Amendment 1 

January 1, 2020

Preamble

The AquaNui Affiliate Program is designed to sell AquaNui products directly to end users and to help you generate income through commissions on sales from new customers you refer to us who purchase AquaNui products and accessories from our website. As there is no reselling in this program, there are no inventory purchase requirements to qualify for the AquaNui Affiliate Program. Just a solid belief in the benefits of using high-purity distilled water and a website or social media presence generally associated with a healthy lifestyle.

To participate in the AquaNui Affiliate Program you must apply and receive approval from us. As a step in this process you must agree to the terms and conditions of this Agreement.

If and when you earn commissions in this program, you will have the option to have us pay you or your charity of choice, as some professionals prefer.

This Agreement supersedes all preceding AquaNui Affiliate Agreements.

Agreement and Terms & Conditions.

The AquaNui Affiliate Program Agreement (hereinafter “Agreement”) is made between the Pure & Secure LLC d/b/a AquaNui (hereinafter “AquaNui”), located at 4511 NW 42nd Street, Lincoln, NE 68524, a Nebraska corporation, and you, the undersigned party, as an affiliate (hereinafter “Affiliate”) utilizing the AquaNui Affiliate Program.

1. Definitions

As used in this Agreement, “we” or “us” means AquaNui. “You” refers to you, the Affiliate. “Your Website” individually and collectively means your website or webpage and/or email communications and/or software applications. “AquaNui Website(s)” means www.MyAquaNui.com. “AquaNui Affiliate Program” means the program managed by or on behalf of AquaNui by which participating entities place links on their website that connect to the AquaNui Website(s) and for which a Referral Commission (defined below) is earned.   

2. Term and Termination

The term of this Agreement (the”Term”) will begin upon our acceptance of your application and your acceptance of this Agreement.

Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email, or fax.

You are only eligible to earn commissions on sales occurring during the Term, and commissions earned through the date of termination will remain payable only if the products are not cancelled or rejected due to fraudulent activities. AquaNui may withhold final payment for a reasonable time to ensure against cancellations and you will be billed if there is not enough money in your account.

In addition, this Agreement will terminate immediately upon any breach of this Agreement by you. You will be terminated if we determine that your site is unsuitable for our Program, including if it:

  • Promotes sexually explicit materials
  • Promotes violence
  • Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
  • Promotes illegal activities
  • Incorporates any materials which infringe or assist others to infringe on any copyright, trademark, or other intellectual property rights or to violate the law
  • Includes “AquaNui” or variations or misspelling thereof in its domain name
  • Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable to us in our sole discretion.
  • Contains software downloads that potentially enable diversion of commission from other affiliates in our program

You may not create or design your website or any other website that you operate, explicitly or implied in a manner that resembles our website nor design your website in a manner that leads customers to believe that you are AquaNui or any other affiliated business.

AquaNui reserves the right to terminate this Agreement and your participation in the AquaNui Affiliate Program immediately and without notice to you should you commit fraud in your use of the AquaNui.com Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, AquaNui shall not be liable to you for any commissions for such fraudulent sales.

3. Promotion

AquaNui will make available to you or you will create, subject to our approval, a variety of graphics and textual links (the “Links” collectively, or “Link” individually) in order to link your website to the AquaNui Website(s). You and we will cooperate in good faith to develop and implement such Links. Each Link will permit recipients to navigate directly to a page on the AquaNui Website(s) designated by us via a special tagged link format.

As stated above, no Link will be placed on any page or screen that contains content that:  advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities, violates intellectual property rights of third parties; or contains or promotes deceptive information.

You will be responsible for integrating the Links into your website to properly enable sales tracking, and we will not be responsible for your failure to do so, including to the extent such failure may result in any reduction of amounts that would otherwise be paid to you under this Agreement.

As a member of AquaNui’s Affiliate Program, you will have access to Affiliate Software by Post Affiliate Pro. Here you will be able to review our Program’s details, download HTML code (that provides for link to web pages within the AquaNui website), and banner creatives, browse and get tracking codes for our coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code and affiliate links that we provide.

AquaNui reserves the right, at any time, to review your placement and approve the use of Your links and require that you change the placement or use to comply with the guidelines provided to you.

The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.

It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.

Your use of unsolicited emails (spam) in connection with the AquaNui Affiliate Program is strictly prohibited. Other unethical methods are also prohibited.

We strongly advise affiliates to stay compliant with the Federal Trade Commission (FTC) guidelines on testimonials and endorsements. All endorsements, reviews, testimonials, on AquaNui’s products and services, as well as relationships between other types of content websites (forums, blogs, microblogs, and other Social Media channels) and AquaNui must be clearly disclosed in a separate policy on the affiliate sites. FTC points out that “when there exists a connection between the endorser and the seller of the advertised product,” it is imperative that such a connection is “fully disclosed.” FTC deems the relationship in an endorser-sponsor light and believes that the end user has the right to understand that one exists [full text here]. We share the underlying idea of this approach and strongly encourage our affiliates to adhere to the FTC’s rules. We also reserve the right to terminate our relationship with any non-compliant affiliates.

4. Non-Disclosure

You acknowledge that in the course of this agreement you may have access to confidential and proprietary information (“Confidential Information”) of AquaNui. You agree not to disclose or disseminate the confidential information without AquaNui’s express written consent. The term “Confidential Information” shall not include information that is or becomes part of the public domain through no action or omission of AquaNui, that becomes available to you from third parties without knowledge by you of any breach of fiduciary duty, or that you had in its possession prior to the date of this agreement.

5. Commissions for Purchases From Your Referrals to AquaNui

Commission Rates: You will earn commissions equal to 20% of net proceeds from qualifying  purchases received by the www.MyAquaNui.com website. The term “Qualifying Purchases” means all water distillers, parts, and accessories purchased by users from the AquaNui Website following navigation to the designated AquaNui URL through a hypertext link from your website or by entering a unique discount code that identifies you as the affiliate.

For purposes of calculating net proceeds, credit card sales will be subject to a flat deduction of 3% of the gross sale price. “Net proceeds” are the gross sales of qualifying purchases made from the AquaNui website less costs and expenses attributable to taxes, chargebacks, shipping and handling, fraud, bad debts, refunds, and credit card processing.

For example, if a customer purchased an AquaNui water distiller priced at $2500 and they used your coupon code and paid with a credit card. They would receive a discount of 5% ($125), bringing the total to $2375. The credit card fees would be 3% ($71.25), bringing the total to $2303.75. You would receive a commission payment of 20% of that total, which would be $460.75.

Limitations: There are a number of other limitations that may result in commissions not being paid: 

a. The customer must not return the products within the 30-day return window. You will not receive commissions on products that have been returned.

b. You will not receive commission for purchases that were the result of fraud.

c. Affiliate links rely on cookies to track sales so the customer cannot have cleared their cookies. Only affiliate links and provided codes can be used to track sales. Cookies will be tracked on your website for 180 days. Incorrect use of affiliate links and codes will cause inability to track referrals, and commissions will not be paid.

Split Commissions: In some instances where a customer purchases a product from AquaNui, there may be more than one Affiliate website or webpage involved in the transaction. In such instances, AquaNui reserves the right, at its sole discretion, to pay a split Referral Commission to the first and last Affiliate of record. If we are not able to ascertain any tracking information specific to an Affiliate, we will not be obligated to pay a commission.

Please contact info@myaquanui.com with any questions.

6. Payment Schedule

Referral Commissions will be payable the 3rd Friday of the following month. If during any month of the Term, your Referral Commissions do not exceed twenty-five dollars ($25.00), then you will not receive payments or reports until the next following month during which your aggregate Referral Commissions equal or exceed twenty-five dollars ($25.00), or until the termination of this Agreement, whichever occurs earlier.

7. Reports

AquaNui will provide you with a username and password that will allow you to access information on the status of your account online and to verify the accuracy of payments made to you under this Agreement.

8. Representations and Warranties; Limitation of Liability

By agreeing to these terms, you represent and warrant that:

  • This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
  • You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
  • You have the sufficient right, title, and interest in and to the rights granted to us in this Agreement.
  • The services to be rendered by each of us under this Agreement neither infringe nor violate any patent, copyright, trade secret, trademark, or other proprietary right of any third party.

AquaNui will remain solely responsible for the operation of the AquaNui Website(s) and you will remain solely responsible for the operation of your webpage linked to AquaNui. Each party acknowledges
that their respective sites may be subject to temporary downtime due to causes beyond their reasonable control subject to the specific terms of this Agreement, retains sole right and control over the programming.

EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING

(i)         THE AMOUNT OF SALES THAT AQUANUI WEBSITE(S) MAY GENERATE DURING THE TERM, AND

(ii)        ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.

NEITHER AQUANUI NOR AFFILIATE WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT.

AQUANUI’S ENTIRE LIABILITY, ARISING FROM THIS AGREEMENT WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNTS PAYABLE TO AFFILIATE HEREUNDER.

9. Fulfillment and Policy

AquaNui will be solely responsible for fulfilling all orders for its products and payment processing, and customers who buy products through the AquaNui Affiliate Program will be deemed customers of AquaNui.

No sale of products for resale is contemplated or permitted.

Accordingly, all rules, policies, operating procedures and information concerning customer orders and sales will apply to those customers, including our rules of privacy and confidentiality. We may change our policies and operating procedures at any time, without notice. Title transfers from AquaNui to the customer when the product is both released to the carrier and fully paid for.

10. Intellectual Property Rights

AquaNui hereby grants to you during the Term a non-exclusive, non-transferable, royalty-free license to establish Links between Your Website and the AquaNui Website(s) and to use AquaNui’s trade names, logos, trademarks and service marks (the “AquaNui Marks”) on your site solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform your obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the AquaNui Marks will be subject to AquaNui’s prior written approval.

You hereby grant to AquaNui during the Term, a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between your website and/or AquaNui webpage and the AquaNui Website(s) and to use your trade names, logos, trademarks and service marks (the “Affiliate Marks”) solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform our obligations under this Agreement.

Except as set forth above, you and we each reserve all right, title and interest in respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks and other intellectual property rights). Use of the other’s marks except as set forth herein is strictly prohibited.

11. Indemnification

You hereby agree to indemnify and hold harmless AquaNui and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.

12. General Terms & Conditions

You and we will each monitor and periodically test the general availability and operation of the links to make sure they are active. You and we are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between you and us.

In its performance of this Agreement and in the operation, each party’s respective websites, you and we each will comply with all applicable laws, regulations, orders and other requirements, now or
hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, you and we each will pay, collect and remit such taxes as may be imposed with respect to any compensation or transactions under this Agreement.

Neither you nor we will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.

This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Nebraska. Any action related to this Agreement or arising hereunder will be brought in the federal or state courts located in Lancaster County Nebraska.

Any notices under this Agreement will be posted and deemed in effect on the date posted on your interactive AquaNui screen. An email will be sent to all Affiliates with notification of the change. It is your responsibility to familiarize yourself with the changes.

You may not assign this Agreement, in whole or in part, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.

The failure of either you or us to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.

This Agreement incorporates by reference the AquaNui Affiliates Guidelines & Policies Manual, as amended from time to time, and supersedes any other oral or written agreements regarding such subject matter. Affiliate’s use of the AquaNui Website is also subject to terms
of use, privacy policies and any other related policies published by AquaNui, as amended from time to time.

If any provision of this Agreement will be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect.

13. Miscellaneous

You agree that you are an independent contractor and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and AquaNui. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your site or any other of Your Site or otherwise, that reasonably contradict anything in this Section.

Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.

This Agreement shall be governed by and interpreted in accordance with the laws of the State of Nebraska without regard to the conflicts of laws and principles thereof.

You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.

This Agreement represents the entire agreement between us and you and shall supersede all prior agreements and communications of the parties, oral or written.

The headings and titles contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.

If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.

AFFILIATE AGREEMENT

PLEASE READ THE ENTIRE AGREEMENT.

YOU MAY PRINT THIS PAGE FOR YOUR RECORDS.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND AQUANUI.

BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.