EverPub Affiliate Terms & Conditions
EverPub LLC Affiliate Marketing Agreement
January 11, 2010
THIS AGREEMENT (the “Agreement) is made between EverPub LLC, a Maryland Limited Liability Corporation (the “EverPub LLC”), and you, (the “Affiliate,” and collectively, the “Parties”).
WHEREAS Affiliate wishes to promote the products of EverPub LLC or include certain materials promoting EverPub LLC, and to include a link to EverPub LLC’s website within those materials on Affiliate’s website;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Acceptance. By clicking on the “Sign up now” button on our Affiliate Sign Up page you indicate your acceptance of this Agreement. If you do not accept this agreement you are not authorized to be an Affiliate and may not use our links, graphics, promotional materials or market our products.
2. Promotional Materials. EverPub LLC may make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to EverPub LLC’s website, as specified by EverPub LLC.
a. Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
i. Affiliate may not use any graphic, textual or other materials to promote EverPub LLC’s website, products or services other than the Promotional Materials, unless EverPub LLC agrees to such other materials in writing prior to their display.
ii. Affiliate may only use the Promotional Materials for the purpose of promoting EverPub LLC’s website (and the products and services available thereon), and for linking to EverPub LLC’s website.
iii. The Promotional Materials will be used to link only to EverPub LLC’s website, to the specific page and address as specified by EverPub LLC.
iv. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by EverPub LLC. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from EverPub LLC for such alteration of modification.
3. Marketing. Affiliate may market and promote EverPub LLC’s products to customers directly (one to one relationship) which results in the purchase of EverPub LLC’s products. The Affiliate Promo Code supplied to the Affiliate must be used by the customer at the time they pay for the EverPub LLC product for the Affiliate to receive a commission for that sale.
4. License. EverPub LLC hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
5. Intellectual Property. EverPub LLC retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 4.
6. Relationship of Parties. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between EverPub LLC and Affiliate. Affiliate shall provide services for EverPub LLC as an independent contractor. Affiliate shall have no authority to bind EverPub LLC into any agreement, nor shall Affiliate be considered to be an agent of EverPub LLC in any respect.
7. Commissions.
a. In exchange for Affiliate’s directing of a customer, and their subsequent payment, EverPub LLC shall pay to the Affiliate a commission. The commission shall be calculated on the actual net amount received by EverPub LLC from the customer. The commission is 20% of the net amount received by Everpub LLC.
b. If a customer purchases an EverPub LLC product as a result of the recommendation of an affiliate and uses the Affiliate’s Promo Code the Affiliate will be entitled to the 20% commission on the actual net amount received by EverPub LLC. An Affiliate may only receive one (1) commission per Author signup.
c. EverPub LLC shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by EverPub LLC within 30 days of discovering such discrepancy.
d. EverPub LLC shall pay all Commissions accrued and payable to Affiliate on a quarterly basis. If Commissions accrued and payable to Affiliate are less than $100, then such accrued and payable balance shall be held over to the following quarterly payment and paid together with the Commissions due for that period.
e. In the event that Affiliate materially breaches this Agreement and EverPub LLC terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and EverPub LLC shall not be obligated to pay such Commissions to Affiliate.
8. Affiliate’s Representations and Warranties. By entering into this agreement the Affiliate agrees to promote EverPub LLC and its services. Affiliate also represents and warrants the following:
a. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement. If the Affiliate is an individual they maintain that they are at least 18 years of age.
b. Affiliate’s website does not contain any materials that are:
i. Sexually explicit, obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent, including any violent video game images; or
iv. Solicitous of any unlawful behavior
c. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
d. Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.
e. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
f. Affiliate will not register any domain name that incorporates EverPub LLC’s name, or that is confusingly similar to EverPub LLC’s name.
g. Affiliate agrees to not utilize SPAM in promoting EverPub LLC. EverPub LLC maintains a ZERO tolerance policy towards the sending of SPAM, including, but not limited to, unsolicited commercial E-mail (UCE). This action may result in the immediate suspension or termination of Affiliate account with a cancellation of and possible forfeiture of any pending commissions. Affiliate will also be in violation of the EverPub LLC Affiliate Agreement and subject to legal action and be held liable for any financial loss incurred by EverPub LLC.
For the purpose of this agreement SPAM is defined as e-mailing, faxing, or telephoning ANYONE, in bulk or individually, in violation of all anti-spamming and applicable laws or regulations for the country, state, county, and city where the intended recipient resides. The Affiliate is under obligation to research and comply with all laws concerning unsolicited commercial e-mail. Under United States law, it is unlawful "to use any telephone, facsmile machine, computer, or other device to send an unsolicited advertisement. Electronic mail advertisement means any e-mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of goods or services to the recipient." (CAN-SPAM Act of 2003).
h. In agreeing to be an Affiliate of EverPub LLC the Affiliate agrees to abide by legal and ethical marketing practices and not use any ‘black hat’ SEO techniques to build traffic to the EverPub LLC site(s).
9. Indemnification. Affiliate shall indemnify EverPub LLC and hold harmless EverPub LLC from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 8 above. Affiliate shall also indemnify and hold harmless EverPub LLC for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
10. Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with EverPub LLC under this Agreement, which information is not available to the general public, shall be considered to be “Confidential EverPub LLC Information.” Affiliate may not disclose any Confidential EverPub LLC Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from EverPub LLC.
11. Term.
a. This Agreement shall take effect upon the acceptance of the agreement, as signified by the Affiliate clicking on the “Sign me up now” button, and shall remain in full force and effect indefinitely, or until terminated by EverPub LLC or the Affiliate.
b. Either Party shall have the right to terminate this Agreement at any time and for any cause. If the Affiliate is in good standing with EverPub LLC they are entitled to any commissions due which will be pain in full within 30 days of their termination. Additionally, EverPub LLC retains all rights to change the terms of this agreement at any time.
12. Taxes. EverPub LLC shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with EverPub LLC as set forth in this Agreement. EverPub LLC shall not withhold any taxes from the Commissions paid to Affiliate.
13. Limitation of Liability. EverPub LLC shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether EverPub LLC was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
14. Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of Maryland, without regard to conflicts of law principles.
15. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
16. Severability. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
17. Notice. Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, addressed as follows:
If to EverPub LLC:
11915 Devilwood DrivePotomac, MD 2085418. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
19. Entire Agreement. This Agreement constitutes the entire agreement between EverPub LLC and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.