AFFILIATE AGREEMENT

These terms (the "Agreement”) are between you ("Affiliate" or “you”) and Touchize ("Touchize",

“we”, “us” and “our”) and together with Affiliate, the "Parties", and each, a "Party").

Touchize owns, markets and sells Swipe-to-Buy Cart app (“Swipe to Buy” or “the app”) that

provides online stores for mobile the functionality of swiping and dragging products to add them

to the cart and runs the Affiliate program and website in exchange for compensation as set forth

hereunder.

Please read this Agreement carefully. By clicking to accept or agree to this Agreement when

this

option is made available, Affiliate accepts and agrees to be bound and abide by the terms of this

Agreement. You must agree to these terms to be an affiliate of Touchize.

This Agreement sets forth the legally binding terms and conditions that govern your

engagement as an affiliate of Touchize. By agreeing to this Agreement, (on behalf of yourself or

the entity that you represent), you represent and warrant that you have the right, authority, and

capacity to enter into this Agreement (on behalf of yourself or the entity that you represent).

 

1.Engagement

(a) Touchize hereby engages Affiliate, and Affiliate hereby accepts such engagement,

to act as our non-exclusive affiliate with respect to promotion of Swipe to Buy to customers

in a worldwide territory during the Term, solely in accordance with the terms and

conditions of this Agreement. Touchize may in its sole discretion engage any other person

or company to sell the app.

 

(b) Affiliate will be required to register with Touchize to create an Affiliate account.

Affiliate agrees that all information Affiliate will provide for such purposes shall

be truthful, complete, and current. This includes contact information, business information

and any other information required by Touchize to register you as an Affiliate.

Touchize reserves the right to deny any affiliate application for any lawful reason.

 

(c) Touchize will make URL links (“Touchize Links”) available through Affiliate

Sites that provide a path to a specific page on the Touchize website, currently located at

touchize.com (“the Touchize Website”), that will cause a user to be transferred to a specific

page of the Touchize Website. Affiliate shall be responsible to ensure its Affiliate Sites

are current and synchronized with the Touchize Website directory. Users of the Affiliate

Sites who follow the Touchize Links from the Affiliate Sites and purchase a paid subscription

to Swipe to Buy, as documented and confirmed by Touchize, shall hereinafter be referred to

as “Referred Customers.”

 

(d) Subject to Section 6 of this Agreement, Touchize may provide Affiliate

with certain Touchize content such as product or company logos and/or other marketing

material (“Touchize Content”) to allow Affiliate to promote Swipe to Buy.

 

(e) Affiliate shall be solely responsible for (i) obtaining and maintaining any

equipment and ancillary services needed to connect to, access or otherwise use the

Touchize Links including, without limitation, modems, hardware, servers, software, operating

systems, networking, web servers and the like; (ii) displaying the Touchize Links and

Touchize Content in compliance with the terms of this Agreement and any further instructions

provided by Touchize; (iii) ensuring that all information pertaining to Touchize and/or

Swipe to Buy posted on the Affiliates Sites is accurate, complete and not misleading; (iii)

removing the Touchize Links and Touchize Content whenever requested by Touchize; (iv)

posting accurate and complete privacy notices on the Affiliate Sites including information on

how Touchize and other third parties may collect, use and process the personal data of visitors

to the Affiliate Sites; and (v) complying with any applicable federal, state or local laws or

regulations, including, without limitation, laws that govern data privacy and marketing

email.

 

(f) The prices, terms and conditions under which Touchize shall offer or sell

Swipe to Buy shall be determined by Touchize in its sole discretion. Touchize shall have the

authority to control all discussions and negotiations regarding any proposed or actual offering

or sale of Swipe to Buy. Nothing in this Agreement shall obligate Touchize to actually offer or

sell Swipe to Buy or consummate any transaction with any Referred Customer. Touchize has

the right not to proceed with any sale of Swipe to Buy without any liability or obligation to pay

compensation to Affiliate under Section 2 or otherwise.

 

(g) Affiliate shall defend, indemnify and hold harmless Touchize, and any of its

directors, officers or shareholders, against any and all losses, damages, liabilities, deficiencies,

claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of

whatever kind, including attorney fees, fees and the costs of enforcing any right to

indemnification under this Agreement, arising out or resulting from any claim of

a third party related to its obligations under this Agreement.

 

2. Compensation

(a) In consideration for the services rendered by Affiliate hereunder, during

the Term of the Agreement, Touchize shall pay to Affiliate compensation ("Affiliate's

Fee") on the initial sale made by Touchize to each Referred Customer at the rate of recurring

20% of the Subscription Price (as defined hereunder). "Subscription Price" means the monthly

net sales price (exclusive of sales tax and after applying any discounts, credits, rebates,

adjustments) of Swipe to Buy sold by Touchize to Referred Customers under the Referred

Customer's ongoing subscription term. For the avoidance of doubt, Affiliate will not receive the

Affiliate’s Fee on sales that are cancelled, refunded or subject to chargebacks. Touchize

shall pay the Affiliate's Fee within 60 days of Touchize's actual receipt of unconditional

payment of the corresponding Subscription Price from Referred Customer. Touchize will

provide Affiliate with a monthly statement that shows Affiliate’s Fee for the preceding

Month. Additionally, Touchize will grant Affiliate with a $100 reward for every 10 new referred

customers.

 

(b) Affiliate shall be solely responsible for any and all fees, taxes, charges or

other assessments (except taxes on the income or gross revenue of Touchize) on any

payments

made by Touchize to Affiliate hereunder.

 

3. Independent Contractor; No Franchise.

(a) Affiliate is an independent contractor of Touchize, and this Agreement shall

not be construed to create any association, partnership, joint venture, franchise, employee

or agency relationship between Affiliate and Touchize for any purpose. Affiliate has no

authority (and shall not hold itself out as having authority) to bind Touchize and Affiliate

shall not make any agreements or representations on Touchize's behalf without Touchize's

prior written consent. Without limiting the above, Affiliate will not be eligible to participate

in any vacation, group medical or life insurance, disability, profit sharing or retirement

benefits, or any other fringe benefits or benefit plans offered by Touchize to its employees,

and Touchize will not be responsible for withholding or paying any income, payroll,

Social Security or other federal, state or local taxes, making any insurance contributions,

including unemployment or disability, or obtaining worker's compensation insurance

on Affiliate's behalf. Affiliate shall be responsible for, and shall indemnify Touchize

against all such taxes or contributions, including penalties and interest. Any persons employed

or engaged by Affiliate in connection with the performance of Affiliate's obligations hereunder

shall be Affiliate's employees or contractors and Affiliate shall be fully responsible for them and

indemnify Touchize against any claims made by or on behalf of any such employees or

contractors.

 

(b) Except as provided otherwise in this Agreement, Affiliate has the sole discretion

to determine Affiliate's methods of operation, Affiliate's accounting practices, the types and

amounts of insurance Affiliate carries, Affiliate's personnel practices, Affiliate's advertising and

promotion, Affiliate's customers, and Affiliate's service areas and methods. The relationship

created hereby between the parties is solely that of seller and affiliate. If any provision of this

Agreement is deemed to create a franchise relationship between the parties, then Touchize may

immediately terminate this Agreement.

 

4. Confidentiality

All non-public, confidential, or proprietary information of Touchize, including, but not limited to,

specifications, samples, patterns, designs, plans, drawings, documents, data, business

operations, customer lists, pricing, discounts or rebates, disclosed by Touchize to Affiliate,

whether disclosed orally or disclosed or accessed in written, electronic, or other form or media,

and whether or not marked, designated, or otherwise identified as "confidential," in connection

with this Agreement, as well as the terms and conditions and the existence of this Agreement is

confidential, solely for the use of performing this Agreement and may not be disclosed or copied

unless authorized by Touchize in writing. Upon Touchize's request, Affiliate shall promptly return

all documents and other materials received from Touchize. Touchize shall be entitled to

injunctive relief for any violation of this Section 4. This section shall not apply to information that

is: (a) in the public domain; (b) known to the Affiliate at the time of disclosure; or (c)

rightfully obtained by the Affiliate on a non-confidential basis from a third party.

5. Publicity and Announcements

Affiliate shall not (orally or in writing) publicly disclose or issue any press or make any other

public statement, or otherwise communicate with the media, concerning the existence of this

Agreement or the subject matter hereof, without the prior written approval of Touchize, except to

the extent that Affiliate (based upon the reasonable advice of counsel) is required to make any

public disclosure or filing with respect to the subject matter of this Agreement by applicable law.

 

6. Intellectual Property Rights

(a) Ownership. Affiliate acknowledges and agrees that:

i. any and all of Touchize's intellectual property rights comprising or relating

to/of the following:(a) trademarks; (b) internet domain names, whether or not

trademarks, registered by any authorized private registrar or governmental authority,

web addresses, web pages, websites, and URLs; (c) works of authorship, expressions,

designs, and design registrations, whether or not copyrightable, including copyrights

and copyrightable works, software, and firmware, application programming interfaces,

architecture, files, records, schematics, data, data files, and databases and other specifications

and documentation; and (d) trade secrets (collectively, “Intellectual Property Rights”) are the

sole and exclusive property of Touchize or its licensors. This clause expressly includes any

Touchize Content provided by Touchize to Affiliate;

 

ii. Affiliate shall not acquire any ownership interest in any of Touchize's

Intellectual Property Rights under this Agreement;

 

iii. any goodwill derived from the use by Affiliate of Touchize's Intellectual

Property Rights inures to the benefit of Touchize or its licensors, as the case may be;

 

iv. if Affiliate acquires any Intellectual Property Rights in or relating to

Swipe to Buy sold under this Agreement (including any rights in any trademarks, derivative

works or patent improvements relating thereto), by operation of law, or otherwise,

such rights are deemed and are hereby irrevocably assigned to Touchize or its licensors,

as the case may be, without further action by either of the Parties; and

 

v. Affiliate shall use Touchize's Intellectual Property Rights solely for the

purposes of performing its obligations under this Agreement and only in accordance

with this Agreement and the instructions of Touchize.

 

(b) Touchize's License Grant. Touchize hereby grants to Affiliate a non-exclusive,

non-transferable, and non-sublicensable license to use Touchize's trademarks,

Touchize Links, and Touchize Content during the Term solely on or in connection with the

marketing, promotion, advertising, and sale of Swipe to Buy. Affiliate will promptly discontinue

the display or use of any trademark to change the manner in which a trademark is displayed

or used with regard to Swipe to Buy when requested by Touchize.

 

(c) Marketing Right Only. Affiliate is authorized to market Swipe to Buy only in the

form as authorized by Touchize to Affiliate. Other than the express licenses granted by this

Agreement, Touchize grants no right or license to Affiliate by implication, estoppel, or

otherwise to Swipe to Buy or any of Touchize's Intellectual Property Rights.

 

(d) Prohibited Acts. Affiliate shall not, and shall not cause or encourage visitors

to its Affiliate Sites to:

 

i. take any action that may interfere with any of Touchize's rights in or to

Touchize's Intellectual Property Rights, including Touchize's ownership or exercise

thereof;

 

ii. challenge any right, title, or interest of Touchize in or to Touchize's Intellectual

Property Rights;

 

iii. make any claim or take any action adverse to Touchize's ownership of Touchize's

Intellectual Property Rights;

 

iv. register or apply for registrations, anywhere in the world, for Touchize's trademarks

or any other trademark that is similar to Touchize's trademarks or that

incorporates Touchize's trademarks in whole or in confusingly similar part;

 

v. use any mark, anywhere, that is confusingly similar to Touchize's trademarks;

 

vi. engage in any action that tends to disparage, dilute the value of, or reflect negatively

on Swipe to Buy or any Touchize trademark;

 

vii. misappropriate any of Touchize's trademarks for use as a domain name without

prior written consent from Touchize; and

 

viii. alter, obscure or remove any of Touchize's trademarks or trademark or copyright

notices or any other proprietary rights notices placed on the marketing materials

or other materials that Touchize may provide.

 

(e) No Continuing Rights. On expiration or earlier termination of this Agreement,

Affiliate will immediately cease all display, advertising, promotion, and use of all of

Touchize's trademarks and will not thereafter use, advertise, promote or display any

trademark or any part thereof that is similar to or confusing with Touchize's trademarks

or with any trademark associated with Touchize or Swipe to Buy.

 

7. Disclaimer of Warranty

Touchize EXPRESSLY DISCLAIMS ANY AND ALL

WARRANTIES AND CONDITIONS THAT TOUCHIZE.COM, SWIPE TO BUY OR THE

TOUCHIZE LINKS OR TOUCHIZE CONTENT WILL BE UNINTERRUPTED OR ERROR

FREE. TOUCHIZE’S LINKS AND TOUCHIZE’S CONTENT ARE PROVIDED TO

COMPANY ON AN “AS-IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER

EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES

OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,

NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY

COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.

8. Limitations of Liability

(a) No Consequential or Indirect Damages. IN NO EVENT SHALL

Touchize BE LIABLE TO AFFILIATE OR ANY THIRD PARTY FOR CONSEQUENTIAL,

INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES,

LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR

RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT,

REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER

OR NOT TOUCHIZE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C)

THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH

THE CLAIM IS BASED.

 

(b) Maximum Liability. IN NO EVENT SHALL TOUCHIZE’S AGGREGATE

LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER

ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING

NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS

PAID TO AFFILIATE PURSUANT TO THIS AGREEMENT IN THE THREE MONTH

PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1000,

WHICHEVER IS LESS.

 

9. Term and Termination

(a) The term of this Agreement commences on the date of this Agreement and

continues unless and until earlier terminated as provided under this Agreement (the "

Term”).

(b) Either Party may terminate this Agreement immediately at any time for

any or no reason by giving written notice to the other Party. Touchize may discontinue its

affiliate program at any time in its sole discretion.

(c) Upon the termination of this Agreement, the Affiliate shall immediately cease use of, and

remove from any Affiliate Sites, all Touchize Links, Touchize trademarks and Touchize Content.

Affiliate is eligible to earn Affiliate’s Fees only on transactions that occur during the Term of this

Agreement.

 

10. Miscellaneous

(a) All notices, requests, consents, claims, demands, waivers, summons and

other legal process, and other similar types of communications hereunder (each, a "Notice")

must be in writing and addressed to the relevant Party. This will be at party@touchize.com (for

Touchize) and to such address that may be designated by the receiving Party from time to time

in accordance with this Section 10. All Notices must be delivered by personal delivery, nationally

recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case,

return receipt requested, postage prepaid), or email. A Notice is effective only (i) upon receipt by

the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of

this Section 10(a).

 

(b) This Agreement, and each of the terms and provisions hereof, may only be

amended, modified, waived, or supplemented by an agreement in writing signed by each

Party.

 

(c) Affiliate shall not assign, transfer, delegate, or subcontract any of its rights

or obligations under this Agreement without the prior written consent of Touchize. Any

purported assignment or delegation in violation of this Section shall be null and void.

Touchize may at any time assign, transfer, or subcontract any or all of its rights or obligations

under this Agreement without Affiliate's prior written consent. This Agreement will

inure to the benefit of and be binding upon each of the Parties and each of their respective

permitted successors and permitted assigns.

 

(d) If any term or provision of this Agreement is invalid, illegal or unenforceable

in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any

other term or provision of this Agreement or invalidate or render unenforceable such term

or provision in any other jurisdiction.

 

(e) This Agreement constitutes the sole and entire agreement of the Parties

with respect to the subject matter contained herein, and supersedes all prior and

contemporaneous understandings, agreements, representations, and warranties, both written

and oral, with respect to such subject matter.

 

(f) The parties do not confer any rights or remedies upon any person other

than the Parties and their respective successors and permitted assigns.