The following Affiliate Agreement (“Agreement”) is entered into by and between Joey C. Vitale, LLC (“Company”, “we”, or “us”) and the party signing up to become an affiliate of the Company and/or having an accepted application (“Affiliate” or “You”).
The Company has set up a program for affiliates to promote its products in exchange for a share of the proceeds of any sales (the “Affiliate Program”). Except as modified by a separate agreement governing the promotion of any particular product, the terms of this Agreement apply to your participation in any the Company’s Affiliate Program.
Description of our Affiliate Program
Our Affiliate Program permits you to monetize your website, social media user generated content, or online software application (referred to as your “Site"), by placing on your Site links to our online products or services. The links must properly use the special “tagged" link formats we provide and comply with this Agreement (“Special Links").
When our customers click through the Special Links to purchase an item sold or services offered from the Company’s website or take other actions, you can receive commission fees for qualifying purchases, as further described below.
In order to facilitate your advertisement of these items or services, we may make available to you data, images, text, link formats, widgets, links, marketing content, and other linking tools, application program interfaces, and other information in connection with our Affiliate Program. Such content specifically excludes any data, images, text, or other information or content relating to product offerings on any site other than the Company’s.
The Company will pay any sums due to Affiliate as set forth below via PayPal. Affiliate will be responsible for providing their email address necessary to facilitate the use of the payment method.
Payments will only be made to those who are owed $20.00 USD or greater for the applicable payment period. If an affiliate has not reached the $20.00 USD in a given payment period, the amount will roll over and be paid the following payment period in which the $20.00 USD threshold has been reached.
The Company will pay Affiliate a fee (a “Commission”), for each customer acquired as a result of a customer being referred to the Company using 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 marketing automation system. Affiliates will be paid only for sales that are tracked through the Company’s marketing automation system and indicate the Affiliate Link as the source of the sale. The Company intends to use a 120-day cookie as part of its affiliate tracking.
Affiliate will receive a Commission payment equal to 50% of the gross revenue for each sale attributed to Affiliate using their Affiliate Link unless otherwise noted.
The Company does not allow referrals to be generated on Affiliate’s own purchases.
Affiliate agrees that the Company will 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 will 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.
As the Company has a 30-day money back guarantee, the Company only pays commissions that are older than 30 days.
The Company will pay Commissions on the day of the purchase the following month. For example, commission earned on June 15th will be paid on the 15th day of July. If there is a technological issue with our payment software, you will be promptly notified and the Company will pay out that commission as quickly as possible, likely within one business day.
The Company’s Customers
Our customers are not, by virtue of your participation in the Affiliate Program, your customers. As between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on our websites will apply to those customers and may be changed at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with one of our websites, you will state that those customers must follow contact directions on the Company’s website(s) to address customer service issues.
Referral Cookie Lifetime
When a potential customer clicks on Affiliate’s referral link, a cookie is stored in their browser to track Affiliate's referral. The cookie is then stored for 120 days to give your referred customers time to decide if they wish to purchase or ask us any pre-sale questions they may have.
A referral won’t be awarded if the customer uses a different browser to purchase than the one they originally used to visit our site (because the cookie does not exist in that browser). Nor will a referral be awarded if the customer purchases after 120 days (because the cookie will expire).
Right To Chargeback, Offset, and Holdback
Affiliate agrees that the Company will 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 Affiliate 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 will have the right to charge back the Commission paid to the Affiliate.
Affiliate further agrees that the Company will have the right to offset any Commissions due and payable to the Affiliate to account for any charge backs the Company experiences on sales for which Affiliate has already received a Commission.
Affiliate further agrees that the Company will have the right to hold back up to 20% of the Commissions due (“the Holdback”) 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 Holdback for a period of two consecutive months, the Company will have the right to increase the percentage of commissions held back from Affiliate. The Company will provide written notice of any such increased holdback percentage that will apply to Affiliate.
Representations and Warranties
The Company represents and warrants the following:
- It 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.
- 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 the following:
- 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 the Affiliate Program.
- 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.
Promotional Materials, Limited License, and Intellectual Property
From time to time, the Company may make materials available to Affiliate for use in promoting the Company’s products (“Promotional Material”). The Promotional Material may include the Company’s logos, images of products that are part of the Affiliate Program, display banner advertisements, button links, text links, 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, 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, in emails, and in other promotional activities.
Affiliate may use any such Promotional Material solely for the purpose of promoting the Company’s products 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.
Affiliate will not, directly or indirectly, use for his or her own benefit (other than to fulfill his or her obligations hereunder) or disclose to any third party any Confidential Information (as defined below) of Company without prior, written permission of Company in each instance. Confidential Information means all non-public information of Company, including, without limitation, these Terms and Conditions, sales figures, software passwords, Company list size, list contents, ideas, stories, activities, curriculum, event format, presentation materials, presentation content, inventions, financial information, business plans, business processes, marketing plans, marketing strategies, marketing copy, financial projections, customer lists, customer financial information, personal information of executives, sponsorship strategies, relationships with other vendors, media delivery concepts and systems, including, but not limited to, web-based delivery systems, technical data, software designs, drawings, specifications, models, source code, object code, documentation, diagrams, flowcharts, and other similar information that is proprietary to and confidential information of Company.
This Agreement imposes no obligation of confidentiality on Affiliate with regard to any portion of the Company’s Confidential Information (a) that is generally available to the public at the time of disclosure; (b) that becomes generally available to the public after the Promotion without any breach of this Agreement by Affiliate; or (c) that Affiliate can demonstrate by written records he or she had independently developed without any access to or usage of the Confidential Information.
In the event Affiliate becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), Affiliate shall provide to Company prompt prior written notice of such requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy is not obtained, or that Company waives compliance with the provisions hereof, Affiliate shall furnish only that portion of the Confidential Information which he or she is advised by counsel is legally required to be disclosed, and shall use his or her best efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information. In general, Affiliate may not disclose any financial, personal, or business information about Company or its executives without permission from Company. Such disclosure is grounds for legal action, equitable relief, and termination of this Agreement.
Acceptable And Non-Acceptable Marketing Practices
Affiliate will not promote Company’s products: (1) in conjunction with 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 (7) inside of any Facebook groups managed by the Company.
Links in advertisements from Affiliate must point to Affiliate’s landing pages, not the Company’s, as direct linked ads from affiliates will compete with the Company's advertisements for placement and advertisement serving frequency. If Affiliate is advertising in an entirely different place than the Company, then Affiliate may request for an exemption from this requirement.
Affiliate will not make any claims, guarantees, representations, or warranties about the Company’s products, except as expressly authorized herein or in the Company’s Website
Affiliate further agrees to the following restrictions:
- Competitive brand bidding, where affiliates bid on the Company's competitors’ trademarked terms, is strictly prohibited.
- Affiliate is prohibited from directly competing with the Company on specific media properties and keywords.
- Affiliate may not register domains that contain the Company’s brand and/or typos of the Company’s brand.
- Affiliate will not use evasion tactics to hide affiliate links when the visits are from either the Company or from search engine editorial bots checking on paid ads.
- Affiliate will not use of the Company brand in ad copy text or in the display URL if the Affiliate is prohibited from brand use under this Agreement or otherwise agreed to by the parties.
- Affiliate will not engage in any false advertising or claim that shows the Company or our competitors in a false or misleading light.
- Affiliate will not old invalid offers that have expired.
- Affiliate will not copy the Company’s landing pages. At the Company’s discretion, the Company may supply the Affiliate with advertisement copy or landing page language.
Affiliate News and Updates
Affiliate agrees to receive emails from the Company. These emails will be sent to affiliates only, on an ad-hoc basis, and may include important information regarding the this affiliate program. These emails will also provide you with relevant news and updates to help you effectively promote in accordance with this Agreement. As an affiliate, you may be privy to embargoed or time-sensitive information in these emails (this information may only be promoted after an embargo is lifted). The Company will not spam the Affiliate.
Term and Termination
This Agreement will commence upon the date the Company notifies Affiliate that Affiliate has been accepted into the Affiliate Program and will continue thereafter until terminated as provided in this Agreement.
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 you. In the event of termination, the Company will disable any tracking URLs, links, cookies, pixels, and similar mechanisms for use with the Affiliate Program. Affiliate may terminate this Agreement at any time upon notification to the Company in writing.
Upon termination, Affiliate must immediately cease all use of the Promotional Materials and all of the Company’s intellectual property and will delete all copies of such materials in your possession. Furthermore, Affiliate must immediately cease representing itself as a participant in the Affiliate Program.
Affiliate will be entitled to all validly accrued Commissions that have been earned prior to the termination of this Agreement.
Nature of The Relationship
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
The Affiliate Program, any Promotional Material, and the products and services provided on 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 to absolve the Company of any and all liability or loss that Affiliate or any person or entity associated with Affiliate may suffer or incur as a result of participation in the Affiliate Program and/or any information and resources contained in the Affiliate Program. Affiliate agrees that the Company will not be liable to Affiliate for any type of damages, including direct, indirect, special, incidental, equitable, or consequential loss or damages for participation in the Affiliate Program.
To the maximum extent permitted by applicable law, in no event will the Company be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data, 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. Because some States or other jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to You. If Affiliate is dissatisfied with the Affiliate Program or any portion of it, Affiliate’s sole and exclusive remedy is to terminate Affiliate's participation in the Affiliate Program.
Affiliate expressly waives any and all claims Affiliate may have, now or in the future, arising out of or relating to the Affiliate Program.
To the extent that you attempt to assert any such claim, Affiliate hereby expressly agrees to present such claim only through binding arbitration to occur in Chicago, Illinois. Affiliate further agrees to waive any right to class arbitration and agrees, instead, to conduct an arbitration related solely to any individual claims Affiliate and/or any entity related to Affiliate asserts against the Company. To the fullest extent permissible by law, Affiliate further agrees that Affiliate will be responsible for all costs associated with initiating the arbitration and for the administration of the arbitration.
Affiliate expressly waives any and all claims Affiliate may have, now or in the future, arising out of or relating to the Affiliate Program. To the extent that Affiliate attempts to assert any such claim, Affiliate expressly agrees to present such claim only in the state or federal courts that are geographically nearest to Chicago, Illinois.
Choice of Law
This Agreement shall be governed by and interpreted under the laws of Illinois, without
regard to any conflict of laws provisions.
You agree to indemnify, defend, and hold harmless the Company, its officers, directors,
employees, agents, and third parties for any losses, costs, liabilities, and expenses (including reasonable attorneys’ 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, and (c) any claims related to any promotional media created by Affiliate (excluding claims related to any Promotional Material provided by the Company).
The Company agrees to indemnify, defend, and hold harmless Affiliate, its officers, directors, employees, agents, and third parties for any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of an allegation that the Company does not have the right to provide the Promotional Material or that the Promotional Materials violate a third-party’s rights.
The Company may modify this Agreement at any time by providing Affiliate with notification of the proposed changes by email at Affiliate’s email address, but 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 ten (10) business days after such notice.
If the proposed modifications are unacceptable to you, you may terminate this agreement pursuant to the Termination clause above. Continued participation in the program will constitute your acceptance of and agreement to the modification to this Agreement.
This Agreement constitutes the entire agreement between Affiliate and the Company with respect to the Affiliate Program, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between You and the Company with respect to the Affiliate Program. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver of this Agreement, nor will any single or partial exercise of any right, remedy, power, or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
The Company will not be liable or responsible to Affiliate, 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.