AFFILIATE AGREEMENT
To be an authorized affiliate of 2209453 Ontario INC, you agree to abide by the terms and conditions contained in this agreement.
Please read this agreement carefully before registering and using the Limitless Abundance service as an affiliate. By signing up for the 2209453 Ontario INC affiliate program, you indicate your acceptance of this agreement and its terms and conditions.
This Independent Marketing Affiliate Agreement From Company (2209453 Ontario INC) and The Affiliate (You)
Whereas Company desires to engage independent marketing affiliates to market the products of Company, and Affiliate desires to engage in such services, Affiliate and Company (also referred to herein as “Party” in the singular and “Parties” in the plural) desire to define the terms and conditions applicable to Affiliate’s performance of such services. Company and Affiliate agree as follows:
1. Length of Agreement. The parties agree this Agreement will automatically renew for periods of one (1) year unless otherwise terminated by either party.
2. Enrolment. The parties agree to the enrolment of Affiliate under this Agreement as follows:
A. Affiliate desires to enrol as one of Company's independent marketing affiliates to market product (“Products”) on behalf of Company.
B. Affiliate understands and agrees that this Agreement has no force or effect until Company accepts Affiliate by notice to Affiliate.
C. Affiliate understands and agrees that Company may reject Affiliate’s enrolment for any or no reason and that Company is not obligated in any way to provide a reason for rejection to Affiliate.
D. Affiliate understands that should Company accept Affiliate, Affiliate’s relationship with Company is nonexclusive and Company may engage other independent marketing affiliates at Company’s sole discretion.
3. Responsibilities of Affiliate. Affiliate will satisfy the following responsibilities at all times during the term of this Agreement:
A. Affiliate will use best efforts to provide services in a manner consistent with the standards generally observed by a professional in the industry to which such performed services can be classified in accordance with the terms and conditions set forth.
B. Affiliate will behave in a manner consistent with the high image, reputation, and credibility of Company and Company’s Products, and will not engage in activities that adversely reflect on Company or Products.
C. While Affiliate may make simple endorsements of Company Products, Affiliate will not make any fact assertions or other representations regarding Company Products.
D. Affiliate will strictly follow the guidelines as provided by the Company on marketing of Company Products. Company will provide basic promotional materials to Affiliate at no cost. Affiliate will only use these promotional materials, and may not modify them in any way without Company’s written consent. If Affiliate wishes to purchase additional promotional materials from Company, Affiliate may do so strictly at Affiliate’s expense. Affiliate may place promotional materials within Affiliate’s place of business in a conspicuous area of Affiliate’s choosing. Affiliate will at all times honour the trade names, trademarks, and copyrights existing in these promotional materials.
E. If Affiliate has an Internet presence, Affiliate may link to Company’s website via Internet link methods or by email. To provide such link Affiliate will follow all instructions as found on Company’s website to properly receive credit for referrals originating from Affiliate’s website or email. Affiliate will be allowed to place a short description or endorsement of Company Products on Affiliate’s website or in an email. Affiliate may add or remove Internet links or emails at any time without prior notice to Company subject to the other provisions of this Agreement. Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate’s website, all materials that appear on such website, and installation of Company Internet links. Affiliate agrees not to advertise Company Products on websites that promote sexually explicit material, violence, pirated materials, discrimination based on race, sex, religion, national origin, physical disability, or illegal activities. Affiliate may only include a Company Internet link in emails opted-in by the end recipient; Affiliate will not send Company Internet links through any form of bulk mail or Internet spam. Affiliate will not provide Company Internet links to any third party.
F. Affiliate will comply with all applicable federal, state, and local laws in performance of Affiliate’s duties under this Agreement.
4. Scope and Limitations of Affiliate's Authority. The parties agree as follows with regards to the scope and limitations of Affiliate’s authority under this Agreement:
A. Affiliate will market Company Products in the geographic territory and industry segment designated on Exhibit A (“Territory"). Affiliate will not market Company Products in any other geographic territory or industry segment without prior consent of Company. Company will have the right to change the scope of the Territory from time to time at its sole discretion. In any such instance Company will issue a new Exhibit A to Affiliate reflecting such change, which will supersede the prior Exhibit A from the effective date stated on it. Affiliate acknowledges and agrees that he neither has, nor will acquire any vested or proprietary right or interest with respect to the Territory, any Company customers on the Territory, or any Company customer lists. Affiliate agrees that any goodwill accruing in the Territory during the term of this Agreement with respect to Company or Company Products will be considered the property of Company rather than Affiliate.
B. Affiliate has no authority to solicit or otherwise accept orders on behalf of Company. Affiliate will have no right or authority to obligate Company to sell Products to any party.
C. Affiliate will have no authority to discuss or otherwise modify any such prices, credit terms, sales programs, or other terms or conditions of sale, to authorize any customer to return Products to Company for credit, or to obligate or bind Company in any other manner.
D. Affiliate will at no time engage in any unfair trade practices with respect to Company or Products, and will make no false or misleading representations with respect to Company or Products. Affiliate will refrain from communicating any information on guarantees or warranties regarding Products, except ones authorized by Company or set forth in Company's literature or other promotional materials.
E. Affiliate will have no authority to receive payments or otherwise make collections from any party on Company’s behalf.
5. Compensation. The parties agree as follows with regards to the Compensation paid to Affiliate under this Agreement:
A. The sole and exclusive compensation to be paid by Company to Affiliate in consideration for all services rendered by Affiliate as an independent marketing affiliate for Company will be Compensation Schedule as identified in Exhibit B which explains amounts and payment dates. Company will have the right to modify this percentage in whole or in part from time to time at its sole discretion. In any such instance Company will notify Affiliate within thirty (30) days of such change.
B. Affiliate will receive no compensation under any circumstances with respect to i) any unaccepted orders, ii) any orders received after termination of this Agreement, and iii) any orders shipped or downloaded after thirty (30) days after termination of this Agreement.
C. Company will issue Affiliate periodic statements reflecting the status of Affiliate's Compensation account. If Affiliate has objections to any such statement, its accuracy, completeness, or any other matter, Affiliate will make such objection(s) known to Company in writing within thirty (30) days after the date of the statement. IF AFFILIATE DOES NOT PROVIDE OBJECTION WITHIN THE THIRTY (30) DAY PERIOD, SUCH OBJECTIONS WILL BE DEEMED WAIVED AND ABANDONED.
D. Notwithstanding anything contained in this Section, any Compensation otherwise earned and due to Affiliate as of the termination of this Agreement or thereafter may be withheld by Company and will become due, if at all, only after a final reconciliation is performed by Company. Company will conduct such reconciliation within sixty (60) days after the termination date of this Agreement ("Reconciliation Date"). In lieu of withholding the entire amount of such Compensation Company may at its option withhold only that portion as Company deems necessary for its financial protection. Company will debit Affiliate's Compensation account on the Reconciliation Date for the Compensation allocable to any outstanding invoices applicable to customers received through Affiliate, which Company believes are not collectable or in jeopardy of nonpayment. If the debits allocable to such invoices together with any other debits not previously offset against Compensation do not exceed the amount of any remaining Compensation otherwise payable to Affiliate, the difference between the remaining Compensation and the outstanding debits will be considered earned and due, and will be paid by Company to Affiliate. If all outstanding debits exceed the remaining Compensation, no additional Compensation will be considered earned and due, and Affiliate will be required to pay Company the difference between such outstanding debits and the remaining Compensation upon receipt of Company's statement. After the Reconciliation Date no additional Compensation will become earned and due to Affiliate, and Company will not be entitled to issue any additional debits against Affiliate's Compensation account.
6. Ownership of Work Product, Employees, Warranty and Indemnification. The parties hereto agree that all intellectual property rights in any ideas, modifications to Company promotional materials, and other deliverables that result from the services performed by Affiliate pursuant to this Agreement (“Work Product”) are considered to be a “work for hire” and will be exclusively vested in Company and/or automatically assigned to Company. Affiliate agrees to promptly execute any documents necessary for Company to perfect its rights in such Work Product. Additionally, Affiliate warrants that the Work Product of all services performed by Affiliate for Company will be original, that s/he has the right to assign ownership of any/all intellectual property rights in such Work Product to Company, and that s/he will perform all services in a good, professional, and workmanlike manner in accordance with industry standards. Affiliate agrees that s/he will ensure that his/her employees performing work under this Agreement comply with this Agreement. The terms of this Section will outlive the termination and/or expiration of this Agreement. Affiliate’s obligations pursuant to this section will outlive the termination/expiration of this Agreement.
7. Taxes. Affiliate will be responsible for payment of all employment and income taxes relating to Affiliate’s services under this Agreement. Should Company have to make any such payment of employment and income taxes on behalf of Affiliate, Affiliate will repay such amounts to Company including any interest and penalties assessed to Company.
8. Limitation of Liability and Exclusion of Certain Remedies. Affiliate understands that Company provides the programs offered under this Agreement on an as is basis and makes no warranty with regards to these programs and their effect on Affiliate’s income and business. Under no circumstance, regardless of the basis of the claim, will the total liability of Company to Affiliate exceed the total amount of completed sales from Affiliate within the last calendar month. In no event will Company be liable to Affiliate for consequential, special, incidental, or punitive damages (including, but not limited to legal costs and fees) from any claim asserted against Company or by any third party through any party to this Agreement. The terms and provisions of this section will outlive the termination and/or expiration of this Agreement.
9. Confidentiality. During the period in which Affiliate is providing services for Company and indefinitely thereafter Affiliate will keep secret and retain in strictest confidence and not pass, make available, or disclose to any third party or use for his/her benefit (except as necessary to fulfill the purposes of this Agreement and/or a Services Schedule(s) attached hereto) or any third party, any Confidential Information of Company without Company's prior consent. As used herein, “Confidential Information” will mean any information relating to business or affairs of Company, including the Company, company products, work products, information relating to financial statements, business strategies and plans, customer identities, customer accounts, potential customers, employees, suppliers, servicing methods, equipment, programs, style and design strategies and information, analyses, profit margins, or other proprietary information used by Company in connection with its business. If Affiliate is an entity, it will make sure that the Confidential Information is disclosed only to those of its employees whose functions require that they obtain access to the Confidential Information to carry out the purpose of this Agreement, who have been informed of the confidential nature and obligations of Affiliate with respect to the Confidential Information and who are subject to a general written agreement committing such employees to conduct that would not violate Affiliate’s obligations listed in this Section with respect to such Confidential Information. Affiliate’s obligations pursuant to this section will outlive the termination of this Agreement.
10. Noncompetition. Competitor, for the purpose of this Section, will mean any direct competitor of Company operating in a similar manner and venue. During the term of this Agreement Affiliate agrees not to provide nor assist anyone and/or any entity(ies) in providing the same and/or substantially similar services to Company’s competitor. For a period of 2 years after the termination of this Agreement Affiliate understands and agrees that Affiliate will not induce any customers of Company directly or indirectly through use of third parties such as employers and agents, to leave Company’s business. Any such act by Affiliate will subject Affiliate and any such third parties to possible civil liability.
11. Termination. Notwithstanding anything to the contrary in this Agreement or any Exhibits Company may terminate this Agreement and related Exhibits without any obligation for any services that have not been rendered by Affiliate as of the date of notice of termination, upon fifteen (15) days’ notice via e-mail, facsimile, or hand delivery. Upon such notice of termination Affiliate will immediately cease working and return all Work Product, Company promotional materials, and any Confidential Information in Affiliate’s possession (“Termination Obligations”) to Company and certify to Company in writing that it has performed its termination obligations. Affiliate’s obligations pursuant to this Section will outlive the termination/expiration of this Agreement and any/all Services Schedules.
12. Solicitation. During the term for this Agreement and for a period of two (2) years after termination of this Agreement Affiliate will not hire, solicit, induce, or assist any third party in soliciting or inducing any employee, contractor, or other affiliates of Company to leave his or her employment or cease providing services to Company.
13. No Other Relationship or Interest. The Parties agree that this Agreement does not create any other relationship or legal interest between the Parties, including, but not limited to employer/employee relationship, license, title, guarantee of work, or right to use any Confidential Information, except as specified by this Agreement.
14. Arbitration. In the event the Parties cannot amicably resolve a dispute or damage claim resulting from this Agreement the Parties agree to resolve any dispute or damage claim by arbitration. The arbitration proceeding will be conducted in the city of of Toronto, and province of Ontario in accordance with the rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of the parties. If the Parties cannot agree on an arbitrator, the American Arbitration Association will select an arbitrator from the National Panel of Arbitrators. The laws of the Province Of Ontario will apply to the arbitration proceedings. The Parties agree that the arbitrator cannot award punitive damages to either party and agree to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
15. Disputes and Governing Law. The laws of the Province Of Ontario in Canada without regard to any conflict of law principles govern this Agreement. No action arising out of the transactions under this Agreement may be brought on by either party more than one year after the cause of action has accrued.
16. Limitations on Assignment. Affiliate may not assign, transfer, or sell all or any of his/her rights under this Agreement or delegate all or any of his/her obligations hereunder without the prior written consent of Company. Company may assign this Agreement to a parent, subsidiary, affiliated firm, or another entity in connection with the sale or other transfer of all or substantially all of its business assets. Subject to these restrictions the provisions of this Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
17. General. This Agreement and all Exhibits constitute the entire agreement between the parties in connection with the subject matter hereof and supersede all agreements, proposals, representations, and other oral or written understandings of the Parties and any current or subsequent purchase order(s) provided by Affiliate. No alteration or modification of this Agreement or any Exhibits will be valid unless made in writing and signed by an authorized representative of each Party. The waiver by either Party of a breach of any provision of the Agreement will not operate or be construed as a waiver of any subsequent breach. Any waiver must be in writing and signed by an authorized representative of the Parties hereto. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in effect. Any notice or other communication required or permitted hereunder will be given in writing to the other Party at the address stated above, or at an address given by either party in writing. Any terms of this Agreement which by their nature extend beyond its termination remain in effect until fulfilled and apply to respective successors and rightful assignees.
Affiliate acknowledges their application to become an Affiliate of Company by stating Affiliate’s signature, name, title, and date below. Affiliate understands and agrees that this Agreement has no force and effect until Affiliate is notified by Company of Affiliate’s acceptance and that Affiliate’s signature below is strictly to signify that Affiliate agrees with the provisions of this Agreement and desires to become bound by it.
18. This affiliate program is open to ONLY Members of www.DavidMcGrawMember.com unless otherwise stated in writing. If Affiliate Cancels Membership or Membership is canceled due to non-payment with www.DavidMcGrawMember.com then Affiliate Relationship will terminate including future affiliate earnings and commissions.
This Exhibit is subject to the Independent Marketing Affiliate Agreement between Company and Affiliate and is incorporated by reference to it.
Affiliate is authorized to only market Company Products from their physical place of business.
OR
Affiliate is authorized to only market Company Products from their website [URL].
Exhibit B – Compensation Schedule
This Exhibit is subject to the Independent Marketing Affiliate Agreement between Company and Affiliate and is incorporated by reference to it.
• Brochure Based Sales
o In the event that Affiliate markets to customers for Company via a brochure or written method, Affiliate will receive an Affiliate Promotion Code (APC). This APC is used to link the sale of Company Products with the Affiliate. If the consumer fails to provide an APC or provides an APC that does not link the sale to the Affiliate, the Affiliate will not be entitled to compensation for that sale. The consumer can provide the APC through the quoting process on the Company website or by speaking to a Company sales agent.
o The consumer promotion offered as part of the APC is determined solely at the discretion of Company. Affiliate may request to use the Affiliate Gift Card Program (described below), but Affiliate’s ability to use this Affiliate Gift Card Program is strictly limited to Company’s sole discretion.
• Internet Link Sales
o In the event that Affiliate markets to customers for Company via an Internet Link, Affiliate will receive an Affiliate Internet Identifier (AII). This AII is used to link the sale of Company Products with the Affiliate by use of an Internet Link. If Affiliate fails to provide the Internet Link or incorrectly configures the Internet Link on Affiliate’s website or in emails, Affiliate will not be entitled to compensation for resulting improperly identified sales.
o In order for Affiliate to be associated with the sale the consumer must follow the Internet Link as provided by Associate and complete an order on the Company website within the same web-browsing session. If the consumer exits the Company website without first completing an order and later returns to do so, Affiliate will not be entitled to compensation for such sales.
o Upon entering the Company website all visitors will have a cookie placed on their computer (a small text file) to track any purchases made by the visitor. In order for Affiliate to be associated with the sale the visitor must purchase from the Company website within 30 days of entering the site. Only visitors who accept cookies can be tracked for referral fees. Affiliate understands that no compensation can be paid for any purchase made by a visitor who does not accept "cookies" or who has deleted our "cookies" from their computer during the 30-day period.
• All payments will be made in US dollars. Affiliate will receive a monthly Compensation Statement reflecting any payments due to Affiliate only if there is compensation due to Affiliate. Affiliate will be compensated according to a tiered schedule based upon the number of completed monthly orders. The number of completed monthly orders determines the percentage that Affiliate will receive as applied to the total sales price of the completed orders that were referred by the Affiliate. Affiliate will receive a percentage for each completed sale consisting of 30% minus any taxes, shipping, mailing, or handling charges.
• The Affiliate is entitled only to compensation on a recurring basis as long as the account remains active. Affiliate is not entitled to compensation for any other sales, including but not limited to renewals, after sale referrals, etc.
o Affiliate will not receive any compensation for a given order until after sixty (60) days after that order. If the order is cancelled within this 60-day period, the Affiliate will not be entitled to commission. If the order is cancelled after this 60-day period, Company reserves the right to deduct any compensation paid to Affiliate for such order. Company will not include an order on the Affiliate’s Compensation Statement until after this 60-day period.
o Company normally processes Compensation Statements at the beginning of each calendar month and will normally release any payments due by the 15th of each calendar month. Company may change the processing date of Compensation Statements as well as payment release dates at Company’s sole discretion and without notice to Affiliate.
o Affiliate will usually receive payment on a sale within one hundred twenty (120) days of contract issuance. The following example is a worst-case scenario: If Affiliate is credited with the sale of a contract issued on 1/1/2018, the 60-day cancellation/refund period finishes on 3/2/18. The Affiliate’s compensation statement is then generated on 4/1/18. The Affiliate has elected to be paid by check, and the check is mailed on 4/15/18. The Reseller then receives his/her check on 4/30/18.
o It is Affiliate’s sole responsibility to keep Company updated on any information pertaining to Affiliate’s receipt of compensation (i.e. EFT info, mailing address, etc.).