Certified Partner Affiliate Agreement
This Independent Partner Affiliate Agreement (“Agreement”) is entered into by Internet Media Consultants, LLC (“Company”) and, You (“Partner Affiliate”). By clicking “I Agree,” You indicate that You have read and understood this Agreement and You will be bound by its terms.
In consideration of the promises and the mutual agreements contained herein, the parties hereby agree as follows:
- Term of Agreement
1.1. The position being offered creates an at-will relationship whereby this agreement may be terminated at any time, with or without cause, by either party upon written notice to the other. This Agreement shall remain in full force and effect, unless in the sole opinion of Company, the Partner Affiliate is not performing its responsibilities as described in section 4 herein or is (a) behaving in such a manner as to bring the Company into disrepute; and/or (b) is otherwise acting in a manner that intentionally harms Company.
1.2. The period during which the Partner Affiliate is associated with Company pursuant to this Agreement shall be referred to as the “Term”.
- Responsibilities of the Company
Company agrees to provide the following services:
2.1. Provide the Partner Affiliate Unique Account access on our Web Builder platform, configured to allow for the development and implementation of individual client sites, and provide quality, reliable hosting services of the client’s websites.
2.2. Provide Partner Affiliate with the nonexclusive right to market and sell the Product and Service Set currently offered by the Company.
2.3. Company will perform all WordPress core, plugin and theme updates, general improvements, and server maintenance regularly.
2.4. Provide Partner Affiliate with internal product usage training to gain proficiency in the use and sale of the Product and Service Set to prospective customers. Training is provided in the form of a Knowledge Base online, including documents, blogs, and video tutorials. Occasional webinar conference trainings will be provided. Specialized or advanced training and consulting requested by Partner Affiliate may be provided at an additional fee.
2.5. Provide Partner Affiliate with Operations guidelines.
2.6. Use its reasonable commercial efforts and specialized technology to provide and deliver the Product and Service Set in a quality fashion. Company will devote reasonable resources to ongoing product development to maintain or enhance the Product and Service Set’s competitive position in the marketplace.
2.7. Perform regular backups of the server. Data will be backed up daily, images will be backed up weekly, stored off-server in a secure location. No more than 14 days of data will be retained, and no more than 4 weeks of images will be retained.
2.8. Perform backup recovery of data or image files as needed. If the database need to be restored to the latest backup as a result of Partner Affiliates actions, or by outside forces such as hacking or customer error, a Data/Server Restore fee may be charged, depending on the size of the WordPress network and the cause of the loss of data or files.
2.9. Provide support to the Partner Affiliate on technical issues and training on current Product and Services. Company will not provide customer support to Partner Affiliates customers directly.
- Responsibilities of the Partner Affiliate:
3.1. Partner Affiliate agrees to use best practices and ethical efforts to promote the sale of the Product and Service Set.
3.2. Partner Affiliate may determine set up fees to charge customers based upon their business model. Partner Affiliate is encouraged to seek orders for the Product and Service Set at the MSRP pricing the Company recommends.
3.3 Partner Affiliate understands that all monthly website hosting fees for each customer will be charged by Company directly to the customer via credit card. Partner Affiliate will be sure to clarify the separate charges to each customer and make sure customer understands the monthly hosting services.
3.4. Partner Affiliate agrees to use its best efforts to comply with any restrictions on services sold, including but not limited to, the exclusion of certain genre such as pornography. Partner Affiliate agrees to comply with the guidelines established by Company for setting customer performance expectations of the Product and Service Set.
3.5. Partner Affiliate agrees to accept full responsibility and liability for proper handling of customer billing and credit card information. Partner Affiliate also agrees to comply with all Federal, State and Local laws and to comply with Payment Card Industry (PCI) standards, rules and regulations.
3.6. Partner Affiliate agrees to build each individual end-user site account on a separate, unique domain.
3.7. Partner Affiliate will provide all customer support directly to their customers. Partner Affiliate may contact Company for troubleshooting or requests to address a technical issue, or advice on how to handle a customer issue.
- Order Acceptance, Pricing, Payment, Customer Guarantee, Commissions and Expenses
4.1. Company shall have the sole and exclusive right to accept or reject any orders, whether in whole or in part, if the website content or industry does not fit within the guidelines of the Company. These include, but are not limited to: sexually explicit, obscene, or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory; graphically violent; solicitous of unlawful behavior; or that violates the intellectual property rights of another.
4.2. Company will receive all monies for the monthly recurring fees of any Product or Service through a Company provided portal on behalf of the Representative. This may also include any set up fees, add-on fees, and monthly hosting or service fees if service is requested by Partner Affiliate for Company assistance.
4.3. Partner Affiliate may not offer the Service on a “free trial” basis beyond the allowed 14-day free trial without written permission from Company.
4.4. Partner Affiliate may determine set up fees to charge customers based upon their business model. Partner Affiliate is encouraged to seek orders for the Product and Service Set at the MSRP pricing the Company recommends.
4.5. Commissions: The current commission payout amounts for both set up fees and monthly recurring fees are shown in Exhibit A. Company reserves the right to change commission payout amounts. Partner Affiliates will be notified of all changes to payout amounts will be provided a minimum of 30 days before changes go into effect.
4.6. Commissions will be activated after a 30 day Satisfaction Period after the first month’s hosting fee is paid (due to potential refunds or cancellations). Commissions are based on the current Payout Schedule in your Agreement. Commissions will be paid by PayPal bi-weekly with a minimum $150 threshold, after the Satisfaction Period mentioned above. In the event the Payout day falls on a holiday, Commission payments will be paid on the business day preceding the holiday.
4.7. Monthly Hosting Bonus Commission: Partner Affiliate will earn a percentage of each active website client’s current hosting fee, which is set and charged by Company. Current monthly hosting commissions are available on Exhibit A. Recurring commissions will be paid to the Partner Affiliate on any referral customer that is active and in good standing.
Partner Affiliate must be an active Partner with continued customer service to their active customers to be eligible to earn the Monthly Hosting Bonus Commission. If at any time the Partner Affiliate stops maintain relationships with their customers, the recurring Monthly Hosting Bonus Commission is discontinued to be paid out.
4.8. Company shall not reimburse Partner Affiliate for expenses other than those expenses approved by Company in writing in advance of Partner Affiliate incurring any expense.
4.9. Before Partner Affiliate can be paid any Commission, Partner Affiliate must provide Company a completed W-8 or W-9 tax form, as instructed by Company, as well as any supporting documentation requested by Company or its third-party payment provider.
- Independent Contractor Status
5.1. Company acknowledges and agrees that Partner Affiliate shall have the status of an independent contractor and not an employee of Company for any purpose, including, but not limited to, federal or state tax purposes.
5.2. Partner Affiliate’s relationship with Company is that of an independent Partner Affiliate and nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship between Company and Partner Affiliate. Partner Affiliate is not the agent of Company and is not authorized to make any representation, contract, or commitment on behalf of Company, unless specifically requested or authorized in writing to do so by a Company officer. Partner Affiliate is not and shall not be entitled to any of the benefits which Company may make available to its employees, such as group insurance, profit sharing or retirement benefits. Partner Affiliate shall be solely responsible for, and shall file on a timely basis, all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Partner Affiliate’s performance of services and receipt of fees pursuant to this Agreement.
5.3. Partner Affiliate is solely responsible for expenses incurred in the course of performing services pursuant to this Agreement. Company shall report any amounts paid to Partner Affiliate by filing Form 1099-MISC with the Internal Revenue Service as required by law. Because Partner Affiliate is an Independent Contractor, Company shall not withhold or make payments for social security, federal, state or any other employee payroll taxes; make unemployment insurance or disability insurance contributions; or obtain worker’s compensation insurance on Partner Affiliate’s behalf. Partner Affiliate is required to submit a W-9 form with Company before receiving any commissions. https://smallpdf.com/blog/w9-form
5.4. In further recognition of the fact that Partner Affiliate is not an employee of Company, Partner Affiliate agrees not to make, and waives and releases any rights to make, any claim Partner Affiliate might have against Company that relates to or arises from any illness or injury Partner Affiliate sustains while performing services pursuant to this Agreement that may arise pursuant to applicable workers’ compensation laws. Partner Affiliate agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid to Partner Affiliate, its agents or employees pursuant to this Agreement. Partner Affiliate hereby agrees to indemnify and defend Company against any and all such taxes or contributions, including penalties and interest. Partner Affiliate is free to enter any contract to provide services to other business entities, except any contract that would induce Partner Affiliate to violate this Agreement.
5.5. Company reserves the right to recruit additional Partner Affiliates as it determines are necessary to promote Company’s business.
- Intellectual Property
6.1. Company acknowledges that the exclusivity and efficacy of the systems used in the delivery of the Service is critical to the value of the Service.
6.2. Company will use reasonable efforts to protect the technology through every legal means available including obtaining patents, copyrights, and non-disclosure agreements with any third party used in the development or operation of the technology.
6.3. Company warrants that it has ownership or authorized licensing of the technology and that the use of the technology does not violate or infringe upon any license, patent, copyright, trade secret, or other proprietary right of any other person or entity known to Company.
6.4 Partner Affiliate acknowledges that Product name, ownership rights, copyright, patents or intellectual property rights of whatever nature related to the Product and Services Set shall remain vested solely in the Company. Partner Affiliate shall not, at any time during or after the expiration or termination of this Agreement, assert or claim any interest in, or do anything that may adversely affect the validity of, the Company's Intellectual Property. Both Partner Affiliate and Company shall at all times retain sole and exclusive right, title and ownership in and to all of its own intellectual property and other Proprietary Materials.
6.5 Partner Affiliate acknowledges that all rights, title, and interest in and to all Company trademarks, service marks, trade names, slogans, labels, and designs [Marks] used in the promotion and distribution of Products, are and shall remain the property of the Company. For purposes of this Agreement, the Company grants a limited license to the Partner Affiliate to refer to and use Company’s Marks, provided that all such references and uses conform exactly to the Company’s associated requirements, which may revise in its sole discretion from time to time.
Partner Affiliate represents and warrants that:
7.1. It has all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder.
7.2. The execution, delivery and performance by the Partner Affiliate of this Agreement and all other agreements contemplated herein, to which the Partner Affiliate is a party, have been duly and validly authorized by all necessary corporate action of the Partner Affiliate.
- Warranty Disclaimer and Indemnification
8.1. Warranty. Except as expressly provided in this Agreement, the Company makes no warranty of any kind, either express or implied, regarding the quality, accuracy, or reliability of the Product. The Company provides the Product “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Partner Affiliate understands, acknowledges, and agrees that it shall use and resell the Product at Partner Affiliate’s sole risk.
8.2. Limitation of Liability. The Company shall be under no liability in respect of any defect arising from willful damage, negligence, abnormal working conditions, failure to follow the Company's instructions (whether verbal or in writing), misuse or alteration of the Product without Company's approval. Any liability of the Company for direct or consequential loss or damage resulting from the Product delivered or the use thereof shall be excluded.
8.3. Indemnification. The Company shall indemnify the Partner Affiliate against all third-party claims of infringement of patents, copyright, moral rights, trademarks or other intellectual property rights (including those arising under any license) arising from lawful exercise of the rights of the Partner Affiliate granted under this Agreement, except from instances when the infringement is attributable to changes in the Product (or any part thereof) performed by the Partner Affiliate.
9.1. For purposes of this Agreement, “Confidential Information” includes, but is not limited to, designs, pricing information, contents of Company database, documents marked “Confidential”, technical and non-technical data, products, compilations, computer programs, devices, methods, techniques, drawings, processes, financial data, lists of actual or potential customers, suppliers or vendors (including the methods used for compiling such lists), trade secrets, training videos and handbooks and other similar information or data of Company unless such information or data has become generally known to and available for use by the public other than as a result of Partner Affiliate’s acts or omissions. Confidential information shall further include any information designated or considered confidential by customers or vendors of Company that is placed in the custody of Company and to which Partner Affiliate has access.
9.2. Partner Affiliate agrees to not, during the Term or at any time after the expiration of the Term, for any reason, directly or indirectly use any Confidential Information for any purpose whatsoever unless authorized by Company; or divulge or disclose such information to any entity, unless authorized in writing by Company, unless compelled to do so by governmental process.
- Termination of Agreement
10.1. If Partner Affiliate materially breaches any of its responsibilities pursuant to this Agreement and does not cure the breach within 30 days of notification of the breach, then the Agreement shall be terminated.
10.2. In the event that either party to this Agreement enters into liquidation, bankruptcy, insolvency (whether compulsory or voluntarily), is no longer able to pay or suspends payment of its debts, enters into an arrangement or composition with its receiver, administrator or administrative receiver appointed over all or a substantial part of its assets, or it ceases or threatens to cease carrying on business, then the Agreement will be terminated for cause.
10.3. Upon termination of this Agreement by Company, Partner Affiliate shall immediately cease representing itself as being a Partner Affiliate to Company or in any way associated with Company. Partner Affiliate's right to sell Company’s products in the Company’s portfolio of services under this Agreement shall terminate automatically upon the termination of this Agreement.
10.4. Upon termination of the Agreement by Company, Partner Affiliate shall forfeit any residual revenue. Company may cancel this Agreement for (a) gross misrepresentation of Company’s products or services and failure to work with Company to rectify the representation; (b) taking actions preparatory to competing with Company, including but not limited to reverse engineering Company products or services; (c) violating Sections 10 or 11 of this Agreement; (c) Soliciting other Partner Affiliates to compete with Company; (d) acting in a manner that intentionally harms Company.
10.5. Company agrees to take the following steps BEFORE terminating Partner Affiliate for Cause as defined above: (1) Company will provide a written and verbal warning including a 30 day notice to fix the problem; (2) if needed, Company will provide additional consulting training and materials to assist the Partner Affiliate with rectifying the misrepresentation. If the problem is still not rectified 30 days after the initial written notice, then Company will have the right to terminate this Agreement and retain any residuals due to Partner Affiliate as compensation for harm caused to the Company.
11.1. Any dispute arising under or in connection with this Agreement shall be settled by final and binding arbitration in accordance with the rules of the American Arbitration Association, such arbitration to be held in Douglas County, Colorado by a single arbitrator selected by the Association. Excluded from this provision are claims that Company has or may have against the Partner Affiliate based upon a violation or threatened violation of his/her obligations pursuant to the Non-compete, Confidentiality or Non-Solicitation provisions above.
11.2. The arbitrator’s decision will be final and binding on both parties as to all claims which were raised or could have been raised and judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction.
11.3. Both parties waive their rights to seek any remedies in court, including the right to a jury trial (this provision shall not apply to injunctive and equitable relief as it relates to any violation of any such non-compete, confidentiality, non-solicitation agreement, or any agreement of like kind.
11.4. The arbitrator’s award shall be written and include findings of ultimate fact and reasoning.
11.5. The arbitrator shall award the prevailing party reasonable attorney’s fees and costs, in addition to any other relief to which the party may be entitled.
- WARRANTY DISCLAIMER
COMPANY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT ITS SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
- Damages Limitation
13.1. IN NO EVENT SHALL COMPANY BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CHARACTER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IT’S TOTAL LIABILITY FOR DAMAGES, COSTS AND EXPENSES, REGARDLESS OF CAUSE, SHALL NOT EXCEED THE TOTAL AMOUNT OF PROFITS EARNED BY IT AS A RESULT OF THIS AGREEMENT.
13.2. FORCE MAJEURE. Company will not be responsible to Partner Affiliate for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, “Force Majeure Event” shall mean: any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes beyond the control of Company. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement. Company shall not be required against its will to adjust any labor or other similar dispute except in accordance with applicable law.
14.1. Non-Compete. Partner Affiliate shall not, directly or indirectly, compete with Company during the term of this Agreement and for at least 1 year from the date of termination of this Agreement.
14.2. Assignment. The rights and obligations of Company under this Agreement shall inure to the benefit of its successors and assigns. Partner Affiliate may not assign his/her/its rights or obligations under this Agreement to any other person or entity without the express written consent of Company.
14.3. Waiver. The waiver by either party of any breach of any provision hereof shall not constitute a waiver by such party of any other or succeeding breach or any provision hereof.
14.4. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of Colorado.
14.5. Venue and Jurisdiction. Consent to Jurisdiction and Forum Selection. The parties hereto agree that all litigation (not arbitration) arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of Douglas, State of Colorado. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in County of Douglas, State of Colorado shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement that is not subject to arbitration. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any litigation against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.
14.6. Unenforceability/Severability. If any provision of this Agreement shall be found to be void or unenforceable, this shall in no way affect any other provision of this Agreement or the validity or enforceability of this Agreement as a whole.
14.7. Entire Agreement. This Agreement, including the attached pricing schedules, constitutes the full and complete understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior agreements between the parties, whether oral or written. This Agreement may be amended, modified or terminated only in writing signed by the parties hereto.
14.8. Authority. The parties acknowledge that they have full power and authority to enter into this Agreement and the execution hereof does not violate the terms or conditions of any other agreement to which they may be Parties.
- Exceptions. Below are listed any exceptions, waivers, or sections, as listed in numerical order, that are edited from the original version above.