Merchant Terms of Service

1. Overview

1.1 This Agreement contains the complete terms and conditions that apply to your participation as a member with Kutoku, and the establishment of links used by affiliated websites and content creators that send visitors to your webshop.

1.2 As used in this Agreement, "we," "us", or “Kutoku”, means Kutoku Ltd., and "you," "your", “Advertiser”, “the Advertiser”, or "Member," means you, the new referred company and partner applying to Kutoku. “Partner Publisher(s)”, “Publisher Partners” “Affiliate”, and “Content Creators” means the collection of and all online publishers and content creators that are affiliated with and are a part of Kutoku. “Publishers” means the collection of and all publisher websites and associated online properties that are affiliated with and a part of Kutoku and Partner Publishers. “Webshop”, “Partner Advertiser”, “Merchant”, individually and collectively means your website and/or webshop. "Kutoku" means the program managed by us in which tracking links are used by Partner Publishers that connect to your webshop, and if a sale results, we, and the affiliated Publisher, earn a referral fee.

2. In Perpetuity Period

2.1 Either we or you may terminate the Agreement, with or without cause. The Agreement will continue in perpetuity unless otherwise stated via the below section.

3. Term and Termination

3.1 The term of this Agreement (the "Term") will begin upon our acceptance of your site in Kutoku and your acceptance of this Agreement.

3.2 Either you or we may terminate this Agreement at any time, with or without cause, by giving the other written notice of termination.

3.2a The agreement will cease at the end of the calendar month following the month of written notice.

3.2b Publisher Partners are eligible to earn commissions on sales occurring during the Term, and commissions earned through the date of termination will remain payable only if the product orders are not canceled.

3.3 The following scenarios are also grounds for immediate Agreement termination and your removal from Kutoku:

You, we, or a Publisher Partner are found to be fraudulently disputing or generating referred sales.
You willfully do not make a payment for referred sales.
You fail to make a payment within 14 days of invoicing date.
Our “Tracking Referrals” code is removed from your webshop and not re-added within 7 days.

4. Publisher Partners

4.1 By participating in Kutoku as a Merchant, you agree that we reserve the right to select and onboard Publisher Partners who we deem are a suitable fit and you may not dictate where the Affiliate places the Link.

4.2 Although we are not held liable or are responsible for a Publisher Partners’ published content or use of Links, please contact us immediately should you feel an Affiliate is engaging in malicious behavior.

4.3 The following types of sites are not allowed to participate in Kutoku: Adult Sites, sites that display adult banners, sites that promote violence, bigotry, or hatred.

4.4 Publishers Partners on Kutoku have agreed they will not engage in the following practices:

Use search engine marketing in order to bid on Merchant’s brand terms and generate affiliate revenues through Kutoku.
Alter through redirection or other means the http referrer.
Generate impressions, clicks, or transactions through any means other than those initiated by end users.
Use a domain name containing merchant names, brands or trademarks.
Operate multiple accounts without express written consent from Kutoku.
Engage in ‘direct linking’.

4.5 We reserve the right to deny any prospective Publisher Partner found to be engaging in the above activities from Kutoku.

4.6 In the case of a Publisher Partner already accepted into Kutoku, should they be found to be engaging in prohibited activities, Kutoku reserves the right to suspend or terminate their account at any time, without compensation and in its sole discretion.

5. Tracking Referrals

5.1 We will make available to you a javascript code or image pixel that will be placed upon your webshop and the final checkout page of your e-commerce webshop in order to accurately track referrals and sales generated from Publishers.

5.2 You and we will cooperate in good faith to maintain this javascript code or image pixel for tracking purposes on (future versions of) your current webshop.

5.3 In turn, we will develop special, customized textual links (the "Links" collectively, or "Link" individually) that will allow Publishers to navigate traffic directly to a page on your website designated by us.

5.4 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.

5.5 We will be responsible for integrating the Links into publisher partners to properly enable sales tracking, Publisher Partners will be responsible for implementing Links to properly enable sales tracking, and you will not be responsible for our failure to do so, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to us under this Agreement.

6. Referral Fees

6.1 Kutoku will earn Referral Fees equal to a % of the Net Amount generated by our Links and received by you during the Term. The % amount will be discussed and agreed to separate from this Agreement.

6.2 You will pay us referral fees ("Referral Fees") equal to a percentage of the aggregate Net Amount received from the sale of Qualifying Purchases actually made from you during a period of 30 days of the initial referral from Publishers’ websites.

6.3 The term "Qualifying Purchases" will mean all products that are purchased by users during a visit to your webshop immediately following navigation to the designated URL through a hypertext link from us under this Kutoku.

6.4 Referral Fees will not be payable on sales otherwise made from you, even if the customer previously made a Qualifying Purchase.

6.5 The term "Net Proceeds" or “Net Amount” will mean the gross proceeds received by you from the sale of Qualifying Purchases on your webshop, less costs and expenses attributable to taxes, shipping and handling, fraud and bad debts, returns, duties, gift wrapping and credit card processing.

6.6 Any changes to the percentage of Referral Fees or the Term of Qualifying Purchases will be given notice in writing no less than thirty (30) days before they go into effect.

7. Payment Schedule and Method

7.1 Referral fees will be invoiced to you within the first three days of the beginning of each calendar month for the second prior calendar month. (For example, an invoice issued on March 1st will cover referral sales generated during January 1st - 31st.)

7.2 We will issue each invoice in which payment can be settled by Credit Card within 14 calendar days from issuance date.

7.3 In the event of returns, fraud, and bad debts inappropriately included in the Net Proceeds or you would like to dispute a Qualifying Purchase, you must notify Kutoku in writing of the specific transactions not to be included in the Net Proceeds within 7 days after invoicing.

8. Reports and Audit

8.1 Payments hereunder will be accompanied by reports of sales for which Referral Fees are earned.

8.2 We will have the right to have a certified public accountant, acceptable to you, examine your applicable books and records as are necessary to verify the accuracy of payments made under this Agreement.

8.2a We are entitled to conduct such an audit only during normal business hours, at our expense, upon reasonable notice, no more frequently than once per calendar year, and no later than thirty (30) days following the end of the Term or termination of this Agreement.

9. Representations and Warranties; Limitation of Liability

9.1 Each of us hereby represents and warrants that:

it has full power and authority to enter into this Agreement and to perform its obligations hereunder;
it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under 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.

9.2 We will remain solely responsible for managing affiliate Publisher Partners, and you will remain solely responsible for the operation of your website and webshop.

9.3 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, content and conduct of transactions over its respective site or service.

9.4 EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (i) THE AMOUNT OF SALES THAT WE OR THE PARTNER MAY GENERATE DURING THE TERM, AND (ii) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.

9.5 NEITHER WE NOR THE PARTNER 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. KUTOKU’S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNTS OWED BY MEMBER HEREUNDER.

10. Fulfillment and Policy

10.1 You, the Merchant, will be solely responsible for fulfilling all orders for its products and payment processing, and customers who buy products through Kutoku will be deemed customers of the Webshop.

10.2 Accordingly, all rules, policies, operating procedures and information concerning customer orders and sales will apply to those customers, including your rules of privacy and confidentiality.

10.3 If the Merchant changes their policies and operating procedures, they must notify Kutoku within 24 hours.

11. Intellectual Property Rights

11.1 You, the Webshop, hereby grants to us during the Term a non-exclusive, non-transferable, royalty-free license to establish custom, trackable hyperlinks between Publishers and your webshop and to use your trade names, logos, trademarks and service marks on Publishers solely as is reasonably necessary to ensure transparency, establish and promote such hyperlinks and to otherwise perform our obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the marks will be subject to your prior written approval.

11.2 We hereby grant to the you during the Term, a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between your webshop and ours and to use our trade names, logos, trademarks and service marks solely as is reasonably necessary to ensure transparency, establish and promote such hyperlinks and to otherwise perform our obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the Marks will be subject to our prior written approval.

11.3 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.

12. Indemnification

12.1 We agree to indemnify, defend and hold harmless you and your affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney's fees) relating to the operation of our site, a breach of our obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials provided by us for display on your site.

12.2 You agree to indemnify, defend and hold harmless us and our affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney's fees) relating to the operation of your site, a breach of your obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials of your site.

13. General Provisions

13.1 You and we will each monitor and periodically test the general availability and operation of our respective Webshop.

13.2 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.

13.3 In its performance of this Agreement and in the operation of 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, royalties or transactions under this Agreement.

13.4 Neither you or 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.

13.5 This Agreement has been made in and shall be construed and enforced in accordance with the laws of the Province of Alberta. Any action arising hereunder will be brought in the federal or state courts, located in Alberta.

13.6 Any notices under this agreement will be given in writing. Notices may be given by electronic mail and will be deemed delivered and given for all purposes on the sent date, but only if the receiving party has confirmed its receipt by return electronic mail. Notices sent via traditional means will be sent via certified mail, return receipt requested. Notices to Kutoku will be sent to: 9947 Saskatchewan Drive NW, Edmonton, Alberta, Canada, T6E4R3.

13.7 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.

13.8 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.

13.9 This Agreement represents the entire Agreement between you and us with respect to the subject matter hereof and supersedes any other oral or written agreements regarding such subject matter, and may be amended or modified only by a written instrument signed by a duly authorized agent of each party.

13.10 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.

14. Modifications

14.1 Kutoku may modify all or any part of this Agreement, at any time and at its sole discretion, effective 24 hours upon notice via email.

14.2 Continued participation in the Service after receiving notice of such modification will constitute the Merchant’s unconditional acceptance of the modification to this Agreement.