THIS AFFILIATE AGREEMENT is entered into as of the date that you agree to its terms by clicking “Accept” (“Effective Date“), by and between Local Loyalty Marketing Solutions of NC d/b/a LeadsNearby and Nearby Marketing LLC d/b/a Local Gladiator (collectively “Company” with a principal place of business at 2500 Regency Parkway, Cary, NC 27518 and you, a user of the Company Products and Services (“Affiliate Agent“), (each a “party” and jointly “the parties“).
BY APPLYING TO BECOME AN AFFILIATE, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS DOCUMENT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT COMPLETE THE APPLICATION. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY POWER AND AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.
IT IS AGREED:
Purpose. This Agreement allows the Affiliate Agent to market and promote the Company’s products and services as marketing tools and website platform (the “Services“) to prospective customers who may be interested in subscribing to such Services (“Prospects“).
Prospect Engagement. Company reserves the right to (a) enter into any agreements with Prospects on terms and conditions acceptable to Company, or to not enter into any agreements at all; (b) set the terms for Prospects’ engagement with the Company products and services, including any remuneration for such participation, and (c) enter into similar compensation arrangements with third parties.
Compensation. Subject to the terms of this Affiliate Agreement, Affiliate Agent shall be entitled to compensation as currently described below:
$100 of monthly recurring payments for LeadsNearby service programs or Local Gladiator Tool solutions and made by referred prospects and received by LeadsNearby or Local Gladiator
The amount of compensation payable is at the Company's sole discretion and is subject to change from time to time without notice. An Affiliate will receive a payment when their balance reaches a minimum of $100 USD. Payments will be made quarterly by the 15th of the following month (April, July, October, January) via PayPal. Once submitted, the Prospect shall be associated with and eligible to trigger compensation for the Affiliate Agent identified. For greater certainty, the Affiliate Agent shall not be entitled to compensation for the referral of (i) Prospects with whom the Company has a pre-existing business relationship and (ii) Prospects with whom the Company is already negotiating the Services and (iii) any Prospect who’s payment is either not receivable or is refunded at any time. Except for the compensations described in Section 3, each party shall be responsible for its costs and expenses in carrying out its obligations under this Agreement.
Trademark Usage. The trademarks, logos, service marks, and trade names under which the Company markets the Company products and services (the “Marks“) shall remain the Company's exclusive property. This Agreement gives Affiliate Agent no license regarding the use of such Marks, except that during the term of this Agreement, Company grants to Affiliate Agent a restricted, non-transferable, non-exclusive, and revocable license to use the Marks to promote Company’s business and initiatives to Prospects. Affiliate Agent agrees not to use the Marks in any way that may be determined objectionable by the Company or confusing to any third parties regarding the nature of the relationship between the Company and Affiliate Agent. The Company reserves the right to approve particular uses of the Marks.
Confidential Information. All documentation and information, including, without limitation, design and presentation documents, trade secrets, customer lists, techniques, processes and technical and marketing information which is supplied by one party (“Disclosing Party“) to the other (“Receiving Party“) in connection with this Agreement (“Confidential Information“) are hereby deemed to be proprietary to Disclosing Party and shall be held in trust and confidence for, and on behalf of, Disclosing Party, by Receiving Party and its employees, agents, distributors, and contractors and shall not be disclosed by Receiving Party or used by Receiving Party for any purpose other than as strictly permitted under this Agreement, without Disclosing Party’s prior written consent. Receiving Party shall not copy or disclose all, or any part of, the Confidential Information except per the terms and conditions of this Agreement. Receiving Party shall be directly liable for the acts or omissions of its employees, agents, distributors, and contractors concerning such confidentiality obligations. The receiving Party agrees to protect the Confidential Information of the Disclosing Party with at least the same degree of care that the Receiving Party uses to protect its own trade secrets and proprietary information, which in any event shall be no less than a reasonable degree of care. The confidentiality obligations of the parties under this Agreement shall not apply to Confidential Information which:
at the time of disclosure is within the public domain, other than through a breach of this Agreement;
after disclosure becomes readily and lawfully available to the public, other than through a breach of this Agreement;
By documented and competent evidence, the receiving Party can establish that it was in its possession before the date of disclosure of such Confidential Information by the Disclosing Party or is approved in advance in writing by the Disclosing Party for disclosure.
Warranties. Affiliate Agent represents and warrants that:
it shall not make, and Company shall not be bound by, any offer, acceptance, representation, warranty, or affirmation of fact whatsoever to any Prospect or third party respecting Company or the Company products or services, including the performance thereof;
it has not paid, and is not aware of any payments, to any third parties with a view to securing an order, contract, and/or agreement contemplated hereunder or affecting a purchaser’s decision to approach Company for Company products or services.
Affiliate Agent shall indemnify and hold Company harmless against any third-party proceedings, causes of action, suits, damages, losses, liability, costs, and expenses (including reasonable legal fees) whatsoever that may arise, either directly or indirectly, in any connection with any breach of the foregoing representations and warranties, any misuse, unauthorized use or violation of the Marks and/or Affiliate Agent’s performance hereunder.
Limitation of Liability. Neither party shall be liable to the other party for direct damages above the total compensation paid to Affiliate Agent by the Company during the one (1) year period immediately preceding the date on which the damages occurred; and
neither party will be liable for any punitive, indirect, special, consequential, or incidental damages (including but not limited to lost profits), whether based in contract or in tort (including but not limited to negligence) or otherwise, arising out of or relating to this Agreement.
Term and Termination. This Agreement begins on the Effective Date and indefinitely unless terminated. This Agreement will terminate:
for convenience, on thirty (30) days prior written notice by either party, provided that the Company, in its sole discretion, reserves the right to waive the such notice period;
on the twentieth (20th) day after one party gives the other written notice of a breach by the other of any term or condition of this Agreement unless the breach is cured before that day;
by Company giving notice if (a) Affiliate Agent assigns any rights obligations or this Agreement without the prior written consent of Company; or (b) if Affiliate Agent is the subject of a change of control, amalgamation, acquisition, or merger without Company’s prior written consent.
On termination or expiration of this Agreement, all payments granted to Affiliate Agent hereunder shall terminate. Each party shall return to the other as soon as possible all copies of the other party’s property and materials in its possession or control, including all copies of the other party’s Confidential Information. Where this Agreement expires or terminates as provided for herein, no Compensation shall be payable concerning any Prospect for which the Company has not signed an agreement for the applicable Company product or service before the earlier of i) the effective date of the expiration or termination of this Agreement and/or ii) the date of notice of termination.
Expectations. Affiliate Agent acknowledges and agrees that it does not expect its business relationship with Company to continue for any minimum period or that Affiliate Agent shall obtain any anticipated amount of profits by virtue of this Agreement. Company shall not be liable, because of any termination of this Agreement, for compensation, reimbursement, or damages on account of the loss of prospective profits or expenditures or commitments in connection with the business or goodwill of Affiliate Agent. Except as provided in this paragraph, termination hereunder shall be without prejudice to any other right or remedy to which either party may be entitled hereunder, at law, or in equity.
Status. The Affiliate Agent is not an owner or employee of the Company, nor is it authorized or permitted to make any representations or warranties on behalf of the Company. During the term of this Agreement, should the term “partnership,” “partner,” or “affiliate partner” be used to describe the parties’ relationship under this Agreement, the parties agree to make it clear to third parties that these terms refer only to the spirit of cooperation between the parties and do not describe or create the legal status of partners or joint venturers.
Compliance with Laws. Each party will comply fully with all applicable federal, provincial, and/or state and local laws and regulations relating to its obligations under this Agreement, including, without limitation, all applicable privacy laws.
Severability & Waiver. Suppose any provision of this Agreement is held invalid by any government law, rule, order, or regulation or by the final determination of a court of competent jurisdiction. In that case, such invalidity will not affect the enforceability of any other provisions not held to be invalid. The provisions of this Agreement shall be interpreted to carry out the intent of the parties to the fullest extent permitted by law. Any delay by either party to exercise any right or remedy under this Agreement will not be construed as a waiver of that or any other right or remedy.
Governing Law. This Agreement shall be governed by the laws of the State of North Carolina, United States, without giving effect to the principles of conflicts of law. Any disputes shall be resolved exclusively by the appropriate North Carolina courts in closest proximity to Cary, North Carolina.
Survival. The confidentiality requirements, ownership and proprietary rights, exclusions of warranties, indemnification obligations, limitations of liability, and general provisions outlined in this Agreement shall survive the expiration or termination of this Agreement.
Notices. All notices shall be in writing and may be served personally or by prepaid registered or certified mail or private mail service (for example, Federal Express or DHL), or by facsimile with proof of receipt to the addresses noted below, by email with proof of receipt to the addresses noted below.
Entire Agreement. This Agreement constitutes the Parties' entire agreement on the subject matter hereof. It supersedes all prior oral or written memoranda, understandings, and agreements as to such subject matter. Any conflict between the body of this Agreement and its schedules shall be resolved in favor of the schedules. This Agreement may be amended only by a written agreement signed by authorized Affiliate Agents of both parties.
IN WITNESS THEREOF, the parties have executed this Agreement by their respective, duly authorized officers on the date of affiliate application.