LAST UPDATE: December 15, 2022
This Affiliate Agreement (“Agreement”), dated below (the “Effective Date”), is by and between Redefined Advisors LLC and (“Customer”).
WHEREAS, Company offers a data-append service to help schools grow enrollment with online follow-up/remarketing (collectively the “Services”), and Customer desires to offer the Services to its clients under Customer’s trade name; and
WHEREAS, Company perform the Services for Customer, and Customer desires to use the Services from Company on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intend to be legally bound and agrees as follows:
1. Term and Termination. The term of this Agreement is ___12______ months from the Effective Date and shall thereafter automatically renew monthly until either party cancels Agreement.
Customer further acknowledges that Third Party Platform Requirements are constantly evolving, may be updated from time-to-time, and it is Customer’s sole responsibility to review and comply with such Third-Party Platform Requirements when using the Services. Company and its licensors assume no responsibility or liability related to Customer’s use of Third Party Platforms under this Agreement. To obtain a complete list of Third-Party Platforms please contact the Company.
3. Acknowledgments. By executing this Agreement, Customer further acknowledges and agrees that: a. Third Party Platforms collect and use information in different ways. Some information gathered using the Services and Third-Party Platforms may constitute “personally identifiable information” under state law. Customer is responsible for ensuring compliance with all applicable state and federal laws when utilizing the Services and Third-Party Platforms. Customer represents and warrants that:
(b) Customer will require each website utilizing the Services and Third Party Platforms to display privacy policies that clearly disclose applicable data collection practices, including the types of data collected and purposes for which data is collected by or transferred to third parties, plus working mechanisms that conspicuously enable consumer opt-outs in accordance with applicable laws; and
(c) the Services and Third Party Platforms will not be used in conjunction with any website or application directed to children under the age of 16, or in any manner implicating the Children’s Online Privacy Protection Act. The Company and Third-Party Platforms reserve the right to exclude any use of the Services that do not comply with these terms.
b. When using the Services, Customer should note the following, examples of products or services that Google will not allow to be used with online follow-up (remarketing): remote technical support, advertisements targeting individuals with debt or credit issues, and advertisements based on health conditions or the use of medication. The list is not exhaustive and is for illustrative purposes only. Customer is responsible for confirming the use of the Services is compliant with all Third-Party Platforms’ policies. Customer acknowledges that the end-user of the Services under this Agreement must have editorial control of their website (or the website they would like to use with Services) in order for the Services to function properly. The Services must be able to incorporate code into the website.
4. Subscription Pricing; Terms and Conditions. Customer shall pay Company for the Services as specified in this agreement. $199/month. Up to 5,000 annual leads. Overage charge of $60/additional 1,000 leads will be charged to Customer.
5. Additional Fees. Company reserves the right to add service charges or fees for special requests, added work, labor or expense not ordinarily done as part of our normal delivery process. These may or may not be published and may be changed from time to time without notice. The Customer will be notified of any additional fees and offered the opportunity to refuse those charges and follow normal business procedures associated with the Services or pay the additional fees and charges for the requested work.
6. Uptime. Company will use its best efforts to provide uninterrupted use of the Services. However, Company disclaims any warranty related to uninterrupted use of the Services by Customer or Customer’s clients. Customer acknowledges that Third Party Platforms may reject, disable, or interrupt the use of the Services according to their own internal policies, procedures, and judgment of advertisements, including based on Customer’s or other third parties’ provided content. Company makes no warranties in relation to same. Company has no control functionality and availability of the advertisements and other services provided by the Third-Party Platforms, which are provided on an “as-is” basis without warranty of any kind as to their uptime.
7. Confidentiality. Each Party will keep the terms of this Agreement, the Schedule(s) and communications concerning this Agreement, including invoices, confidential. The Parties agree not to disclose, and to assure that their employees and agents will not disclose any confidential information to any competitor or any other person, or use this information in connection with any obligations which are now owed, or in the future may be owed, by either Party to any other person or entity for the term of the Agreement. Confidential information will include, but will not be limited to, pricing, methods, know-how, business processes and strategies, and any other information not publicly known, whether in written or oral form. Upon termination of this Agreement, the Parties agree to return to one another any and all materials and confidential information belonging to the other Party. Injunctive relief for violation of this confidentiality provision is available without a showing or irreparable harm or injury and without the necessity to post any bond whatsoever. Customer agrees that, unless otherwise specifically provided herein or agreed by Company in writing, the Services provided to it by Company constitute confidential information. Customer will use its best efforts to cooperate with and assist Company in identifying and preventing any unauthorized use, copying, or disclosure of the Services or any portion thereof.
8. Customer Provided Data. All identifiable data involving Customer’s or Customer’s clients’ campaign(s), including but not limited to mailing lists, designs, and customer information (collectively, “Data”), transferred by Customer to Company will only be used by Company for the provision of the Services to Customer. Company will not solicit customers obtained from the Data without Customer’s written permission. Customer acknowledges that the Company Terms of Service and Privacy and Security Policy are hereby incorporated into this Agreement and may be updated by Company from time to time. Updates made available by Company through the Company website shall apply to Customer and be incorporated herein. Customer acknowledges that Company is not offered for the purpose of creating, receiving, maintaining or transmitting protected health information, or other sensitive personally identifiable information about individuals, and Customer shall not provide or share such information with Company. Customer shall fully indemnify, defend and hold harmless the Company, its officers, directors, employees, affiliates, parents, agents, licensors, successors and assigns, from and against any and all liabilities, losses, costs, claims, suits, actions, proceedings, demands, civil or criminal fines, expenses, and assessments, arising out of or relating to Customer’s use of the Services for such information in violation of this Section 8 or applicable law.
9. Use of Anonymous Data. Customer acknowledges and agrees that Company may obtain, deidentify, and aggregate data it captures or meets through use of its Services (“Aggregated Anonymous Data”). Company may use the Aggregated Anonymous Data to analyze, improve, support, and operate the Services and otherwise for any business purpose, during and after the term of this Agreement, including without limitation to generate industry benchmarks or best practices guidance, recommendation or similar reports for distribution to and consumption by Customer and other Company customers and prospects. Aggregated Anonymous Data shall not identify Customer as the source of the Aggregated Anonymous data. Company shall have full ownership rights in any and all Aggregated Anonymous Data resulting from the Services.
10. Feedback. If Customer provides suggestions, comments and feedback regarding the Services, including but not limited to usability, bug reports and usage results, (collectively, “Feedback”) to Company, Customer shall grant Company a worldwide, nonexclusive, perpetual, irrevocable, royalty free, fully paid up right to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Company’s its licensor’s products, technology, services, specifications or other documentation. In addition, Company may use aggregated campaign results, so as not to disclose identifying details regarding the Customer’s campaign results and analytics, to include the number of calls received and website visitors, for both internal product development purposes and marketing materials to be published to third parties.
11. Customer Responsibilities. Customer is solely responsible for communicating with its clients, collecting its charges to its clients, collecting and paying all taxes associated with this Agreement and Customer’s business. Customer is responsible for complying with Third Party Platform Requirements and ensuring that its clients do the same. Customer shall ensure that each website that utilizes the Services and Third-Party Platforms complies with the terms of this Agreement and applicable law, including an end user’s ability to opt-out and a description of the information collected. Customer may be provided with the ability to record calls through use of the Services. Customer understands that the Services is not intended for protected health information. Compliance with all laws governing recording of calls is Customer’s sole responsibility, including obtaining all necessary consents. Customer understands and agrees that Company and its licensors are not responsible for determining the lawfulness of recording any particular call(s), and that Customer is responsible for compliance with applicable state and federal laws related to same.
12. Proprietary Rights. Legal title, ownership rights, and intellectual property rights in the Services and Company’s trade and service marks shall remain in Company and/or its licensors. Customer acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Company’s or its licensors’ ownership of those rights.
13. Customer’s Representations. Customer represents and warrants that (i) it has adequate legal capacity and authority to enter into this Agreement, (ii) it will use the Services only for lawful purposes and in accordance with this Agreement and (iii) it will not use the Services in violation of (a) any law, regulation, or ordinance or (b)any right of Company’s, its licensor’s, or any third party, including, without limitation, any right of privacy, publicity, patent, copyright or trademark. Customer assumes sole responsibility and liability for any users that access the Services through the Customer. Customer represents that it will comply with the terms and conditions of this Agreement. Customer further assumes sole responsibility and liability for results obtained from the use of the Services and for conclusions drawn from such use. Company shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any of its users’ use of the Services.
14. DISCLAIMER OF WARRANTY. THE SERVICES AND ALL THIRD-PARTY PLATFORMS ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT THEY ARE FREE OFDEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS BORNE BY CUSTOMER. SHOULD THE SERVICES PROVE DEFECTIVE IN ANY RESPECT, COMPANY MAY REPAIR OR REPLACE THE SERVICES AT ITS CHOICE AND EXPENSE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
15. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY, ITS AFFILIATES AND LICENSORS, OR ANY THIRD PARTY PLATFORM BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, INTERRUPTION TO THE SERVICES, COMPUTER FAILURE OR MALFUNCTION, DATA BREACHES, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. COMPANY IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT OR MATERIALS PROVIDED BY CUSTOMER OR A THIRD PARTY THAT ARE ACCESSED THROUGH THE SERVICES AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. IN ADDITION, COMPANY SHALL NOT BE LIABLE FOR THE FAILURE OF ANY CAMPAIGN TO BE DELIVERED ON TIME OR FOR THE FAILURE OF SUCH CAMPAIGN TO HAVE ITS INTENDED EFFECT. THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ANY AND ALL CLAIMS RELATED TO THIS AGREEMENT AND/OR CUSTOMER’S USE OF THE SERVICES, WHETHER BY CUSTOMER OR A THIRD PARTY, SHALL BE LIMITED TO THE TOTAL PAYMENT CUSTOMER MADE TO COMPANY IN THE PRECEDING THREE (3) MONTHS FROM THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY. NO CLAIM ARISING OUT OF THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT MORE THAN THE SHORTER OF ONE YEAR OR THE PERIOD ALLOWED BY LAW AFTER THE CAUSE OF ACTION HAS OCCURRED.
16. No Waiver. The failure of either Party to enforce or insist upon compliance with any of the terms of this Agreement or the waiver of any terms in this Agreement does not constitute a waiver or relinquishment of any other terms of this Agreement.
18. Conflicts between Agreement and Schedule(s). If a conflict exists between the terms of this Agreement and the specific terms of the Schedule(s), the specific terms of the Schedule(s) will prevail. If a conflict arises between the terms of the Terms of Service or Privacy and Security Policy and this Agreement, the Terms of Service and/or Privacy and Security Policy, respectively shall apply.
19. Entire Agreement. This Agreement supersedes and merges all prior agreements, promises, understandings, statements, representations, warranties, and covenants, and all inducements to the making of this Agreement relied on by Customer, whether written or oral, and embodies the Parties’ complete and entire agreement with respect to the subject matter herein.
20. Force Majeure. If either Party’s performance under this Agreement is restricted or interfered with, in whole or in part, by causes beyond its reasonable control, including but not limited to, acts of God, fire, explosion, vandalism, power failures, storm, any law, order, regulation, then it is excused from its performance hereunder to the extent of this restriction or interference.
21. Assignment. Neither party may assign this Agreement.
22. Notice of Independent Status. Customers shall conspicuously identify themselves in all dealings with their clients and others as independent and not affiliated with any of its licensors. Customers shall not represent to their clients that they are in business with or providing services on behalf of Company. Customers’ agreements with their clients must provide that Customer is the sole source of recourse in the event of a dispute.
23. Indemnification. Customer agrees to defend, indemnify, and hold harmless Company, its affiliates, licensors, officers, agents, attorneys, employees, members, and directors from all liabilities, claims, and expenses of any kind, including attorneys’ fees, that arise from Customer’s use of the Services, expressly including without limitation disputes with Customer’s clients which use the Services and liability arising from or relating to Customer’s operation of its business. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, at Customer’s expense, in which event Customer will cooperate with Company in asserting any available defenses.
24. Governing Law and Choice of Forum; Arbitration. This Agreement shall be governed by and interpreted in accordance with the laws of the state of __PA______, without regard to any conflicts of law rules. Any claim or dispute arising in connection with this Agreement not subject to arbitration, as provided below, shall be resolved in the federal courts in the ________PA______________, or state courts situated within the state of ___PA__________________. To the maximum extent permitted by law, the Parties hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. In the event of legal action, the successful party shall be entitled to reasonable attorneys’ fees and costs. Any controversy or claim arising out of or relating to this contract, or the breach thereof, other than Customer’s failure to make payments of monies owed to Company when due, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding, Company shall be entitled to seek an injunction in the event Customer breaches Sections 9, 15, or 16.
25. Counterparts; Electronic Signatures. This Agreement may be signed in several counterparts, each of which constitutes an original, but all of which will constitute one instrument. Customer may execute this Agreement pursuant to the Electronic Signatures in Global and National Commerce Act (15 U.S.C.§ 7001 et seq.) and any similar state laws (collectively “E-Sign Laws”). Accordingly, this Agreement constitutes an electronic record in satisfaction of the provisions of 15 U.S.C. §7006(4) and the E-Sign Laws. Customer acknowledges that this Agreement is capable of retention by the recipient at the time of receipt in satisfaction of the E-Sign Laws. Customer acknowledges that Customer is able to access, print and/or store this Agreement pursuant to the E- Sign laws.
26. Severability. If any terms of this Agreement are determined to be illegal, unenforceable, or invalid in whole or in part for any reason, the terms are stricken and will not affect the legality, enforceability, or validity of the remainder of this Agreement. If any terms of this Agreement are stricken as a result of this Section, then the stricken provision is replaced, to the extent possible, with legal, enforceable, and valid terms that are similar in tenor or the stricken provision as is legally possible. All headings and titles contained in this Agreement are used solely to organize the contents of this Agreement and will not be used to affect the interpretation of the contents of this document.
27. Notice. Any notice, demand or request required or permitted to be given hereunder shall be in writing and shall be deemed sufficient when delivered by overnight courier or 24 hours after being sent by email, or 72 hours after being deposited in the U.S. mail as certified mail, return receipt requested, with postage prepaid, addressed to the party to be notified as such party’s address as set forth above or as subsequently modified by written notice.