1. Description of the Program
To qualify, your referee must sign up for Gizmogo and sell eligible goods on gizmogo.com (the “Gizmogo Site”) using Your Code. Within 30 calendar days of your referee’s sale, you will receive a 10% comission on “Qualifying Sales” as further described (and subject to the limitations) below.
By providing Your Code to others, you agree to each and every term and condition in this Agreement.
We may periodically modify the terms of this Agreement. We might also choose to replace these terms in their entirety if, for example, the Refer & Earn Program (the “Program”) changes, ends, or becomes part of an existing program, including our partner programs. If you don’t agree to the modification or replacement, you can choose to terminate your participation in the Program. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING ANY CHANGES TO THIS AGREEMENT WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM IMMEDIATELY.
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or any of our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf.
You can update your information by emailing us at: email@example.com.
2. Eligibility to Participate In The Program & Prohibited Activities
You must be at least eighteen (18) years of age. If you are the parent or legal guardian of a person under the age of eighteen (18), you represent and warrant that the minor has obtained consent from you to participate in the Program, you are the legal parent or guardian of the minor whose rights are covered by this Agreement, that you have read the terms and conditions of this Agreement and consent to the terms herein and you will not revoke your consent except as expressly permitted by this Agreement.
You must comply with this Agreement to participate in the Program and to receive Commissions.
You must promptly provide us with any information that we request to verify your compliance with this Agreement.
DO NOT add Your Code to coupon sites. We check these sites frequently.
Remember that the purpose of the Program is to bring new customers to Gizmogo and help spread the news about Gizmogo.
3. Commissions on Qualifying Sales
We will pay you a commission with a base amount of no less than 10% of the sale price by the customer and actually paid by Gizmogo, before taxes and shipping (if applciable), on all Qualifying Sales (your “Commission”). A “Qualifying Sale” occurs when (i) a customer uses Your Code to sell eligible goods on the Gizmogo Site, and (ii) the customer’s payment is processed and received less any discounts (if any).
For example, if a customer uses Your Code to sell an electronic device at $100.00 (USD) and Your Code provides the customer with a 10% discount, then once Gizmogo sends that customer’s payment of $90.00 (USD) ($100.00 less the 10% discount of $10.00), you will be eligible to receive a 10% commission in the amount of $90.00 (USD) (i.e., $9.00 (USD)).
Notwithstanding the foregoing, Qualifying Sales are disqualified and no Commission shall be due whenever (a) they occur in connection with a violation of this Agreement, or any other terms, conditions, specifications, statements, and policies that we may issue from time to time that apply to the Program; (b) any sales that occur after termination of your Agreement; (c) any order where a cancellation, return, or refund has been initiated; (d) any sale by a customer who is referred to the Gizmogo Site through any advertisement that you purchased through participation in bidding or auctions on keywords, search terms, or other identifiers that include the word “Gizmogo”, or any other Gizmogo trademark (or variations or misspellings of any of those words, (e) any sale by a customer who is referred to the Gizmogo Site by a link that is generated or displayed on a search engine (including Google, Yahoo, Bing, or any other search portal, sponsored advertising service, or other search or referral service, or any site that participates in such search engine’s network); (f) any sale by a customer who is referred to the Gizmogo Site by a link that sends users indirectly to the Gizmogo Site via an intermediate site, without requiring the customer to click on a link or take some other affirmative action on that intermediate site; (f) any sale by a customer, where such customer does not comply with the terms and conditions applicable to the Gizmogo Site; or (g) any sale that is not correctly tracked or reported because Your Code is not properly formatted or inserted in the Gizmogo Site’s checkout process.
We will use commercially reasonable efforts to accurately and comprehensively track Qualifying Sales for the purposes of our internal tracking, and creating and distributing your Commissions. We may hold accrued Commissions for a reasonable period of time following any termination of this Agreement to ensure that the accurate and/or correct amount is paid.
We will pay Commissions in United States Dollars via PayPal, Venmo or other similar type of payment processing account approximately thirty (30) days following the end of each calendar month in which they were earned. You are solely responsible for any processing fees, and any and all taxes. We are not responsible for any Commissions that are not received by you due to any suspension or termination of your PayPal, Venmo or other similar type of payment processing account.
Payments made to you, as reduced by all deductions or withholdings described in the Agreement, will constitute full payment and settlement to you of amounts payable under the Agreement.
If any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent fees payable to you under the Agreement or any other agreement between you and us.
We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any amounts payable to you under this Agreement. From time to time, we may request tax information from you. If we request tax information from you and you do not provide it to us, we reserve the right (in addition to any other rights or remedies available to us) to hold any amounts otherwise payable to you in connection with the Program until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
5. Gizmogo Customers
You acknowledge and agree that Gizmogo’s customers do not become your customers by virtue of your participation in the Program. You agree to not handle or address any correspondence with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with Gizmogo, you will direct those customers to the Gizmogo Site to address any customer service issues.
You represent, warrant, and covenant that (a) you will participate in the Program in accordance with this Agreement, (b) your participation in the Program, including without limitation, your creation, maintenance, or operation will not violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (c) you are lawfully able to enter into contracts without permission from any third parties, (d) you have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (e) you will not participate in the Program if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the Gizmogo Site; (f) you will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (g) the information you provide in connection with the Program is accurate and complete at all times.
We do not make any representation, warranty, or covenant regarding the amount of traffic or Commissions you can expect at any time in connection with the Program, and we will not be liable for any actions you undertake based on your expectations.
7. Term and Termination
Either you or we may terminate this Agreement at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party written notice of termination.
You can provide termination notice by emailing us at: firstname.lastname@example.org.
In addition, we may terminate this Agreement or suspend your account immediately upon written notice to you for any of the following: (a) you have breached or threaten to breach any part of this Agreement; (b) we believe that we may face potential claims or liability in connection with your participation in the Program; (c) we believe that our brand or reputation may be tarnished by you or in connection with your participation in the Program; (d) your participation in the Program has been used for deceptive, fraudulent or illegal activity; (e) we believe that we are or may become subject to tax collection liabilities in connection with this Agreement or the activities performed by either party under this Agreement; (f) we have previously terminated this Agreement with respect to you or other persons that we determine are affiliated with you or acting in concert with you for any reason, or (g) we have terminated the Program as we generally make it available to participants.
Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 2, 4, 5, 6, 7, 8, 9, and 10 of this Agreement will survive the termination of this Agreement. No termination of this Agreement will absolve you of any liability for any breach of, or liability accruing under, this Agreement prior to termination.
THE PROGRAM, THE GIZMOGO SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE GIZMOGO SITE, ANY COUPON CODES, LINK FORMATS, CONTENT, OUR AND OUR AFFILIATES’ DOMAIN NAMES, TRADEMARKS, SERVICEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE SERVICE OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE PROGRAM. NOTHING IN THIS SECTION WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9. Limitations on Liability
Gizmogo’s liability arising out of or related to this agreement shall not exceed the amount of Commissions actually earned by you in the period of twelve (12) months immediately preceding the date on which you present us with a claim arising out of or related to this Agreement.
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR CODE (INCLUDING YOUR USE OF ANY SERVICE OFFERING) OR YOUR VIOLATION OF THIS AGREEMENT, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR CODE, (B) YOUR USE OF ANY SERVICE OFFERING, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW, (C) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT, OR (D) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.
11. AGREEMENT TO ARBITRATE / DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
YOU AND WE AGREE TO ATTEMPT TO INFORMALLY RESOLVE DISPUTES: In the event that there is any dispute relating to this Agreement and the Program, you and we both agree that the party alleging the dispute shall send to the other party a written notice describing the dispute (“Notice of Dispute”). You and we both agree that prior to initiating any claim for arbitration or other legal proceeding, that you and we shall attempt to informally resolve such dispute for a period of thirty (30) days following the receipt by the non-claiming party of the Notice of Dispute.
All Notices of Dispute to Gizmogo shall be in writing and sent by personal delivery registered or certified mail (return receipt requested) or overnight air express (or courier shipment outside of the U.S.) if such services actually provide proof of mailing, to:
Gizmogo - Legal
13771 Norton Ave
Chino, California 91710
YOU AND WE BOTH AGREE TO ARBITRATE: In the event that a dispute is not resolved within the above-mentioned thirty (30) day period, then you and Gizmogo agree to resolve any claims relating to this Agreement through final and binding, arbitration.
WHAT IS ARBITRATION? Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this Section 12 is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS/ADR/Judicate West. Any dispute, controversy, or claim arising out of or relating to these terms shall be referred to and finally determined by arbitration in accordance with the arbitration rules and procedures (the “rules”) of JAMS/ADR/Judicate West. If there is a conflict between the rules and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS/ADR/Judicate West rules. Each party will bear their own costs of arbitration unless the arbitrator determines, in his or her absolute discretion, that bearing such costs would be an undue burden and, in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration shall be held in the United States in San Bernardino County, California under California law without regard to its conflict of laws provisions. If traveling to said forum is a burden, you may participate in the arbitration by video, phone or via document submission to the fullest extent allowable by the arbitrator. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
AUTHORITY OF ARBITRATOR: Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Bernardino County, California before one arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitration rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding.
NO CLASS ACTIONS: You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed, and therefore waived.
WAIVER OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Gizmogo in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU HAVE HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT TO ARBITRATE.
SMALL CLAIMS OPTION: You and Gizmogo agree that if a claim is within the jurisdiction of a small claims court, either party may choose to take the claim to that court instead of arbitration as follows: (a) The parties may take their claims to small claims court without first filing with JAMS/ADR/Judicate West. (b) After a case is filed with JAMS/ADR/Judicate West, but before the arbitrator is formally appointed to the case, a party can send a written notice to the opposing party and to JAMS/ADR/Judicate West that he/she/it wants the case decided by a small claims court. After receiving this notice, JAMS/ADR/Judicate West will administratively close the case. (c) After the arbitrator is appointed, if a party wants to take the case to small claims court and notifies the opposing party and JAMS/ADR/Judicate West, it is up to the arbitrator, in his/her/its sole and absolute authority, to determine if the case should be decided in arbitration or if the arbitration case should be closed and the dispute decided in small claims court.
CHOICE OF LAW/FORUM SELECTION: In any circumstances where this Section 12 (Agreement to Arbitrate Disputes and Choice of Law) permits the parties to litigate in court, this Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in the County of San Bernardino or the Central District of California.
You acknowledge and agree that (a) we and our affiliates may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in this Agreement, (b) our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement, and (c) any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Agreement can be made, taken, or given in our sole discretion and are only effective if provided in writing by our authorized representative.
You may not assign or otherwise transfer this Agreement, by operation of law or otherwise, without our express prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
Any information relating to us or any of our affiliates that we provide or make accessible to you in connection with the Program that is not known to the general public or that reasonably should be considered to be confidential is our “Confidential Information” and will remain our exclusive property. You will use Confidential Information only to the extent reasonably necessary for your performance under this Agreement and ensure that all persons or entities who have access to Confidential Information in connection with your participation will be made aware of and will comply with the obligations in this provision. You will not disclose Confidential Information to any third party (other than your affiliates bound by confidentiality obligations) and you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. This restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties.
Nothing contained in this Agreement should be understood as granting you any rights in and to any of our trademarks, service marks, logos, or other intellectual property owned by us or by any third party.
No delay, failure, or default by us with constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond our reasonable control, including, without limitation, the interruption or discontinuance of services provided by third parties (e.g. PayPal, Venmo, etc.) in connection with the Program.
If you have any questions, please email email@example.com or call us at (800) 893-9598.