This Agreement governs your participation in our Affiliate Program (the “Affiliate Program”). This is a contract between [AFFILIATE NAME] (“you”, “your”, the “Affiliate”) and The Foundress, LLC (“us” “we” the “Company” “Foundress”). In consideration of the mutual promise made in this agreement and other good and valuable considerations, the sufficiency of which is acknowledged, you agree as follows:
Affiliate Program Details and Guidelines.
Scope of Affiliate Program
Affiliate understands and agrees that their business was evaluated by Company and determined by Company to be a proper fit as an affiliate marketer for Company’s Foundress Affiliate Program. Affiliate shall comply with this Agreement at all times, and Company reserves the right to terminate Affiliate at any time for any reason. Company shall provide Affiliate with a specific link and/or code for Affiliate to use and give to their respective audience.
Use of Affiliate Link
Company shall provide Affiliate with a unique tracking link that you promote through your social media, email, website, and other channels (“Affiliate Link”). Company reserves the right to change the Affiliate Link at any time if misuse of the Affiliate Link has occurred.
Affiliate understands and agrees that discretion must be exercised when providing the Affiliate Link, and should only be sent via private message.
Compensation for Referred Sales
Company agrees to pay Affiliate a one-time 20% commission in the form of an account credit on each purchase of the Foundress “monthly membership” product using Affiliate’s unique tracking link. Commission is calculated after all fees are deducted, including, but not limited to, all online platform fees and online payment processing fees, and sales promotions (“Payout”). Payouts are 20% of purchase credited to your account. For subscriptions with free trial, the 20% will only be credited and paid if the referred customer completes an actual payment the second month of their subscription.
Company agrees to pay Affiliate a one-time 2% commission in the form of an account credit on each purchase of the Foundress “yearly membership” product using Affiliate’s unique tracking link. Commission is calculated after all fees are deducted, including, but not limited to, all online platform fees and online payment processing fees, and sales promotions (“Payout”).
Sales are only eligible for Payouts when the Affiliate’s unique tracking code is used by the purchaser at checkout. Payouts cannot be sold, transferred, or assigned to any other account or individual without the approval of the Company. Payout credits are eligible to be used as payment towards Affiliate’ s membership fees and [insert here what else can the credit be used towards such as merchandise, events, etc.]. Company reserves the right to change Payout procedures in its sole and exclusive discretion, and will give notice to affiliates of any changes.
You are not eligible to receive Commission or any other compensation if: (i) it would not be permitted by law or regulation (ii) the purchase was made by fraudulent means or your affiliate link or code was used in violation of the Program Policies. If we offer multiple Affiliate Programs and/or partnerships, you may only be paid commission under one Program or Partnership per customer purchase.
Reports
Affiliate will receive reports of all sales each month from Company and/or through the affiliate program. In the event Company uses a third-party affiliate program, Affiliate may login to their personal portal to review all sales and statistics. In such case, Affiliate must ensure access is maintained to their personal portal, and notify Company immediately if access is lost.
Use of Company Logo, Images, Name, and/ or Trademark(s). You may use Company logo, brand images, name, and/ or trademark(s) (“Company IP”) only with the following guidelines: (i) use only in direct connection with this Affiliate Agreement for the purpose of marketing our products and services (ii) do not edit or alter in any way from the style and format provided to you (iii) immediately comply if we request that you discontinue use. You are not permitted to use the Company logo, image(s), name, and/ or trademark(s): (i) in a misleading or disparaging way; (ii) to state directly or imply that we endorse your business, products, or services; or (iii) in violation of the law or connection with illegal, obscene, or hate-based messages or activities. Affiliate hereby provides Company a non-exclusive license to use their name, company name, trademarks, and service marks if applicable and other business intellectual property of Affiliate to advertise Company’s Affiliate Program.
Work Relationship
Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. Affiliate is an independent contractor of the Company and will remain so at all times.
- No License. No license is granted to Affiliate by this Agreement to any Company products, services, intellectual property, or software. The Foundress Products are the property of the Company and are protected by intellectual property law. Affiliates are not authorized in any manner to copy, sell, distribute, or create similar works based on Company Products.
- No Agency. Affiliate is not an Agent of the Company, and nothing in this Agreement is to be construed as giving Affiliate authority to act on behalf of or bind the Company in any way. Any attempt to do so, or misrepresentation by Affiliate that you have such agency or authority will result in immediate termination of this Agreement, and other legal action as may be necessary and appropriate.
Non-Exclusivity. This Agreement does not create an exclusive agreement between you and us. You may recommend similar products and services of third parties, and we may enter into similar affiliate agreements with other third parties without limitations.
Sales By the Company. This Agreement does not restrict or limit the Company’s sales and marketing efforts in any way. In the event that a potential customer whom Affiliate has marketed to or otherwise contacted makes a purchase from us not using Affiliate’s unique link, said customer will be presumed to have made the purchase due to the Company’s sales and marketing efforts, not Affiliate, and Affiliate will not receive a commission. The Company may provide data to Affiliate regarding sales completed using Affiliate’s unique link, however in no circumstance will Company be required to provide any other sales data to Affiliate.
Data Protection and Anti-Spam. The Company complies with data protection and anti-spam laws and specifically provides privacy policies on our website and unsubscribing options for recipients of our emails. Affiliate agrees to also comply with all applicable data protection and anti-spam laws, and/or similar laws in your jurisdiction and the jurisdictions of the potential customers to which you market as an Affiliate. You agree to comply with any potential customer’s request to opt-out or unsubscribe from emails, calls, and/ or texts, and will not continue to attempt to contact anyone with Company offers who has unsubscribed, opted out, or in any way indicated that they do not wish to be contacted with said communication.
FTC Compliance
Company requires Affiliate to comply with all applicable statues, regulations, and guidelines set by the federal government, through the Federal Trade Commission, as well as state and local governments as mandates. The FTC requires that affiliate relationship, such as the relationship between Affiliate and Company, by clear and conspicuously disclosed to consumers. Company recommends that Affiliate seeks independent legal counsel to advise on disclosure obligations.
Affiliate is required to post a conspicuous notice on its website regarding the Affiliate Program. The notice does not have to contain the following precise wording, but should be similar:
“We engage in affiliate marketing whereby we receive commission funds through clicks and codes to our affiliate program through purchases made through this website and/or link. This disclosure is intended to comply with the U.S. Federal Trade Commission Rules on marketing and advertising, as well as any other legal requirements which may apply.”
Affiliate Representations and Warranties
Affiliate represents and warrants that:
- It will accurately provide all websites and domains you own where you intend to use Affiliate Links to generate affiliate leads upon request by Company;
- It will not use your Affiliate Link directly in any pay-per-click advertising;
- It will not use or encourage any means of delivering fraudulent traffic, including, but not limited to, use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links;
- It will not use direct linking to any page on Company website, without prior written permission from Company;
- It will not mask its referral sites or use deceptive redirecting links; and
- It will not use any mechanisms to deliver leads other than through an intended consumer.
Reverse Engineer and Security
Affiliate agrees not to (1) reverse engineer or attempt to reverse engineer or disassemble any code or software from or on any of Company’s websites or affiliate programs/services; (2) violate the security of any of Company’s websites or affiliate programs/services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user, or network.
Data Loss
Company does not accept responsibility for the security of Affiliate’s account or content. Affiliate agrees that their participation in the Affiliate Program is at their own risk.
No Guarantees and No Warranties by Company
Company does NOT guarantee that the Affiliate Program will provide any specific outcome, such as monetary gain, to Affiliate’s business. Company hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to, the implied warrant of fitness for a particular purpose and the implied warranty of merchantability. Company makes no warranties that the Affiliate Program will meet Affiliate’s needs or that it will be uninterrupted, error-free, or secure. Company also makes no warranties as to the reliability or accuracy of any information. Affiliate agrees that any damages that may occur to him/her is Affiliate’s sole responsibility and Company is not liable for any such damage or loss.
Term and Termination
The term of this Agreement will begin when Company accepts you into the Affiliate Program, and will continue for the period which the Affiliate remains in good standing as long as the terms in Section 5 are met. It can be terminated by either Party at any time with or without cause.
Affiliate may only earn Payouts as long as Affiliate is in good standing during the term. If Affiliate terminates this Agreement, Affiliate will qualify to receive only payouts earned prior to the date of termination. If Affiliate fails to follow the terms of this Agreement or any other legal terms, Affiliate forfeits all rights, including the right to any unclaimed payout. Company reserves the right to terminate this Agreement if Affiliate violates any of the terms outlined herein.
Indemnification.
Affiliate agrees to indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, or legal action brought against the Company and/or our officers, directors, employees, or agents by a third party to the extent that such claim or action arises out of (i) your acts in participation in the Affiliate Program, (ii) our use of the potential customer data you provide to us, (iii) your breach of this Agreement, and/or (iv) your non-compliance with the law.
Non-Disparagement
Company and Affiliate agree that, at all times during this Agreement and in perpetuity, they shall use reasonable and good faith efforts to ensure that neither Party engages in any vilification of the other, and shall refrain from making any false, negative, critical or disparaging statements, implied or expressed, concerning the other, including, but not limited to, methods of doing business, the quality of products and services, role in the community, or treatment of one another. The Parties further agree to do nothing that would damage the others business reputation or goodwill; provided, however, that nothing in this Agreement shall prohibit either party’s disclosure of information which is required to be disclosed in compliance with applicable laws or regulations or by order of a court or other regulatory body of competent jurisdiction.
Confidentiality
Affiliate shall not (i) disclose to any third-party any details regarding the business of the Company, including, without limitation, the names of any of its customers, the prices it obtains, the prices at which it sells products, its manner of operation, its plans, its marketing and advertising strategies, any of the Company’s trade secrets or any other information pertaining to the business of the Company (the “Confidential Information”), (ii) make copies of any Confidential Information or any content based on the concepts contained within the Confidential Information for personal use or for distribution unless requested to do so by the Company, or (iii) use Confidential Information other than solely for the benefit of the Company.
Indemnification
Affiliate agrees to indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, or legal action brought against the Company and/or our officers, directors, employees, or agents by a third party to the extent that such claim or action arises out of (i) your acts in participation in the Affiliate Program, (ii) our use of the potential customer data you provide to us, (iii) your breach of this Agreement, and/or (iv) your non-compliance with the law (v) your infringement on the intellectual property rights of third parties (vi) your breach of any agreement with third parties.
Disclaimer of Warranties.
- WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE [YOUR COMPANY NAME] PRODUCTS, CONTENT, OR THE AFFILIATE PROGRAM FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, COMPANY PRODUCTS ARE “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Limitation of Liability.
- IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED BY A COURT OF LAW TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS EARNED IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, OR DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
- Legal Structure.
Severability. If any provision contained in this Agreement is determined by a court of competent jurisdiction to be void, illegal, or unenforceable, in whole or in part, then the other provisions contained herein shall remain in full force and effect as if the provision which was determined to be void, illegal, or unenforceable had not been part of the Agreement. - Waiver. The waiver of a breach of any provision of this Agreement will not be construed as a waiver of any subsequent breach.
- Entire Agreement. This document is the entire agreement of the Parties and supersedes all prior and contemporaneous agreements, either oral or in writing.
Modification. This Agreement may only be modified, altered, or amended by written agreement. Electronic agreements will be considered written agreements.
Effect of Headings. Paragraph headings of this Agreement are for convenience only and will not impact or override the provisions themselves.
Force Majeure. Neither party will be responsible for breach if caused by: an act of war, act of God, and/or electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to reduce the impact of a force majeure event.
Assignment. Affiliate may not assign the rights and obligations in this Agreement to any other party.
Governing Law & Disagreement. This Agreement shall be governed by the laws of the State of Arizona. Affiliate agrees to first address any disagreement with private, confidential discussion. In the event we cannot come to a resolution through normal discussion, the parties agree to mediate before pursuing any other legal action. The Parties agree that any legal conflict arising in connection with this Agreement will be brought, tried, and resolved in the applicable courts having jurisdiction in the State of Arizona.
