Affiliate Program Terms
1. Appointment as Affiliate. Company appoints Affiliate, and Affiliate accepts such appointment, as an Affiliate with respect to Email Marketing Software (the “Services”), and authorizes Affiliate to identify and secure new potential customers (“Affiliate Customers”) for Company. Affiliate acknowledges and agrees that Affiliate Customers shall not include any individual or entity with which Company has an existing relationship as of the date of the introduction to Company.
The foregoing appointment is subject to the terms and conditions set forth in this Agreement, including any exhibits or attachments thereto. Affiliate may not identify himself as a sales Affiliate of the Company, but shall only make introductions between potential Affiliate Customers and the Company.
2. Affiliate Customers. Affiliate shall be entitled to receive a commission, as described herein, for the referral of Affiliate Customers that purchase the Services from Company. The Company shall maintain a list of all prospective and actual Affiliate Customers that have been referred by Affiliate. Affiliate makes no representations as to the qualifications of any Affiliate Customer, including, without limitation, the credit worthiness of any such Affiliate Customer. Company reserves the right to reject any prospective Affiliate Customer referred by Affiliate, however, any such rejected prospective Affiliate Customer shall nevertheless be considered an Affiliate Customer referred by Affiliate should such Affiliate Customer later enter an agreement for Services for which Company is compensated.
3. Compensation. In exchange for the referral of an Affiliate Customer, Affiliate shall be entitled to receive a referral fee of all revenues derived by or on behalf of the Company from (or on behalf of) such Affiliate Customer in connection with all Services purchased by such Affiliate Customer (“AC Revenue”). The referral fees shall be paid by the Company on a NET30 with respect to the revenues received in the previous month.
Company will continue to pay the referral fees to Affiliate in accordance with this Section 3 on all AC Revenue for as long as Company continues to receive payments in connection with such Affiliate Customer. Termination of this Agreement for any reason (except for termination by Company for cause) shall not cancel Company’s obligation to continue to pay any and all commissions owed to Affiliate. Company hereby agrees to provide Affiliate with all reasonably requested access to the books and records of Company to confirm the accuracy of all amounts paid or payable to Affiliate, and to cooperate in good faith with respect to any such requests for such access.
4. Independent Status. The relationship of the parties shall be as independent contractors. Affiliate is not a legal agent of Company and has no authority to bind Company or make any promises on behalf of Company. Any other employees or contractors used by Affiliate are not the employees or agents of Company. Company will provide Affiliate with a Form 1099 for amounts earned, and each party will be solely responsible for any taxes, insurance, or similar fees arising from its performance hereunder.
5. Confidentiality. Each Party may obtain proprietary information regarding the other party, including customer lists and information, business and marketing plans, technical data and information, network architecture information, billing and pricing data and information, and other confidential information (the “Confidential Information”). Each party agrees to maintain all Confidential Information in confidence and will not disclose such Confidential Information to any third party, nor use any such Confidential Information for his own or another’s benefit or for any purpose except performance hereunder.
6. Term and Termination.
6.1 Term. This Agreement will be effective for an initial term commencing on the Effective Date and continuing for twelve (12) months (the “Initial Term”). Unless sooner terminated as provided herein, upon the expiration of the Initial Term, this Agreement will automatically renew for successive periods of one (1) year each (each, a “Renewal Term”) unless terminated at the end of the Initial Term or any Renewal Term by either party by delivering written notice of the intent to terminate at least thirty (30) days prior to the end of the Initial Term or Renewal Term, as applicable.
6.2 Termination. Either party may terminate this Agreement at any time without cause upon thirty (30) days written notice to the other party; provided, however, that if this Agreement is terminated without cause by the Company, then the Company shall be obligated to pay Affiliate commissions for as long as the Customer is a paying customer of Company, as if the Agreement was still in effect. In the event a party is in breach of this Agreement, this Agreement may be terminated by the non-breaching party, provided that notice describing the breach in detail has been provided to the breaching party and the breaching party has failed to cure such breach within thirty (30) days of its receipt thereof.
7. Assignment. This Agreement and any rights or obligations hereunder may not be assigned by either party without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Each party may assign this Agreement to (a) a successor corporation resulting from a merger or consolidation or to a purchaser of all or substantially all of the assigning party’s assets or a majority, or controlling interest in the assigning party’s voting stock; or (b) a present or future subsidiary or Affiliate.
8. Notices. All notices and other communications which are required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if delivered to an employee of either party with the title of Vice President or greater, if hand-delivered, faxed, email or mailed by either registered or certified mail, return receipt requested, or by a nationally recognized overnight courier service, receipt confirmed. In the case of notices via first-class mail or courier service, notices shall be deemed effective upon the date of receipt. Notices shall be addressed to the applicable Party at its address set forth on the signature page of this Agreement, unless such Party notifies the other of a change of address in accordance with this Section 8, in which case the latest noticed address shall be used.
9. Limitation of Liability. A PARTY SHALL NOT BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER RELATING TO THIS AGREEMENT AND EACH PARTY’S PERFORMANCE OR NONPERFORMANCE HEREUNDER SHALL BE LIMITED IN THE AGGREGATE TO THE FEES RECEIVED BY AFFILIATE PURSUANT TO THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTH PERIOD. ANY ACTION BY EITHER PARTY MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.
10. Joint Indemnification. Each party agrees to indemnify, defend, and hold the other party, its Affiliates, agents, directors and employees harmless from and against any and all claims, liabilities, costs or expenses (a “Claim”) arising from the party’s gross negligence or willful misconduct, and/or from the other party’s breach of this Agreement, including but not limited to making any false or misleading statements about the Company’s products or services. The parties agree to give the other party written notice of any such Claims as soon as practicable following notification thereof. The indemnifying party agrees to pay all costs finally awarded by a court of competent jurisdiction or agreed in a settlement of any such Claim, including reasonable attorney fees and costs.
11. Entire Agreement. This Agreement, along with any Exhibits thereto, represents the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior agreements, negotiations and oral understandings, if any. This Agreement may not be amended, supplemented, or modified in any way, except by an amendment in writing and signed by authorized representatives of the parties. No amendment shall be affected by the acknowledgement or acceptance of a purchase order, invoice, or other forms stipulating additional or different terms. This Agreement shall inure to the benefit of and be binding upon each of the parties and their respective successors, assigns, heirs, executors, administrators, and trustees.
12. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
13. Cumulative Remedies; Waiver; Severability. All rights and remedies, whether conferred hereunder, or by any other instrument or law, unless otherwise expressly stated, shall be cumulative and may be exercised singularly or concurrently. The failure of any Party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such Party thereafter to enforce such provisions. The terms and conditions stated herein are declared to be severable. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, it shall be enforced to the maximum extent possible. The validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
14. Force Majeure. Neither Party will be liable for any failure to perform due to unforeseen circumstances or causes beyond its reasonable control, including, but not limited to, acts of God, war, embargoes, acts of civil or military authorities, delay in delivery by vendors not caused by either Party, fire, flood, accident, strikes, inability to secure transportation, facilities, fuel, energy, labor or materials. In the event of force majeure, time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.
15. Equitable Relief. The parties agree that a breach of Section 5 of this Agreement shall result in immediate and irreparable harm for which ordinary damages may not be a sufficient remedy. Therefore, the parties agree that in the event of any such breach, the non-breaching party may seek equitable relief, including without limitation an injunction or other restraint, in any court of competent jurisdiction, without the necessity of posting any bond, in addition to any other relief to which such non-breaching party may be entitled at law or in equity.
16. Headings. Section headings used in this Agreement are for the purposes of convenience only and shall not affect the legal interpretation of this Agreement.
17. Survival. The expiration or termination of this Agreement shall not terminate vested rights of either party from any liabilities or obligations incurred under this Agreement prior to or which by their nature are intended to survive expiration or termination, including but not limited to provisions relating to the ongoing payment of commissions, confidentiality, indemnification, and proprietary rights.
18. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New Jersey. The Parties hereby consent to the exercise of exclusive jurisdiction by the state or federal courts in Somerset County, New Jersey for any claim relating to the enforcement of, or any rights under, this Agreement.