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EGIFTIA.COM AFFILIATE AGREEMENT
This eGiftia.com Affiliate Agreement ("Affiliate Agreement") is entered into as of the date ("Effective Date") that You ("Affiliate") click "I Accept" - between Affiliate and eGiftia LLC, a Illinois limited liability company ("eGiftia").
WHEREAS, eGiftia owns and operates eGiftia.com, which provides
eGift Card services
(collectively, “Site”); and
WHEREAS, Affiliate, having extensive experience, business relationships, and network contacts within its industry stands in a position to act as a strategic affiliate for the Site; and
WHEREAS, eGiftia seeks additional subscribers for the Site, and Affiliate seeks an additional source of revenue; and
WHEREAS, Affiliate and eGiftia have agreed to form a strategic alliance according to the terms herein, which will mutually benefit both parties.
THE PARTIES NOW THEREFORE AGREE AS FOLLOWS:
1. Defined Terms.
1.1 "Commissionable Referral" shall mean a Referral for which Affiliate is eligible under Section 3.1. herein to be paid a commission.
1.2. "Confidential Information" has the meaning set forth in Section 5.1 of this Affiliate Agreement.
1.3. "Marks" shall mean the service marks, trade marks, trade names, logos, and trade dress of a Party.
1.4. "Party" or "Parties" shall mean eGiftia and/or Affiliate.
1.5. "Referral" shall mean a potential or prospective subscriber identified by Affiliate, and/or a potential or prospective affiliate identified by Affiliate residing within the forty eight (48) continental U.S. states or Canada.
1.6. "You" or "Your" shall mean the person or business entity that reviews and agrees to the terms and conditions of this Affiliate Agreement by clicking "I Accept."
1.7 "Service" shall mean eGiftia’
eGift Card service.
2. Term of Affiliate Agreement.
The initial term of this Affiliate Agreement will be one (1) year from the Effective Date. This Affiliate Agreement shall automatically renew for additional one (1) year terms, unless either party provides the other with written notice of its intent to terminate the Affiliate Agreement.
3. Terms and Conditions.
3.1. eGiftia hereby authorizes Affiliate to refer Referrals to the Site within the forty eight (48) continental U.S. states and Canada. In the event a Referral is a Commissionable Referral, eGiftia will pay the Affiliate the remuneration listed on the Affiliates Page of the Site. The total amount of such remuneration due for Commissionable Referrals will be calculated and paid monthly via Paypal when the payment amount to be paid out exceeds $50. Affiliate acknowledges and agrees that in order for a Referral to qualify as a Commissionable Referral, the following must have occurred:
(i) Affiliate must actively direct a Referral to Site through the Site website extension specially designated for the Affiliate. For example, if Affiliate is John Smith, then Affiliate must actively direct the Referral to http://www.eGiftia.com/johnsmith;
(ii) The Referral must sign up as a subscriber of the Site; and
(iii) The Referral must remain a subscriber of the Site for a minimum of a thirty day term. Once the Referral ceases to be a subscriber, and resubscribes to the Site at a later date, Affiliate shall not be entitled to any remuneration as a result of such resubscription.
Notwithstanding any of the foregoing, in the event a) a Referral ceases to be a subscriber of the Site, or b) a Referral fails to timely pay any amounts owed to eGiftia and/or otherwise is in default under or breach of any agreement between such Referral and eGiftia, such Referral will cease to be a Commissionable Referral as of the date of any of such events.
(iv) Affiliate may not purchase the eGiftia Service through their own link. If an affiliate is discovered to have joined as an affiliate for the purpose of purchasing the Service from eGiftia, they will not be paid the commissions from that sale. In the most extreme cases, if it appears that Affiliate has attempted to circumvent this Affiliate Agreement, registered for the affiliate program specifically to purchase off their own affiliate link, and has purchased the Service from their own affiliate link, eGiftia may ban the Affiliate from participation in the affiliate program. If Affiliate attempts to deceive eGiftia by registering for an affiliate account under an alias, personal or business name, and then uses another alias, personal or business identity to make a purchase using their affiliate link in order to commit deception, they will be in violation of this Affiliate Agreement and their account will be terminated and the commission on that sale is forfeited. If Affiliate attempts to use a third party, such as family member, friend, employee, or associate, to register as an affiliate for the sole purpose of allowing them to then purchase off the cooperating parties affiliate link so that the cooperating party may then return the affiliate commission to the person attempting to circumvent this Affiliate Agreement and deceive eGiftia, then the commission credited the cooperating party shall be forfeited and /or eGiftia may, at its discretion, cancel both the cooperating affiliate party and the conspiring purchasing party's accounts and ban them from use of the Service provided by eGiftia.
3.2. Affiliate acknowledges and agrees that no commission will be paid to Affiliate by eGiftia for a Referral that was an existing subscriber of the Site at the time of such referral and that such a Referral shall not be considered a Commissionable Referral.
3.3. Affiliate acknowledges and agrees that Affiliate shall be solely responsible for and shall bear all costs associated with Affiliate's development of any Referrals to the Site.
3.4. Affiliates may access information relating to their Referrals at the Site.
4.1. eGiftia hereby authorizes Affiliate to include in Affiliate’s marketing materials information about the Site; provided, that such marketing materials must be approved in advance in writing by eGiftia.
4.2. Affiliate agrees not to engage in any mass marketing involving the Site, including, but not limited to, "junk mail," "spam," and/or "chain letters.”
4.3. Affiliate agrees to assist eGiftia in identifying and obtaining customer success stories for use by the Site in its marketing and public relations materials.
4.4. Affiliate agrees to take all commercially reasonable steps to ensure that the goodwill and reputation of the Site are preserved and protected. Affiliate agrees to refrain from any conduct that will cast the Site in a negative light or otherwise damage its subscriber goodwill and reputation.
4.5. Subject to the terms and conditions of this Affiliate Agreement, eGiftia hereby grants Affiliate a non-exclusive, non-transferable, royalty-free license to use its Marks, solely during the term of this Affiliate Agreement as necessary to perform the marketing obligations described herein. Any rights not expressly licensed herein are reserved by eGiftia, and all use by the Affiliate shall accrue to the benefit of eGiftia. Affiliate will not take any action that would conflict with or be contrary to eGiftia’ rights and interest in eGiftia’ Marks. Affiliate acknowledges that eGiftia is the sole and exclusive owner of the eGiftia Marks.
4.6. Affiliate will reproduce all copyright, trademark and other notices on any copies of any marketing materials created or distributed by Affiliate.
5.1. Disclosure and Protection.
From time to time, eGiftia may disclose or make available to Affiliate, whether orally or in physical form, confidential or proprietary information concerning eGiftia, its business and services and/or the Site in connection with this Affiliate Agreement (collectively "Confidential Information"). Examples of Confidential Information include, but are not limited to, eGiftia’ customer lists, pricing policies, market analyses, market projections, consulting and sales methods and techniques, expansion plans, personnel information, financial information, programs, program decks, routines, subroutines, operating systems, object and source codes, and any other information which is information either identified as being confidential information or which is information that a reasonable business person would understand to be confidential information. Affiliate agrees that during the term of this Agreement and thereafter: (i) Affiliate will use Confidential Information belonging to eGiftia solely for the purpose(s) of this Agreement; and (ii) Affiliate will take all reasonable precautions to ensure that Affiliate does not disclose Confidential Information belonging to eGiftia to any third party (other than Affiliate’s employees and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining eGiftia’ written consent. Upon request by eGiftia, Affiliate will return all copies of any Confidential Information to eGiftia. Affiliate hereby agrees that Affiliate shall be responsible for any breach of this Section by its employees, representatives and agents.
5.2. Confidential Information Exceptions.
Information shall not be deemed to be Confidential Information, and a Party shall have no obligation with respect to any such information, which (i) is or falls into the public domain through no wrongful act or negligence of either Party; (ii) is rightfully received from a third party without restriction and without breach of the Affiliate Agreement; (iii) is approved for release by written authorization of an officer of either Party; or (iv) is already in the other Party's possession from a source other than Site and/or eGiftia, as evidenced by records and is not the subject of a separate non-disclosure.
5.3. Government Request/Subpoena.
Nothing contained in the above exceptions shall permit Affiliate to disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law unless and until notice of such disclosure has been given to eGiftia prior to disclosure and Affiliate has used reasonable efforts to receive confidential or protected status for the Confidential Information.
Upon termination of this Affiliate Agreement by either Party for any reason, Affiliate shall, within twenty (20) days of a written request, return any and all tangible materials containing Confidential Information of eGiftia. Following termination of this Affiliate Agreement, Affiliate shall remain obligated not to use, reproduce, disclose or provide such items or information to third parties without the prior written permission of the other Party.
6. Mutual Non-Solicitation.
Each Party agrees that it will not solicit the engagement and/or employment of the services of any of the employees and/or contractors of the other Party (either directly or through agents), without written permission of the other Party, during the term of this Affiliate Agreement and any extension thereof and continuing for a period of one (1) year following its expiration or termination.
7. Reservation of Rights.
Affiliate acknowledges that eGiftia holds and retains all right, title and interest in and to eGiftia’ Marks, copyrights and the Site. Affiliate agrees (i) not to assert any ownership interests in or contest the validity of eGiftia’ Marks, copyrights and/or the Site; (ii) not, at any time during the term of this Affiliate Agreement, to register or cause to be registered the eGiftia Marks, or any trademarks, marks or trade names confusingly similar to the eGiftia Marks; and (iii) not to use the eGiftia Marks in any manner that will cause confusion, mistake or deception.
8. Nonexclusive Affiliate Agreement.
Each Party acknowledges that this Affiliate Agreement does not create an exclusive agreement between the Parties. Each Party shall have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties. Notwithstanding the foregoing, Affiliate agrees that once it establishes a Commissionable Referral with the Site, Affiliate will not refer a direct competitor of the Site to such Commissionable Referral, or vice versa.
9. Right to Change Terms and Conditions.
Affiliate acknowledges and agrees that eGiftia may change the terms and conditions of its eGiftia.com Affiliate Agreement at any time and in its sole discretion upon providing thirty days written notice to Affiliate. Affiliate further acknowledges and agrees that Affiliate's continued participation in this eGiftia.com Affiliate Agreement following the effective date of any change shall be deemed Affiliate's acceptance of such new term(s) and/or condition(s), and shall be binding on Affiliate.
10.1. For Convenience.
Either party may terminate this Affiliate Agreement at any time upon written notice to the other Party.
10.2. For Cause.
Either Party may terminate this Affiliate Agreement upon written notice to the other Party in the event of a breach of any provision of this Affiliate Agreement by the other Party.
10.3. Effect of Termination on Commissions.
10.3.1. For Convenience.
If either Party terminates this Affiliate Agreement for convenience under Section 10.1, Affiliate will only be entitled to remunerations for Commissionable Referrals with respect to fully completed months. For example, if a Party terminates this Affiliate Agreement for convenience on February 15, 2014, the Affiliate will only be entitled to Commissionable Referrals for January, 2014 and any fully completed months prior thereto. As of the date of such termination, Affiliate will no longer be entitled to remunerations for Commissionable Referrals for non-completed months, including the month in which this Affiliate Agreement is terminated if it is an uncompleted month.
10.3.2. For Cause.
If eGiftia terminates this Affiliate Agreement for cause under Section 10.2, eGiftia will cease to owe any remunerations for Commissionable Referrals as of such date of termination, including, but not limited to, remunerations relating to fully completed months.
The Parties mutually warrant that each has the full and unrestricted power and authority to execute and deliver the Affiliate Agreement and to carry out the transactions contemplated hereby. Affiliate warrants that its agreement to this Affiliate Agreement and the performance of any work and delivery of any services will not conflict with or violate any commitment, agreement or understanding Affiliate has or will have with any other person or entity and there is nothing that will prevent Affiliate from performing its obligations under the terms and conditions imposed on it by the Affiliate Agreement. The Parties represent and warrant that the Affiliate Agreement has been duly authorized and constitutes a valid obligation, binding and enforceable in accordance with the terms hereof.
12. Disclaimer of Warranties.
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
13. Limitations of Liability.
IN NO EVENT SHALL eGiftia’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EGIFTIA BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SITE, INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SITE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF EGIFTIA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Affiliate agrees to defend, indemnify eGiftia and hold eGiftia harmless against and from any and all loss, liability, damage, claim, cost and expense of any nature whatsoever, including, without limitation, reasonable attorneys' fees, arising from or in connection with any breaches of Affiliate’s covenants, representations and warranties contained in this Affiliate Agreement.
15.1. Independent Contractor.
This Affiliate Agreement does not create any joint venture, agency or employment relationship between the Parties. eGiftia and Affiliate are independent contractors with respect to one another under the terms of this Affiliate Agreement. Neither Party shall have the authority to legally bind the other Party to any contract, proposal, or commitment or to incur any debt or create any liability on behalf of the other.
15.2. Force Majeure.
Neither Party shall be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities and criminal acts of third parties.
eGiftia may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in Your Service account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Your Service account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by e-mail). You may give notice to eGiftia (such notice shall be deemed given when received by eGiftia) at any time by the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to eGiftia at the following address: eGiftia, 11936 W. 119th St., Overland Park, KS 66213, or any successor address.
This Affiliate Agreement shall inure to the benefit and bind the Parties hereto, their successors and assigns. Affiliate may not assign this Affiliate Agreement without written consent of eGiftia. eGiftia may assign this Affiliate Agreement without written consent of Affiliate.
The headings of the Sections of this Affiliate Agreement are intended for convenience only, and will not affect the intent, scope, or meaning of any provision of this Affiliate Agreement.
15.6. Governing Law.
This Affiliate Agreement shall be governed in accordance with the laws of the State of Illinois and any controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this Affiliate Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the County of Iroquois, Illinois.
15.7. 1099 Forms.
eGiftia shall provide the Internal Revenue Service Form 1099, or similar form, at the end of eGiftia’ tax year if Affiliate receives $600 or more in commissions during said year.
ATTENTION! THE PRECEDING TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED HEREWITH. YOU SHOULD CAREFULLY READ THE PRECEDING AGREEMENT GOVERNING THE SITE AFFILIATE PROGRAM BEFORE CLICKING "I ACCEPT." BY CLICKING "I ACCEPT" YOU ARE REPRESENTING THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY (OR OTHER LEGAL ENTITY). IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN YOU MUST CLICK "I DECLINE" AND YOU WILL NOT BE ELIGIBLE FOR PARTICIPATION IN THE SITE AFFILIATE PROGRAM.