- Promotional Materials. Company shall make available to Affiliate certain banner advertisements, button links, text links, web forms and/or other graphic or textual material for display and use on the Affiliate’s Properties (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s Properties prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. The Promotional Materials will link to one or more of the Company’s Websites, as specified by Company. The Promotional Materials shall have a tracking code or codes unique to the Affiliate.
- Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
- Affiliate may not use any graphic, textual or other materials to promote Company’s Websites other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
- Affiliate may only use the Promotional Materials for the purpose of promoting the Company’s Websites (and the products and services available thereon), and for linking to the Company’s Websites.
- Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
- The Promotional Materials will be used to link only to one of the Company’s Websites, to the specific web page and web address as specified by Company.
- License. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
- Intellectual Property. Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.
- Relationship of Parties. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
- A customer that visits the Company’s Websites via the Promotional Materials on an Affiliate’s Properties and purchases one of the paid services within one hundred and eighty (180) days is referred to as a “Referred Paying Customer”.
- In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) for the services purchased by a Referred Paying Customer.
- Currently, the Company’s Websites’ services consist of paid memberships to AppointmentCore.com or ScheduleIn.com and/or any other automated scheduling solution brands or subsidiaries owned or operated by the Company
- The Commission is earned according to the commission structure provided in Exhibit A (the “Commission Structure”). The Commission is calculated according to the Company revenue earned from an Affiliate’s Referred Paying Customers in a Quarter (“Company Affiliate Revenue”) (“Quarter” is defined in Section 6(i)). The Commission for an entire Quarter is calculated after 5 pm Eastern Time Zone of the last day of the Quarter.
- The Commission is paid to Affiliate for up to one year of the Referred Paying Customers continuation of paid services with the Company’s Websites. The one-year period begins on the first date that the Referred Paying Customer signs up with a paid service on the Company’s Websites (“Referral Period”).
- Affiliate will receive no Commission from the Company for a Referred Paying Customer that stays with the Company after the Referral Period. Additionally, Company will stop paying Commission for a Referred Paying Customer that cancels its purchase of paid services within the Referral Period.
- Affiliate may also refer potential customers to the Company’s Websites via an online web form, the address and scope of which the Company will provide to the Affiliate. The web form will allow the Affiliate to enter the name of any potential customers that the Affiliate is referring to the Company.
- To the extent that two Affiliates refer the same potential customer to the Company, the Company will pay the Commission to the Affiliate that converts the potential customer into a Referred Paying Customer.
- In such a situation where it is unclear which Affiliate should receive the Commission for a Referred Paying Customer that is referred by two or more Affiliates, Affiliates agree to let Company decide which Affiliate deserves the Commission. Company will make such determination, in good faith, upon its best judgment regarding who converted the potential customer into a Referred Paying Customer.
- Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request, and is available through the affiliate area on the Company’s member page at the Company’s affiliate tracking website. Both parties agree:
- Upon receiving a Commission payment from Company, Affiliate has thirty (30) days to identify and notify Company in writing at [email protected] regarding any discrepancies in the Commission calculations and payments owed to Affiliate in a given Quarter (“Notification Period”).
- Affiliate agrees that after the Notification Period is over, Affiliate cannot dispute any Commission amounts owed to Affiliate by Company for a Quarter, and forfeits all rights to dispute any Commission amounts owed to Affiliate by Company for a Quarter.
- Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within thirty (30) days of learning of such discrepancy, or any other time frame agreed to in writing between the Company and Affiliate.
- Commissions are calculated on a quarterly basis, and are paid seven (7) days after the end of each Quarter (the “Commission Payment Date”). The first quarter is from January 1 to March 31; the second quarter is from April 1 to June 30; the third quarter is from July 1 to September 30; and the final quarter is from October 1 to December 31 (each a “Quarter”, collectively the “Quarters”). Commissions shall be paid to the affiliate via the PayPal account indicated in the Affiliate Program Application Form.
- If a Referred Paying Customer from an Affiliate receives a chargeback or some equivalent refund from the Company, Company will deduct such chargeback or refund from any Commissions owed to the Affiliate.
- Affiliate’s Representations and Warranties. Affiliate represents and warrants the following:
- Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
- Affiliate’s Properties do not contain any materials that are:
- Sexually explicit, obscene, or pornographic;
- Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
- Graphically violent, including any violent video game images; or
- Solicitous of any unlawful behavior.
- Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s Properties. Nothing on Affiliate’s Properties infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
- Affiliate will not use the Promotional Materials in any manner other than those set forth in Sections 2 or 6 above.
- Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
- Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s Properties that reference Company or Company’s Websites unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its Affiliate Properties, in its promotional materials, or in any other context except to promote Company’s Websites as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
- Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company’s Websites.
- Affiliate will not engage in any search engine marketing regarding the use of the Promotional Materials or promoting the Company’s Websites (including marketing through Google AdWords or similar search engine pay per click programs).
- Indemnification. Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
- Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
- This Agreement shall take effect on the Effective Date, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.
- Either Party shall have the right to terminate this Agreement at any time and for any cause. Company may terminate the Agreement immediately upon written notice to the Affiliate. Affiliate must give written notice to the Company at least 30 days prior to the intended date of termination.
- Upon termination, Company will pay Affiliate all outstanding Commissions owed no later than thirty (30) days after the day of termination.
- In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
- In the event that the Agreement is terminated for other reasons besides material breach or illegal behavior by Affiliate, Company will pay all Commissions owed to Affiliate for the duration of the Referral Period, but Affiliate will not be allowed to earn any new Commissions after the date of termination.
- Taxes. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
- Limitation of Liability. Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
- Entire Agreement; Amendment. This Agreement, sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. This Agreement shall not be amended without a writing signed by both parties.
- Governing Law, Venue, and Limitation of Actions. This Agreement and the rights of the parties hereto shall be governed by the laws of the State of Texas without regard to principles of conflict of laws. In the event of any litigation arising out of, or relating to, this Agreement or the breach thereof, the venue for any such action shall be in the state or federal courts located in Austin, Texas.
- Assignment. Affiliate may not assign this Agreement without the prior written consent of Company. Company may assign its rights and obligations under this Agreement to its parent or any of their respective affiliates, subsidiaries or joint ventures without notice to Affiliate or to a successor by merger or consolidation after thirty (30) days written notice.
- Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they shall be severable from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of this Agreement.
- Waiver. The waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
- Fees. In the event of litigation relating to the subject of this Agreement, the non-prevailing party shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom.
- Notices. Any written notice or demand or consent required by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein, or to the email address listed below. The notice shall be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section 19. A party shall address notices under this Section 19 to a party at the following addresses:
2637 East Atlantic Blvd #18940
Pompano Beach, FL 33062
In any given Quarter (as defined in Section 6(i) of the Agreement), Affiliate will be paid Commissions quarterly based on the following Commission Structure:
|Company Affiliate Revenue (total is calculated each Quarter)||Affiliate Commission Percentage of Company Affiliate Revenue|
|$0 – $2,500||10% commission on all Company Affiliate Revenue|
|$2,501 – $10,000||15% commission on all Company Affiliate Revenue|
|$10,001 – $25,000||20% commission on all Company Affiliate Revenue|
|$25,001 – $50,000||25% commission on all Company Affiliate Revenue|
|Equal to or above $50,001||30% commission on all Company Affiliate Revenue|