This Affiliate Agreement (the ”Agreement”), effective as of the date you click “I accept.” to these terms and conditions (“Effective Date”), is entered into by and between Sewell Development Corporation, a Utah corporation with its principal offices at 3877 North 200 East, Provo, Utah 84604 (“Sewell”), and yourself, an individual (the “Affiliate,” “you,” or “your”). Sewell and Affiliate are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
The Parties agree to the following stipulations:
1. Nature of Relationship. You agree to act as an Affiliate for Sewell to promote products, services, and/or events on a monthly basis as outlined in Schedule 1. In exchange, you will receive products, discounts, or other compensation as outlined in Schedule 2. You acknowledge and agree that in order to participate as an affiliate of Sewell, you must create an account on our site at https://affiliates.sewelldirect.com/create-account and comply with the relevant terms and conditions applicable to you.
2. Relationship. Sewell engages the Affiliate as an independent contractor on a non-exclusive, non-employee basis to endorse and promote its products and services to a target audience. As an independent contractor, the Affiliate shall be responsible for the manner and form by which they perform this contract, and the payment of all costs and taxes associated with it. This Agreement does not create any association, partnership, joint venture, employee, or agency relationship between the Parties for any purpose. The Parties shall have no authority to contractually bind the other or make decisions on the other Party’s behalf. The Affiliate is further governed by Sewell’s Privacy Policy with respect to information supplied to Sewell.
3. Term and Termination.
a. Term. This Agreement shall have an initial term of one year. Sewell shall have the option of renewing this Agreement for successive one (1) year terms (each one-year period, a “Term”).
b. Termination for Cause. Sewell may terminate this Agreement (i) immediately in the event of a material breach by the Affiliate, which breach remains uncured for a period of five (5) days after notice of such breach is delivered to the breaching party, or (ii) for convenience upon seven (7) days’ written notice to the Affiliate. Further, in the event that Affiliate fails, neglects or refuses to perform any of the obligations to be performed by Affiliate as outlined in Schedule 1, or if Affiliate commits any act which brings Sewell or Sewell’s product into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Sewell’s advertising materials are directed, or which might tend to injure the success of Sewell or any of Sewell’s products or services, then, at the time of any such act or at any time after Sewell learns of any such act, Sewell shall have the right to immediately terminate this Agreement by written notice to Affiliate to that effect. For clarity, Affiliate’s failure to make disclosures in the manner set forth in the FTC guidelines or Schedule 1 and/or as otherwise instructed by Sewell shall be deemed a material breach of this Agreement for which this Agreement may be immediately terminated.
c. Effect of Termination; Survival. Section 3 (“Term and Termination”), Section 5 (“Rights you Grant Sewell”), Section 11 (“Confidentiality”), and Section 12 (“Indemnification”) of this Agreement shall survive expiration or termination. In addition to any right or remedy available to Sewell under this agreement or applicable law, Sewell may instruct the Affiliate to return products or collateral, cease all promotional activities, or make clarifying statements, and the Affiliate shall immediately comply.
4. Deliverables. The Affiliate will promote Sewell products on Affiliate’s website or blog or in posts on Affiliate’s Social Media Platforms. For purposes of this Agreement, “Social Media Platform” includes YouTube, Facebook, Instagram, TikTok, or Twitter. The deliverables must abide by the rules of the Social Media Platform and may be subject to Sewell’s acceptance and approval. Sewell has the right to review and remove any deliverable that does not conform to the FTC guidelines, the specifications in Schedule 1, the rules of the relevant Social Media Platform, or any material that brings Sewell or Sewell’s products into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which Sewell’s advertising materials are directed, or which might tend to injure the success of Sewell or any of Sewell’s products or services. You understand that Sewell may monitor your posts for compliance with this Agreement. We have the right to address noncompliant posts by any taking any of the following actions alone or in combination: (i) requiring you to fix the post; (ii) withholding payment of Compensation (as explained in Section 9 and Schedule 2); or (iii) terminating the Agreement for a material breach.
5. Rights You Grant Sewell. By posting or submitting content, including all types of media content or tasks directly to Sewell or to any Social Media Platform, the Affiliate grants Sewell a non-exclusive, worldwide, perpetual, unrestricted, royalty-free, transferable license to access, use, copy, publicly perform, digitally perform, publicly display, or otherwise exhibit and distribute such content, and to transmit, sell, modify, create derivative works from and/or to incorporate such contributed content into other works in any form, medium, or technology, commercial or otherwise, without further compensation to you or any third party. Sewell may, but is not obligated to, use your content. Notwithstanding the foregoing, Sewell respects your right to exercise control over content you have created; accordingly, if you notify Sewell in writing not to use certain (or all) content you post or submit, your license to Sewell granted in this Section 5 will terminate with respect to the content identified in your written notification, provided, however, that Sewell shall have a commercially reasonable time (not less than five (5) business days) to discontinue/remove uses of previously licensed content.
6. Rights Sewell Grants You. Sewell grants you a limited, non-exclusive, revokable license to use Sewell trademarks and copyrights (“Sewell Intellectual Property” or “Sewell IP”), including Sewell-provided product imagery and descriptions, in the deliverables described in Section 4 (“Deliverables”), provided, however, that the use of the Sewell IP is in deliverables conforming with the terms of this Affiliate Agreement and direction provided by Sewell regarding proper use of the Sewell IP. You acknowledge that your use of the Sewell IP is subject to the control of Sewell as described in Section 4 (“Deliverables”) and terminates upon termination of this Affiliate Agreement.
7. Representations and Warranties. The Affiliate represents and warrants to Sewell that (i) the Affiliate has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or the Affiliate’s undertaking this relationship with Sewell; (ii) all content (save and except any materials supplied by Sewell) will be the original work and creation of the Affiliate and will not infringe the rights (including without limitation, any intellectual property rights) of any third party; (iii) the Affiliate will not contribute content that reveals any trade secret, unless it owns or has permission to reveal it; (iv) the Affiliate will not contribute content that contains libelous, defamatory, obscene, offensive, hateful, pornographic, abusive, harassing, or threatening material or references.
8. Content Requirements and FTC Guidelines. The Affiliate is responsible to verify that campaign materials and content meet campaign requirements and FTC guidelines (More information of your responsibilities under these guidelines may be found at The FTC’s Endorsement Guides: What People Are Asking; FTC: The Do’s and Don’ts for Social Media Influencers; FTC: Disclosures 101 for Social Media Influencers; and FTC: Do you endorse things on social media?). Content should not reference any competitor product. When posting, Affiliate must clearly disclose any “material connection” with Sewell, including the fact any consideration provided for a particular campaign. Disclosure of a material connection should be clear, prominent, and made in close proximity to any statements that Affiliate makes about Sewell’s products or services. Affiliate’s statements should always reflect factual, honest, and truthful opinions and actual experiences. You are solely responsible for any content submitted and may be held legally liable for damages caused to any third party.
9. Campaign Details & Collateral. Sewell shall provide the necessary content and briefing materials to enable the Affiliate to perform the services. Unless otherwise specified, the Affiliate shall be solely responsible for all costs associated with creating content.
10. Compensation. In full consideration of the Affiliate’s performance, his/her/their obligations, and the rights granted herein, the Affiliate shall receive commission for qualified sales as further detailed in Schedule 2. The Affiliate acknowledges that the agreed-upon commissions represent the entire compensation with respect to this Agreement and Sewell shall have no other obligation for any other compensation, expenses, or costs incurred by the Affiliate related to this Agreement. Sewell has full discretion to alter or change commission structure outlined in Schedule 2 at any time with 30 days’ prior written notice to Affiliate, as it sees fit.
11. Confidentiality. The Affiliate agrees to hold in strictest confidence, and not to use or disclose without written authorization, any Confidential Information received from Sewell. “Confidential Information” means any proprietary information (including third party information), technical data, trade secrets or know-how, including but not limited to: illustrations, product plans, products, services, customer or Affiliate names, and other business information disclosed by Sewell either, directly or indirectly, in writing, orally, or by drawings or observation of parts or equipment.
12. Indemnification. The Affiliate agrees to indemnify, defend, and hold harmless Sewell and its affiliates and Sewell and its affiliate’s respective officers, directors, employees, agents, successors, and assigns, against any and all claims, judgments, damages, liabilities, settlements, losses, costs, and expenses, including attorneys’ fees and disbursements arising out of or relating to the services performed by the Affiliate under this Agreement or the representations and warranties made pursuant to Section 6 hereof. Affiliate’s obligations shall survive termination, for any reason, of this Agreement. You shall promptly notify Sewell of any action against Sewell.
13. Miscellaneous. (i) This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to its conflict of laws provisions; (ii) No failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance; (iii) If one or more of the provisions in this Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing; (iv) This Agreement is personal to the Affiliate and as such the Affiliate may not assign or otherwise transfer any of its rights, or delegate, subcontract, or otherwise transfer any of your obligations or performance, under this Agreement. Any attempt to assign, delegate, or transfer in violation of this provision is void.
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SCHEDULE 1
AFFILIATE REQUIREMENTS
· Affiliate will be provided with a unique affiliate link (“Affiliate Link”) and a 5% customer discount coupon (“Discount Coupon”). Affiliate may not promote its Affiliate Link in pay-per-click advertising and may not list the Discount Coupon on a coupon discount site. Failure to comply with this requirement will result in an invalidation of the Affiliate Link and Discount Coupon or termination of the Agreement. If Affiliate is not responsible for violation of this requirement (i.e., a customer posts the Discount Coupon to a coupon discount site), Sewell, in its sole discretion my issue a new code to Affiliate.
· The Affiliate must provide a valid Paypal account through which they will be paid any earned compensation as outlined below.
· Affiliate must deliver content on its website or blog or posts on its Social Media Platform according to the deliverables specified by Sewell.
○ You must adhere to the posted policies, guidelines, and terms of use on any platform on which you post content on behalf of Sewell, understanding that any these platforms' disclosure requirements about your connection to us do not necessarily satisfy FTC disclosure requirements and any additional guidelines provided by Sewell.
· You must not create fake followers or engagement on social media platforms, such as buying followers; using bots to grow audience size by automating account creation, following, commenting, and liking; or post fake sponsored content.
· You may not:
○ make deceptive or misleading claims about our products or our competitors' products or services;
○ make any claims about our products or our competitors' products that are not backed up by evidence;
○ disclose any of our Confidential Information;
○ disparage Sewell or our products or brands;
○ engage in any communication that is defamatory or infringes upon the copyright, trademark, privacy, publicity, or other intellectual property rights of others;
○ offer for sale or solicit products on behalf of Sewell;
○ make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
○ post content that promotes bigotry, racism, or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age;
○ use ethnic slurs, personal insults, obscenity, or other offensive language; and
○ make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving Sewell's consumers or other individuals.
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SCHEDULE 2
COMPENSATION
· As an Affiliate, you will receive commission-based payments as a percentage of Net Sales (as defined below) that are produced by customers using the Affiliate Link or Discount Coupon. Payments shall be calculated and distributed according to the following:
o Affiliate will be entitled to a 10% commission of Net Sales for all Sewell-brand products purchased that are not on clearance or discounted by Sewell.
o Affiliate will be entitled to a 5% commission of Net Sales for all Sewell-brand products purchased that are on clearance or discounted by Sewell and all third-party products sold by Sewell.
o The commission payout minimum shall be $50.00 (fifty U.S. dollars), except in case of termination of the Affiliate Agreement.
o All payments will be made on the first day of each month when the commission due to Affiliate meets or exceeds the commission payout minimum and shall be paid to the Affiliate’s designated Paypal account, or the first day of the month following termination of the Affiliate Agreement.
o “Net Sales” will include all product sales that are made within 30 days of a customer accessing an Affiliate Link or with the Affiliate’s unique customer Discount Coupon. Net Sales will become eligible for commission payments 30 days after the purchase of the product to allow for any returns, refunds, or exchanges. No commission will be earned for products that are returned, refunded, or exchanged. Net Sales will not include fees for shipping or taxes and will be adjusted by any additional discounts applied to a purchase.
o Sewell reserves the right to increase or decrease commission rates upon 30 days’ prior written notice to Affiliate.