Table of Contents
Referral Program Agreement
The following Referral Program Agreement (“Agreement”) is entered into by and between Your Online Genius, LLC (“Company”, “we”, or “us”) and the party submitting an application to become a referral partner of the Company and/or having an accepted application (“Referral Partner” or “You”).
The Company has set up a program for referral partners to promote its products in exchange for a share of the proceeds of any sales (the “Referral Program”). Except as modified by a separate agreement governing the promotion of any particular product, the terms of this Agreement apply to Your participation in any the Company’s Referral Program.
By submitting an application to participate in the Referral Program and/or by otherwise participating in the Referral Program, You are expressly agreeing to the terms and conditions set out in this Agreement and in any agreement that might apply to individual products.
Application & Acceptance
To participate in the Referral Program, You may be required to complete a Referral Program application (“Application”). You are required to answer all questions in that Application, and Your answers must be accurate and complete.
To participate in the Referral Program, You must provide the Company with Your true identity and other contact information, as well as business and banking information as requested. You may not use any alias, pseudonym, persona, pen name, DBA, or other means to mask Your identity or business details.
Taxes & Payment Gateways
The Company shall pay any sums due to Referral Partner as set forth below through PayPal. Referral Partner shall be responsible for providing the necessary information to facilitate the use of that payment method.
Tax documentation (e.g., Form 1099) shall be provided by PayPal as stated in PayPal’s terms and per Federal thresholds for reporting such income.
The Company will pay Referral Partner a fee (a “Commission”), for each customer acquired as a result of a customer being referred to the Company using the unique tracking links assigned to the Referral Partner (“Referral Links”). The tracking and attribution of sales to Referral Partner based upon their tracking links is done automatically by the Company’s marketing automation system. Referral Partner shall be paid only for sales that are tracked through the Company’s marketing automation system and indicate the Referral Link as the source of the sale.
Referral Partner shall receive a Commission payment as follows:
- $100 for each new annual subscription attributed to Referral Partner using their Referral Link.
The Company reserves the right to change the referral commission or limit the payments for which commissions shall be earned for future sales. In the event the Company exercises this right, it will inform You of the changes in advance.
Referral partner agrees that the Company shall only be liable for payment of the Commissions to the extent it receives all funds due and owing to it from the relevant customer after the refund period has passed. Accordingly, Referral Partner shall not be entitled to any Commission on a sale that is refunded, for which there is a chargeback, or for which the Company ultimately does not receive the sales proceeds as a result of credit card abuse or fraud.
The Company shall pay Commissions on the first week of the month after the commission becomes payable. Commissions become payable approximately 45 days after receiving the commissionable payment. The Company shall only pay commissions to Referral Partners when the commissions payable are greater than $50.
Right To Chargeback, Offset, and Holdback
Referral partner agrees that the Company shall have the right to charge back the Referral Partner’s account or otherwise adjust for any previously paid Commissions that ultimately are not commissionable under this Referral Partner Agreement. Specifically, in the event that a sale attributed to an Referral Partner is charged back or otherwise challenged after the Commission has been paid, the Company shall have the right to charge back the Commission paid to the Referral Partner.
Referral Partner further agrees that the Company shall have the right to offset any Commissions due and payable to the Referral Partner to account for any charge backs the Company experiences on sales for which Referral Partner has already received a Commission.
Referral Partner further agrees that the Company shall have the right, but not the obligation, to hold back up to 50% of the Commissions due (the “Holdback”) for a period of 90 days to ensure an ability to offset any chargebacks. In the event that the Referral Partner’s chargeback percentage exceeds the Holdback for a period of two consecutive months, the Company shall have the right to increase the percentage of commissions held back from Referral Partner. The Company shall provide written notice of any such increased holdback percentage that shall apply to Referral Partner.
Representations and Warranties
The Company represents and warrants:
- that it shall not knowingly and intentionally violate any law, regulation, or rule applicable to its business operations;
- that the products and/or services offered in connection with the Referral Program are legal products and services within the Company’s jurisdiction;
- that it intends to be bound by the mutual promises, terms, and conditions of this Agreement; and
- that it has the necessary intellectual property and other rights to offer the products that are available for promotion under the Referral Program.
Referral Partner represents and warrants:
- that Referral Partner has read this Agreement, understands its terms, and agrees to be bound by this Agreement;
- that this Agreement constitutes Referral Partner’s valid and binding agreement and was executed by a person with authority to bind the Referral Partner;
- that Referral Partner’s answers to the questions in the Application were truthful and accurate to the best of Referral Partner’s knowledge;
- that Referral Partner will comply with CAN-SPAM, GDPR, and CA-SL requirements in connection with email marketing;
- that Referral Partner will comply with all applicable Federal Trade Commission rules, regulations, and guidelines related to affiliate marketing;
- that Referral Partner will not make use of the Company’s name, trademark, or service mark in any manner other than expressly allowed under the Referral Program; and
- that Referral Partner will not engage in any behavior that violates the terms of this Agreement or that constitutes an attempt to fraudulently or deceptively increase the earnings of Referral Partner under this Referral Program.
Acceptable And Non-Acceptable Marketing Practices
Referral Partner shall not promote Company’s products: (1) in conjunction with any any illegal activity, (2) on any illegal website, (3) in a manner that a reasonable person would consider threatening, harmful, defamatory, obscene, sexually explicit, harassing, or promoting violence; (4) in a manner that promotes discrimination, (5) in any manner the Company expressly deems as objectionable, or (6) in a manner that infringes upon the intellectual property or related rights held by any third party.
Term and Termination
This Agreement shall commence upon the date the Company notifies You that You have been accepted into the Referral Program and shall continue thereafter until terminated as provided herein.
The Company may terminate this Agreement in full or in part at any time and for any reason it deems appropriate with or without prior notice to You. In the event of termination, the Company will disable any tracking URLs, links, cookies, pixels, and similar mechanisms for use with the Referral Program. You may terminate this Agreement at any time upon notification to the Company in writing.
Furthermore, You shall immediately cease representing Yourself as a participant in the Affiliate Program.
You shall be entitled to all validly accrued Commissions that have been earned prior to the termination of this Agreement.
THE REFERRAL PROGRAM, ANY PROMOTIONAL MATERIAL, AND THE PRODUCTS AND SERVICES PROVIDED ON CONNECTION THEREWITH, ARE PROVIDED TO REFERRAL PARTNER “AS IS.”
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE COMPANY EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT ALLOWED BY LAW, ALL WARRANTIES, EXPRESS IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
THE COMPANY DOES NOT WARRANT THAT THE REFERRAL PROGRAM OR PROMOTIONAL MATERIALS WILL MEET REFERRAL PARTNER’S SPECIFIC REQUIREMENTS OR THAT THE MATERIALS ARE ERROR FREE OR UNINTERRUPTED.
THE COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF ANY THIRD PARTY PROVIDER NOT UNDER THE CONTROL OF THE COMPANY, AND THEIR PRODUCTS AND SERVICES.
REFERRAL PARTNER EXPRESSLY AGREES AND UNDERSTANDS THAT THE COMPANY HAS NOT MADE ANY GUARANTEE THAT REFERRAL PARTNER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS AND ATTESTS THAT NO SUCH REPRESENTATIONS OR CLAIMS HAVE BEEN MADE.
Limitation of Liability
YOU AGREES TO ABSOLVE AND DO HEREBY ABSOLVE THE COMPANY OF ANY AND ALL LIABILITY OR LOSS THAT YOU OR ANY PERSON OR ENTITY ASSOCIATED WITH YOU MAY SUFFER OR INCUR AS A RESULT OF PARTICIPATION IN THE REFERRAL PROGRAM AND/OR ANY INFORMATION AND RESOURCES CONTAINED IN THE AFFILIATE PROGRAM. YOU AGREE THAT THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY TYPE OF DAMAGES, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EQUITABLE, OR CONSEQUENTIAL LOSS OR DAMAGES FOR PARTICIPATION IN THE AFFILIATE PROGRAM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, OR PROFITS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE AFFILIATE PROGRAM, WITH THE DELAY OR INABILITY TO USE THE AFFILIATE PROGRAM OR RELATED SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, AND RELATED GRAPHICS OBTAINED THROUGH THE REFERRAL PROGRAM, OR OTHERWISE ARISING OUT OF THE USE OF THE REFERRAL PROGRAM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF THE COMPANY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH THE AFFILIATE PROGRAM OR ANY PORTION OF IT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE YOUR PARTICIPATION IN THE AFFILIATE PROGRAM.
Choice of Law & Choice of Forum
The Parties agree that this Agreement shall be construed under the laws of Maryland regardless of any choice of law rules.
Each Party irrevocably and unconditionally agrees that any dispute arising under or related to this Agreement shall be resolved exclusively through individual, non-class arbitration to be held in Bethesda, MD under the rules of the American Arbitration Association. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such arbitration and agrees to bring any such dispute only in such forum. Each Party agrees that a final judgment by such arbitration is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
The Parties agree that the prevailing Party in any action relating to or arising out of this Agreement will be awarded its reasonable attorneys’ fees and costs incurred as a result of such a proceeding.
The Parties further agree:
Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Assignment. Neither Party may assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. For the avoidance of doubt, any party may rely upon employees or independent contractors to perform any work required of it in this agreement, but the Party shall remain ultimately responsible for the completion of that work and its quality. Any purported assignment or delegation in violation of this Section shall be null and void.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party, its officers, directors, employees, and agents for any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising from the Indemnifying Party’s (i) breach or non-fulfillment of any representation, warranty, or covenant in this Agreement, (ii) breach of this Agreement, or (iii) grossly negligent behavior in connection with this Agreement.
Force Majeure. Neither Party shall be liable or responsible to the other, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of that Party including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. If the event in question continues for a continuous period in excess of 15 days, either Party shall be entitled to give notice in writing to the other to terminate this Agreement.
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