PRIVATE SUBSCRITPION CONTRACT TO THE “LYFETASTE” PREMIUM AFFILIATES PROGRAM
PARTIES: WINE WITH SPIRIT, S.A., company with its head office at Av. 24 de Julho, 60 – 3º Esq., 1200-869 Lisboa, incorporated at the Commercial Registry under the single company and VAT number 509 839 894, hereinafter referred to as WWS and, on the other side, the PREMIUM AFFILIATE, an Individual or Corporate Entity, hereinafter referred to as AFFILIATE.
WHEREAS:
I. WWS is the owner of an e-commerce platform that operates via an internet domain located at https://lyfetaste.com or https://lyfetaste.pt, on which several products from several categories are sold;
II. The AFFILIATE wishes to promote Lyfetaste’s Website and the sale of a set of products through its contacts’ network and, therefore, participate in the Lyfetaste Premium Affiliates’ Program, being for such authorized to use several media such as blogs, social networks or other digital or physical channels;
The parties identified and qualified above have decided to celebrate the present contract, which will be ruled by the following clauses and conditions:
ARTICLE ONE – SCOPE OF LYFETASTE’S PREMIUM AFFILIATES PROGRAM
1.1. The purpose of the program is to promote Lyfetaste’s website and the sale of a set of products there included, near the AFFILIATE’s contact network, allowing the AFFILIATE to receive commissions for the sales effectively made and that were originated by him, under the conditions stipulated in the present contract and in the other documents that contain the terms and conditions of Lyfetaste’s Premium Affiliates’ Program that are available at Lyfetaste’s website, namely the FAQ and the business plan in force at each moment (Lyfetaste’s Premium Affiliates’ Program Documents”), of which the AFFILIATE declares to have full knowledge and fully accept its content.
1.2. During the term of this Contract, WWS will make available to the AFFILIATE, at its backoffice, several graphic and promotion materials (“Materials”) for the development of the promotion activities of Lyfetaste’s website which is the object of the present contract.
ARTICLE TWO – REGISTRATION AT LYFETASTE’S PREMIUM AFFILIATE PROGRAM
2.1. In order to participate in the Program, the AFFILIATE should correctly fill in at Lyfetaste’s website, the requested information at the registration form and subscribe one of the affiliation business packs in force at each moment (“Business Packs”).
2.2. The Business Packs subscription allows the PREMIUM AFFILIATE to access, during its subscription term, to a set of goods and services that are duly listed at Lyfetaste’s website and at Lyfetaste’s Premium Affiliates’ Program Documents in force, including:
a) a set of exclusive Lyfetaste products;
b) an online store for the AFFILIATE to promote sales to final clients and the raising of new affiliates, with integrated logistics and payment systems;
c) a management backoffice with exclusive promotional materials, tutorials explaining how the platform works, dashboards and sales and commissions reports, etc.
d) access to exclusive discounts and bonuses;
e) access to specific training.
2.3. The relationship established by the present Contract between the PREMIUM AFFILIATE and WWS is of provision of services. None of the stipulations of this Contract or of Lyfetaste’s Premium Affiliates’ Program Documents constitutes the AFFILIATE as an employee, agent or representative of WWS, nor grants him any power or authority to incur into any obligation whatsoever, whether express or implicit, on behalf of WWS.
2.4. The AFFILIATE is responsible for the permanent update of his registration data at Lyfetaste’s Affiliates’ Program.
2.5. The AFFILIATE declares that he has read and agrees with all the terms and conditions stipulated in the Contract, that is deemed to be entered electronically at the moment when the AFFILIATE clicks on “I have read, agree and accept all the terms and conditions included in the present Contract”.
2.6. During the term of the Lyfetaste’s Premium Affiliate Program, WWS shall reserve the right of, at any moment and without the need of a prior notification, cancel the AFFILIATE’s registration in the Program, if it considers that the AFFILIATE is promoting Lyfetaste’s website through any materials, images or content that:
a) promote any pornographic material;
b) promote or encourage any form of violence;
c) promote or encourage any form of discrimination whether racial, of gender, social, religious, of age or of nationality;
d) promote illegal activities;
e) violate copyrights or intellectual property;
f) promote the consumption of alcohol by someone under-age.
ARTICLE THREE - TERM
3.1. This contract will be in force for the Business Packs subscription validity period.
3.2. Any of the parties may, at any moment, during the period referred in paragraph 3.1 above, terminate the present Contract, by sending a written communication to the other party with at least 15 (fifteen) days prior to the date when it is intended to take effect.
3.3. The termination of the present Contract by the AFFILIATE, as long as in respect of the conditions stipulated in the present Article, will not affect the AFFILIATE’s right to receive the commissions that may be due, which will be paid in the form and deadlines specified in the following article.
ARTICLE FOUR – COMISSIONS AND PAYMENT TERMS
4.1. The simple access by individuals of the AFFILIATE’s contact network to Lyfetaste’s website does not grant the right to any consideration between the parties, except if that access results in the conclusion of an effective purchase and sale, moment when the AFFILIATE will be entitled to receive a commission calculated under the conditions stipulated in the business plan included in Lyfetaste’s Premium Affiliates’ Program Documents in force.
4.2. The commissions will be calculated on the sales net value, i.e., they will be calculated after deducting any discount that may be applied, and they will not include any taxes (VAT, Income Tax or others) and shipping fees which will be deducted to the sales value for purposes of the application of the commission percentages.
4.3. Commissions will be calculated based on the sales made and paid and will only be considered as due after the delivery of the products ordered. Sales occurred and eventually cancelled by the consumer, for any reason, will not be considered for remuneration purposes or will have their value deducted, if the commission has already been paid to the AFFILIATE.
4.4. Whenever applicable, VAT at the legal rate in force must be added to the values processed.
4.5. Values due to the AFFILIATE, regarding commissions, will be paid whenever requested by the Affiliate, as long as his Business Pack subscription is valid and as from the moment when they total a minimum accumulated value of €150,00 (one hundred and fifty euros), by bank transfer for the account indicated by the AFFILIATE, in exchange for the correspondent invoice or receipt, according to the following periods and conditions
4.5.1. For requests made between the 1st and the 15th day of each month, the bank transfer will be made until the 5th day following the 15th day of the month, as long as the AFFILIATE has sent WWS all the necessary elements for the payment to be made, namely, the IBAN and the invoice or receipt;
4.5.2. For requests made between the 16th and the last day of each month, the bank transfer will be made until the 5th day following the last day of the month it refers to, as long as the AFFILIATE has sent WWS all the necessary elements for the payment to be made, namely, the IBAN and the invoice or receipt;
4.6. The record of commissions generated by the AFFILIATES sales is always available at the AFFILATE’s backoffice.
4.7. WWS reserves the right to compensate the values regarding eventual commissions calculated with debts of the AFFILIATE to WWS, namely regarding services or products (as well as interest on arrears or other penalties) that he has purchased at Lyfetaste’s website.
4.8. The right of action regarding credits owned by the AFFILIATE, related to commissions due in the scope of the present Contract, ceases within one year as from the date when they are due, if the payment is not made by a reason attributable to the AFFILIATE, namely due to the fact that he is not registered near the Tax Authorities or that he has not issued the correspondent invoice or receipt.
ARTICLE FIVE – PROGRAM’S EXTINCTION AND AFFILIATE’S EXCLUSION
5.1. WWS reserves the right to, at any moment, extinguish Lyfetaste’s Premium Affiliate Program, fact that will be communicated to the AFFILIATE with at least 15 (fifteen) days prior notice, being the AFFILIATE still entitled to the commissions that have been generated by the sales concluded and paid during the term of the Program.
5.2. During the term of Lyfetaste’s Premium Affiliate Program, WWS reserves the right to, at any moment and without need of a prior notice, exclude the AFFILATE in the following situations:
a) in case of inappropriate use by the AFFILATE of the name, brand, images, texts, pages, even if partially, of Lyfetaste’s website, if such use has not been expressly authorized or, even if authorized, is in disagreement with the limits of authorization granted in the scope of Lyfetaste’s Affiliates Program.
b) in case the AFFILIATE uses WWS’s URL and/or domains for registration in search engines, portals, price and products comparisons, internet communities, among others.
c) in case the AFFILIATE uses any of WWS’s registered trademarks or words associated to those trademarks in URS and/or domains of websites, blogs or social network profiles. As an example, but without limitation, the following words may be pointed out: “lyfetaste”, “WWS” and “Wine With Spirit”.
d) in case the AFFILIATE violates any of the policies, terms or conditions of the Premium Affiliates’ Program and of Lyfetaste’s website.
5.3. The situations set out in the previous paragraphs will imply the retention of the commissions that may be due, besides justifying the immediate exclusion of the AFFILIATE from the Program, notwithstanding WWS’s right to a legal action to get repair of all the damages suffered and eventual loss profits.
5.4. If, by any reason, the Lyfetaste Premium Affiliates’ Program is extinguished or the AFFILIATE excluded, the AFIILIATE is bound to remove from the digital media managed by him, all the links and further information belonging to WWS.
ARTICLE SIX – PROGRAM AND LYFETASTE’S WEBSITE POLICIES
6.1. Any client that purchases via Lyfetaste’s Premium Affiliate Program or that makes his registration on Lyfetaste’s website will be considered as a Lyfetaste / WWS client and shall, therefore, be subject to the usage terms and conditions for Lyfetaste’s website and Lyfetaste’s Premium Affiliate Program.
6.2. WWS may, at any moment and at its sole discretion, change the rules and procedures for the purchase of Lyfetaste products. The products prices and their availability are subject to the variations of the market and of WWS and its suppliers’ stocks.
6.3. Likewise, it is WWS’s right to, at all time and at its sole discretion, change any of the terms and conditions of the present Contract, by written communication sent to the AFFILIATE for acceptance. If the AFFILIATE does not oppose to the changes suggested within 5 (five) days as from the date when the notification was sent by WWS, his silence will be considered as the acceptance of the proposed changes that will be in force as from the date communicated by WWS.
ARTICLE SEVEN – INTELECTUAL PROPERTY RIGHTS
7.1. The intellectual property rights, copyrights and related rights on all the materials, icons, messages, images or any other information, regardless of the correspondent medium (“WWS Information”), as well as on the name and WWS trademarks, will remain WWS property, not being transferred to the AFFILIATE. It is expressly forbidden, without express consent from WWS, to reproduce, copy, distribute, transform, change, publish, reedit, update, send, export, create derivative works, whether integrated or not integrated with any others, totally or partially, the Materials and other WWS Information, under penalty of incurring into the punishments provided by Law.
7.2. The AFFILATE is also bound not to promote or facilitate any deviation of WWS Information content for third parties, or allow or facilitate its reproduction, being therefore forbidden any type of use which is not expressly authorized, under penalty of incurring into civil and criminal illicit, without prejudice of the immediate exclusion of the Affiliate from Lyfetaste’s Premium Affiliates Program
ARTICLE EIGHT – DUTIES AND RESPONSIBILITIES OF THE PARTIES
8.1. The AFFILIATE is the sole responsible for all the contents, information, images and messages he broadcasts in order to get clients and/or affiliates for Lyfetaste, exempting WWS from any responsibility regarding that content.
8.2. The AFFILIATE is responsible for assuring that any content he broadcasts does not violate or infringe third party rights (including copyrights, trademarks and other intellectual property and image rights) and for assuring that that content is not slanderous or illegal or is contrary to WWS and Lyfetaste’s website policies, terms and conditions.
8.3. Likewise, the AFFILIATE assumes full responsibility for eventual effects resulting from any alleged legal or contractual infringement reported by a third party, directly or indirectly related to the contents he broadcasts, exempting WWS from any responsibility regarding such relationships and allegations.
8.3.1. For the purposes of the previous article, each and every complaint in a judicial or extrajudicial procedure presented against WWS, under the alleged breach to any third party rights or infringement of any legal or contractual instrument, directly or indirectly related with the contents broadcasted by the AFFILIATE, will be immediately reported to the AFFILIATE who agrees, as of now, to pay all the expenses related to the process, including legal costs and process fees, as well as the claim amounts, in order to cover any eventual losses and damages, loss profit or any other values that WWS may be condemned to pay.
8.4. WWS, in turn, will assure the AFFILIATE that all the information that may be disclosed to the AFFILIATE is its property and that it holds all the necessary rights and authorizations needed to preserve the AFFILIATE’s responsibility and to keep him exempt of any claim based on a breach of copyrights, trademarks and any other intellectual property and image rights.
8.5. WWS shall not be deemed responsible for interruptions or errors that may occur in the data transmission via Internet.
8.6. The AFFILIATE is bound, at his sole discretion, to fulfil all the applicable laws and regulations in force at the country where he works, namely rules regarding spam, non-solicited communications, direct marketing and advertising and the use of cookies, as well as to fulfil the duties before the tax authorities and the Social Security.
ARTICLE NINE – BREACH AND RESOLUTION
9.1. Any of the parties may resolve the present Contract, effective immediately, should the other party breach of any disposition of the present Contract not be remedied within 15 (fifteen) days as from the notice sent for that purpose by then non-faulty party.
9.2. WWS is also entitled to resolve the present Contract with immediate effect if:
a) the AFFILIATE breaches Lyfetaste’s website Usage Terms and Conditions, the provisions included in Lyfetaste’s Premium Affiliate Program Documents in force or any other instructions that may be approved by WWS in the scope of Lyfetaste’s Premium Affiliate Program;
b) the AFFILIATE performs any acts that may imply WWS’s commercial or institutional disrepute;
c) if insolvency is ordered or a Special Revitalization Plan is approved for the AFFILIATE or, at WWS’s sole discretion, if the Affiliate ceases to have the technical, commercial of financial reputation that are needed to maintain his registration and Lyfetaste’s Premium Affiliate Program;
d) there is a breach by the AFFILIATE of his tax and Social Security duties.
9.3. Without prejudice of WWS’s resolution right provided above, and of the indemnity right by remainder damage, should the AFFILIATE breach Lyfetaste’s website Usage Terms and Conditions, the provisions included in the Lyfetaste’s Premium Affiliate Program Documents in force or any other instructions that may be approved by WWS in the scope of Lyfetaste’s Premium Affiliate Program, WWS shall be entitled to be indemnified by the damages caused, being as of now set by the parties, as a penalty clause, a value corresponding to 10% of the last commissions value that has been effectively paid by WWS to the AFFILIATE.
ARTICLE TEN – CONFIDENTIALITY AND NON-COMPETITION
10.1. The AFFILIATE is bound, during the term of the Contract and up to 3 years after its termination, not to reveal to third parties any data or information, regardless of the format and form, that has come to his knowledge while an AFFILIATE, especially data related to marketing, sales and information about the affiliates’ network and other exclusive content for Lyfetaste Clients and Affiliates.
10.2. The AFFILIATE is bound not to perform any activity which directly or indirectly competes with the activities developed by WWS or to provide sales promotion services to any other company that develops an activity which competes with Lyfetaste’s website or any other platform owned by WWS.
ARTICLE ELEVEN – ASSIGNMENT OF THE CONTRACTUAL POSITION
11.1. The assignment of the AFFILIATE’s contractual position in this Contract, as well as the transfer of any rights or obligations here emerging, shall be conditional to having a prior written consent from WWS.
11.2. WWS may assign its position in the present Contract, as well as the whole or part of its rights and duties emerging of this Contract, to any entity with whom it has a relationship of control or group.
ARTICLE TWELVE - COMMUNICATIONS
12.1. All notices and further communications hereby required or allowed will be written and shall be considered as duly transmitted when sent to the addressee by registered letter or by electronic mail (e-mail), for the following addresses:
WWS: Av. 24 de Julho, nº 60 – 3º Esq., 1200-869 Lisboa
Email: [email protected]
AFFILIATE: Address and e-mail indicated in Lyfetaste’s Premium Affiliate Program registration form.
ARTICLE THIRTEEN – GENERAL PROVISIONS
13.1. The present Contract constitutes the entire agreement between the Parties and prevails upon any other agreement, whether spoken or written, previously established.
13.2. The parties agree to comply with the provisions set forth in the Data Protection Law regarding the other party data that are accessible as a consequence of the present Contract.
13.3. The AFFILIATE declares that he has assessed and accepts his participation in Lyfetaste’s Premium Affiliate Program and agrees with all the terms and conditions that rule this Program, also recognizing that WWS may, at any moment, ask for references on the AFFILIATE, as well as operate in partnership with other entities and individuals that act in the same business area.
ARTICLE FOURTEEN – GOVERNING LAW AND COMPETENT COURT
14.1. The present Contract is ruled by the Portuguese legislation.
14.2. In case of dispute, the parties chose the competent Court of Lisbon, expressly renouncing any other.
14.3. In case of consumer dispute, according to the provisions set forth by Law No. 144/2015, of September 8, the consumer may resort to the competent alternative consumer dispute resolution entity.
14.4. Without prejudice to the provisions set forth in the legislation, statutes and regulations that the alternative consumer dispute resolution entities are bound to, the consumer can opt between the European Alternative Dispute Resolution Platform available online at https://webgate.ec.europa.eu/odr, or the alternative consumer dispute resolution entity of his permanent address.
14.5. If there are no alternative dispute resolution entities in accordance with the provisions set forth in the preceding paragraph or if the existent ones are not considered relevant in view of the dispute value, the consumer may use the National Centre for Information and Consumer Disputes Arbitration, located in Lisbon, with the e-mail address [email protected] and available at www.arbitragemdeconsumo.com.