eSilverBullet Affiliate/Referral Agreement
Scope of Agreement:
This Affiliate/Referral Agreement ("Agreement") is between
eSilverBullet, Inc. ("Company') and you (either an individual or a
legal entity that you represent as an
authorized employee or agent) ("Affiliate").
BY CLICKING THE "I ACCEPT" BUTTON, PLACING AN AFFILIATE LINK OR
BANNER AD ON YOUR SITE OR IN AN EMAIL, AND/OR SENDING A REFERRAL FROM
WITHIN THE ESILVERBULLET APPLICATION (OR BY ANOTHER METHOD AS MAY BE
DESIGNATED BY THE COMPANY), YOU AGREE THAT YOU HAVE READ, UNDERSTAND
AND AGREE TO BE BOUND BY ALL OF
THE TERMS, POLICIES
AND CONDITIONS OF THIS AGREEMENT, AS THEY MAY BE MODIFIED FROM TIME TO
TIME.
Recitals:
A. Whereas Company sells a variety of products, including (but not
limited to) eSB Connector, eSB Composite, eSB Interact, eSB Builder,
eSB Lister, eSB Research and eSB Learn Depot (the "Products"),
B. Affiliate resides in the United States and desires to generate
sales for Company by referring its Products, and
C. Company wishes to compensate Affiliate, based on the terms and
conditions herein, for the sale of any Products sold as a result of
Affiliate's referrals,
Definitions:
"eSB Connector" is a software tool for contact management and email
marketing.
"eSB Composite" is a software tool for aggregating affiliate tracking
statistics.
"eSB Interact" is online chat software.
"eSB Builder" is a website building tool and eCommerce platform.
"eSB Lister" is an eBay listing tool.
"eSB Research" is an eBay research tool.
"eSB Learn Depot" is a suite of online marketing courses.
Agreement:
Now, therefore, in consideration of the above and of the mutual
agreements herein, Company and Affiliate agree as follows:
1. Appointment of Broker. Company hereby appoints Affiliate
as its broker for the sale of the Products.
2. Terms of Sale. All solicitation of sales by Affiliate and
all orders taken will be based on Company's then current prices, terms
and conditions, specifications and other conditions.
3. Order Processing.
a. All orders taken for Company's Products will be at prices and
terms in accordance with the applicable price list and policies
established by Company, which prices, terms and policies may be changed
from time to time in the sole and absolute discretion of Company.
b. Company is not required to accept any order or contract obtained
by Affiliate, but will make a determination whether to accept an order
or contract based solely on its own business judgment. Company assumes
all risk of non-payment by the customer ("Customer").
4. Agreements of Affiliate. Affiliate agrees:
a. To use its best efforts to pursue and promote the sale of the
Products;
b. To not offer any promotions, deals or
allowances or negotiate or adjust prices, invoices or credits, or
utilize any materials in the promotion or sale of the Products other
than those approved by Company; and,
c. To comply with all applicable federal, state and local laws and
regulations in its performance hereunder.
5. Agreements of Company. Company agrees:
a. To make commercially reasonable efforts to supply the requirements
of the Products of customers solicited by Affiliate. Company reserves
the right to make changes to add items or to delete items from the list
of Products without Affiliate's consent;
b. To keep Affiliate informed of all sales and promotional policies
and programs affecting the Products sold in the territory;
c. To provide Affiliate with reasonable amounts of such sales
literature, affiliate links, email templates, banner ads and other
promotional items as Company has prepared for the Products;
d. To provide access to Affiliate's tracking statistics to enable
Affiliate to reconcile amounts owed to it under this Agreement
including detail regarding offsets, charge-backs, and refunds where
applicable.
6. Expenses. Affiliate will be responsible for its own expenses
incurred in connection with this Agreement.
7. Commissions.
a. Commissions will be paid in U.S. dollars to Affiliate for all sales
of Products sold within one hundred eighty (180) days of Customer
clicking
through affiliate links. The commissions paid to Affiliate will be as
follows:
- A total of twenty (20) percent of the gross sales originated by
Affiliate, and twenty (20) percent of any additional sales where
Customer upsells itself, for the first twelve (12)
months that Customer pays for Products, paid to Affiliate in monthly
installments.
- Company will pay commissions to Affiliate once a month, based on
what Customer was invoiced and paid.
- Company will pay no commissions after twelve months.
8. Agency.
Affiliate is an independent broker and not an agent, partner or
employee of Company, and it will not represent itself as having any
authority to incur or release obligations or otherwise to bind Company
in any way without the prior express instructions of the Company. The
businesses of each party will, in all events, be operated separate and
apart from each other. The employees of Affiliate performing service
hereunder shall not receive any compensation or other benefits from
Company. Affiliate shall solely be responsible for withholding taxes
and other payroll deductions required for any of its employees.
Affiliate is solely responsible for any taxes and regulations as a
result of commissions earned from Company.
9. Confidentiality.
a. Each party hereto acknowledges that, by reason of the relationship
created hereunder from time to time it will have access to certain
confidential and proprietary information and systems of the other which
is generally not available to or known by the public, in which each
party has a legitimate protectable interest, and which has particular
value to the parties the disclosure of which could be harmful to each
party’s interests (the "Confidential Information"). Confidential and
proprietary information includes, without limitation, any and all
information, whether disclosed in writing or orally, by either party
and/or any other information or systems relating to either party, which
is of a private or proprietary nature, or character. Such Confidential
Information may include, but is not limited to either party’s
proprietary computer software and its sales planning and execution
processes, information and/or knowledge regarding Products, processes,
techniques, trade secrets, strategies and programs, financial data,
vendor and customer relationships, methods of operation and other
information or materials in any form proprietary to either party.
b. Each party hereto covenants and agrees, for itself and its
employees, officers and agents, that both during and after the Term of
this Agreement, it will: (i) not disclose any Confidential Information
to any person or business entity without the express prior written
authorization of the other party; and (ii) not use or allow third
parties to use any Confidential Information for any purpose other than
in connection with the performance of the Products hereunder. Each
party hereto acknowledges and agrees that all such Confidential
Information is and will remain the property of the consenting party and
will be returned to that party immediately upon demand.
c. Each party hereto acknowledges and agrees that any improper use
or disclosure by it of any part or all of the Confidential Information
may cause the other party economic damage and competitive disadvantage,
thereby entitling the damaged party to maintain an action at law to
recover such losses and pursue any other available remedies. Each party
hereto further acknowledges and agrees that the improper use or
disclosure of any part or all of the Confidential Information could
cause the other party injury for which there may not be an adequate
remedy at law. Therefore, in the event of any such breach, the injured
party may be entitled, in addition to any other remedies which it may
have hereunder, or at law or in equity, to a temporary and/or permanent
injunction.
10. Dispute resolution.
a. Negotiations. The parties agree that they will attempt in good faith
to resolve any controversy, claim, dispute or question between them
arising out of or relating to this Agreement, including the
construction or application of this Agreement, promptly by negotiations
between the parties by meeting at least once to resolve the matter.
Either of these Affiliates may request the other to meet within
fourteen (14) days, at a mutually agreed time and place.
b. Mediation. If the matter has not been resolved within thirty (30)
days through negotiations, the controversy or claim shall be submitted
to non-binding mediation by a mediator agreed to by the parties from
among names of mediators furnished by JAMS or American Arbitration
Association. Each party will pay one-half the mediator's fee. The
mediation shall occur in Weber County, Utah.
c. Litigation. In the event that differences concerning matters
covered by this Agreement arise that are not resolved by mutual
agreement via negotiations or mediation as described above within sixty
(60) days, the parties agree that any action or proceeding arising out
of or relating to this Agreement shall be heard and decided by a
non-jury bench trial in Weber County, Utah, each party hereto
irrevocably submits to the jurisdiction of the state and federal courts
located in Weber County, Utah and each party hereby irrevocably agrees
that all claims in respect of any such action or proceeding must be
brought and/or defended in such court; provided, however, that matters
which are under the exclusive jurisdiction of the federal courts shall
be brought in the Federal District Court for the District of Utah.
11. Governing Law. The provisions of this Agreement shall be
governed by and construed in accordance with the laws of the State of
Utah (excluding any conflict of law rule or principle that would refer
to the laws of another jurisdiction). EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING ARISING HEREUNDER.
12. Term and Termination.
a. The initial term of this Agreement shall be for a period of one (1)
year (the "Initial Term"), at which time the Agreement shall
automatically renew for additional periods of twelve (12) months (each
a "Renewal Term" and collectively the "Renewal Terms") (the Initial
Term and the Renewal Term (s), if any, shall hereinafter collectively
be referred to as the "Term"), unless earlier terminated as provided
herein. The terms and conditions of this Agreement shall apply during
each Renewal Term unless the parties agree otherwise in writing.
b. Either party may terminate this Agreement at any time and for any
reason. In the event of any termination, Company shall continue to pay
Affiliate for any commissions earned, until the last month that
commissions are due.
13. Indemnification.
a. Each party hereto will indemnify, defend and hold the other party
hereto, its officers, directors, agents, and employees and affiliates,
harmless from and against any and all liability, loss, damage, cost or
expense, including reasonable attorney's fees, which may at any time be
incurred by reason of any claim, suit or action arising as a direct
result out of (i) any act or omission to act by the indemnifying party
as provided in this Agreement, or the indemnifying party’s employees,
subcontractors, agents or affiliates; or (ii) a breach of any material
representation, warranty or covenant of the indemnifying party or the
indemnifying party’s employees, subcontractors, agents or affiliates.
b. Company will indemnify and hold Affiliate harmless from any
claims relating directly to (a) Products liability; and (b) claims of
trademark, patent, and copyright infringement arising out of
Affiliate's use of Company's (or its licensors') trademarks, patents
and copyrights. With Company's prior written approval, Affiliate may
use Company's trademarks and trade names to promote and solicit sales
of Products. Affiliate shall not adopt or use such trademarks or trade
names, or any confusingly similar word or symbol, as part of its name
or allow such marks or names to be used by others.
c. Affiliate will indemnify and hold Company harmless from any
claims relating to claims of trademark, patent, and copyright
infringement arising out of Company's use of Affiliate (or its
licensors') trademarks, patents and copyrights.
d. The indemnified party will give the indemnifying party prompt
written notice of any claim, suit or action, and the indemnifying party
will be given the opportunity to control the defense of such lawsuit
and the indemnified party will cooperate fully in the defense of such
lawsuit.
14. Intellectual Property. Nothing in this Agreement will be
construed as giving either party hereto any right, title or interest in
or to any trademarks, copyrights or other intellectual property rights
of the other party, except as expressly authorized by such party.
Neither party will, except as authorized in writing by the authorizing
party, use the other party’s trademarks, copyrights or other
proprietary information or systems.
15. Entire Agreement. This Agreement represents the entire
understanding between Affiliate and Company, as to the subject matter
hereof, all matters covered, and supersedes all prior agreements
between the parties, whether written or oral, with respect to the
subject matter hereof. In addition, the parties agree that upon
execution of this Agreement by Affiliate and Company that all other
agreements previously entered into shall hereby terminate and be of no
further force and effect. The provisions of this Agreement cannot be
amended, modified, supplemented or waived in any way except in writing
signed by both parties. The provisions of this Agreement cannot be
amended, modified, supplemented or waived in any way, except as noted
in Section 18 below.
16. Notices. All notices from Affiliate to Company should be
sent certified mail to:
eSilverBullet
Attn: Affiliate Correspondence
2036 Lincoln Ave
Suite 104
Ogden, UT 84401
Attention: Brian Burnett
Email: info@esilverbullet.com
17. Assignability. This Agreement may not be assigned or
transferred by either party hereto without the written consent of both
parties, such consent not to be unreasonably withheld or delayed.
Notwithstanding the foregoing, Company shall be free to assign this
Agreement to any of its current or future parent companies,
subsidiaries or affiliates. Each party has caused this
Agreement to be properly executed on its behalf as of the date of
acceptance by Affiliate as noted by clicking the "I Agree" link and as
recorded by Company's web database.
18. Modifications.
Company reserves the right to modify the terms and conditions contained
in this Agreement, at any time, by posting the new Agreement at http://esilverbullet.com/affiliates
on Company's website.
Updated June 2, 2011.
