BY JOINING THE MAGNIFLEX AFFILIATE PROGRAM, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN WITHOUT ANY MODIFICATIONS, ADDITIONS OR DELETIONS.
These Affiliate Terms of Service (the “Terms” or “Agreement”) are made and entered into by and between Magniflex USA Ltd. Inc, a Florida corporation, (referred to in these Terms as “Company”, “Magniflex”, “we”, “us” or “our”) and you (referred to in these Terms as “Affiliate”, “you” or “your”). Magniflex is the operator of the website www.GiNOItalianMattress.com, including any mobile versions or applications related thereto (collectively, the “Website”). This Agreement applies upon your application to join our Affiliate Program via the Website, as defined below.
This Agreement may be terminated by either Party upon written notice or as further determined hereunder. Our affiliate program (“Affiliate Program”) allows you to earn commission-based income facilitating customer purchases via your social media presence in connection with a specific product-line, namely GINO the Italian Mattress and such other products as determined by Magniflex, from time to time (collectively, the “Products”). To qualify and participate in the Affiliate Program, you must complete the registration process, meet our minimum Affiliate requirements, as determined by us, in our sole discretion, and comply with the terms of this Agreement. Magniflex may approve, reject, or cancel your application at its sole discretion.
Upon acceptance to the Affiliate Program, the Company shall facilitate the creation of a web-based user account for the Affiliate, which requires an e-mail address and password (“Affiliate Account”) to take part in the Affiliate Program and monitor all sales activity, as further discussed herein.
You will be responsible for tracking all activity for your Affiliate Account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify the Company immediately of any unauthorized use or other breach of security; and (c) accept all responsibility for activity that occurs under each Affiliate Account. The Company reserves the right to monitor all Affiliate activity through the Website to ensure compliance with the terms of this Agreement. If the Company determines that you are in breach of this or any other term of this Agreement, it may suspend or revoke access to your Affiliate Account, terminate this Agreement, and seek further legal remedies.
DEDICATED REFERRAL LINK
Each Affiliate shall be given a dedicated web-based link (“Affiliate Link”) to track customers who are directed to the Company’s Website and complete a purchase of the Products. You expressly acknowledge and agree that no Commission shall be paid if a consumer purchases any Products directly through our Website or through any other means, other than your Affiliate Link.
TERM AND COOKIE PERIOD; TERRITORY.
This Agreement may be terminated by either us or you upon written notice or as further set forth hereunder (“Term”). The duration of the cookie period from the Affiliate Link shall be ninety (90) days (“Cookie Period”) from the date an individual clicks on your Affiliate Link. Company may extend the duration of the Cookie Period at its sole discretion. Affiliate expressly acknowledges and agrees that if a user (attempting to access your Affiliate Link) has cookies disabled, clears, or deletes his, her or its cookies, the Company may not be able to track Completed Purchases. In such an event, the Company shall have no liability for the payment of Commissions thereon.
The territory covered under the Agreement shall be the United States of America (“Territory”).
Affiliate may terminate this Agreement by providing written notice to the Company at least thirty (30) days prior to the proposed date of termination. The Company may terminate this Agreement immediately by providing written notice to Affiliate. If Affiliate abuses or commits fraud or undertakes any negligent act or omission in connection with the sales of the Product or in the performance of this Agreement, the Company shall have the right to terminate this Agreement immediately without notice and Company shall not be liable to Affiliate for any payments owed to Affiliate. The Company reserves the right to terminate this Agreement and deactivate your Affiliate Account if your Affiliate Link is inactive for more than sixty (60) days. In the event of a termination or expiration under this Section, no Party shall have any further obligations under this Agreement, except where certain provisions in this Agreement explicitly survive.
Subject to the terms in this Agreement, for each Completed Purchase, you will be paid a commission for each purchase of the Products equal to ten (10%) percent of the Net Sales Price (“Commission”) for any Products sold only through your Affiliate Link, as defined below.
Since Affiliate will be an independent contractor during the Term, all compensation under this Agreement shall be paid to Affiliate without the Company withholding any payroll taxes or deductions and shall be reported by us on Form 1099. Affiliate acknowledges and agrees that in order to participate in the Affiliate Program, Affiliate must be a U.S. Citizen or Permanent Resident.
Affiliate shall be paid the Commission based on the Net Sale Price for each Completed Purchase, as defined below (“Payment”). For purposes of this Agreement, Net Sales Price shall mean the gross amount charged by Company minus (i) any sales tax, VAT, or other taxes collected by Company in connection with the sale of the products, (ii) shipping, handling and delivery expenses, including white-glove, (iii) discounts, credit, or allowances provided by Company, in its sole discretion, (iv) credit card or other charges in connection to the Customer’s payment method, or (v) currency conversion fees. For purposes of this Agreement, the term “Completed Purchase” shall mean the placement of an order for any Products via the Affiliate Link which has been delivered to the customer and either (i) the one hundred (100) night sleep trial is over or (ii) any applicable return period has expired, whichever date occurs last. A link to the Company’s return policy for its Products can be found here: https://www.ginoitalianmattress.com/return. Commission for Completed Purchases shall be made by Company to Affiliate on a monthly basis and shall be offset by any discounts or credits offered by Company. In order to receive your Commission, Company shall issue a monthly statement setting forth the details of each Completed Purchase, together with the corresponding Commission. Affiliate shall have five (5) calendar days to provide written notice disputing the monthly statement. If no dispute is made by Affiliate within the aforesaid period, then Company shall issue payment to Affiliate, as set forth below. For purposes of clarity, Commission will not be paid and a purchase shall not be considered a Completed Purchase until all applicable sleep-trials and/or return periods have expired. Upon receipt of all requested tax and payment information (including Affiliate’s PayPal account) information by Company via the Affiliate Account, Affiliate shall be eligible to receive Payment. All payments due to Affiliate under this Agreement shall be made directly to Affiliate’s PayPal account and made in U.S. Dollars. By accepting this Agreement, Affiliate expressly consent to payment of any Commission due hereunder by PayPal and further agrees to the Legal Agreements for PayPal Services, as may be amended from time to time.
In the event of a dispute as to the Payment amount by Affiliate, the Parties shall work in good faith to resolve any disputed Commissions. If no resolution is made within thirty (30) days of the written notice, the Parties agree to resolve such Payment amount dispute by binding mediation. Each Party agrees to participate in an expedited, mandatory mediation conducted in accordance with the mediation rules of JAMS, Inc (“JAMS”) for any Payment disputes that remain unresolved followed a good faith negotiation between the Parties. A Party shall initiate such mediation by submitting a request for mediation (“Mediation Request”) to JAMS and providing notice to the other Party via the method provided in the Notices section below. Within ten (10) days thereafter, the Parties shall agree upon a single mediator to conduct the mediation or request that JAMS make an appointment. The mediation shall be conducted in a location in within Florida selected by the Company and, absent a written waiver executed by both Parties, shall be completed within thirty-five (35) days after either Party submits a Mediation Request. All mediation fees payable to JAMS shall be divided evenly between the Parties. At the conclusion of the mediation, the mediator shall issue a final and binding decision in a manner either determined by the Parties or, in the event the Parties cannot agree, by the mediator.
Affiliate acknowledges and agrees that Commissions shall not be deemed earned if (i) a customer returns to the Company’s Website and makes a purchase through another link or source other than your Affiliate Link; (ii) for subsequent purchases made by customer who independently entered the Website through another link or source, even if they have previously used the Affiliate Link; or (iii) the Cookie Period expires or (iv) if a user of the Website deletes or clears his, her or its cookies. Company is not responsible for any Commission in the event that Affiliate does not properly install the Affiliate Link or modifies the Affiliate Link in any manner or if a customer is unable to access the Affiliate Link. Affiliate further acknowledges and agrees that if a User has cookies disabled, clears or deletes his, her or its cookies, the Company may not be able to track Completed Purchases. In such an event, the Company shall have no liability for the payment of Commissions thereon.
Company makes no representation or warranty about the functionality of the Affiliate Link or Company’s Website. The Affiliate Link or Company Website may be inaccessible or unavailable to users from time to time due to scheduled system maintenance or emergency maintenances, either with or without notice. In the event there is an error with the functionality of the Affiliate Link or Company Website, Affiliate’s sole remedy shall be to immediately notify the Company of such error and Company shall use commercially reasonable efforts to correct such error within a commercially reasonable time. Any such inaccessibility, unavailability, or error with the Affiliate Link or Company Website shall not be deemed a material breach of this Agreement.
Upon Affiliate achieving five (5) Completed Purchases, Affiliate shall be entitled to a bonus commission in the amount of Two Hundred Fifty ($250.00) Dollars. Upon Affiliate achieving ten (10) Completed Purchases, Affiliate shall be entitled to a bonus commission in the amount of Three Hundred Fifty ($350.00) Dollars.
Affiliate shall not provide similar services to any party in the sleep products category (including mattresses, pillows, beds, bed-bases, and accessories) (“Sleep Category”). Affiliate shall not engage, contract, or otherwise agree to provide its services to market, advertise, or otherwise promote any other product in the Sleep Category or in furtherance of any products which compete with the Company’s Products for a period of fourteen (14) days before and after the Term.
Affiliate agrees that it shall not make or cause to be made any statements that disparage or damage the reputation of the Company. The Parties acknowledge and agree that any breach of this covenant shall be considered a material breach of the terms of this Agreement and shall entitle the Company to seek all available remedies, both at law and in equity. This clause shall survive the termination of this Agreement.
In consideration of the Payment herein and in accordance with the terms of this Agreement, Affiliate agrees to place one or more Affiliate Links across Affiliate’s social media platforms and Affiliate’s websites. Affiliate shall be responsible for all costs and expenses in connection with Affiliate’s obligations to promote, maintain, and market the Affiliate Link for the Affiliate Program or any Intellectual Property (as defined below) provided by Company. Affiliate shall not participate in spamming or unsolicited communications via email, message boards, newsgroups, chat rooms, or other media form now known or hereafter devised in connection with the Affiliate Program, Affiliate Link, and/or Company’s Intellectual Property that could be considered damaging to the Company. In the event that Affiliate participates in such activity, this Agreement shall terminate immediately, and Company shall not be responsible for any unpaid pending Payment balances owed to Affiliate under this Agreement.
APPLICABLE LAW; COMPLIANCE WITH FTC RULES.
Affiliate agrees and acknowledges it will perform its obligations and services in compliance with all applicable federal and state laws, including, but not limited to, the Federal Trade Commission Act (i.e. the Guides Concerning Use of Endorsements and Testimonials in Advertising (“FTC Endorsement Guidelines”), available at the following link:
as well as all state laws consistent therewith. Affiliate hereby certifies that as of the Effective Date and throughout the Term of the Agreement, Affiliate shall utilize FTC approved hashtags and disclaimers such as #ad or #sponsored in connection with the marketing and promotion of the Affiliate Program, Affiliate Link, Company’s Intellectual Property, and/or Company’s Website, as further described in the FTC Endorsement Guidelines, to which Affiliate express agrees. In the event that the Company becomes liable for any failure of an Affiliate to follow the FTC Endorsement Guidelines, Affiliate shall indemnify and hold the Company harmless for any and all damages incurred thereby.
Affiliate acknowledges that as a result of Affiliate’s participation in the Affiliate Program, Affiliate may become familiar with confidential information relating to the Company’s business which is not a matter of public record, whether disclosed orally or in writing (all such information collectively referred to as “Confidential Information”). Affiliate acknowledges that (i) Confidential Information constitutes valuable information relating to Company’s businesses; (ii) the disclosure of such Confidential Information would cause substantial loss of goodwill and financial injury to Company; and (iii) Affiliate shall not disclose such Confidential Information to any third parties without the prior express, written authorization of Company. Upon the termination or expiration of this Agreement for any reason, or upon Company’s request, Affiliate shall permanently erase all Confidential Information from its computer systems. Unless required by government agency in which case Affiliate shall promptly inform the Company and adhere to any legal requests the Company may have to protect its Confidential Information. This clause shall survive the termination of this Agreement.
Company grants a non-exclusive, limited, revocable, and non-transferable license to display the Affiliate Link and to use Company’s trademarks, logos, symbols, trade dress, copyright, and other intellectual property solely in connection with the Affiliate Link.
The Parties agree that Company’s trademarks, logos, symbols, trade dress, product/service identifications, copyrights, artwork, designs, ideas, trade secrets, photographs, and other intellectual property associated with Company and its goods and services (collectively, “Intellectual Property”) shall belong to the Company. Company hereby grants Affiliate a limited, revocable, non-transferable, non-exclusive license to use and distribute Company’s Intellectual Property in connection with Affiliate Link and Affiliate Program solely as necessary to further the purposes of this Agreement and to promote the Affiliate Program and the Company. Affiliate may only use the Intellectual Property specifically made available to Affiliate by Company and may not distribute, reproduce, modify, or amend the Intellectual Property or Affiliate Link in any manner not in accordance with this Agreement. Affiliate further agrees and understands that they are prohibited from using Company’s Intellectual Property or the Affiliate link for any other purposes without the prior written consent of the Company. The Parties hereby agree that Affiliate’s license to use Company’s Intellectual Property shall not survive the Termination of this Agreement and may be revoked or suspended by Company at any time, in its sole discretion. Affiliate hereby grants Company the unlimited, non-exclusive, royalty-free license to use, disseminate, reproduce, publish, transmit, re-transmit, reproduce, create derivative works, modify, edit, and/or whitelist Affiliate’s Intellectual Property, for the purpose of marketing, trade, advertising, promotion, and publicity, at the Company’s sole discretion. The Parties expressly acknowledge and agree that all copyrightable material produced by Affiliate under the terms of this Agreement (“Protected Materials”), are fully assigned to Company and shall be considered a work for hire within the meaning of US Copyright Act of 1976 (Title 17 U.S.C.) and shall be wholly owned by Company. Affiliate hereby irrevocably and unconditionally waives any and all moral and like rights that it may have in an Intellectual Property and in any performances embodied therein and hereby agrees not to make any claim against Company or any party authorized by Company to exploit the Intellectual Property based on such moral or like rights. Affiliate will, upon request, execute, acknowledge, and deliver to Company such additional documents as Company may reasonably deem necessary to evidence and effectuate Company’s rights hereunder, and Affiliate hereby grants to Company the right as limited attorney-in-fact to execute, acknowledge, deliver and record in the U.S. Copyright Office, or elsewhere, any and all such documents. Upon termination of this Agreement, or at Company’s request, Affiliate must immediately take down and remove any and all banners and promotional materials including the Affiliate Program, Affiliate Link, and/or Company’s Intellectual Property provided under this Agreement. This clause shall survive the termination of this Agreement.
REPRESENTATIONS AND WARRANTIES
Affiliate represents and warrants to Company that (i) Affiliate has the right and capacity to enter into this Agreement, to grant the rights granted herein and to perform fully all of Affiliate’s obligations in this Agreement; (ii) there are no outstanding obligations or agreements to which Affiliate is bound that are inconsistent or in conflict with the execution or performance of the Affiliate Program or other obligations described in this Agreement; and (iii) Affiliate shall perform all obligations in compliance with all applicable federal, state and local laws and regulations. Company makes no warranty of any kind, either expressed or implied, by fact or law, other than those expressly set forth in this Agreement, and further makes no warranty of fitness for a particular purpose or warranty of merchantability for Company’s goods or services. This clause shall survive the termination of this Agreement.
To the fullest extent permitted by law, Affiliate shall indemnify, defend and hold harmless Company and its owners, officers, managers, employees, agents, attorneys, and representatives (collectively, “Indemnitees”) from and against any and all claims, damages, losses and expenses of any kind, including, but not limited to, attorneys’ fees, arising out of or resulting from Affiliate’s obligations under this Agreement, including, but not limited to, (i) any violation or breach of the representations, warranties, covenants, and other terms of this Agreement, (ii) failure to comply with applicable law, including but not limited to the FTC Endorsement Guidelines, and (iii) any unauthorized use, disclosure, or other infringement of any Company-owned or third-party intellectual property rights. Affiliate further promises to pay, in advance, for any and all expenses or disbursements of any nature (including all attorneys’ fees and costs) incurred by Company and its Indemnitees for any loss or damage suffered as a result of or in connection with any claims, judgments or proceedings established against Affiliate by any person in connection with anything done to fulfill the purposes and obligations under this Agreement. This subsection shall survive the expiration or termination of this Agreement. Affiliate hereby expressly waives and releases any and all claims, now known or hereafter known in any jurisdiction throughout the world, against Company, and its officers, directors, members, managers, employees, agents, affiliates, successors and assigns (collectively, “Releasees”), on account of injury, death or property damages arising out of or attributable to any and all uses of the Company’s goods or services, whether arising out of the negligence of Company or any Releasees. This clause shall survive the termination of this Agreement.
All notices required or permitted to be made under this Agreement shall be in writing and shall be deemed to have been duly given when delivered or sent by certified mail or by courier (e.g. FedEx). All correspondence to the Company shall be sent to Magniflex USA, Ltd. Inc. Attn: Francesca Marquez, with an address of 3050 Biscayne Blvd., Suite 200, Miami, Florida 33137 and by email to email@example.com. Any correspondence sent to an Affiliate shall be sent to the mailing address provided in the Affiliate’s application or such other address as provided to the Company, from time to time. Affiliates expressly agree to notify the Company of any changes to their mailing address or other contact information.
The relationship of the Parties under this Agreement is one of independent contractor. Affiliate acknowledges that any payment received under this Agreement is gross of any taxes, fees, and levies of any nature. Affiliate assumes exclusive liability for any and all taxes, assessments, and levies which may be paid or owed by Affiliate as a result of this Agreement. No Party may assume or create obligations on the other Party’s behalf, and no Party may take any action that creates the appearance of such authority. The Parties hereby acknowledge and agree that this Agreement and Affiliate’s services hereunder shall not be subject to the terms of any union’s (e.g. SAGAFTRA) collective bargaining agreement (“CBA”) and that Company is not a signatory to any CBA covering Affiliate’s hereunder. This Agreement and all questions of interpretation, construction and enforcement hereof, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the State of Florida. Any action brought by any Party hereto shall be brought in the County of Miami-Dade, Florida. The Parties agree that prior to submitting any dispute to litigation, such dispute shall be submitted to non-binding mediation. In the event a dispute raises to litigation then the prevailing party shall be entitled to reasonable attorney’s fees and costs, in no event shall the Company’s liability to Affiliate exceed the compensation provided for in this Agreement. Neither this Agreement nor Affiliate’s duties or responsibilities to be performed hereunder may be delegated or assigned, or otherwise disposed of without first obtaining the written consent of Company, any attempted assignment by Affiliate will be void and will automatically terminate all rights of Affiliate under this Agreement. This Agreement, including any attached term sheets, constitutes the entire understanding among the Parties with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and arrangements whether oral or written. No amendment to this Agreement shall be effective unless it is in a subsequent writing signed by each Party. This Agreement may be signed in one or more counterparts.
Last updated: September 22, 2021