Last Updated 9/9/2015

 

This Independent Marketing Affiliate Agreement (“Agreement”) is made beginning year 2015 (“Effective Year”), by and between IncubatePRO Inc. [subsidiary TextsFromSanta.com], (“Company”) located at 15 Carpenter St. Red Bank, NJ, and affiliate (“Affiliate”). 

 

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 last for a term of one (1) year, unless otherwise terminated by either party.  This Agreement will automatically renew for periods of one (1) year unless otherwise terminated by either party.

 

2. Enrollment.  The parties agree with regards to the enrollment of Affiliate under this Agreement as follows:

A.    Affiliate desires to enroll 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 enrollment for any or no reason and that Company is not obligated in any fashion to provide a rejection reason to Affiliate.

D.    Affiliate understands that Affiliate’s relationship with Company, should Company accept Affiliate, is non-exclusive in nature and that Company may engage other such independent marketing affiliates at Company’s sole discretion.

3. Responsibilities of Affiliate.  Affiliate shall satisfy the following responsibilities at all times during the term of this Agreement:

A.    Affiliate shall use best efforts to provide services, in a manner consistent with the standards generally observed by a professional in the industry to which such services performed can be classified, in accordance with the terms and conditions set forth.

B.    Affiliate shall exhibit and conduct behavior in a manner consistent with the high image, reputation and credibility of Company and Company Products, and shall engage in no activities that reflect adversely on Company or Products.

C.     Affiliate shall not represent to any other party that Affiliate is a sales representative of Company or that Affiliate has any authority to bind the Company in any fashion.  While Affiliate may make simple endorsements of Company Products, Affiliate will not make any fact assertions or other representations regarding Company Products.

D.    Affiliate shall strictly follow the guidelines as provided by the Company as to the marketing of Company Products.  Company will provide basic promotional materials to Affiliate at no cost.  Affiliate shall only use these promotional materials, and Affiliate may not modify these promotional materials in any fashion without express written consent from Company.  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 own choosing.  Affiliate shall at all times honor the trade names, trademarks, and copyrights as exists 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 a link, Affiliate shall 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 shall be solely responsible for the development, operation, and maintenance of Affiliate’s website and for all materials that appear on such website, including the installation of Company Internet links.  Affiliate agrees not to advertise Company Products on websites that promote sexually explicit material, violence, pirated materials, or sites that promote discrimination based on race, sex, religion, national origin, or physical disability or sites that promote illegal activities.  Affiliate may only include a Company Internet link in email that has been “opted-in” by the end recipient; Affiliate shall not send Company Internet links through any form of bulk mail or Internet spam.   Affiliate shall 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 shall market Company Products in the geographic territory and industry segment designated on Exhibit A (“Territory").  Affiliate shall not market Company Products in any other geographic territory or industry segment, without prior consent of Company.  Company shall have the right, from time to time, at its sole discretion, to change the scope of the Territory.  In any such instance, Company shall issue a new Exhibit A to Affiliate reflecting such change, which shall, as of the effective year stated thereon, supersede the prior Exhibit A.  Affiliate acknowledges and agrees that it neither has, nor will acquire, any vested or proprietary right or interest with respect to the Territory, any Company customers in the Territory, or any Company customer lists. Affiliate further acknowledges and agrees that any goodwill accruing in the Territory during the term of this Agreement with respect to Company or Company Products shall 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 shall have no right or authority to obligate Company to sell Products to any party.

C.     Affiliate shall 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 at no time shall engage in any unfair trade practices with respect to Company or Products, and shall make no false or misleading representations with respect to Company or Products.  Affiliate shall refrain from communicating any information with respect to guarantees or warranties regarding Products, except such as are expressly authorized by Company or are set forth in Company's literature or other promotional materials.

E.     Affiliate shall have no authority to receive payments or otherwise make collections from any party on Company’s behalf.

5. Compensation.  The parties agrees 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 shall be Compensation Schedule as identified in Exhibit B which explains amounts and payment dates.  Company shall have the right, from time to time, at its sole discretion, to modify this percentage, in whole or in part.  In any such instance, Company shall notify Affiliate within thirty (30) days of such change. 

B.    Affiliate shall 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 after thirty (30) days after termination of this Agreement.

C.     Company shall furnish Affiliate periodically with statements reflecting the status of Affiliate's Compensation account.  If Affiliate has objections with respect to any such statement, whether regarding its accuracy, completeness or any other matter, Affiliate shall make such objection(s) known to Company in writing within thirty (30) days after the date of such statement.  IF AFFILIATE DOES NOT PROVIDE SUCH OBJECTION WITHIN THE THIRTY (30) DAY PERIOD, SUCH OBJECTIONS SHALL BE DEEMED WAIVED AND ABANDONED.

D.    Notwithstanding anything contained in this Section, any Compensation otherwise becoming earned and due to Affiliate as of the termination of this Agreement, or thereafter, may be withheld by Company and shall become due, if at all, only after a final reconciliation is performed by Company.  Company shall 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 shall 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 non-payment.  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 then shall be considered earned and due, and thereupon shall be paid by Company to Affiliate. If all outstanding debits exceed the remaining Compensation, no additional Compensation shall be considered earned and due, and Affiliate shall 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 shall become earned and due to Affiliate, and Company shall 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 shall be therefore 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 shall be original and that he/she has the right to assign ownership of any/all intellectual property rights in such Work Product to Company, and that it will perform all of its services in a good, professional, and workmanlike manner, in accordance with industry standards.  Affiliate agrees that it will ensure that its employees performing work under this Agreement comply with this Agreement, including, but not limited to, having such employees sign documents assigning intellectual property rights to Company to the extent Affiliate is required such rights to Company.  Affiliate hereby agrees to indemnify Company for any liability that Company may incur as a result of Affiliate’s breach of a warranty listed in this section.  The terms of this Section shall survive the termination and/or expiration of this Agreement.  Affiliate’s obligations pursuant to this section shall survive the termination/expiration of this Agreement.

 

7. Taxes. Affiliate shall 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 shall 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, shall the total liability of Company to Affiliate exceed the total amount of completed sales from Affiliate within the last calendar month.  In no event shall 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 shall survive 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 shall keep secret and retain in strictest confidence, and shall not, without the prior consent of Company, furnish, make available or disclose to any third party or use for the benefit of itself (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.  As used herein, “Confidential Information” shall mean any information relating to business or affairs of Company, including but not limited to, the Company, Company Products, Work Product, 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, that 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 if such conduct was committed by Affiliate. Affiliate’s obligations pursuant to this section shall survive the termination of this Agreement. 

 

10.  Non-Competition.  Competitor, for purposes of this Section, shall 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 a competitor of Company.  For a period of 2 years after the termination of this Agreement, Affiliate understands and agrees that Affiliate shall not induce any customers of Company, whether directly or indirectly through use of third parties such as employers and agents, to leave Company’s business.  Any such act by Affiliate shall subject Affiliate and any such third parties to civil and 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 shall immediately cease working and return to Company all Work Product, Company promotional materials, and any Confidential Information in Affiliate’s possession (“Termination Obligations”) and certify to Company, in writing, that it has performed its Termination Obligations.  Affiliate’s obligations pursuant to this Section shall survive 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 shall not hire, solicit, or induce or assist any third party in soliciting or inducing any employee, contractor, or other affiliates of Company to leave his or her employ or cease providing services to Company, as applicable.

 

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 such dispute or damage claim by arbitration.  The arbitration proceeding shall be conducted in New Jersey, USA, 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, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators.  The laws of the State of New Jersey shall 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 State of Jersey in the United States without regard to any conflict of law principles govern this Agreement.  No action, arising out of the transactions under this Agreement may be brought 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 its rights under this Agreement or delegate all or any of its obligations hereunder, without the prior written consent of Company.  Company may assign this Agreement to a parent, subsidiary or affiliated firm or to 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 shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.

 

17. General. This Agreement, including all Exhibit(s), constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all agreements, proposals, representations and other understandings, oral or written, of the Parties and any current or subsequent purchase order(s) provided by Affiliate.  No alteration or modification of this Agreement or any Exhibits shall be valid unless made in writing and signed by an authorized Affiliate of each Party. The waiver by either Party of a breach of any provision of the Agreement shall not operate or be construed as a waiver of any subsequent breach and any waiver must be in writing and signed by an authorized Affiliate of the Parties hereto.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.  Any notice or other communication required or permitted hereunder shall be given in writing to the other Party at the address stated above, or at such other address as shall be given by either party to the other 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 indicating their acceptance of this agreement by selecting the acceptance checkmark on their affiliate page.

Exhibit A - Territory Schedule

 

 

This Exhibit is subject to the Independent Marketing Affiliate Agreement between Company and Affiliate dated 2015 and is incorporated by reference to it.

 

 

Affiliate is authorized to only market Company Products for customers located in the United States of America and Canada.

 

Exhibit B – Compensation Schedule

 

 

This Exhibit is subject to the Independent Marketing Affiliate Agreement between Company and Affiliate dated 2015 and is incorporated by reference to it.

 

·      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      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.

o      All payments will be made in US dollars.  Affiliate will be able to log into the TextsFromSanta.com system at any time to track current sales and compensation balance. Affiliate will be compensated based on a flat percentage of each completed sale. 

 

Affiliate will receive a percentage for each completed sale consisting of 50% minus any taxes, shipping, mailing or handling charges.

 

o      The Affiliate is entitled only to compensation on an initial order.  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 the 1^st day of the new year.  If the order is cancelled before the end of the season (12/26) and refunded, the Affiliate will not be entitled to commission.

o      Company normally processes Compensation Statements at the end of the season and processes payment to the Affiliate before the end of the month of January.

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.).

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