This agreement (the “Agreement”) is made between TextingBase, Inc. (the “Company”), and the (“Affiliate”), and collectively, the (“Parties”) for participation in the Company’s affiliate program.
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Promotional Materials. Company shall make available to Affiliate certain button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). If Affiliate chooses to display the Promotional Materials on Affiliate’s website, it shall do so prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, as specified by Company.
2. 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:
a. Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
b. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products and services available thereon), and for linking to Company’s website.
c. 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.
d. The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.
3. License. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to sign up customers for the Company and use any provided 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.
Affiliate hereby grants to Texting Base, Inc. during the Term, a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between their respective sites and to use Affiliate trade names, logos, trademarks and service marks (the "Affiliate Marks") solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform the obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the Affiliate Marks will be subject to Affiliate’s written approval.
4. Intellectual Property. Company retains all right, ownership, and interest in the Company’s platform, name, technology, and in any copyright, trademark, patent or any and all other intellectual property in the Company. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Company, or in the underlying intellectual property, other than the rights to use the Company’s name and any promotional materials granted under the License, as set forth in Section 3.
5. 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. In exchange for Affiliate’s signing up of customers, 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.”) Affilate’s commission shall be twenty percent (20%) of the gross revenue generated by an individual account brought on by Affilate’s exclusive efforts. Affilate’s commission shall be five percent (5%) of the gross revenue generated by any account for which the pricing is at or below two (2) cents per text message. Commission will be based on the subscriptions sold by Affiliate exclusively through Affiliate’s efforts.
b. 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. 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 20 days of discovering such discrepancy.
c. Commissions are held for a period of 1 month from any purchase of Company’s service to protect Company in the event of any chargeback that may occur. Company shall pay all Commissions accrued and payable to Affiliate within ten (10) days of the first day of each month (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $100.00, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month. Payment is made via the Affiliate PayPal account or other payment service of Texting Base’s choosing. All fees associated or incurred as a result of the Affiliate’s customers shall be attributed solely to the Affiliate.
d. 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.
7. Affiliate’s Representations and Warranties. Affiliate represents and warrants the following:
a. 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.
b. Affiliate will use and abide by Company’s Terms and Conditions. In addition, Affiliate’s website or Individual Affiliate does not contain or promote any materials that are:
i. Sexually explicit, obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent, including any violent video game images; or
iv. Solicitous of any unlawful behavior
c. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Affiliate’s website or the affiliate individually does not infringe 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.
d. Affiliate will not use the Company’s name or services in any manner other than those set forth in Section 2 above.
e. Affiliate will not make any claim to ownership of the Company, or of the copyright, trademark, or other intellectual property therein.
f. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference Company or Company’s website 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 website or individually, in its promotional materials, or in any other context except to promote Company’s website 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.
g. Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company’s website.
8. FTC Endorsement Compliance
It is the intent of Texting Base, Inc. to treat its customers and fairly and to comply fully with all Federal Trade Commissions regulations related to advertising, text messaging, and marketing communication in general. As such, Texting Base, Inc. requires its affiliates to comply with all applicable governmental regulations, including but not limited to, the Telephone Consumer Protection Act (“TCPA”) as it is in effect at any applicable time.
Affiliate is advised to seek and obtain its own legal advice on how these rules apply to its website or other promotional activities for which Affiliate receives compensation.
Texting Base, Inc. reserves the right to withhold commission fees and cancel the affiliate relationship with Affiliate should it determine, at its discretion, that Affiliate is not in compliance with the previously mentioned guide or other FTC regulations/guides it deems relevant.
9. 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 Company’s name and/or services.
10. 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.
a. This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 11.
b. Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination. However, Affiliate shall remain bound by the Confidentiality agreement and agrees not to engage in any activity that infringes upon the Company’s goal and/or technological business model for a period of two (2) years. A breach of the covenant in this paragraph 10(b) shall render Affiliate responsible for damages, fees and any costs incurred by Company as a result of said breach.
c. In the event Affiliate has not signed up any new accounts for a period of twelve (12) months, this Agreement will be deemed terminated at the conclusion of the twelfth month and no further commissions will be owed to Affiliate.
12. 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.
13. 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 Company’s name or services, any costs associated with any and all claims, demands, suits at law or equity, and all expenses including attorneys' fees, involving infringement or alleged infringement of any patent, trademark, or copyright resulting or other performance of services under this Agreement.
TEXTING BASE, INC. SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
15. Severability. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
16. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
17. ARBITRATION. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. Information about the American Arbitration Association, and how to commence arbitration before it, is available atwww.adr.org or by calling 1-800-778-7879. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties.
All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served.
The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law.
18. Entire Agreement. This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.