This Affiliate Program Agreement (“Agreement”) is made and entered into by and between Jessica Zweig, Inc. d/b/a SimplyBe. Agency (“SimplyBe.”, “we” or “us”) and the person or company referring prospects to SimplyBe. as described herein (“Affiliate”, “you” or “your”) and is effective on the date you indicate acceptance of this Agreement by clicking and agreeing to the terms and conditions set forth herein (“Effective Date”) when you submit the Affiliate registration form.
You acknowledge and agree that you have read, understand and agree to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies provided by SimplyBe. from time to time, and understand that you are entering into a legally binding agreement with SimplyBe. If you do not agree with the terms and conditions set forth herein, then you must not provide the referral services described herein.
SimplyBe. reserves the right to change and/or modify this Agreement and/or any applicable rules and/or policies at any time in its sole discretion and your continued provision of the referral services described herein after SimplyBe.’s posting of any changes will constitute your acceptance of such changes. SimplyBe. will provide notice of such changes by posting the updated terms and conditions on SimplyBe.’s website and changing the “last updated” date listed above. Any changes will be effective immediately upon posting such changes and such changes shall be incorporated herein by reference. If you do not agree with the changes, you shall not provide the referral services described herein after the effective date of the changes.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN ARTICLE 9, YOU AGREE THAT DISPUTES BETWEEN YOU AND SIMPLYBE. WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
- Description of Referral Course
You shall market and promote SimplyBe.’s courses which may include without limitation ‘Be.Experience’ learning course and ‘Build Your Personal Brand Statement & Strategy’ learning course (the “Course(s)”) to potential customers in accordance with this Agreement and earn Commissions for Referred Customers as described herein. Subject to your compliance with the terms set forth herein, SimplyBe. hereby grants to you a non-exclusive, non-transferable, non-assignable right to market and promote the Course to potential customers. You shall limit your descriptions of the Course to the marketing information provided by SimplyBe. and shall not make any representations with respect to SimplyBe. and/or the Course that are inconsistent with SimplyBe.’s terms, marketing materials and/or other literature provided by SimplyBe. You are not authorized to enter into contracts or agreements on behalf of SimplyBe. or to otherwise create obligations of SimplyBe. to third parties.
- Registration Process; Referred Customers; Posts
SimplyBe. and/or its agents will provide you with a unique code or link that you can provide to others to register for the Course(s) and other information related to the Course. In the event someone registers for a Course using the unique code or link provided to you by SimplyBe. and SimplyBe. accepts such registration, then such individual shall be considered a “Referred Customer”. You may be assigned one coupon code with details set forth on the dashboard of your account. If a potential customer clisks on both the link as well as the coupon code, you will not receive double commission. To the extent you are not assigned a branded coupon, you are not allowed to promote the coupon. We use a cookie to track people who have clicked on your link, so they need to be using cookies for us to track them. If a person doesn’t allow cookies or clears their cookies then we cannot track them and will be unable to pay earnings on that person’s activity. The tracking day will start from the time a customer clicks on your link or use the coupon. Within the cookie time, every purchase made by this customer will automatically be linked to your unique code or link, as applicable.
Any written materials, blogs, email and/or social media posts (collectively hereinafter the “Posts”) made by you that contain the unique code for Course registration must conform to the following requirements:
- Your Posts must comply with the Federal Trade Commissions (the “FTC”) Guides Concerning Endorsements and Testimonials (“Endorsement Guides). You must clearly and conspicuously disclose your “material connection” with us, making it clear that you are a paid influencer and/or affiliate marketer. You must place the disclosure in plain sight in close proximity to any audio or visual communications that you make about us, our brand, and our Courses. You may not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures. We require this disclosure regardless of any space limitations of the platform (like Twitter), where you can use hashtags for the disclosure (like #ad or #sponsored).
- Although we want your Posts to be authentic, your Posts should only include factual statements about SimplyBe. and our Courses.
- Your Posts will reflect your own honest opinions, beliefs, and experiences.
- Your Posts will be original and created solely by you.
(e) Your Posts will not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans.
(f) Your Posts will not include any person, or personally identifiable information about anyone, other than you unless you receive our prior written approval and have the persons at issue sign a release provided by us.
(g) Your Posts will comply with the rules of the applicable social media platforms.
(h) Your Posts will comply with all applicable laws, rules, and regulations.
SimplyBe. reserves the right to change the process described herein upon notice to you and/or reject any potential customer in its sole and absolute discretion. You understand that we may monitor your Posts for compliance with the terms herein and retain the right to address noncompliant Posts by requiring you to fix the Post, withholding payment of Percentage Commission and/or terminating the Agreement.
In consideration for you providing the referral services described herein and subject to the terms and conditions set forth herein, during the term of this Agreement you shall earn the following commission depending on the course the Referred Customer enrolls in as described below (the “Commission”):
- in the event SimplyBe. receives a Referred Customer from you for the Course(s) , SimplyBe. shall pay you an amount equal to fifteen percent (15%) of the fee paid by the Referred Customer to SimplyBe. for the Course purchased (“Percentage Commission”). SimplyBe. shall pay you the applicable earned Percentage Commissions within thirty (30) days after the end of the calendar month in which SimplyBe. receives payment from the Referred Customer. You will be solely responsible for all taxes, costs and expenses related to your providing the referral services described herein.
In the event of any chargeback by a Referred Customer or a credit and/or refund is provided to a Referred Customer, you acknowledge and agree that SimplyBe. may deduct the applicable amounts from your subsequent Commission payments. In the event no further Commission payments are due to you, then you shall promptly submit payment to SimplyBe. for any chargebacks, credits and/or refunds upon SimplyBe.’s request. Notwithstanding anything herein to the contrary, Commission shall be “earned” only if (a) you follow the process described herein, (b) SimplyBe. receives full payment from such Referred Customer for the Course; and (c) you are not in breach of this Agreement.
- Term and Termination
4.1. Term. The term of this Agreement shall commence on the Effective Date and continue until December 31, 2021, unless terminated earlier by either party in accordance with the terms and conditions of this Agreement.
4.2. Termination for Breach. If a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement upon written notice to the Defaulting Party. Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.
4.3. Termination for Convenience. Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party.
4.4. Effect of Termination. Upon termination of this Agreement, you will immediately (i) cease using SimplyBe.’s Trademarks, (ii) return all Confidential Information, Materials, Referred Customer information and information related to potential customers to SimplyBe. and (iii) discontinue holding yourself out as a marketer and promoter of the Course(s). SimplyBe. will pay you Commissions earned for Referred Customers through the effective date of termination in accordance with the terms and conditions set forth herein.
- Intellectual Property
5.1. Ownership; Access and Use; Restrictions. SimplyBe. owns all right, title and interest in and to the Course and related developments, enhancements and revisions, intellectual property rights and/or proprietary rights therein and related thereto. SimplyBe. shall establish, and may vary from time to time, the pricing, terms and conditions related to the Course. SimplyBe. grants you the right to access and use the marketing materials related to the Course solely for demonstration purposes as it relates to your providing the referral services described herein. You shall not (a) modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the Course; (b) merge or bundle the Course with other products and/or services; (c) sublicense, lease, rent and/or loan the Course; (d) remove, modify and/or obscure any identification and/or proprietary and/or restrictive rights markings and/or notices from the Course; (e) access and/or use the Course in order to develop a product and/or service which competes with the Course; and/or (f) otherwise use, copy and/or distribute the Course except as expressly allowed hereunder. You shall not transmit any viruses and/or upload, access, store and/or distribute information that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, offensive or facilitates illegal activity and/or causes damage and/or injury to any person and/or property.
5.2. License Grants; Restrictions. During the term of this Agreement, SimplyBe. hereby grants to you a non-transferable, non-exclusive, limited license to use SimplyBe.’s (a) name, logos and/or trademarks (collectively, the “Trademarks”), and (b) brochures, marketing materials, referral links, white papers, case studies and/or other materials provided by SimplyBe. (collectively, the “Materials”) in accordance with this Agreement solely in relation to the performance of the referral services described herein. Your use of such Trademarks and Materials shall be in accordance with SimplyBe.’s policies and procedures established from time to time. You shall not (i) attach any other trademark, logo and/or trade designation to any materials unless expressly agreed in writing by SimplyBe., and/or (ii) do and/or cause to be done any act and/or anything contesting and/or in any way impairing and/or reducing SimplyBe.’s right, title and interest in the Trademarks and/or Materials. SimplyBe. has the right to discontinue and/or alter the form, shape and/or artwork of the Trademarks and/or content of the Materials. You acknowledge that your use of the Trademarks and/or Materials shall not create any right, title and interest, in or to the Trademarks and/or Materials and all such uses inure to the benefit of SimplyBe.. SimplyBe. reserves the right at any time to review your use of the Trademarks and/or Materials to determine if such use is in compliance with this Agreement
- Confidentiality; Privacy
6.1. Confidentiality. You will keep all proprietary information related to the business of SimplyBe. and any of its affiliates, clients and other third parties to which you have access, whether in oral, written, graphic and/or machine-readable form, in the course of or in connection with this Agreement (collectively, the “Confidential Information”) confidential and will only use such Confidential Information to perform your obligations under this Agreement. You may disclose the Confidential Information only to those who have a need to know such Confidential Information solely in connection with this Agreement; provided that you assume full responsibility for any failure to comply with this Agreement. You acknowledge that a breach of the obligations related to Confidential Information may result in irreparable and continuing damage to SimplyBe. for which monetary damages may not be sufficient, and you agree that SimplyBe. will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.
- Representations and Warranties
7.1. Warranty. You represent, warrant and covenant that you (i) possess full power and authority to enter into this Agreement, (ii) have the proper skill, training and background to perform the referral services in a competent and professional manner; (iii) will use due diligence in safeguarding the interests of SimplyBe. in accordance with this Agreement and any policies and procedures provided to you by SimplyBe.; and (iv) will comply with all applicable laws, rules, regulations, orders of any governmental (including any regulatory or quasi-regulatory) agency.
7.2. SimplyBe. Warranty. SimplyBe. warrants that SimplyBe. possesses full power and authority to enter into this Agreement and has the ability to grant the rights described herein.
7.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
- Indemnification; Limitation of Liability
8.1. Indemnification. You, at your expense, will indemnify, defend and hold harmless SimplyBe., its officers, associates, employees, contractors and agents from and against any and all claims, damages, liabilities, losses, costs, demands and expenses (including reasonable attorneys’ fees and costs of litigation) (collectively “Claim(s)”) arising out of or relating to (a) any negligent act and/or omission of you relating to your activities in connection with this Agreement; (b) any misrepresentation by you related to SimplyBe., its Course and/or its other products, services and/or Course(s); (c) your breach of this Agreement; (d) your gross negligence and/or wilful acts and/or omissions; (e) any failure to comply with any applicable law, rule, regulation, order of any governmental (including any regulatory or quasi-regulatory) agency or contract; and/or (f) any determination by a federal, state or local government or administrative agency, or other regulatory or quasi-regulatory entity, or any court, that you acted as an employee of SimplyBe. in performing the referral services described herein (in which case you also waive any and all claims that you may have as a result of any such determination). You will be solely liable for any claims, warranties and/or representations made by you that differ from the warranties expressly provided by SimplyBe. You will have the sole right to conduct the defense of any claim and/or action, and/or the negotiation of any settlement, in respect of a Claim; however, SimplyBe. may reasonably participate in such defense at its sole expense.
8.2. Limitation of Liability. SIMPLYBE.’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE COMMISSIONS PAID BY SIMPLYBE. TO YOU DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL SIMPLYBE. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3. Third Party Products and Services. You acknowledge and agree that SimplyBe. is not liable for the performance of any third party products and/or services used in relation to this Agreement.
- Dispute Resolution
9.1. Disputes. Before filing a claim against SimplyBe., you agree to try to resolve the dispute informally by contacting SimplyBe. at [email protected]. SimplyBe. will try to resolve the dispute by contacting you via email, but if SimplyBe. cannot resolve the dispute within thirty (30) days of submission, you and/or SimplyBe. agree to resolve any claims related to this Agreement through final and binding arbitration, except as forth under ‘Exceptions to Agreement to Arbitrate’ section below.
9.2. Opt-Out. You can opt-out and decline this agreement to arbitrate by contacting SimplyBe. within thirty (30) day after the date that you first became subject to this arbitration provision (i.e.: the date you initially accepted this Agreement). You must write SimplyBe. at SimplyBe. Agency, Attn: Opt-Out Arbitration, SimplyBe., 1000 N Milwaukee Avenue, Chicago, Illinois 60642. If you opt out, neither you nor SimplyBe. can require the other to participate in an arbitration proceeding.
9.3. Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt out of arbitration as described herein, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. Unless otherwise agreed to by SimplyBe., the arbitration shall be held in Chicago, Illinois. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
9.4. Exceptions to Agreement to Arbitrate. Either you and/or SimplyBe. may assert claims, if they qualify, in small claims court in Chicago, Illinois. SimplyBe. may bring a lawsuit for injunctive relief to stop unauthorized use and/or abuse of the Course, breach of SimplyBe.’s Confidential Information and/or intellectual property infringement without first engaging in arbitration and/or the informal dispute-resolution process described in this Article.
All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to times and will be deemed to have been given one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. Nothing contained in this Agreement shall create or imply any agency relationship between the parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the parties. It is further understood and agreed that your relationship with SimplyBe. is and shall continue to be that of an independent contractor and you shall not be entitled to receive employee benefits from SimplyBe. and you are responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to payments made by SimplyBe. No waiver of any of the terms of this Agreement by either party will be valid unless agree to in writing and designated as such. Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. The headings and titles of the paragraphs of this Agreement are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein. You may not assign, as a result of a change of control or by operation of law or otherwise, your rights and/or obligations under this Agreement without the prior written consent of SimplyBe. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Any action related to or arising from this Agreement that is an exception to the arbitration process described herein shall take place exclusively in the courts situated in Chicago, Illinois and the parties hereby submit to the venue of the courts situated therein. In any arbitration, suit, action, or legal proceeding relating to this Agreement, the prevailing party shall have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection therewith. This Agreement constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.