Affiliate Application

KASWIT AFFILIATE PROGRAM  Affiliate Agreement

1. AGREEMENT ENROLLMENT. By submitting an Affiliate application, You are entering a legal agreement with Kaswit in accordance with and governed by the terms contained below (the "Agreement"). Submitting an Affiliate application signifies that you have read and understood these terms and agree to be governed by them.

In the Affiliate application, You agree to provide complete and accurate information about You (including your payment and tax information). During the term of this Agreement, You agree to maintain up-to-date account information via the affiliate interface which is located at https://kaswitonline.com/pilates-power-gym/affiliate-area/. Kaswit has the right to confirm or otherwise verify or check, in its sole discretion, the truth and accuracy of any registration information at any time. You acknowledge that as a participant in the Kaswit Affiliate Marketing Program (the "Program"), we may from time to time send you email updates about the Program. By participating in the Program, you consent to our sending you these email updates.

2. LICENSE. KASWIT hereby grants to You the nonexclusive, nontransferable, non-assignable right during the Term to use the following KASWIT's trademarks and service marks, PILATES POWER GYM®, KASWIT®, THE FITNESS CHANNEL® (the "Marks"), and other related textual and graphic material that are provided by KASWIT to You for the purpose of inclusion on Your Web Site (collectively, the "Web Site Materials") as set forth in the KASWIT Affiliate Brand Guidelines. KASWIT will issue buttons, banners, logos, or other creative devices to You which You shall display in a reasonably prominent position on Your Web Site as a hyperlink to take Visitors from Your Web Site to KASWIT's Web Site. KASWIT also authorizes You to refer in Your advertising and promotion to the fact that KASWIT's Web Site is accessible through your Web Site. You agree that you shall not: (A) state, or imply by the wording or prominence of such a statement, or otherwise, that KASWIT sponsors or authorizes, or is the source or origin of Your Web Site; or (B) disparage KASWIT, its products or services; or (C) use the Marks in any manner other than as set forth in the KASWIT Brand Guidelines.  You may not use the Marks in any other fashion or any other location or placement without KASWIT's prior written approval.

All use of KASWIT's Marks or Web Site Materials hereunder shall inure to the benefit of KASWIT and shall not create any rights, title or interest in them for You. Both during and after the termination of this Agreement, You agree not to contest or challenge the Marks or to use any confusingly similar marks. You have no other right to use KASWIT's name or trademarks. If Your Web Site displays or makes accessible to Visitors descriptive information regarding any of the other vendors whose icons are displayed on Your Web Site Area, then You shall, subject to KASWIT's written approval of the content thereof, include similar descriptive information regarding KASWIT's Web Site.

3. PROMOTIONAL RESPONSIBILITIES

3.1 Promotional Locations. You agree upon written request from KASWIT to reveal all pages, URLs, domains, and other locations in which you promote KASWIT products. You agree to promptly implement and abide by any request from KASWIT to remove, alter, or modify any communication, graphic or banner appearing on your Web site(s) or otherwise communicated by you or through you that is being used in conjunction with KASWIT. You may not display KASWIT Marks in any manner that implies sponsorship or endorsement by KASWIT, except of your involvement in the Program. You shall not embellish or misrepresent the relationship between KASWIT and You. You shall not publish any announcements or press releases regarding your affiliate partnership with KASWIT. You will ensure that your Web site(s) do not, in any way, copy or resemble the look and feel of KASWIT including, but not limited to, the distinctive and particular elements of color, graphics, design, organization, presentation, navigation, and the total appearance and impression substantially formed by the combination of such elements. You will not violate the intellectual property rights of KASWIT or any third party including, without limitation, scraping text or using KASWIT copyrighted material including but not limited to images from a KASWIT Web site. You agree not to display or promote any other product provider's trademarks, logos, links, products or services on any Web site(s) so as to confuse customers with Kaswit products. You will provide Kaswit with a list of URL’s in which you have translated information about Kaswit’s product information into languages other than English. You will not apply for, bid on, acquire, benefit from or use any keywords, search terms or other identifiers that include a KASWIT Mark or variant/misspelling thereof for use in any search engine, portal, advertising service, or other search or referral service. You shall not adopt, use, or attempt to register with any administrative or other body any KASWIT Mark, trade name, logo, or variant/misspelling thereof. You may be asked to cause any applicable Web search provider to exclude certain terms including, but not limited to, the KASWIT Marks or competitors' trademarks from keywords used to display your advertising content in association with search results, assuming the provider of such Web search engine offers such exclusion capabilities. On all Web pages on which you promote KASWIT’s products, the back button must be activated, so that the user can return to the previous page at any time by clicking the back button of the browser. You will not use any invisible methods to generate impressions, clicks or transactions. 3.2 Promotional Methods - Limitations. You represent and warrant that You will not: (a) engage in or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), or any other laws or regulations that govern email marketing or communications. (b) engage in pop-up or pop-under advertising using any means involving third party properties or services (software). Pop ups are acceptable on a first party basis only when triggered by Your site content. Exit interstitials and pop-unders are not acceptable methods of promoting KASWIT. (c) engage in any form of blog spamming. This includes but is not limited to developing blogs or posting comments in blogs solely for the purpose of promoting your KASWIT affiliate Web Site. (d) promote KASWIT through any third party (including sub-affiliates). (e) email a hyperlink or any information relating to KASWIT to any third party without the written consent of KASWIT.

4. TERM: This Agreement shall begin after KASWIT has received Your application and has notified You of its acceptance. This Agreement shall continue until terminated by either You or KASWIT, which may be done for any reason or no reason on written notice to the other party. In the event either party terminates this Agreement, You shall immediately remove all links, Marks, Web Site Materials and any other reference on Your Web Site or keywords or search terms representing any affiliation to KASWIT and shall immediately return to KASWIT all Web Site Material provided to you by KASWIT. Any amount still owed to You at the time of termination shall be paid to You in accordance with the terms of this Agreement.
5. COMMISSIONS: KASWIT shall pay You a commission of 20% (defined as gross sales less refunds and chargebacks) generated by consumers who connect to www.KASWIT.com through Your Web Site and purchase. KASWIT shall pay commissions on accounts that have a minimum of $100 in earned commissions by check on a quarterly basis (every 90 days). The balance in any account that does not meet the earned commissions requirement will be rolled over to the next month. You are responsible for payment of all federal, state or local taxes related to Your performance of this Agreement. You will designate a password for You to log on to a password-protected Web Address for the purpose of (1) viewing data for tracking and reporting traffic referred to KASWIT's Web Site, and (2) viewing any accrued commissions due to You.
6. CONFIDENTIAL INFORMATION: During the term of this Agreement, you may have access to information that KASWIT reasonably considers to be proprietary or confidential including, but not limited to, products, software, research, and marketing plans (hereinafter referred to as "Confidential Information"). You agree that You shall use such Confidential Information only for the purposes permitted hereunder and that You shall not otherwise disclose or use such Confidential Information. Confidential Information does not include information that (1) is or hereafter becomes part of the public domain through no wrongful act, fault or negligence of Yours; (2) is already in Your possession; or (3) You are required to disclose pursuant to a valid order of a court or other governmental body; provided, however, that You shall first have given notice to KASWIT and shall give KASWIT a reasonable opportunity to object or to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
7. GENERAL LIABILITY

7.1 Product Responsibility: You acknowledge that KASWIT does not advocate or endorse the purchase or the use of any products or services offered by You through your Web Site or otherwise, other than the services of KASWIT; you further acknowledge that KASWIT does not guaranty the quality, fitness, or results of any products or services offered by You through your Web Site or otherwise, except the services of KASWIT in accordance with the written terms KASWIT offers. 7.2 Web Site Responsibility: You acknowledge that You are solely responsible for Your Web Site's development and operation and that You will continue to maintain Your Web Site in its current manner and condition except for changes made in the ordinary course of business. 7.3 Representations and Warranties by KASWIT: KASWIT represents and warrants that: (a) it has the right to enter into this Agreement and to grant the rights and licenses granted herein; (b) the use of its Materials in connection with Your Web Site in a manner authorized by this Agreement does not and will not (i) invade the right of privacy or publicity of any third person, (ii) contain any libelous, obscene, indecent or otherwise unlawful material, or (iii) infringe any patent, copyright or trademark right in any jurisdiction; or (iv) contravene any other rights of any third person. 7.4 Representations and Warranties by You: You represent and warrant that: (a) You have the right to enter into this Agreement and to perform hereunder; (b) Your Web Site does not and will not (i) invade or contravene the right of privacy or publicity of any third person, (ii) contain any libelous, obscene, indecent or otherwise unlawful material; or (iii) infringe any patent, copyright or trademark right in any jurisdiction; and (c) You will comply with all applicable laws and regulations. 7.5 Risk Allocation: KASWIT WILL NOT BE LIABLE TO YOU FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA -- ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. 7.6 Breach of Representation, Warranty or Covenant: You agree to defend, indemnify and hold KASWIT and each of its officers, directors, employees and agents harmless against and in respect of any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, including without limitation all reasonable costs and expenses incurred (legal, accounting or otherwise) (collectively, "Damages") arising out of, resulting from, or based upon any claim, action or proceeding by any third party alleging facts or circumstances constituting a breach of the representations and warranties of Sections 3.2 and 7.4. 7.7 Acknowledgment of No Warranty: EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY WARRANTS THAT THEIR RESPECTIVE WEB SITES WILL PERFORM IN THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR OR DEFECT OR THAT ANY REVENUE TO EITHER PARTY WILL RESULT FROM THE ACTIVITIES CONTEMPLATED BY THIS AGREEMENT. EXCEPT AS SET EXPRESSLY FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED. 7.8 Limitation of Liability: KASWIT's liability to You for any and all claims and damages incurred by You relating to or arising out of the subject matter of this Agreement, whether in contract, tort, implied warranty, strict liability or other form of action, except for (a) claims for violations of a party's intellectual property rights or (b) any right of indemnity provided herein, shall be limited to the lesser of (x) the amounts paid by KASWIT to You pursuant to this Agreement for the preceding six months or (y) one thousand dollars.

8. MISCELLANEOUS PROVISIONS

8.1 Assignment: You may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of KASWIT. Any purported assignment or delegation without such required consent shall be null and void. 8.2 Modifications: KASWIT reserves its rights to modify any or all of the terms of this Agreement. In the event of such modification, KASWIT shall notify You of such change in writing at Your most recent email address. If You do not agree with such modification, Your only remedy shall be to terminate this contract. 8.3 Governing Law: This Agreement, its interpretation, performance or any breach thereof, shall be construed in accordance with, and all questions with respect thereto shall be determined by, the internal, substantive laws of the State of California. In connection with any judicial proceeding: (i) the parties consent to the exclusive jurisdiction of the state and federal courts located in Virginia; (ii) both parties waive personal service and agree that service of any pleading, notice, complaint, etc. may be served by certified mail by one party to the other party at such other party's address for notices as set forth above; and (iii) such service shall be deemed effective as if personally served upon the receiving party at its principal place of business. 8.4 Headings: Section headings are for convenience only and are not a part of this Agreement. 8.5 Independent Contractors: You and KASWIT are independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between KASWIT and You. Neither party has the authority to enter into agreements of any kind on behalf of the other party. 8.6 Integration: This Agreement contains the entire understanding of the parties hereto with respect to the transactions and matters contemplated hereby, supersedes all previous agreements between You and KASWIT concerning the subject matter, and cannot be amended except by a writing signed by both parties. 8.7 Notice: All notices, demands and other communications hereunder shall be in writing or by written telecommunications, and shall be deemed to have been duly given: (i) if mailed by certified mail, postage prepaid, on the date five (5) days from the date of mailing, (ii) if delivered by overnight courier, when received by the addressee, (iii) if sent by confirmed telecommunication, one business day following receipt by the addressee at the specified address, or (iv) by email. The notice addresses for KASWIT is support@kaswit.com or 49-455 Coachella Drive, La Quinta, CA  92253.  Your notice addresses are the mailing address and email address that You designate in Your application, unless you notify KASWIT of a different address by updating your contact information through our secure affiliate interface. 8.8 Survival: The provisions of Sections 5, 6 and 7 shall survive termination or expiration of this Agreement. 8.9 Waiver: No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If you have any questions regarding this agreement, please email support@kaswit.com. KASWIT AFFILIATE GUIDELINES - Affiliates are authorized to use only the banner and copy and images taken from pilatespowergym.com, thefitnesschannel.com and copy and images taken from official newsletters sent by Kaswit. KASWIT reserves the right to act against any use that does not conform to these guidelines. Deviations from these guidelines may result in reduced earnings until the issue is corrected. For minor deviations from these guidelines, we will not reduce any affiliate's earnings without first giving the affiliate written notice and the opportunity to correct the specific problem. For major deviations from these guidelines, we reserve the right to take further action. KASWIT reserves the right in its sole discretion to modify these guidelines at any time. In the event that these guidelines change, we will notify you via email. It is your responsibility to read and understand the guidelines. If you have questions about these guidelines, please contact us.