AFFILIATE AGREEMENT
TERMS & CONDITIONS
THIS AGREEMENT SETS OUT THE TERMS AND CONDITIONS THAT APPLY TO AN INDIVIDUAL OR AN ENTITY'S PARTICIPATION IN THE DIGITAL INSTRUCTOR LLC AFFILIATE PROGRAM (THE "AFFILIATE PROGRAM"). ALL REFERENCES TO "YOU" MEAN YOU, THE INDIVIDUAL OR ENTITY APPLYING TO BE PART OF THE AFFILIATE PROGRAM. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND DIGITAL INSTRUCTOR.
1. Enrolling in the Affiliate Program
By completing and submitting this on-line enrollment form (the "Enrollment Form") for the Affiliate Program and by agreeing to be bound by the terms and conditions of this Agreement, You begin the application process for Digital Instructor's Affiliate Program. Your acceptance by Digital Instructor into the Affiliate Program is not guaranteed. Acceptance is in Digital Instructor's sole discretion. When Digital Instructor has decided whether to accept or reject your application for the Affiliate Program, Digital Instructor will notify You of its decision. If you are not accepted into the Affiliate Program, you may apply again.
2. Links to Digital Instructor Websites
"Links" are hypertext links from the web site that You designate on your website ("Your Website") to Digital Instructor's web sites located at www.OvernightGenius.com, www.RisingStarLearning.com, or www.DebtSnap.com, (the "Digital Instructor Website") provided by Digital Instructor to You. Links include, but are not limited to, banner advertisements, buttons or text links. These links are collectively referred to in this Agreement as "Links," or individually as a "Link." Subject to the terms and conditions of this Agreement, You may display these Links on your site but You may not modify or change them without Digital Instructor's written approval, which may be withheld at its sole discretion. In using the Links, You agree that You will cooperate fully with Digital Instructor in order to establish and maintain such Links or Link. Digital Instructor has the right in its sole discretion to monitor your site at any time, and from time to time, to determine if You are in compliance with the terms of this Agreement. Digital Instructor will provide with each Link a specially formatted tracking code unique to You with instructions on how to place the link onto your website. It is up to You to follow the instructions provided with each Link. To ensure proper tracking of your Link, the tracking code cannot be modified or changed. Each Link provided by Digital Instructor to You has been formatted so that Digital Instructor may track sales from Your Website. Any modification to the tracking code will result in lost Commissions.
3. Affiliate Commissions
a. Amount of Commission: Digital Instructor will pay You a Commission for each customer who: (i) follows a Link from Your Website to the Digital Instructor Website and (ii) prior to leaving the Digital Instructor Website requests a free trial of one product or directly purchases one or more products and (iii) submits a valid credit card for payment. The amount of the Commission paid by Digital Instructor to You will be determined in accordance with the Affiliate Payout Schedule, as detailed on the www.DigitalInstructor.com website. Commissions will not be paid for invalid credit cards or products which are returned within the 60 day return period. Notwithstanding the foregoing, no Commissions shall be earned if You are in breach of this Agreement.
b. Affiliate Payout Schedule: "Affiliate Payout Schedule" means the schedule identifying the payment that will be made to You (and other participants in the Affiliate Program) in exchange for sales, as set forth on the Digital Instructor Website. The Affiliate Payout Schedule may be amended by Digital Instructor from time to time. Although Digital Instructor may notify You, as a courtesy, when it revises the Affiliate Payout Schedule, it is not required to do so. Changes to the Affiliate Payout Schedule are effective once posted. You are advised to review your personal Affiliate Payout Schedule periodically.
c. Payment of Commissions: Digital Instructor will pay to You all accrued Commissions within thirty (30) days following the end of each calendar month for sales of merchandise not returned within the 60 day return period, or for free product trials accompanied by a valid credit card.
4. Reporting
Monthly Reporting: You will have access to real-time reports traffic volumes, and revenue by contacting Digital Instructor at 303-468-6690 or emailing affiliates@digitalinstructor.net.
5. Responsibilities of the Parties
a. Technical Operations: Except as set forth herein, as between Digital Instructor and You, each Party is solely responsible for the development, operation, and maintenance of its respective Website. Neither party shall have responsibility for the development, operation, and maintenance of the other party's Website or for materials that appear on the other's Website.
b. Website and Content: Each party is responsible for ensuring that: (i) materials posted on its website do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights); and (ii) materials posted on its website are not libelous or otherwise illegal. Each party must have express permission to use another party's copyrighted or other proprietary material. Neither Party will not be responsible if the other Party uses a third party's copyrighted or other proprietary material in violation of the law. If either Party suffers losses as a result of the other Party's wrongful use of a third party's proprietary material or intellectual property, the violating Party will indemnify and hold the other party harmless from all such losses (including, without limitation, attorneys' fees and expert witness fees).
Both Parties must comply with, and each Party's respective Websites must not violate, any and all local, state, national or international law, regulation or treaty as well as any privacy policy that is posted on the respective Websites. Each party is solely responsible for the content and materials that are posted on its Website including, but not limited to, ensuring that they:
- do not violate any local, state, national or international law, statute, regulation, rule or treaty;
- are not inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful;
- do not contain viruses, Trojan horses, worms, time bombs or any other harmful code;
- do not violate or infringe upon the intellectual property, industrial and other proprietary rights of any third party; and
- do not include any content that may damage either party's reputation or goodwill.
c. Conduct: You agree not to:
- breach or attempt to breach the security or authentication measures employed by Digital Instructor or its suppliers in respect of the Digital Instructor Web;
- provide false information to Digital Instructor and/or act or attempt to act in any false, misleading or illegal manner;
- disrupt or interfere with another individual's or entity's participation in the Affiliate Program;
- attempt to artificially increase the Commissions earned by, or payable to, You;
- use controversial marketing techniques including, but not limited to, sending commercial e-mail, or bulk e-mails which do not comply with the Digital Instructor email terms & conditions; or
- commit any act that may damage Digital Instructor's reputation or goodwill.
Any violation of this Section 5.c. or of the accepted norms of the Internet community shall constitute a material breach of this Agreement. In the event of a material breach of this Agreement, Digital Instructor shall have the right to immediately terminate this Agreement. No Commissions shall be earned by You for any period in which You are in breach of this Agreement. Further, in the event that you are in breach of this Agreement, Digital Instructor shall have the right to withhold all unpaid Commissions earned prior to such breach. Termination or waiver thereof shall in no way constitute a waiver of any other Section of this Agreement.
6. Intellectual Property Rights
a. Ownership of Content: As between Digital Instructor and You, Digital Instructor shall retain complete ownership and control of the Digital Instructor Website, including without limitation, any content contained thereon. You shall retain complete ownership and control of Your Website(s), including without limitation, any proprietary content contained thereon.
b. Ownership of User Data: Digital Instructor shall retain complete ownership and control of all information that Digital Instructor collects through the Digital Instructor Website.
c. Digital Instructor License: Digital Instructor grants You a non-exclusive, non-transferable, revocable right to use the Links and other materials made available to You by Digital Instructor (collectively, the "Licensed Materials") during the term of this Agreement, in conjunction with Your Website, in accordance with the terms and conditions of this Agreement and any guidelines for Your use of the Licensed Materials that may be provided by Digital Instructor from time to time ("Guidelines"). You may use the Licensed Materials solely for the following purposes: (1) identifying Your Website as a participant in the Affiliate Program; and (2) providing Links to the Digital Instructor Website from Your Website.
d. Acknowledgement; Restrictions: You acknowledge that the Licensed Materials may contain trademarks, trade names, service marks, characters or logos owned, controlled, or licensed by Digital Instructor or by any affiliate of Digital Instructor (collectively, the "Digital Instructor Marks") and agree that: (i) You shall not use the Digital Instructor Marks in a manner likely to diminish their commercial value; (ii) You shall not use or permit the use of any mark, name, or image likely to cause confusion with the Digital Instructor Marks; (iii) all goodwill associated with any use of the Digital Instructor Marks shall inure to Digital Instructor; (iv) the Digital Instructor Marks are and shall remain the sole and exclusive property of Digital Instructor; and (v) nothing in this Agreement shall confer in You any right of ownership in the Digital Instructor Marks, and You shall not make any representation to that effect, or use the Digital Instructor Marks in a manner that suggests that such rights are conferred. You agree not to register or attempt to register any brand, names, marks, or other elements of the Links, the Licensed Materials or the Digital Instructor Marks as a trademark, service mark, Internet domain name, trade name, or any similar trademarks or name, with any domestic or foreign governmental or quasi-governmental authority. Digital Instructor hereby represents and warrants that it has the right to all Licensed Materials and that such Licensed Materials do not infringe on any intellectual property rights of any third party. Digital Instructor shall indemnify and hold You harmless for any claims by third parties regarding the use of the Licensed Materials, including paying for all attorney's fees.
e. Third Party Property: All images, trademarks, service marks, product names, company names or logos appearing on the Digital Instructor website are the property of their respective owners. Any use of such materials, other than the Licensed Materials, including the reproduction, modification, distribution or republication of same, without the prior written permission of the applicable owner, is strictly prohibited.
f. Reservation of Rights: All other rights in Licensed Materials are reserved by Digital Instructor. Digital Instructor reserves the right to review any approved use of the Licensed Materials and to require changes in such further use, and You agree to immediately comply with any such requirements. In the event that Digital Instructor, at any time and for any reason or no reason, requests in writing that You stop using any Licensed Material, You shall promptly comply with such request.
7. Confidentiality
a. "Confidential Information" means all information and materials provided by one Party ("Discloser") to another Party ("Recipient") which: (i) are designated in writing, as confidential at the time of disclosure, or (ii) if disclosed orally or visually, are designated in writing, as confidential, within thirty days of disclosure, or (iii) if a reasonable person, having regard to the circumstances, would regard such as confidential. All Confidential Information provided is provided on an "AS IS" basis, and the Discloser makes no representation or warranty with respect to it. Without limiting the foregoing, representations and warranties with respect to its accuracy, completeness or non-infringement of trade-marks, patents, copyrights or any intellectual property rights or other rights of third persons are specifically excluded. Recipient will use the Confidential Information only for the purpose of fulfilling its obligations under this Agreement and only in accordance with this Agreement and will not use, manipulate or exploit the Confidential Information in any other manner or disclose it to any third party.
b. Publicity: Neither Party will issue any written or oral announcement, press release, or other public release of information that contains information about this Agreement or the Affiliate Program without the prior written consent of the other Party.
8. Non-Exclusivity
a. By accepting this agreement, You acknowledge and agree that Digital Instructor may operate one or more websites that are competitive with Your Website. The parties hereby acknowledge and agree that the rights granted hereunder are not exclusive and Digital Instructor shall have the right at all time to grant the same or similar rights to other parties.
b. By accepting this agreement, Digital Instructor acknowledges and agrees that You may operate one or more websites that are competitive with Digital Instructor's website and Your own websites. The parties hereby acknowledge and agree that the rights granted hereunder are not exclusive and that You shall have the right at all times to grant the same or similar rights to other parties.
9. Term and Termination
a. Term: The term of this Agreement (the "Term") will begin once Digital Instructor has sent to You notice that You have been accepted in the Affiliate Program and will continue for a period of twelve (12) months thereafter unless earlier terminated, renewed or extended in accordance with the terms of this Agreement.
b. Automatic Renewal: This Agreement will renew automatically for successive six-month periods unless either party gives written notice to the other party of its intent not to renew no less than thirty (30) days prior to the end of the previous term.
c. Termination: Digital Instructor or You may terminate this Agreement at any time, with or without cause upon notice. Either party may terminate this Agreement if the other party makes an assignment of assets for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to applicable bankruptcy laws or debtor's moratorium. PLEASE NOTE THAT WHILE YOU ARE IN BREACH OF THIS AGREEMENT YOU ARE NOT ENTITLED TO EARN OR ACCRUE COMMISSIONS.
d. Effect of Termination: Sections 3.c., 6.a., 6.b., 6.d., 6.e., 7, 9.d., 10, 11 and 13 will survive the termination or expiration of this Agreement for any reason. Upon termination or expiration of this Agreement for any reason, each party shall return to the other party any and all Confidential Information of the other party in its possession or control. Upon termination of this Agreement, You will stop using the Licensed Materials, remove Licensed Materials from Your Website, destroy all Confidential Information disclosed to You by Digital Instructor and furnish to Digital Instructor, as soon as reasonably practicable, a certificate attesting to such destruction. Upon termination of this Agreement, Digital Instructor will pay any Commissions earned in accordance with Section 3 that remain unpaid as of the date of termination.
10. Warranties, Disclaimers and Limitation of Liability
a. Affiliate Warranties: You hereby represent and warrant that: (i) You have full power, legal right and authority to enter into this Agreement, and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with its terms; (ii) You have taken all necessary corporate action to authorize the creation, execution, delivery and performance of this Agreement; (iii) this Agreement including your completed Enrollment Form, if accepted by Digital Instructor, constitutes a valid and legally binding obligation of You enforceable against You in accordance with its terms, subject only to applicable bankruptcy, insolvency and other similar laws affecting the enforceability of the rights of creditors generally; (iv) Your Enrolment Form was, when submitted to Digital Instructor, and continually since then, true and accurate; and (v) You and Your Website are in compliance with all applicable laws, statutes, rules or regulations (local, state, national or international).
b. Digital Instructor Disclaimer: DIGITAL INSTRUCTOR EXPRESSLY DISCLAIMS, ANY AND ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS WITH RESPECT TO THE DIGITAL INSTRUCTOR WEBSITE OR THE AFFILIATE PROGRAM OR OTHERWISE ARISING FROM THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF QUALITY, PRODUCTIVENESS OR ACCURACY. THE EXPRESS TERMS OF THE AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, TRADE, CUSTOM, USAGE, COURSE OF DEALING OR OTHERWISE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES. IF ANY JURISDICTION HAVING APPLICABILITY TO THIS AGREEMENT DOES NOT PERMIT ANY SUCH EXCLUSION OR LIMITATION: (A) EACH WARRANTY WHICH CANNOT BE EXCLUDED SHALL BE LIMITED IN TIME TO THE SIXTY (60) DAYS FROM ACCEPTANCE OF THIS AGREEMENT BY DIGITAL INSTRUCTOR; AND (B) DIGITAL INSTRUCTOR 'S TOTAL LIABILITY TO YOU FOR BREACH OF ANY OR ALL SUCH WARRANTIES SHALL BE LIMITED TO THE AMOUNT SET FORTH IN SECTION 10.c. OF THIS AGREEMENT.
DIGITAL INSTRUCTOR MAKES NO WARRANTY THAT THE OPERATION OF THE DIGITAL INSTRUCTOR WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE.
c. Limitation of Liability: IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF DIGITAL INSTRUCTOR (INCLUDING TO EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS) TO YOU, FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE AFFILIATE PROGRAM OR THE DIGITAL INSTRUCTOR WEBSITE, EXCEED $100.00. THE FOREGOING PROVISION LIMITING THE LIABILITY OF DIGITAL INSTRUCTOR (INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS) SHALL APPLY REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR A BREACH OF A FUNDAMENTAL TERM OR CONDITION. DIGITAL INSTRUCTOR SHALL NOT BE LIABLE TO YOU OR TO ANYONE CONNECTED WITH YOU IN ANY WAY WHATSOEVER, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT. THIS LIMITATION SHALL APPLY WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, OR WHETHER DIGITAL INSTRUCTOR (OR ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Indemnification
a. You agree to indemnify and hold Digital Instructor and its employees, directors, agents, suppliers or subcontractors harmless from any and all claims, suits, losses, damages and expenses (including legal fees and expenses) incurred in connection with any claims, demands and other liabilities asserted against any of them as a result of You using the Licensed Materials or any breach by You of any provision of this Agreement.
b. Digital Instructor agrees to indemnify and hold You and your employees, directors, agents, suppliers or subcontractors harmless from any and all claims, suits, losses, damages, and expenses (including legal fees and expenses) incurred in connection with any claims, demands and other liabilities asserted against any of them as a result of Digital Instructor's Licensed Materials or any breach by Digital Instructor of any provision of this Agreement.
12. Modifications to this Agreement
From time to time, Digital Instructor may, in its sole discretion, modify any of the terms and conditions contained in this Agreement by posting the revised version to the Digital Instructor website. You are advised to check the Digital Instructor website periodically. IF THE REVISED VERSION OF THIS AGREEMENT IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A REVISED AGREEMENT ON THE DIGITAL INSTRUCTOR WEBSITE WILL CONSTITUTE ACCEPTANCE OF THE CHANGE.
13. General Provisions
a. Independent Contractors: The parties are entering this Agreement as independent contractors, and this Agreement will not be construed to create a partnership, joint venture or employment relationship between them. Neither party will represent itself to be an employee or agent of the other or enter into any agreement on the other's behalf of or in the other's name.
b. Compliance; Taxes; Expenses: In its performance of this Agreement, each party will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, each party will pay, collect and remit such taxes as may be imposed with respect to any compensation, royalties or transactions under this Agreement. Except as expressly provided herein, each party will be responsible for all costs and expenses incurred by it in connection with the negotiation, execution and performance of this Agreement.
c. Force Majeure: Neither Digital Instructor or You will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
d. Notices: Any notice given pursuant to this Agreement shall be in writing. Notices sent to You will be sent by e-mail to the contact listed on Your Enrollment Form. Notices sent to Digital Instructor will be sent to: jeannine.crooks@DigitalInstructor.net. Once sent by e-mail, notices are deemed to be received on the following business day. Either party may designate a different e-mail address by notice to the other given in accordance herewith.
e. Assignment: You may not assign this Agreement, by operation of law or otherwise, without Digital Instructor's prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
f. Waiver: The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party's rights to subsequently enforce the provision.
g. Entire Agreement; Severability: If accepted by Digital Instructor, this Agreement including your completed Enrollment Form represents the entire Agreement between the parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written agreements regarding such subject matter. Each provision of this Agreement is independent of and severable from each other provision. If any provision of this Agreement is found to be unenforceable or invalid, the remaining provisions of this Agreement shall remain valid and enforceable.
h. Choice of Law and Forum: This Agreement will be governed by the laws of the United States and the State of Colorado, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Arapahoe County, Colorado.
i. Headings: The headings and subheadings in this Agreement are for reference only, and shall not affect the interpretation of this Agreement.
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