AFFILIATE MARKETING AGREEMENT
BETWEEN THE YOGA PASS AFFILIATE AND THE YOGA PASS
This Affiliate Marketing Agreement (this “Agreement” or this “Marketing Agreement”) is entered into effective as of the Effective Date below by and between The Yoga Pass. LLC., (“Company”) and The Yoga Pass Affiliate an Independent Marketing Affiliate (“Affiliate”). Company and Affiliate may each be referred to herein as a “Party” or together as the “Parties.”
WHEREAS, Affiliate desires to serve Company as an independent Affiliate to promote specified service marketed by Company, subject to the terms and conditions hereinafter set forth:
WHEREAS, Company desires Affiliate to market Company’s service(s) subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
- Relationship of Parties.
Affiliate shall be deemed an independent contractor, and nothing herein shall be construed to establish between Company and Affiliate the relationship of employer-employee, partnership, agency, franchise, sales representative or joint venture. Affiliate will make no statement to prospective buyers, whether on Affiliate’s website or otherwise, that reasonably would contradict this statement. Affiliate will have no authority to make or accept any offers or representations on Company’s behalf.
Affiliate will be responsible for all state and federal taxes and assessments relating to all services provided under the terms of this Agreement, including federal income tax, federal social security payments, all payroll taxes, state unemployment insurance payments, disability insurance and worker’s compensation payments. Affiliate further waives all claims to any benefits arising under or with respect to any profit sharing, pension or other benefits plans maintained by Company. Subject to the express limitations contained in this Agreement, this Agreement does not limit the right of the Affiliate to perform services for any other Party or be employed by another Party so long as such engagement or employment does not interfere with Affiliate’s performance hereunder. Notwithstanding the foregoing sentences, the Company may withhold any amount if required to be withheld under any federal, state, or local laws.
The Company allows Affiliate to advertise and promote Company’s service described in Exhibit “A” (“Company Service”). The Affiliate represents the Company’s service and, unless described elsewhere in this Agreement, is paid a commission by the Company. Affiliate acknowledges that it may participate only under the terms and conditions set forth below, and that subsequent to Company accepting this Agreement, Company will, in its sole discretion, determine whether to accept Affiliate into Company’s Affiliate Program. Company expressly disclaims any all warranties of any kind, express, implied, or statutory, relating to the Affiliate marketing of Company’s service.
This Agreement is personal to Affiliate. Affiliate may not assign Affiliate’s rights under this Agreement without Company’s prior written consent. Company may assign this Agreement at any time. All Affiliates must be 18 years of age or older.
- Hold Harmless; Limitation of Liability.
Affiliate understands that Company and/or Company’s assigns do not guarantee or predict any profit, sales, or other response from marketing the service, and Affiliate agrees to hold Company and its assigns harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, joint or several, of whatever kind or nature which Company and/or their assigns may become subject to arising out of or relating to Affiliate’s participation as an Affiliate, including, without limitation, in each case attorney’s fees, costs and expenses incurred in defending against or enforcing any such losses, claims, expenses, suits, damages or liabilities. Affiliate is solely and fully responsible for all costs and expenses that Affiliate incurs in the marketing of the Company and the Company’s service. Affiliate agrees to hold Company harmless from same.
If, notwithstanding the foregoing clause, Company is held liable to Affiliate, Company’s aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total commissions or other compensation paid or payable to Affiliate under to this Agreement. Further, Company’s obligations and Affiliate remedies are solely and exclusively as described and limited in this Agreement.
- Term and Termination.
The term of this Agreement will begin when Affiliate and Company sign the Agreement, and will end when terminated by either Party. Either the Company or Affiliate may terminate this Agreement at any time, with or without cause, by giving the other Party written notice of termination. Upon the termination of this Agreement for any reason, all licenses granted will immediately terminate and Affiliate will immediately cease use of, and remove from Affiliate’s website or marketing materials, all links to Company’s website and all other materials provided in connection with this Agreement, if any. Affiliate is only eligible to earn commissions on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the service signed up for is not canceled. Company may withhold final payment for a reasonable time to ensure against cancellation of any service signup. However, notwithstanding any other provision of this Agreement, Affiliate will forfeit all rights to unpaid commissions if this Agreement is terminated as a result of any one of the following Affiliate actions: fraud, embezzlement, or theft; willful misconduct damaging to the Company, its reputation, product, services, or customers; intentional violation of any law or regulation; and any unauthorized disclosure of any trade secret or confidential information of the Company.
- Representation of Affiliate.
Affiliate represents, covenants, and warrants to Company that Affiliate may enter into this relationship with Company and by doing so, is not violating and will violate no agreement or understanding, written or unwritten, with any third party. Affiliate represents and warrants that Affiliate has and shall maintain in effect all licenses, permits, and authorizations required from all federal, state, and local authorities necessary to the performance of Affiliate’s obligations under this Agreement. Affiliate shall notify Company in writing within three (3) calendar days in the event any representation or warranty made by Affiliate and set forth in this Agreement will no longer be true, correct or complete.
Affiliate represents, covenants, and warrants to Company that neither Affiliate nor its owners, principals, employees and/or contractors (i) have been sanctioned within the meaning of Social Security Act Section 1128A or any amendments thereof; (ii) have been charged with or convicted of violating any Health Care Law or Business Law; (iii) have been debarred, excluded or suspended from participation in any federal or state health care program; (iv) have been the subject of a complaint filed by any federal or state enforcement agency related to the Health Care Laws or Business Laws or (v) have engaged in any conduct that could give rise to sanctions, convictions, or violations of any of the Health Care Laws or Business Laws.
- Licenses and Goodwill Preservation
Affiliate may use Company’s materials, including Company’s trademarks, to sell and promote Company’s service, but Affiliate shall not represent that it is the Company or that it is able to bind the Company. Company may revoke permission to use the Company’s materials at any time and for any reason.
Company shall have the right, but not the obligation, to approve, in its sole and absolute discretion and with due regard to the protection and preservation of the goodwill of the service any promotional, advertising, or marketing item used by the Affiliate. The Affiliate shall make all deletions and modifications suggested by Company.
The Affiliate shall acknowledge and clearly identify and respect that all proprietary information, trademarks, copyrights and all other similar rights in and arising out of the service are, and shall continue to be, the exclusive property of the Company.
Affiliate agrees to only present Company, Company services as set forth by Company, as stated on the Company website or Company materials. Affiliate shall not make or give to a customer or a potential customer any warranty, representation or other statement concerning the product without first obtaining the written consent of Company.
- Unacceptable Marketing.
Company may terminate Affiliate if Company determines (at Company’s sole discretion) that Affiliate’s website or marketing materials are unsuitable for Company’s service. Unsuitable sites/materials include, but are not limited to, those that promote (1) sexually explicit materials, (2) violence or obscenity, (3) discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, (4) illegal activities, (5) or the violation of this Agreement or any of the Company’s intellectual property rights.
Affiliate understands that violation of such restriction may cause the Company to violate laws, covenants, or other restrictions and agrees to indemnify Company for any harm or damage that results from any such marketing or sales.
Affiliate further agrees not to disparage Company or Company’s service. Affiliate understands that disparagement may cause the immediate termination of Affiliate relationship with Company with a cancellation of any pending commissions.
Affiliate’s customers include only individuals who have made verified purchases of Company service through Affiliate and never previously purchased the Company service directly from the Company.
- Sales and Commissions; Pricing
The Yoga Pass Affiliate, will market Company’s service (which is a contractual monthly Membership to The Yoga Pass) and/or promote the purchase of the membership through any law abiding methods he/she may see fit, including but not limited to: online representation (social media promotion via any platform, the website itself, web advertising, etc.) and/or offline representation (promotion at retail stores, public events, personal networks, or by any means he/she believes will attract members to the site an obviously purchase a membership). The Yoga Pass Affiliate will be given his/her own personalized special Affiliate tracking link/code that will be promoted with The Yoga Pass. (See Exhibit B – attached hereto) In exchange for his/her efforts in promoting the membership to The Yoga Pass, he/she will receive a commission from Company for sales resulting from such marketing. Commissions will be calculated based on Company sales generated directly from web traffic from Affiliate’s tracking link or directly from a sale when the buyer gives Company the Affiliate’s tracking code. For a sale to generate a commission to Affiliate, the buyer must remit payment for the service. Commissions will only be paid on sales made through Affiliate’s qualified tracking link/code. Affiliate earnings are paid by Company directly to Affiliate after the return/chargeback period has expired.
Commissions are assigned to the Affiliate’s tracking link based on the last cookie associated with the sale. As tracking of the commissions is not an easy task, Company will only pay Affiliate commissions on sales tracked through Affiliate’s tracking link which indicates that said Affiliate was the source of the visit to Company website.
Affiliate is solely responsible for ensuring that his/her tracking link is set up properly to have sales tracked and recorded to qualify for commissions. Company is not responsible for the failure to assign any sale or commissions to Affiliate if the same results from the improper formatting of Affiliate’s tracking link. The link will be provided to the Affiliate in good working order, and to ensure credit is given, any qualifying sale must have been derived from the identical link given to the Affiliate.
Affiliate agrees to exercise reasonable efforts to (a) promote the purchase of a membership to The Yoga Pass; (b) abide by Company’s policies and procedures with regard to marketing Company service; and (c) conduct its business in a manner that reflects favorably at all times on the Company service and the good name, goodwill and reputation of Company or its affiliates. Affiliate agrees that it has no rights or claims of any type to the Company service, or any aspect thereof, except such rights as created by this Agreement. Company shall set the selling price at which the Company’s service is sold.
Affiliate shall be compensated on a commission basis or as otherwise set forth in Exhibit “B”. Exhibit “B” may be updated from time to time as the Parties agree in writing. If there is any change, all Affiliates will be informed of said change as soon as possible. Notwithstanding anything to the contrary in this Agreement, Affiliate shall not be entitled to any compensation under this Agreement regarding sales that result from marketing or securing any service sign-up in violation of State or Federal Laws. In such a case, Affiliate shall indemnify Company, for all cost, loss, expense or liability arising from such conduct by Affiliate.
Notwithstanding any other provision in this Agreement, Company may update and amend Exhibit “B” at any time to reflect changes for any reason, including business operations, such as cost of goods increases, cost of labor increases, or the addition of new services.
Affiliate shall bear all expenses and obligations incurred in connection with its solicitation of orders for the service, including travel, entertainment and telephone. Affiliate shall be responsible for all travel and maintenance costs associated with training and Affiliate shall be required to attend training at the request of Company. In order to facilitate necessary communication, Affiliate agrees to maintain a telephone and facsimile line, voicemail, email, and a cellular telephone, at Affiliate’s own expense. Should Company require Affiliate to travel, attend trade shows/conventions or sales meetings or perform other services not in the normal course of its duties, Company will promptly reimburse Affiliate for reasonable expenses incurred. No travel expense will be reimbursed without prior written approval of Company of the specific travel expense.
- Legal Compliance.
Affiliate will, at all times, strictly comply with all laws, regulations and requirements applicable to the duties conducted hereunder, including, without limitation, federal and state false claims act(s), federal or state civil monetary penalties laws, federal and state antikickback and state self-referral statutes and regulations.
AFFILIATE’S SERVICE WILL BE TERMINATED IMMEDIATELY AND WITHOUT WARNING SHOULD YOU VIOLATE THE CAN-SPAM ACT AND SEND ANY UNSOLICITED BULK EMAIL CAMPAIGN. Affiliate may also be subject to fines and legal actions because of Affiliate’s unsolicited bulk email promotion.
- Miscellaneous Provisions.
The subject headings of the articles and sections are for convenience only, and shall not affect the construction or interpretation of any of its provisions. If any portion of this Agreement is found invalid or unenforceable, that portion shall be severed and the remainder of this Agreement shall remain in force. This Agreement constitutes the entire Agreement between us pertaining to its subject matter and supersedes all of prior agreements, representations, and understandings. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both Parties. No waiver of any of the provisions of this Agreement will be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. If an organization is the Affiliate, the individual signing up for the Affiliate Program represents that he or he/she is duly authorized to enter into this Agreement on behalf of that organization.
- Confidential Information.
Company and Affiliate both agree that all information typically and safeguarded as confidential by a Party and learned by the other Party will be treated by the other Party as confidential and the other Party shall not disclose any of it to anyone except that other Party’s employees who (a) have a need to know it; and (b) are bound to keep confidential such information. Notwithstanding the treatment by either Party of information as confidential, however, this Section shall not apply to any information that is (i) developed by the receiving Party independently of the disclosing Party’s confidential information; (ii) rightfully obtained without restriction by the receiving Party from a third party with no known duty to the disclosing Party to keep such information confidential; (iii) publicly available other than through the fault or negligence of the receiving Party; (iv) released without restriction by the disclosing Party to anyone; (v) known to the receiving Party at the time of the disclosure, without an existing duty to protect the information; (vi) disclosed by the receiving Party with prior written approval of the disclosing Party; or (vii) must be disclosed by the receiving Party under applicable law.
- Non-Solicitation Covenant / Non-Compete Covenant.
Affiliate covenants that during the term of this Agreement, Affiliate will do nothing, directly or indirectly, which would solicit away from Company or otherwise divert from Company any business to a competitor of Company; associate with or contact, directly or indirectly, any customer or prospective customer of Company with the purpose or intent of competing with Company; or solicit, recruit or cause any Company employee or consultant to cease providing services for Company.
Affiliate covenants that during the term of this Agreement and for a period of two (2) years thereafter, Affiliate will not compete in any manner, directly or indirectly, with any business of Company, or act as a sale agent or representative for any business in a field that competes with Company’s service, including participating as a principal, agent, owner, consultant or employee in any business competing with Company. The geographic scope of these restrictions will include all geographic areas in the United States, Canada and elsewhere where Company does business, attempts to do business, or intends to do business as of the date of termination of this Agreement.
- Governing Law.
This Agreement shall be governed by the laws of New Jersey, and the Parties agree to submit to the exclusive jurisdiction of the courts located in Morris County, New Jersey.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court or arbitration decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provisions shall be deleted from this Agreement or changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court or arbitration decision.
Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and hand-delivered or sent by e-mail, certified or registered mail, first class, return receipt requested, to the addresses set forth above. Either Party may change its address for notice purposes by notifying the other Party of such change of address within five days after the change of address, such notice to be in writing.
- Entire Agreement; Modifications; No Waiver; Counterparts and Survival
This Agreement contains the full and entire agreement between the parties with respect to the subject matter hereof. It supersedes all prior negotiations, representations and proposals, written or otherwise, relating to its subject matter. Any modifications, revisions or amendments to this Agreement must be set forth in a writing signed by authorized representatives of both Parties. Any failure by any Party to enforce at any time or for any period of time, any of the provisions of this Agreement shall not be deemed or construed to be a waiver of such provisions or of the right of the Party thereafter to enforce every provision. This Agreement may be made in several counterparts, each of which will be deemed an original.
IN WITNESS WHEREOF the Parties have caused this Affiliate Marketing Agreement to be executed by the Effective Date below and delivered by their duly authorized representatives.
- The Yoga Pass Affiliate is working for commissions based upon the promotion, marketing and eventual selling of a Membership to The Yoga Pass to any individual.
Retail Price per unit: The Company has set the retail price of a Yoga Pass Membership at $29.99 per month. The price may be changed by the Company at any time in its sole and absolute discretion. Affiliates will be notified of any changes in writing prior to or within 30 days after such change occurs.
Basic Commission per membership sold:
The Yoga Pass Affiliate will receive a commission for each membership sold. If his/her unique code and/or unique URL is used for the transaction/purchase, he/she will receive $20.00 per paid membership.
Additional Bonuses: At Company sole discretion, an Affiliate may receive additional bonus commissions based upon sales from “sponsored” Affiliates.
All and any pricing, commissions, and bonus structure may be changed by the Company at any time in the Company’s sole and absolute discretion. Affiliates will be notified of any changes in writing prior to or within 30 days after such change occurs.