Affiliate Agreement
THIS AGREEMENT SETS OUT THE TERMS AND CONDITIONS THAT APPLY TO AN INDIVIDUAL OR AN ENTITY’S PARTICIPATION IN THE RESPOND AFFILIATE PROGRAM (THE “AFFILIATE PROGRAM”). ALL REFERENCES TO “YOU” MEAN YOU, THE INDIVIDUAL OR ENTITY APPLYING TO BE PART OF THE AFFILIATE PROGRAM. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND RESPOND.
1. Enrolling in the Affiliate Program
By completing and submitting this on-line enrollment form (the “Enrollment Form”) for the Affiliate Program and by agreeing to be bound by the terms and conditions of this Agreement, You begin the application process for Respond’s Affiliate Program. Acceptance to the program is Respond’s sole discretion. Respond will notify you when your account is active when you are accepted.
2. Links to Respond’s Website
“Links” are hypertext links from the web site that You designate Form (“Your Website”) to Respond’s web site located at www.respond.com . Links include, but are not limited to, banner advertisements, buttons or text links. These links are collectively referred to in this Agreement as “Links,” or individually as a “Link.” Subject to the terms and conditions of this Agreement, You may display these Links on your site but You may not modify or change them without Respond’s written approval. Respond has the right in its sole discretion to monitor your site at any time, and from time to time, to determine if You are in compliance with the terms of this Agreement. To ensure proper tracking of your Link, the tracking code cannot be changed. Respond will provide with each Link a specially formatted tracking code unique to You. Each Link provided by Respond to You has been formatted so that Respond may track referrals from Your Website. Any modification to the tracking code will result in lost Referral Fees.
3. Affiliate Referral Fees
a. Amount of Referral Fees: Respond will pay You a Referral Fee for each applicant (other than You, your employees, officers, directors, agents and affiliates and immediate family members of any of the above) who: (i) follows a Link from Your Website to the Respond Website and (ii) prior to leaving the Respond Website completes and submits an Respond on-line application form requesting a quote for services. (iii) who’s contact information is deemed to be valid with the intent to utilize or purchase services. The amount of the Referral Fee paid by Respond to You will be determined in accordance with the Payment Schedule, as detailed in your personal on-line account. You are entitled to one Referral Fee per applicant referred. Notwithstanding the foregoing, no Referral Fees shall be earned if You are in breach of this Agreement.
b. Payment of Referral Fees: Respond will pay to You all accrued Referral Fees within thirty(30) days following the end of each calendar month.
4. Reporting
a. Monthly Reporting: You will have access to reports showing referral types, traffic volumes, and revenue by accessing your on-line account.
5. Responsibilities of the Parties
a. Technical Operations: Except as set forth herein, as between Respond and You, each Party is solely responsible for the development, operation, and maintenance of its respective Website. Neither party shall have responsibility for the development, operation, and maintenance of the other party’s Website or for materials that appear on the other’s Website. Respond MAKES NO WARRANTY THAT THE OPERATION OF THE Respond WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE.
b. Website and Content: Each party is responsible for ensuring that: (i) materials posted on its website do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights); and (ii) materials posted on its website are not libelous or otherwise illegal. Neither Party will be responsible if the other Party uses a third party’s copyrighted or other proprietary material in violation of the law. If either Party suffers losses as a result of the other Party’s wrongful use of a third party’s proprietary material or intellectual property, the violating Party will indemnify and hold the other party harmless from all such losses (including, without limitation, attorneys’ fees and expert witness fees).
Both Parties must comply with, and each Party’s respective Websites must not violate, any and all local, state, national or international law, regulation or treaty as well as any privacy policy that is posted on the respective Websites. Each party is solely responsible for the content and materials that are posted on its Website including, but not limited to, ensuring that they:
– do not violate any local, state, national or international law, statute, regulation, rule or treaty;
– are not inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful;
– do not contain viruses, Trojan horses, worms, time bombs or any other harmful code;
– do not violate or infringe upon the intellectual property, industrial and other proprietary rights of any third party; and
– do not include any content that may damage either party’s reputation or goodwill.
c. Conduct: You agree not to:
– breach or attempt to breach the security or authentication measures employed by Respond or its suppliers in respect of the Respond Web;
– provide false information to Respond and/or act or attempt to act in any false, misleading or illegal manner;
– disrupt or interfere with another individual’s or entity’s participation in the Affiliate Program;
– offer any individual or entity any incentive (including without limitation, any payment, rebate, discount or other benefit) to use any Link and complete a Customer Form;
– attempt to artificially increase the Referral Fees earned by, or payable to, You;
– use controversial marketing techniques including, but not limited to, sending commercial e-mail, or bulk e-mails which do not comply with the Respond email terms & conditions; or
– commit any act that may damage Respond’s reputation or goodwill.
Any violation of this Section 5.c. or of the accepted norms of the Internet community shall constitute a material breach of this Agreement. In the event of a material breach of this Agreement, Respond shall have the right to immediately terminate this Agreement. No Referral Fees shall be earned by You for any period in which You are in breach of this Agreement. Further, in the event that you are in breach of this Agreement, Respond shall have the right to withhold all unpaid Referral Fees earned prior to such breach. Termination or waiver thereof shall in no way constitute a waiver of any other Section of this Agreement.
6. Intellectual Property Rights
a. Ownership of Content: As between Respond and You, Respond shall retain complete ownership and control of the Respond Website, including without limitation, any content contained thereon. You shall retain complete ownership and control of Your Website(s), including without limitation, any proprietary content contained thereon.
b. Ownership of User Data: Respond shall retain complete ownership and control of all information that Respond collects through the Respond Website. Respond also shall retain complete ownership and control of information collected on Your Website as part of the Respond lead process.
c. Respond License: Respond grants You a non-exclusive, non-transferable, revocable right to use the Links and other materials made available to You by Respond (collectively, the “Licensed Materials”) during the term of this Agreement, in conjunction with Your Website, in accordance with the terms and conditions of this Agreement and any guidelines for Your use of the Licensed Materials that may be provided by Respond from time to time (“Guidelines”). You may use the Licensed Materials solely for the following purposes: (1) identifying Your Website as a participant in the Affiliate Program; and (2) providing Links to the Respond Website from Your Website.
d. Acknowledgement; Restrictions: You acknowledge that the Licensed Materials may contain trademarks, trade names, service marks, characters or logos owned, controlled, or licensed by Respond or by any affiliate of Respond (collectively, the “Respond Marks”) and agree that: (i) You shall not use the Respond Marks in a manner likely to diminish their commercial value; (ii) You shall not permit any third party to use the Respond Marks; (iii) You shall not use or permit the use of any mark, name, or image likely to cause confusion with the Respond Marks; (iv) all goodwill associated with any use of the Respond Marks shall inure to Respond; (v) the Respond Marks are and shall remain the sole and exclusive property of Respond; and (vi) nothing in this Agreement shall confer in You any right of ownership in the Respond Marks, and You shall not make any representation to that effect, or use the Respond Marks in a manner that suggests that such rights are conferred. You agree not to register or attempt to register any brand, names, marks, or other elements of the Links, the Licensed Materials or the Respond Marks as a trademark, service mark, Internet domain name, trade name, or any similar trademarks or name, with any domestic or foreign governmental or quasi-governmental authority. Respond hereby represents and warrants that it has the right to all Licensed Materials and that such Licensed Materials do not infringe on any intellectual property rights of any third party. Respond shall indemnify and hold You harmless for any claims by third parties regarding the use of the Licensed Materials, including paying for all attorney’s fees.
e. Third Party Property: All images, trademarks, service marks, product names, company names or logos appearing on the Respond website are the property of their respective owners. Any use of such materials, other than the Licensed Materials, including the reproduction, modification, distribution or republication of same, without the prior written permission of the applicable owner, is strictly prohibited.
f. Reservation of Rights: All other rights in Licensed Materials are reserved by Respond. Respond reserves the right to review any approved use of the Licensed Materials and to require changes in such further use, and You agree to immediately comply with any such requirements. In the event that Respond, at any time and for any reason or no reason, requests in writing that You stop using any Licensed Material, You shall promptly comply with such request.
7. Confidentiality
a. “Confidential Information” means all information and materials provided by one Party (“Discloser”) to another Party (“Recipient”) which: (i) are designated in writing, as confidential at the time of disclosure, or (ii) if disclosed orally or visually, are designated in writing, as confidential, within thirty days of disclosure, or (iii) if a reasonable person, having regard to the circumstances, would regard such as confidential. All Confidential Information provided is provided on an “AS IS” basis, and the Discloser makes no representation or warranty with respect to it. Without limiting the foregoing, representations and warranties with respect to its accuracy, completeness or non-infringement of trade-marks, patents, copyrights or any intellectual property rights or other rights of third persons are specifically excluded. Recipient will use the Confidential Information only for the purpose of fulfilling its obligations under this Agreement and only in accordance with this Agreement and will not use, manipulate or exploit the Confidential Information in any other manner or disclose it to any third party.
b. Publicity: Neither Party will issue any written or oral announcement, press release, or other public release of information that contains information about this Agreement or the Affiliate Program without the prior written consent of the other Party.
8. Non-Exclusivity
a. By accepting this agreement, You acknowledge and agree that Respond may operate one or more websites that are competitive with Your Website. The parties hereby acknowledge and agree that the rights granted hereunder are not exclusive and Respond shall have the right at all time to grant the same or similar rights to other parties.
b. By accepting this agreement, Respond acknowledges and agrees that You may operate one or more websites that are competitive with Respond’s website and Your own websites. The parties hereby acknowledge and agree that the rights granted hereunder are not exclusive and that You shall have the right at all times to grant the same or similar rights to other parties.
9. Term and Termination
a. Automatic Renewal: This Agreement will renew automatically for successive six-month periods unless either party gives written notice to the other party of its intent not to renew no less than thirty (30) days prior to the end of the previous term.
b. Termination. Respond or You may terminate this Agreement at any time, with or without cause upon notice. Either party may terminate this Agreement if the other party makes an assignment of assets for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to applicable bankruptcy laws or debtor’s moratorium. PLEASE NOTE THAT WHILE YOU ARE IN BREACH OF THIS AGREEMENT YOU ARE NOT ENTITLED TO EARN OR ACCRUE REFERRAL FEES.
10. Warranties, Disclaimers and Limitation of Liability
a. Affiliate Warranties: You hereby represent and warrant that: (i) You have full power, legal right and authority to enter into this Agreement, and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with its terms; (ii) You have taken all necessary corporate action to authorize the creation, execution, delivery and performance of this Agreement; (iii) this Agreement including your completed Enrollment Form, if accepted by Respond, constitutes a valid and legally binding obligation of You enforceable against You in accordance with its terms, subject only to applicable bankruptcy, insolvency and other similar laws affecting the enforceability of the rights of creditors generally; (iv) Your Enrolment Form was, when submitted to Respond, and continually since then, true and accurate; and (v) You and Your Website are in compliance with all applicable laws, statutes, rules or regulations (local, state, national or international).
b. Limitation of Liability: IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF Respond (INCLUDING TO EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS) TO YOU, FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE AFFILIATE PROGRAM OR THE Respond WEBSITE, EXCEED $100.00. THE FOREGOING PROVISION LIMITING THE LIABILITY OF Respond (INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS) SHALL APPLY REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR A BREACH OF A FUNDAMENTAL TERM OR CONDITION. Respond SHALL NOT BE LIABLE TO YOU OR TO ANYONE CONNECTED WITH YOU IN ANY WAY WHATSOEVER, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT. THIS LIMITATION SHALL APPLY WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, OR WHETHER Respond (OR ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Indemnification
a. You agree to indemnify and hold Respond and its employees, directors, agents, suppliers or subcontractors harmless from any and all claims, suits, losses, damages and expenses (including legal fees and expenses) incurred in connection with any claims, demands and other liabilities asserted against any of them as a result of You using the Licensed Materials or any breach by You of any provision of this Agreement.
b. Respond agrees to indemnify and hold You and your employees, directors, agents, suppliers or subcontractors harmless from any and all claims, suits, losses, damages, and expenses (including legal fees and expenses) incurred in connection with any claims, demands and other liabilities asserted against any of them as a result of Respond’s Licensed Materials or any breach by Respond of any provision of this Agreement.
12. Modifications to this Agreement
a. From time to time, Respond may, in its sole discretion, modify any of the terms and conditions contained in this Agreement by posting the revised version to the Respond website. You are advised to check the Respond website periodically. IF THE REVISED VERSION OF THIS AGREEMENT IS UNACCEPTABLE TO YOU, YOUR RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A REVISED AGREEMENT ON THE Respond WEBSITE WILL CONSTITUTE ACCEPTANCE OF THE CHANGE.
13. General Provisions
a. Independent Contractors: The parties are entering this Agreement as independent contractors, and this Agreement will not be construed to create a partnership, joint venture or employment relationship between them. Neither party will represent itself to be an employee or agent of the other or enter into any agreement on the other’s behalf of or in the other’s name.
b. Except as expressly provided herein, each party will be responsible for all costs and expenses incurred by it in connection with the negotiation, execution and performance of this Agreement.
c. Force Majeure: Neither Respond or You will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
d. Notices: Any notice given pursuant to this Agreement shall be in writing. Notices sent to You will be sent by e-mail to the contact listed on Your Enrollment Form. Notices sent to Respond will be sent to: rishi@wiseradvisor.com.
e. Entire Agreement; Severability: If accepted by Respond, this Agreement including your completed Enrollment Form represents the entire Agreement between the parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written agreements regarding such subject matter. Each provision of this Agreement is independent of and severable from each other provision. If any provision of this Agreement is found to be unenforceable or invalid, the remaining provisions of this Agreement shall remain valid and enforceable.
BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH IN THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THEM.