AFFILIATE AGREEMENT FOR ARTFUL CONTRACTS, LLC
Last Updated: March 31, 2021
This Affiliate Agreement (“Agreement”) is entered into by and between you (“Affiliate”) and Artful Contracts, LLC (“Company”) upon your submission of an application to become an affiliate of the Company.
The Company has set up a program for affiliates to promote its products in exchange for a share of the proceeds of any sales prompted by the affiliates’ promotional efforts (the “Affiliate Program”). Except as modified by a separate agreement governing the promotion of any particular product, the terms of this Agreement apply to the Affiliate’s participation in the Company’s Affiliate Program.
By submitting an application to participate in the Affiliate Program and/or by otherwise participating in the Affiliate Program, Affiliate expressly agrees to the terms and conditions set out in this Agreement and in any agreement that might apply to individual products.
APPLICATION & ACCEPTANCE
To participate in the Affiliate Program, Affiliate must complete an Affiliate Program application (“Application”). Affiliate is required to answer all questions in that Application, and Affiliate’s answers must be accurate and complete.
To participate in the Affiliate Program, Affiliate must provide the Company with Affiliate’s true identity and contact information, as well as business and banking information as requested. Affiliate may not use any alias, pseudonym, persona, pen name, DBA, or other means to mask Affiliate’s identity or business details.
The Company will rely upon the information provided in Affiliate’s Application, and any false information will be a basis to reject a prospective affiliate’s Application or to terminate Affiliate’s status as an affiliate without compensation if discovered after approval. The Company may accept or reject any Application at its sole discretion for any or no reason.
Upon acceptance into the Affiliate Program, Affiliate will receive an email notifying Affiliate of such acceptance and providing affiliate credentials (including details about how to obtain affiliate links and other important information).
The Company will pay Affiliate a fee (a “Commission”), for each customer referred to the Company through the unique tracking links assigned to the Affiliate (“Affiliate Links”). The tracking and attribution of sales to Affiliates based upon their tracking links is done automatically by the Company’s affiliate tracking system. Affiliates shall only be entitled to Commissions on sales that are tracked through the Company’s affiliate tracking system and indicate the Affiliate Link as the source of the sale.
Affiliate shall receive Commissions of 40% of gross revenue from all sales made on the Artful Contracts template shop at artfulcontracts.com.
All Commissions are calculated after any discounts, and before payment processing fees. For example, if a customer purchases a product with a list price of $100 and uses a 10% discount code, the Commission will be calculated based on the $90 discounted price actually paid by the customer.
Affiliate agrees that the Company shall only be liable for payment of the Commissions to the extent it receives all funds due and owing to it from the relevant customer after the refund period has passed. Accordingly, Affiliate shall not be entitled to any Commission on a sale that is refunded, for which there is a chargeback, or for which the Company ultimately does not receive the sales proceeds as a result of credit card abuse or fraud.
The Company pays all Commissions on the 25th day of the month, provided 30 days have passed since the date of purchase, to allow for any refunds or chargebacks to be processed. For example, if a customer makes a purchase on January 5, and no refund has been requested by February 5, the payout will be processed on February 25.
PAYOUTS AND PAYMENT PROCESSING
The Company shall pay any sums due to Affiliate via PayPal. Affiliate shall be responsible for providing Affiliate’s Paypal email address inside the affiliate portal as necessary to facilitate the use of the payment method. The Company is not responsible for any amounts not received by the Affiliate due to inaccurate or out of date payment information as provided by the Affiliate.
Payments will only be made to those who are owed $50 USD or greater for the applicable payment period. If Affiliate has not reached the minimum payment amount in a given payment period, the amount will roll over and be paid the following payment period provided the minimum payment threshold has been reached.
The Company shall not be liable for paying interest to Affiliate for accrued but not yet delivered Commissions.
Affiliate shall not be eligible to receive any payments from the Company until Affiliate has submitted the appropriate tax forms and has set up a proper payment gateway. Affiliate shall be required to complete either a W-9 or a W8-BEN. It is Affiliate’s sole responsibility to provide the required forms in a timely manner. No payments shall be made to Affiliate until the proper form is provided.
Affiliate shall be solely responsible for paying any and all United States, state, or foreign income taxes and any other tax liabilities arising from any commissions earned or received by Affiliate.
In the event a customer clicks Affiliate Links from multiple affiliates, the link clicked and the cookie created closest in time to the sale shall determine the affiliate to receive the Commission for that sale.
RIGHT TO CHARGEBACK, OFFSET, AND WITHHOLD
Affiliate agrees that the Company shall have the right to charge back the Affiliate’s account or otherwise adjust for any previously paid Commissions that ultimately are not commissionable under this Agreement. Specifically, in the event that a sale attributed to an Affiliate is charged back, refunded for any reason, or otherwise challenged after the Commission has been paid, the Company shall have the right to charge back the Commission paid to the Affiliate.
Affiliate agrees that the Company shall have the right to offset any Commissions due and payable to the Affiliate to account for any chargebacks on sales for which Affiliate has already received a Commission.
Affiliate agrees that the Company shall have the right to withhold up to 20% of the Commissions due (“the Withholding”) for a period of 90 days to ensure an ability to offset any chargebacks. In the event that the Affiliate’s chargeback percentage exceeds the Withholding for a period of two consecutive months, the Company shall have the right to increase the Withholding percentage. The Company shall provide written notice of any such increased Withholding percentage that shall apply to Affiliate.
LIMITED LICENSE TO USE PROMOTIONAL MATERIALS
From time to time, the Company may make promotional materials available to Affiliate for use in promoting the Company’s products or services (“Promotional Material”). The Promotional Material may include the Company’s logos, images of products, social media graphics, display banner advertisements, copy for emails and social media posts, and other graphic and textual material for use in Affiliate’s promotion efforts.
Upon acceptance into the Affiliate Program, the Company grants Affiliate a revocable, non-exclusive, non-transferrable, worldwide, royalty-free license to use the Promotional Material during the term of this Agreement. The Affiliate may use the Promotional Material on its website, on social media, in emails, and in other promotional activities.
Affiliate may use any such Promotional Material solely for the purpose of promoting the Company’s products or services and/or for linking to the Company’s website. Affiliate may not make any other use of the Promotional Material and shall not state or imply that the Company has endorsed the Affiliate.
Affiliate agrees not to alter, add to, subtract from, or otherwise modify any of the Promotional Material provided by the Company without the express written consent of the Company. Moreover, Affiliate may not make any derivative works using the Promotional Materials for any purpose other than promoting the Company’s products or services.
INTELLECTUAL PROPERTY OWNERSHIP
No logo, tagline, trademark, trade name, or trade dress (collectively, the “Company’s Marks”) owned by the Company may be used, copied, or reproduced by any Affiliate except as set forth in this Agreement. No Company intellectual property (or any mark confusingly similar to the Company’s Marks) may be registered as a trademark in any country or registered as a domain name by Affiliate in any way in any country. In using the Company’s Marks, Affiliate must: (i) only use the images of Company’s Marks that are made available to Affiliate, without altering them in any way; (ii) only use Company’s Marks in connection with the Affiliate Program and this Agreement; and (iii) immediately comply with any request by Company for Affiliate to discontinue use. Affiliate must not: (i) use the Company’s Marks in a misleading or disparaging way; (ii) use the Company’s Marks in a way that implies the Company endorses, sponsors or approves of Affiliate’s services or products; or (iii) use Company’s Marks in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
The Company retains exclusive ownership of Company’s Marks and other intellectual property and all of its rights therein. Affiliate shall not promote or provide services to any other business or person that is infringing any of Company’s intellectual property.
Affiliate retains ownership of all intellectual property created solely by Affiliate to promote Company’s products or services. In the event that the Company and Affiliate collaborate on any promotional material such as a joint venture webinar, Company and Affiliate shall each retain ownership rights to such promotional material.
Affiliate grants to Company a non-exclusive, non-transferrable, royalty-free license to use and display Affiliate’s trademarks, service marks, and logos (“Affiliate’s Marks”) in connection with the Affiliate Program and this Agreement.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
- the Company shall not knowingly and intentionally violate any law, regulation, or rule applicable to its business operations;
- the products and/or services offered in connection with the Affiliate Program are legal products and services within the Company’s jurisdiction;
- it intends to be bound by the mutual promises, terms, and conditions of this Agreement; and
- it has the necessary intellectual property and other rights to offer the products that are available for promotion under the Affiliate Program.
Affiliate represents and warrants that:
- Affiliate has read this Agreement, understands its terms, and agrees to be bound by this Agreement;
- this Agreement constitutes Affiliate’s valid and binding agreement and was executed by a person with authority to bind the Affiliate;
- Affiliate’s answers to the questions in the Application were truthful and accurate to the best of Affiliate’s knowledge;
- Affiliate will comply with CAN-SPAM, GDPR, and CA-SL requirements in connection with email marketing;
- Affiliate will comply with all applicable Federal Trade Commission rules, regulations, and guidelines related to affiliate marketing;
- Affiliate will not make use of the Company’s name, trademark, or service mark in any manner other than expressly allowed under this Agreement; and
- Affiliate will not engage in any behavior that violates the terms of this Agreement or that constitutes an attempt to fraudulently or deceptively increase the earnings of Affiliate under this Affiliate Program.
In the course of participating in the Company’s Affiliate Program, Affiliate may have access to sensitive or confidential information related to the Company’s business (“Confidential Information”). Affiliate agrees not to disclose or make use of any Confidential Information, directly or indirectly, except for the sole benefit of the Company, as appropriate to promote the Company’s products or services in accordance with this Agreement. Affiliate shall not directly or indirectly disclose or make use of any Confidential Information after the term of this Agreement for any reason. Affiliate will use reasonable care in handling the Company’s Confidential Information so that it does not enter the public domain. Affiliate will return all Confidential Information to the Company upon termination of this Agreement. Any disclosure in violation of this Agreement is grounds for legal action, equitable relief, and termination of this Agreement.
Affiliate may disclose Confidential Information to the extent that: (i) it becomes publicly available or known by no fault of Freelancer; (ii) Client grants permission for such disclosure in writing; or (iii) disclosure is required by any court or government agency. Affiliate agrees that in the event disclosure is required by law, Affiliate will provide only such information as necessary to satisfy such requirement.
“Confidential Information” of the Company includes but is not limited to some or all of the following, whether in documentary, electronic or any other form: customer lists; prospective client lists; email lists or size of email lists; sales leads; course curricula; presentation materials; content, ideas, stories, or other promotional materials; Company’s business methods and competitive strategies; information concerning the preferences, requirements, transactions, creditworthiness and characteristics of Company’s customers; pricing lists, policies and practices; sources of supply; negotiating strategies; computer software; technical information; sales techniques; financial information; financial reports; data; books and reports; specifications; strategic and technical data; marketing data; market research data; product research and development data; trade secrets; information concerning the Company’s business or promotional plans or processes; other information concerning the Company’s finances, technology and operations; and any other information about or generated by the Company that is proprietary to the Company or which could, if disclosed, be useful to any competitors of the Company.
Affiliate is at all times an independent contractor. It is the express understanding and intention of the Parties that no relationship of master and servant nor principal and agent shall exist between the Company and Affiliate by virtue of this Agreement. Affiliate has no right to act on behalf of or bind the Company in any way, nor share in the profits or losses of the Company. The only compensation available to Affiliate is set forth in this Agreement. Affiliate is solely and exclusively responsible and liable for all of Affiliate’s acts or omissions.
ACCEPTABLE AND UNACCEPTABLE MARKETING PRACTICES
Affiliate shall not promote Company’s products: (1) in conjunction with any any illegal activity, (2) on any illegal website, (3) in a manner that a reasonable person would consider threatening, harmful, defamatory, obscene, sexually explicit, harassing, or promoting violence; (4) in a manner that promotes discrimination, (5) in any manner the Company expressly deems as objectionable, or (6) in a manner that infringes upon the intellectual property or related rights held by any third party.
Affiliate shall not make any claims, guarantees, representations, or warranties about the Company’s products that are inconsistent with or beyond the scope of any claims made by the Company in publicly available marketing materials.
Affiliate shall comply with all applicable laws and regulations, including without limitation, laws prohibiting deceptive and misleading advertising and marketing, email marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701)), laws governing testimonials (including the FTC’s Revised Endorsements and Testimonials Guides (16 CFR Part 255 of the Code of Federal Regulations)), and all guidelines issued by the FTC. Affiliate is solely responsible for ensuring Affiliate’s compliance with all laws.
Affiliate shall not offer monetary incentives, such as rewards points, cash, or prizes to potential customers in return for their response to an advertisement. Affiliate may, however, offer potential customers information and materials of tangible value such as Affiliate’s own products or services for reduced or no charge, but only so long as Affiliate accurately describes and delivers such information and materials to the potential customer. The Company retains the sole and exclusive discretion to determine whether Affiliate’s advertising and conduct is in compliance with all laws and the requirements of this Agreement.
Affiliate shall not comment negatively about or disparage the products or services of the Company or any other person or entity, including without limitation the products or services of a competitor of the Company. Affiliate is not permitted to engage in any unlawful or deceptive actions with respect to search engine optimization, including, but not limited to, using any technique that generates paid search results based on any trademarks of the Company, any brand name of the Company, or based on the trademarks or brand name of any competitor of the Company, or any other third party.
TERM AND TERMINATION
The term of this Agreement will begin upon Affiliate’s submission of an Application to join the Affiliate Program and continue until terminated by either party.
The Company may terminate this Agreement in full or in part at any time and for any reason it deems appropriate with or without prior notice to Affiliate. Affiliate may terminate this Agreement at any time by notifying the Company in writing.
Upon termination of this Agreement, the Company will disable any tracking URLs, links, cookies, pixels, and similar mechanisms for use with the Affiliate Program, and Affiliate will no longer have access to the Company’s affiliate portal.
Upon termination of this Agreement, Affiliate shall immediately cease all use of the Promotional Materials and all of the Company’s intellectual property; delete all copies of such materials in Affiliate’s possession; and cease representing Affiliate as a participant in the Affiliate Program.
Affiliate shall be entitled to all validly accrued Commissions earned prior to the termination of this Agreement.
Any and all provisions governing the following will survive termination of this Agreement: indemnification, Affiliate’s representations and warranties, limitations of liability, disclaimers of warranties, governing law, jurisdiction and dispute resolution, confidentiality, and ownership of intellectual property.
The Affiliate Program, any Promotional Material, and the products and services provided in connection therewith, are provided to Affiliate “as is.”
Except as expressly set forth in this Agreement, the Company expressly disclaims to the maximum extent allowed by law, all warranties, express, implied, or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, and any warranties arising out of course of dealing, usage, or trade.
The Company does not warrant that the Affiliate Program or Promotional Materials will meet Affiliate’s specific requirements or that the materials are error free or uninterrupted.
The Company expressly disclaims any liability for any act or omission of any third party provider not under the control of the Company, and their products and services.
Affiliate expressly agrees and understands that the Company has not made any guarantee that Affiliate will earn any specific amount of commissions and attests that no such representations or claims have been made.
LIMITATION OF LIABILITY
Affiliate agrees that Company shall not be liable for any loss or damage that Affiliate or any other person or entity associated with Affiliate may suffer or incur as a result of participation in the Affiliate Program and/or any information or resources contained in or provided in conjunction with the Affiliate Program. Affiliate agrees that Company shall not be liable to Affiliate for any type of damages, including direct, indirect, special, incidental, equitable, or consequential loss or damages arising out of Affiliate’s participation in the Affiliate Program.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS AND/OR ASSIGNS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES, FEES, LOSSES OR CLAIMS WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, BUSINESS OPPORTUNITIES, CLIENTS, ANTICIPATED INCOME, GOODWILL, OR PROFITS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE AFFILIATE PROGRAM, WITH THE DELAY OR INABILITY TO USE THE AFFILIATE PROGRAM OR RELATED SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, AND RELATED GRAPHICS OBTAINED THROUGH THE AFFILIATE PROGRAM, OR OTHERWISE ARISING OUT OF THE USE OF THE AFFILIATE PROGRAM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF THE COMPANY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
Affiliate acknowledges that if Affiliate is dissatisfied with the Affiliate Program or any portion of it, Affiliate’s sole and exclusive remedy is to terminate participation in the Affiliate Program.
AFFILIATE AGREES THAT COMPANY’S CUMULATIVE LIABILITY FOR ANY LOSS OR DAMAGE TO AFFILIATE OR OTHERS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE COMMISSIONS PAID TO AFFILIATE DURING THE ONE MONTH PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY.
Affiliate agrees to defend, indemnify and hold the Company harmless from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments, and expenses, as well as third party claims and causes of action, including, without limitation, attorney’s fees, relating to or arising out of: (a) Affiliate’s breach of any provision of this Agreement, including the representations and warranties, (b) any misuse, fraud, or deceptive conduct by Affiliate or any of its agents in connection with the Affiliate Program, (c) any claims related to any promotional media created by Affiliate (excluding claims related to any Promotional Material provided by the Company), and (d) Affiliate’s failure to maintain the confidentiality and/or security of Affiliate’s password or access rights to the Affiliate Program or affiliate portal. Affiliate agrees to provide the Company with such assistance, without charge, as the Company may request in connection with any such defense, including, without limitation, providing the Company with such information, documents, records, and reasonable access to Affiliate, as the Company may deem necessary. Affiliate shall not settle any third-party claim or waive any defense without the Company’s prior written consent.
The Company may modify this Agreement at any time by notifying Affiliate of the proposed changes by email at Affiliate’s email address provided to Company and/or by posting the modified Agreement prominently within the affiliate portal. Any such changes will not alter the Company’s obligation to Affiliate with respect to any previously-earned commissions. Any such changes shall become effective immediately upon notification.
If the proposed modifications are unacceptable to Affiliate, Affiliate must terminate this Agreement as provided above. Continued participation in the Affiliate Program will constitute Affiliate’s acceptance of and Agreement to the modification.
EFFECT OF HEADINGS; SEVERABILITY
The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions. If any portion of this Agreement is held to be unenforceable or contrary to law, such portion shall be construed in accordance with applicable law so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remainder of the provisions shall remain in full force and effect.
ENTIRE AGREEMENT; WAIVER
GOVERNING LAW; JURISDICTION; MEDIATION
This Agreement shall be construed in accordance with, and governed by, the laws of the State of New Hampshire, USA, and the courts of New Hampshire, USA, shall have jurisdiction to hear and determine any dispute arising in relation to these Terms. Affiliate agrees that any proceeding relating this Agreement or Affiliate’s participation in the Affiliate Program must be filed exclusively in the appropriate courts located in New Hampshire, USA, and Affiliate submits to the jurisdiction of those courts and waives any objection based on an inconvenient forum or other reasons.
The parties agree to attempt to resolve any dispute, claim, or controversy arising out of or relating to this Agreement by mediation. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration, or other dispute resolution procedures.
The Company shall not be liable, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.