CYDEC AFFILIATE AGREEMENT
After reviewing and signing this agreement, and upon approval you will receive an email with the affiliate registration link to register as an affiliate. Please allow 24 hours for a response.
This affiliate agreement (this "Agreement") contain the complete terms and conditions that apply to the individual or entity participating in the affiliate program ("you" or "Affiliate") of CYDEC Software, LLC ("CYDEC").
Affiliate understands and agrees that CYDEC has the right to accept or deny in its sole discretion its entry into the program based on Affiliate's application. The effective date of this Agreement is the date upon which CYDEC accepts Affiliate's entry into the program (the "Effective Date").
CYDEC provides internet marketing and business coaching and mentoring services (the "CYDEC Services") and Affiliate desires to promote the CYDEC Services to Affiliate’s marketing and customer lists, and CYDEC desires to compensate Affiliate for such promotion by compensating Affiliate for each Qualifying Transaction (as defined below), all subject to the terms and conditions set forth in this Agreement. Affiliate understands and agrees that CYDEC has the right to deny Affiliate's Acceptance of this Agreement by participation or continued participation in the program creates a binding legal agreement between you and CYDEC.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto hereby agree, as follows:
- Obligations.
(a) General. Affiliate shall promote the CYDEC Services in accordance with this Agreement.
(b) CYDEC Links. CYDEC will make links available by CYDEC through the CYDEC Affiliate Website or any other means, which provides a path to a specific page of one of the CYDEC Services (the "CYDEC Link(s)") such that, when clicked on, will cause a user to be transferred to the applicable page of such CYDEC Site. In accessing the CYDEC affiliate resources online, it is a responsibility of Affiliate to pull the latest links on a regular basis in order to stay synchronized with current CYDEC promotional links.
(c) CYDEC Materials. CYDEC shall make available to Affiliate CYDEC's approved logo (the "CYDEC Logo"), web buttons, text links, etc. designed by CYDEC to promote the CYDEC Services, which will include an CYDEC Link embedded therein for Affiliate's use as provided in Section 1(d) and (e) below. All of the foregoing materials are collectively referred to herein as the "CYDEC Materials" more specifically outlined in the CYDEC Affiliate Website. From time to time CYDEC may modify, supplement or give Affiliate new CYDEC Materials, in CYDEC's sole discretion. Affiliate shall be solely responsible for integrating (and for all costs related thereto) the CYDEC Links and the CYDEC Materials into the Affiliate Sites in accordance with the terms of this Agreement.
(d) Grant of License. CYDEC hereby grants to Affiliate, a worldwide, royalty-free, non-exclusive, non-transferable license for the Term of the Agreement (the "License") to (i) display, reproduce, distribute and transmit in digital form the CYDEC Materials on the Affiliate Sites for the sole purpose of promoting the CYDEC Services, (ii) publish the CYDEC Materials in e-mail solicitations from Affiliate to its users whereby Affiliate promotes, in whole or in part, the CYDEC Services, and (iii) link from the Affiliate Sites and/or, if applicable, from e-mails to the CYDEC Services. Affiliate hereby grants to CYDEC a nonexclusive license to use Affiliate's name and display its logo for customer and affiliate reference purposes during the Term.
(e) Scope of License. Affiliate shall not use any of the CYDEC Materials for any purpose other than promoting the CYDEC Services or as approved in writing by CYDEC. The exact manner of placement of, and the size and location of, the CYDEC Materials on the Affiliate Sites shall be as reasonably determined by Affiliate; provided, however, that Affiliate shall not (i) use, copy or format any of the CYDEC Materials (a) in any illegal, libelous, defamatory or other tortuous or improper manner, or (b) on any website that promotes pornography, gambling, or any illegal activity; or (ii) alter, edit, translate, create derivative works of or otherwise modify any of the CYDEC Materials unless CYDEC expressly approves thereof in writing. Without limiting any of the foregoing, if CYDEC reasonably objects to the placement, size, location or other use of any of the CYDEC Materials, or any other promotion of CYDEC by Affiliate, Affiliate shall promptly remedy any such objection.
- Fees.
(a) Qualifying Transactions. A "Qualifying Transaction" occurs when the end user follows a link (in the format specified by us) from your site to one of the CYDEC Services and completes a purchase. Transactions that are cancelled, refunded or the subject of a credit card charge back will not qualify for commissions. Commissions are attributed to an Affiliate when the Affiliate is responsible for the end user's last click before purchase, as measured through CYDEC’s standard internal tracking methods. The Affiliate site will be credited for every Qualifying Transaction and recurring transaction subsequent to the initial referred sale. To permit accurate tracking, reporting and fee accrual, you must ensure that the CYDEC Links between your site and the CYDEC Services are properly formatted. CYDEC will not be responsible for paying referral fees on transactions that are not correctly tracked and reported because the links between Affiliate site and the CYDEC Services are not properly formatted by the Affiliate.
(b) Payment of Referral Fees. Within forty five (45) business days of the end of each month following the Effective Date per the terms of the 30 day refund terms required by law. CYDEC will not pay any referral commissions for any transactions occurring before Affiliate has properly completed a current online W9 form (US Affiliates only).
(c) Taxes. Affiliate shall be solely responsible for all fees, taxes, charges or other assessments (except taxes on the income or gross revenue of CYDEC) on any payments made by CYDEC to Affiliate hereunder, including, without limitation, the Referral Fees, and any other services provided by CYDEC to Affiliate hereunder, if any, including, without limitation, any sales, use, personal property, value added, excise or customs charges, whether designated as federal, state, local or otherwise, including any penalties or interest thereon, and shall promptly pay all such amounts as and when they may become due.
- Ownership. CYDEC shall retain, (i) all transaction revenues received by CYDEC from users accessing the CYDEC Services or services via links on pages of the Affiliate Sites will be retained in full by CYDEC (and/or CYDEC's partners), excluding any fees due Affiliate under this Agreement; and (ii) all banner and advertising revenues received from the CYDEC Services, and all user data collected by CYDEC on the CYDEC Services (regardless of whether such user linked to such CYDEC Site via a CYDEC Link) will be retained in full by CYDEC, including full credit for the page views in external tracking services. All right, title and interest in and to the CYDEC Materials (including all component parts thereof), and in any ideas, know-how, code or intellectual property associated therewith, shall remain the sole and exclusive property of CYDEC including all rights not expressly enumerated in this Agreement. Affiliate shall take no actions that are inconsistent with such ownership. Affiliate shall promptly notify CYDEC of any CYDEC Materials if it obtains knowledge that any CYDEC Materials could reasonably be deemed to violate the intellectual or other property rights of a third party.
- Marketing; Press Releases. Affiliate shall reasonably cooperate in CYDEC's marketing and public relations activities to promote the CYDEC Services (provided that such cooperation shall not result in any out-of-pocket cost, or unreasonable internal administrative cost to Affiliate). Such activities may include, without limitation, issuing a joint press release announcing the relationship between CYDEC and Affiliate. Neither party shall (i) issue a press release or other public announcement regarding this Agreement or the matters addressed herein or (ii) use the name, logo, trademark or other service mark, in each instance without first obtaining the other party's prior written consent; provided, however, that the foregoing is subject to the License granted to Affiliate.
- Term/Termination. This Agreement shall commence on the Effective Date and continue unless terminated by either party at any time by one party providing the other written notice of termination. In addition, CYDEC reserves the right to cancel the Program at any time and for any reason, without prior notice. Upon the termination of this Agreement the Affiliate will immediately cease use of, and remove from any site, all links to the CYDEC Services and all CYDEC Materials. You are eligible to earn referral fees only on transactions that occur during the term of this Agreement, and referral fees earned through the date of termination will remain payable only if the related transaction are not cancelled or disputed. Due to refunds and chargeback issues, to ensure that you are paid the correct amount, CYDEC may withhold a final payment for a reasonable time during special promotions or events but payment will not be unreasonably withheld.
- Indemnification. Each party shall indemnify and hold harmless the other party and its respective directors, officers, employees, affiliates and agents, against any claim, demand, cause of action, debt or proceedings (whether threatened, asserted, or filed) and all related damages, losses, liabilities, cost and expenses (including reasonable attorneys' fees), to the extent that: (i) it is based upon the indemnitor's breach of an express representation or warranty hereunder; (; or (ii) it is based upon the indemnitor's violation of any applicable federal, state or local law or regulation.
- Representations and Warranties; Limitations on Liability.
(a) Authority; Binding Agreement; Non-contravention. Each party has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and binding obligation of such party, enforceable in accordance with its terms. Neither the execution and delivery of this Agreement nor the consummation of the actions and transactions contemplated herein will, with or without the passage of time or the delivery of notice, (i) conflict with, result in a breach of or constitute a default under any note, bond, mortgage, indenture, license, franchise, permit, agreement, lease or other instrument or obligation to which either party is a party or bound, (ii) violate any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court, administrative agency, commission or other governmental entity or instrumentality, or (iii) violate any provision of the charter, bylaws or other constituent documents of either party.
(b) Consents. No notice to, filing with or authorization, consent or approval of any governmental entity or third party is necessary for the consummation by either party of the actions and transactions contemplated by this Agreement.
(c) Warranty. to the extent permitted by law AND OTHERWISE AS PROVIDED FOR IN THIS AGREEMENT, CYDEC EXPRESSLY DISCLAIMS ANY and all WARRANTIES AND CONDITIONS THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CYDEC'S LINKS AND MATERIALS ARE PROVIDED TO COMPANY ON AN "AS-IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(d) Limitations of Liability.
(i) NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA, OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; AN
(ii) IN ANY CASE, CYDEC'S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT in any case whatsoever SHALL NOT EXCEED AN AMOUNT more THAN THE AMOUNT ACTUALLY RECEIVED BY AFFILIATE FROM CYDEC UNDER THIS AGREEMENT.
- Miscellaneous Provisions.
(a) Entire Agreement/Waiver. This Agreement, set forth the entire understanding and Agreement of the parties as to the subject matter hereof, and supersede any and all prior representations, warranties, negotiations, agreements, and arrangements, and may be changed only by a written agreement signed by both parties. Headings are inserted for the convenience of the parties only and shall not be interpreted to modify the contractual language within each section. A failure or omission by either party to enforce any remedy for any breach of any term or condition in this Agreement shall not be construed as a waiver of such term or condition. Any waiver hereunder shall be valid only to the extent that such waiver is expressed in writing and executed by the party granting such waiver
(b) Notice. All notices or other written communication required under this Agreement shall be in writing sent to the addresses provided in this provision or provided by Affiliate during setup (as changed from time to time upon noticed as provided in this provision) and shall be deemed properly given by sender and received by the addressee if on (i) the date of personal service or courier delivery, (ii) the fifth (5th) business day following first class, registered or certified, postage prepaid mailing, (iii) one (1) business day after being sent by facsimile, provided that the sender retains confirmation of delivery. Notice sent to CYDEC shall be sent to 550 Front St. #2102 San Diego, CA 92101 (c) Attorneys' Fees. In addition to any other damages that either party may be entitled to at law or in equity, should either party breach this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, costs, and expenses incurred in successfully enforcing the terms of this Agreement.
(d) Governing Law; Submission to Jurisdiction. This Agreement and any disputes arising under or related thereto (whether for breach of contract, tortious conduct or otherwise) shall be governed by the laws of the state of Florida and the federal laws applicable therein, without reference to principles of conflicts of law. The state and federal courts with jurisdiction in Palm Beach County, Florida shall have exclusive jurisdiction to hear and decide any and all legal actions, suits or proceedings arising out of this Agreement (whether for breach of contract, tortious conduct or otherwise), and the Parties to this Agreement each hereby irrevocably accept and submit to the personal jurisdiction of such court with respect to any legal actions, suits or proceedings arising out of this Agreement.
(e) No Assignment. This Agreement is non-assignable without the written consent of the other party, except that CYDEC may assign without consent: (i) its rights to receive payments; or (ii) the Agreement to an affiliate or in connection with any sale of or any other transaction involving the transfer of more than fifty percent of its voting securities or assets. Any assignment in violation of this Agreement will be void.
(f) Force Majeure. Each party will promptly notify the other upon becoming aware that a Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations hereunder. Subject to the foregoing, neither party will be liable for any delay resulting from a Force Majeure Event and relevant performance dates will be extended to the extent of any such delay. For purposes hereof, "Force Majeure Event" means, with respect to either party, any strike or other labor dispute, riot, war, act of terrorism, any natural disaster, fire, explosion, act of government or governmental agency or instrumentality, or other contingency beyond the reasonable control of either party, which in any such case interferes with, or prevents, the fulfillment by such party of its obligations hereunder.
(g) Relationship of Parties. Nothing in this Agreement shall be construed to (i) create a joint venture, partnership, employer/employee relationship, agency or any other relationship other than that of parties contracting at arms-length, or (ii) to authorize either party to assume or undertake any obligations of any kind, express or implied, on behalf of the other party. Each party is responsible for payment of all employment taxes, benefits, insurance and the like for all work performed by its employees in connection with the performance of this Agreement.
(h) Expenses. Except as explicitly provided in this Agreement with respect to indemnification claims, each party shall bear its own expenses in connection with the negotiation, execution and performance of this Agreement, including without limitation legal fees and expenses.
(i) Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. Delivery by a party of executed counterparts of this Agreement by facsimile shall constitute execution and delivery of such counterpart to the same extent as if such counterpart were originally executed and delivered by such party.
(j) Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable in any jurisdiction, such provision shall be ineffective to the extent of such invalidity, illegality or unenforceability, the validity, legality or enforceability of the other provisions hereof shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid and enforceable provision as similar as possible to the provision at issue, all without affecting the validity, legality or enforceability of such provision in any other jurisdictions.
(k) Interpretation. The parties hereto acknowledge and agree that this Agreement represents the product of negotiations conducted in good faith and at arms-length and that this Agreement should not be interpreted in favor of or against any party because of such party's ability or inability to control the drafting of this Agreement.
(l) Survival. The obligations under this contract of both Parties shall survive termination of this agreement. The provisions of this Agreement which are intended to survive termination or are necessary to interpret the rights and obligations of the parties in connection with such termination, as well as all unpaid payment obligations, shall survive the execution of this Agreement and remain binding on the parties in accordance with the terms of this Agreement.
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