conditions of this Agreement (hereinafter, the “Partner”). The Company and the Partner shall be together referred to as the “Parties” and separately – the “Party”. The Program shall mean the Homestyler online interior design and floor planning multiplatform software application (hereinafter, the “Program”).
1. Definitions
1.1. 'Fraud' means any intentional attempt to generate sales, leads, or hits through robots, frames, inline frames, scripts, or manual ‘refreshing’ of web pages solely for the purpose of generating fees for the Services.
1.2. 'Intellectual Property Rights' means patents, inventions, copyrights and related rights, trademarks, trade names, domain names, layout rights, rights in goodwill or rights to pursue counterfeiting, rights against unfair competition, design rights, computer software rights, database rights, topography rights, copyright, confidential information (including but not limited to proprietary knowledge and trade secrets) and any other intellectual property rights. trade secrets and any other intellectual property rights, whether registered or unregistered, including all applications for each of the foregoing and all similar or equivalent rights or forms of protection existing anywhere in the world and their renewal or extension.
1.3. 'Taxes' (if any) means all federal, state, provincial, territorial, county, municipal, local or foreign taxes or fees of any nature imposed, imposed, assessed or collected by taxing authorities (including, without limitation, sales, use, license, excise, goods and services, value added, stamp or transfer taxes, customs duties, import taxes, allowances, fees, charges or withholding taxes), and all interest, penalties, fines or other additional amounts imposed on such taxes and fees, but for further clarity, excluding any of the foregoing taxes and fees that are (i) based on gross or net income, (ii) are franchise taxes, or (iii) are property, chattel or rental taxes (collectively, the ‘Excluded Taxes’). Each party shall be responsible for any and all excluded taxes for which it is liable under applicable law.
1.4. 'New Users' means those who have never registered with Homestyler before will be considered new users.
1.5. 'Tracking Period' means the period of time in which the actions of a Visitor are attributed to the Homestyler affiliate Partner and, subject to the Program Terms, generate Commissions for the Partner;
2. SUBJECT OF THE AGREEMENT
2.1. By entering into the Homestyler affiliate program (hereinafter, the “Affiliate Program”) the Partner on his/her own behalf and for his/her own account will perform search and involvement of the new users in order to increase the number of registered users and the amount of subscription sales by means of embedding the referral link URL provided to the Partner by the Company to the Partner’s website(s) following the instructions available in the Partner’s registered user account (hereinafter, the “Services”). In consideration for the duly rendered Services the Company undertakes to pay to the Partner a remuneration in the amount and on the conditions specified in this Agreement.
2.2. By clicking to accept or agree to this Agreement when this option is made available to the Partner, the Partner accepts and agrees to be bound and abide by this Agreement. If the Partner does not want to agree to (or unable to comply with) this Agreement, the Partner must not participate in Homestyler Affiliate Program.
3. ELIGIBILITY
3.1. The following entities are eligible to qualify as a Partner under this Agreement: (a) duly incorporated legal entities; (b) physical persons eighteen (18) years of age or older.
3.2. If participation in the Affiliate Program is on behalf of the legal entity, the person executing (accepting) this Agreement does so on behalf to that entity, and he or she represents and warrants that he or she has the authority to do so.
3.3. If participation in the Affiliate Program is on behalf of the physical entity, the Partner represents and warrants that the Partner is at least eighteen (18) years of age and with the full authority, right, and capacity to enter into this Agreement and abide by all of the terms and conditions of this Agreement. If the physical entity willing to become a Partner is not at least eighteen (18) years old, the such physical entity is prohibited from participating in the Affiliate Program.
4. REGISTRATION OF PARTNER
4.1. Homestyler Affiliate Program is available to Homestyler registered users only, subject to compliance with eligibility criteria and complete and unconditional acceptance of this Agreement. To become a registered Homestyler affiliate partner, the Partner should follow the specific instructions in the affiliate partner section available in the registered user’s account at www.homestyler.com.
5. PARTNER’S CONSENT
5.1. The Partner hereby provides its consent and permission to the Company to use and publish information about the Partner (i.e. the name, user name, place of residence and photograph (if made available by the Partner), Partner’s brand elements (if applicable)) and information about the Partner’s participation in the Affiliate Program on the Company’s website and other resources for the following purposes: (i) Affiliate Program administering purposes, and (ii) advertising, promotional and marketing purposes. In this regard, the Partner provides to the Company and its affiliates a non-exclusive non-transferrable royalty-free life-time license to use the Partner’s brand elements for the above-listed purposes.
5.2. The Company reserves the right at its own discretion to refuse registration of a Partner and to block any repeated registration attempts in the future.
6. PARTNER’S RIGHTS AND OBLIGATIONS
6.1. The Partner has the right to:
6.1.1. Post links to the Program embedded on Partner’s website(s), create banners and other informational materials about the Company and the Program (including those with use of the Company’s brand elements subject to no misrepresentation of the Company’s information and/or Company’s brand elements);
6.1.2. Publish information about the Affiliate Program on the Partner’s website (if necessary, with use of the Company’s brand elements subject to no misrepresentation of the Company’s information and/or Company’s brand elements);
6.2. The Partner is obliged to:
6.2.1. Perform its obligation in good faith to attract new users of the Program in accordance with this Agreement;
6.2.2. Indicate accurate, valid and complete data about the Partner, and immediately notify the Company on any further changes thereof;
6.2.3. Comply with the Program’s Terms of Service and this Agreement;
6.2.4. Secure confidentiality of all commercial and technical information received from the Company;
6.2.5. Immediately notify the Company on all facts and/or circumstances that become known to the Partner, which may result in negative consequences (risks) for the Company;
6.2.6. Inform the Company about Program’s users’ growth and share developments involving user interest.
7. LIMITATION OF PARTNER’S POWERS
7.1. The Partner does not have a right to assign its rights and obligations under this Agreement to any third party;
7.2 The Partner must not use the Program to conduct any illegal or unauthorized activities;
7.3 The Partner must not embed the Program on the websites which 1) contain sexually explicit materials, or 2) promote violence, discrimination, drugs, or 3) promote other illegal, harassing or inappropriate activities, or 4) may violate or infringe the rights of any third party, or 5) contain materials which may undermine the Company’s reputation. The decision whether the content of each particular website qualifies under this clause 6.3. shall be made in the sole discretion of the Company.
8. COMPANY’S RIGHTS AND OBLIGATIONS
The Company has the right to:
8.2 Immediately block Partner’s account and terminate this Agreement in either of the following cases:
If the website to which the Program is embedded: 1) contains sexually explicit materials, or 2) promotes violence, discrimination, drugs, or 3) promotes other illegal, inappropriate or harassing activities, or 4) may violate or infringe the rights of any third party, or 5) contains materials which may undermine the Company’s reputation;
If the website to which the Program is imbedded incorporates any materials which infringe or assist others to infringe any intellectual property rights of third parties;
If the Partner violates any of its obligations under this Agreement.
9. LIMITATION OF COMPANY’S LIABILITY
9.1. This Affiliate Program as well as the use of the Program under this Agreement is provided by the Company on “as-is” basis. The Partner participates in the Affiliate Program under this Agreement exclusively based on its own free will. No specific or implied warranty is given by the Company with respect to the use of the Program or participation of the Partner in the Affiliate Program. The Company does not guarantee that the Program will function in any environment, without interruptions, mistakes or omissions. The Company does not provide any specific or implied warranty of merchantability or suitability of the Program for a particular purpose.
9.2. To the maximum extent permitted by law, in no event will the Company, its affiliates, shareholders, directors, employees and employees of affiliated companies be liable for any loss (including loss of profit) and/or damage, however caused (including through negligence) which may be directly or indirectly suffered in connection with any use of the Program or participation in the Affiliate Program.
9.3. Without prejudice to clause 9.2. of this Agreement, in any case the aggregate liability of the Company arising out of or relating to this Agreement or its subject matter shall not exceed USD 100 (One hundred US dollars).
9.4. The Company does not provide any guarantees with respect to the amount of commission which may be received by the Partner through the participation in the Affiliate Program of the Company.
10. PARTNER’S COMMISSION AND PAYMENT PROCEDURE
10.1. In consideration for duly rendered Services the Company shall pay to the Partner a tiered remuneration for its various products from the aggregate amount of payments made by the users in the Program through the link(s) embedded by the Partner on the Partner’s website(s), excluding the payment of the processing fees for performing the payment transaction (hereinafter, the “Commission”). The detailed tiered commission structure for its various products as below:
Both parties confirm that only the cost of new users purchasing our products and services in the first year can be included in the commission. The amount of the Commission may be increased subject to the Parties‘ mutual consent. The Company has the right to adjust the Commission ratio at any time according to the market conditions and the operation of the Homestyler affiliate program. If the company adjusts the Commission ratio, the Company shall notify the Partner in advance.
10.2. The Commission shall be paid to the Partner on a monthly basis, the Partner can withdraw his/her commission if it exceeds $100 and receive it via e-transfer by the end of the following month after application. If the Partner's Commission is less than 100 USD (One Hundred US dollar), the period for claiming cash withdrawal payments shall be extended to the moment the Partner reaches the Minimum Commission Threshold.
10.3. When calculating the Commission amount, the Company considers only those links which are automatically tracked and reported by the Company’s system.
10.4. The Commission is paid to the Partner’s bank account notified by the Partner to the Company. The Partner must have a valid bank account to be able to receive the Commission. The Company will not be liable for a delay in payments due to the absence of the Partner’s bank account, or due to inaccuracy of the provided data.
10.5. The Commission is paid to the Partner in US dollar. Each Party shall be responsible for its own bank charges. If a new user purchases a 6-month or 12-month order through a Partner's referral link, the Commission will be credited to the Partner's affiliate account in equal parts every month.
10.6. If a new user places an order within 30 days of the first visit to the Partner’referral link, all payment orders within 365 days of the new user can be counted as Commission; if the new user does not place an order within 30 days of the first visit, future orders will not be counted to the Partner’s Commission.
10.7. The Company reserves the right to disqualify the Commission earned through fraudulent, illegal or questionable sales or marketing methods.
11. Intellectual Property Rights
11.1. Unless otherwise expressly agreed in writing by the Parties, the Company shall own all copyrights, inventions, improvements, products, services, technologies, information and materials, work product or derivatives of any kind that the Partner may independently create, develop or prepare during the term of this Agreement (as defined below) (including, but not limited to, text, software, audio, pictures, video, images, logos, layouts, designs, advertising and promotional materials), including all worldwide intellectual property and proprietary rights in the foregoing.
11.2. The Partner shall agree that it shall not transfer, reproduce, modify, alter or adapt the materials approved by us, or create derivative works based on the materials approved by us, without our written consent.
11.3. The Partner shall not use, apply for registration of, or register any symbols or names identical or similar to any trademarks (whether registered or not), trade names, logos and domain names of the Company.
11.4. The Partner shall not copy or modify any icons, buttons, banners, graphic files or our content already provided by the Company unless the Company agrees otherwise in writing.
11.5. Nothing in this Agreement shall be deemed to confer or assign to the other party any title, license or interest of any kind in the products, services, technology, intellectual property or proprietary rights of either party.
11.6. All rights to the names, brand names, domain names, trademarks, service marks, logos and other contents and related rights of " Homestyler " shall belong to the Company. Without the Company 's written permission and consent, the Partner shall not use or entrust any third party to use the Homestyler , Alibaba or any of other trademarks, logos, brand images and other intellectual property rights of the Company in any manner for any reason whatsoever, nor shall Customer use any of the corporate names, brand names, trade names, domain names, etc. of the Company. Otherwise, the Company has the right to unilaterally terminate this Agreement immediately, and require the Partner to compensate for all losses arising out thereof (including but not limited to investigation and evidence collection costs, notary fees, attorney's fees, etc.).
12. APPLICABLE LAW AND DISPUTE RESOLUTION
12.1. The formation, effect, interpretation and enforcement of this Agreement shall be governed by the laws of the People’s Republic of China (excluding Hong Kong, Macau, and Taiwan).
12.2. Any dispute arising out of this Agreement shall first be resolved by amicable negotiation or mediation between the Parties. If the dispute cannot be resolved in the aforesaid manner within thirty (30) calendar days after the commencement of the dispute, Any dispute, controversy, difference or claim arising out of or relating to this contract, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding noncontractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The seat of arbitration shall be Hong Kong. During the dispute resolution period, except for the matters in dispute, the Parties shall continue to perform all other parts of the Agreement not involving the dispute.
13. TERM AND TERMINATION
13.1. The present Agreement shall become effective from the moment of its acceptance by the Partner on the Company’s website (when this option is made available to the Partner). The Partner may terminate this Agreement with immediate effect by (i) ceasing to embed the referral link URLs provided by the Company to the Partner’s website(s), or by (ii) deleting the Partner’s user account at the Company’s website. In the case (ii) the Partner’s projects and any user-related data will be deleted. The Company may immediately terminate this Agreement at any time upon e-mail notice to the Partner. In addition the Company may unilaterally and without giving notice suspend or terminate Partner’s affiliate status and/or access to the Company’s services at the Company‘s website, if the Partner breaches this Agreement or the Terms of Service.
14. CHANGES TO THIS AGREEMENT AND VALIDITY
14.1. The Company may amend this Agreement at its sole discretion from time to time by posting a revised version of the Agreement on the Homestyler website and asking the Partner to agree with such amended Agreement before continuing further participation in the Affiliated Program. Such revised version of the Agreement will become effective immediately upon Partner’s acceptance. If the Partner does not want to accept amended Agreement, the Partner shall immediately cease its participation in the Affiliate Program.
14.2. If any provision of this Agreement is held to be invalid, illegal or unenforceable in accordance with applicable legislation, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
15. NOTICES
15.1. Any notice to be given hereunder by the Partner to the Company shall be by email to: affiliate-program@homestyler.com.
15.2. Any notice to be given hereunder by the Company to the Partner shall be sent to the Partner’s email address provided by the Partner to the Company.
15.3. All correspondence shall be deemed to have been received immediately by the other Party when sent by e-mail.
