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 Drag2Cart app (“Drag2Cart” or “the app”) that
provides online stores for mobile the functionality of dragging products to add them
to the cart and runs the Affiliate program and website in exchange for compensation as set forth
Please read this Agreement carefully. By clicking to accept or agree to this Agreement when
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).
(a) Touchize hereby engages Affiliate, and Affiliate hereby accepts such engagement,
to act as our non-exclusive affiliate with respect to promotion of Drag2Cart 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 Drag2Cart, 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 Drag2Cart.
(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
Drag2Cart 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
(f) The prices, terms and conditions under which Touchize shall offer or sell
Drag2Cart 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 Drag2Cart. Nothing in this Agreement shall obligate Touchize to actually offer or
sell Drag2Cart or consummate any transaction with any Referred Customer. Touchize has
the right not to proceed with any sale of Drag2Cart 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.
(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 Drag2Cart 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
(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
(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.
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
Drag2Cart 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 Drag2Cart. 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 Drag2Cart when requested by Touchize.
(c) Marketing Right Only. Affiliate is authorized to market Drag2Cart 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 Drag2Cart 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
ii. challenge any right, title, or interest of Touchize in or to Touchize's Intellectual
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 Drag2Cart 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 Drag2Cart.
7. Disclaimer of Warranty
Touchize EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES AND CONDITIONS THAT TOUCHIZE.COM, DRAG2CART 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 "
(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
(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 email@example.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
(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.