THE DAMES, LLC
This Affiliate Agreement (this “Agreement”) is made by and between The Dames, LLC (the “Company”) and the undersigned (“Affiliate”) and is effective as of the date of Affiliate’s signature below (the “Effective Date”). The Company and the Affiliate may also be referred to individually as a “party” or together as the “parties.”
NOW, THEREFORE, in consideration of the promises, covenants and conditions hereinafter set forth, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
Terms & Conditions
1. Term; Termination. This Agreement will commence on the Effective Date and terminate upon 30 days written notice from one party to the other. The Company can also terminate this Agreement immediately upon a finding by the Company, in its sole and absolute discretion, that Affiliate has violated any term of this Agreement.
2. Referral Program Details.
2.1. Hyperlinks. Affiliate will be assigned a unique hyperlink (the “Hyperlink”) that Affiliate must use when referring potential clients by email, on their website, or social media. This unique Hyperlink will direct potential clients to a landing page on the Company’s website and prompt them to complete an order form and process payment to become a member. Affiliate is only entitled to one Referral Fee (defined by Section 3 below) per client.
2.2. Limitations on Referrals.
- Affiliate will not be entitled to receive a Referral Fee with respect to any entity or person referred by Affiliate that, directly or indirectly, in whole or in part, owns or controls, or is owned, controlled by, or under common control with, Affiliate (a “Self-Referral”). The Company will determine in its sole discretion whether a referral is a Self-Referral under this Section.
- If a potential client is referred to the Company by more than one participant in Company’s Affiliate Program, then the Referral Fee will be payable only to the affiliate whose hyperlink was used by the client to become a member with the Company.
- If a potential client is already in the Company’s CRM system prior to the Affiliate making the referral, then the Affiliate will not be entitled to a Referral Fee, even if the potential client had not previously purchased products or services from the Company.
- Company is not responsible for referrals that are lost through no fault of Company, including, without limitation, if Affiliate provides Company with erroneous client information or provides a client with erroneous referral information, or if the potential client has disabled cookies or implemented another similar technology that prevents the Company from tracking the hyperlink the client used to access the Company’s website.
3. Compensation for Referrals. Subject to the restrictions contained in this Agreement, Affiliate will be entitled to $50 for each new client referral (the “Referral Fee”).
4. Payment Terms. Affiliate will be paid Referral Fees that are due and payable in one payment at the end of each calendar year, unless $100 or more in Referral Fees is due and payable to Affiliate, in which case the Company will pay Affiliate at the end of the next fiscal quarter. Payment will be made via PayPal. Affiliate is responsible for establishing a PayPal/Venmo account as a condition to receiving payment under this Agreement. Referral Fee payments will only become due and payable to Affiliate once the Company has received the entire payment from the referred client. If Company does not receive payment from the referred client, then Affiliate will not be entitled to a Referral Fee.
5. Non-Exclusivity. This Agreement is not exclusive to either party. The Company will have similar agreements with others participating in Company’s Affiliate Program. The Company does not guarantee uniformity between the terms in this Agreement and terms of any other affiliate agreement between the Company and any third party. Both parties are also free to participate in any other affiliate program.
6. Intellectual Property.
6.1. Retention of Rights. All intellectual property rights in the Company’s content, including, without limitation, the Company’s trademarks, tradenames, copyrights, patents, logos, designs, advertising graphics, handouts, pamphlets, guides, books, video and/or audio recordings, and information on the Company’s website in any form or medium (collectively, the “Content”) will always remain the exclusive property of the Company. This Agreement does not grant Affiliate any intellectually property rights not expressly contained herein.
6.2. Grant of Limited License. The Company hereby grants Affiliate a limited, non-exclusive, non-transferable, and royalty-free license, during the Term, to use the Hyperlink and any Content given to Affiliate by the Company only as contemplated under this Agreement. This limited license shall automatically and immediately cease upon termination of this Agreement.
6.3. No Modification. Affiliate shall not alter or modify the Company’s Content or Hyperlink in any way without the Company’s prior written authorization.
7. Advertising and Communications. All advertising and communications of Affiliate using the Company’s Content must be approved in writing by the Company before use. Affiliate is prohibited from using the Hyperlink or the Company’s Content to make unsolicited communications to consumers in violation of applicable law or in any other advertising that could be designated as “spam.”
8.1. Confidential Information. Either party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Confidential Information means the Company’s Content (defined by 6.1), similar Content of Affiliate, information, data and know-how that is marked or otherwise identified as confidential or that, given the nature of the information or the circumstances surrounding the disclosure, would reasonably be considered to be confidential (including, without limitation, financial information, product plans, inventions, computer software or code, algorithms, client lists, and the terms of this Agreement), whether oral or in written, electronic or other form or media. Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of any breach of this Section by the Receiving Party, its affiliates or its or their employees, consultants, officers, directors, partners, equity holders, advisors, agents or representatives (collectively “Representatives”); (ii) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; or (iv) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information.
8.2. Protection of Confidential Information. The Receiving Party shall: (A) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information of similar kind, but in no event less than reasonable care; (B) not use the Disclosing Party’s Confidential Information for any purpose other than to perform the Receiving Party’s obligations or exercise its rights under this Agreement; (C) promptly report to the Disclosing Party any unauthorized disclosure of, or access to, the Disclosing Party’s Confidential Information; and (D) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information for the purpose of performing Receiving Party’s obligations or exercising its rights under the Agreement and who are subject to obligations of nondisclosure and restricted use at least as protective as those of this Section. The Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives.
8.3. Legally Required Disclosure. If Receiving Party is required by applicable law, regulation or legal process to disclose any Confidential Information of the Disclosing Party, Recipient shall notify the Disclosing Party promptly so that Disclosing Party may seek a protective order or other appropriate remedy or, in its sole discretion, waive compliance with the terms of this Section. Recipient will furnish only that portion of the Confidential Information which Recipient is advised by counsel is legally required to be disclosed.
8.4. Return of Confidential Information. At the Disclosing Party’s written request, or upon termination of this Agreement, the Receiving Party shall promptly return, and shall require its Representatives to return, to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the Receiving Party may retain the Confidential Information for legal and accounting purposes and is not required to delete Confidential Information held electronically in archive or back-up systems in accordance with its systems archiving or backup policies.
8.5. Remedies. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section, without posting bond or other security.
9. Independent Contractor. This Agreement does not create a partnership or joint venture of any kind. The Company and Affiliate shall be independent contractors of each other for all purposes, and neither party’s employees will be considered an agent or employee of the other party for any purpose. Neither party will have authority to enter into any contract, agreement or other commitment, or incur any obligation or liability, in the name or otherwise on behalf of the other party.
10. Taxes. Affiliate is solely responsible for payment and reporting of federal, state and local taxes or other assessments imposed by law with respect to the Referral Fees, if any, paid to Affiliate under this Agreement. Both parties further agree to provide the other party with any requested documentation necessary for the preparation and filing of taxes.
11. Indemnification. Affiliate shall indemnify, defend, and hold the Company harmless the Company, its Representatives (defined by Section 8.1) and its and their successors and assigns against any and all losses, damages, liabilities, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”), that are incurred by or awarded against them in connection with any claim, action or proceeding brought by a third party and relating to, arising from or alleging: (i) the manner and means by which Affiliate obtains or provides referrals, (ii) Affiliate’s products or services; (iii) Affiliate’s websites; (iv) the collection, use, or distribution of consumer information by Affiliate or its Representatives, including any unauthorized disclosure of customer information to the Company; or (v) violation of applicable law or any third party’s rights, including intellectual property, privacy or proprietary rights, by Affiliate or its Representatives.
12.1. Governing Law & Venue. This Agreement will be governed by the laws of the State of Colorado without giving effect to any choice or conflict of law principles of any jurisdiction. The parties hereto agree to submit to the exclusive jurisdiction of either the Courts of the State of Colorado located in Denver, Colorado, or United States Federal District Courts within Denver, Colorado and agree to accept service of process by registered or certified mail, return receipt requested, in accordance with Colorado or Federal rules of civil procedure.
12.2. Dispute Resolution with the Company. If any dispute arises among the parties, then they shall negotiate in good faith to resolve the dispute. Any dispute which the parties cannot resolve by negotiation shall, except as otherwise set forth herein, be submitted to mediation before a mediator agreed upon by the parties, or, if the parties cannot agree upon a mediator, a mediator shall be selected by the Judicial Arbiter Group in Denver, Colorado, or, if that company no longer exists, a mediator shall be selected by the American Arbitration Association. If a dispute is not resolved within thirty days of the holding of a mediation session, the dispute shall be submitted to binding arbitration in Denver, Colorado before an arbitrator agreed upon by the parties, or, if the parties cannot agree upon an arbitrator, then an arbitrator from the Judicial Arbiter Group, or, if that company no longer exists, the American Arbitration Association in accordance with its Commercial Arbitration Rules, except that any action for injunctive relief shall be resolved in the county courts of Denver, Colorado. Judgment upon the award rendered by said arbitration may be entered in any court having jurisdiction thereof.
12.3. Severability. Any provision of this Agreement that is determined by any court of competent jurisdiction to be invalid or unenforceable will not affect the validity or enforceability of any other provision hereof. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
12.4. Amendments & Waivers. The Company may unilaterally amend this Agreement at any time. Amendments will be sent to Affiliate’s email on file with the Company. If Affiliate refuses to sign an amended agreement, then this Agreement will immediately terminate, and Affiliate will only be entitled to payment of Referral Fees then due and payable at the time of termination in accordance with the Payment Terms of Section 4. Waivers are valid only if in writing and signed by the party so waiving. The failure of a party at any time to require performance of any provision of this Agreement will not affect such party’s rights at a later time to enforce such provision. No waiver by any party of any breach of this Agreement will be deemed to extend to any other breach hereunder or affect in any way any rights arising by virtue of any other breach.
12.5. Notice. Each party shall deliver all notices in writing delivered to the other party using the contact information set forth in the signature block for such party (or to such other contact information that the receiving party may designate from time to time in accordance with this Section). Each party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), certified or registered mail (in each case, return receipt requested, postage prepaid), or email (with confirmation of transmission). A notice is effective only if the party giving the notice has complied with the requirements of this Section, and notice will be deemed received (a) upon receipt by the receiving party if personally delivered; (b) two business days after deposit with an overnight courier; (c) four business days after deposit as certified or registered mail; and (d) if emailed, upon receipt of confirmation of email transmission.
12.6. Authority & No Inducement. Both parties affirm that they are at least eighteen (18) years of age. Affiliate confirms that no inducement, statement or representations have been made by the Company that are not set forth in this Agreement, and that Affiliate did not rely on any inducements, statements or representations not set forth herein. Each party further represents and warrants their authority to sign this Agreement.
12.7. Entire Agreement. This Agreement, including any addenda, schedule, or exhibit attached hereto constitutes the entire understanding of the parties and supersedes any and all prior or contemporaneous understandings, promises, or agreements between the parties.
12.8. Retroactivity. If you are signing this Agreement after already starting participation in the Company’s Referral Program, then you agree that this Agreement applies retroactively to the start of your participation in the Referral Program. You further agree that if you have previously signed an agreement related to the Referral Program with the Company, that this Agreement supersedes the prior agreement as provided in Section 11.7 above.