IMPORTANT – THIS IS A BINDING LEGAL AGREEMENT. PLEASE READ CAREFULLY BEFORE ACCEPTING THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT SUBMIT AN APPLICATION TO PARTICIPATE IN THE AFFILIATE PROGRAM.
This Affiliate Program Agreement (“Agreement”) is entered into between Boogie Graphics, LLC., a New York state corporate doing business under the trade name “Breadcrumbs” (“breadcrumbs”) and the individual or entity designated as the “Affiliate” on the [Affiliate Program Application Form] (“Application”) completed in connection with this Agreement (“Affiliate”). This Agreement is effective only upon breadcrumbs’ written acceptance of Affiliate’s Application (such date of acceptance is referred to as the “Effective Date”).
WHEREAS, breadcrumbs is in the business of designing websites, as described in more detail at http://trybreadcrumbs.com (the “breadcrumbs Services”);
WHEREAS, breadcrumbs desires to market the breadcrumbs Services to third party customers (“Customers“) and has established an affiliated network of independent contractors for the referral of Customers to breadcrumbs (the “breadcrumbs Affiliate Program”); and
WHEREAS, Affiliate desires to participate in the breadcrumbs Affiliate Program, in accordance with the terms and conditions of this Agreement.
In consideration of the mutual agreements and covenants herein contained, the parties hereto agree as follows:
1. REFERRAL SERVICES
As of the Effective Date (only upon written approval of Affiliate’s Application), Affiliate is authorized to market and promote the breadcrumbs Services to potential Customers (the “Referral Services”), in accordance with the terms and conditions of this Agreement. Affiliate agrees to perform the Referral Services in accordance with the following and subject to such other written rules and guidelines as breadcrumbs may establish for the Affiliate Program and publish on the breadcrumbs website from time to time:
(a) Affiliate shall place a hyperlink on its website, in a format approved by breadcrumbs, that when clicked on redirects the visitor to the breadcrumbs Website (a “Link”).
(b) Any materials used in connection with the Referral Services will be developed and produced solely and exclusively by breadcrumbs and no marketing, advertising or promotional materials other than those provided by breadcrumbs may be used by Affiliate to perform Referral Services under this Agreement without the prior written consent of breadcrumbs.
(c) Affiliate shall not make any promises or representations or give any warranties, guarantees or indemnities in respect of the breadcrumbs Services, except as such are contained in a Customer Agreement or as otherwise expressly authorized by breadcrumbs in writing.
(d) Affiliate shall perform the Referral Services in a manner that will reflect favorably on the breadcrumbs Services and on the good name and reputation of breadcrumbs, and shall not alone or with others participate in any illegal, deceptive, misleading, or unethical practices, including but not limited to disparagement of the breadcrumbs Services or breadcrumbs.
2. REFERRAL FEE
In consideration of Affiliate’s performance of Referral Services hereunder, breadcrumbs agrees to pay Affiliate a referral fee (“Referral Fee”) in accordance with breadcrumbs’ current affiliate pricing schedule available at http://www.breadcrumbs/affiliates/ with respect to each Customer that is referred to breadcrumbs by Affiliate (a “Referred Customer”). For purposes of this Agreement, a Customer will be considered a Referred Customer only if:
(1) the Customer is redirected to the breadcrumbs website through the Affiliate’s Link and such Customer signs up for a breadcrumbs website plan, accepts the then-current breadcrumbs Terms of Service or such other customer agreement as may be agreed-upon by breadcrumbs related to the breadcrumbs Services (a “Customer Agreement”), and pays initial breadcrumbs deposit, or
(2) the Affiliate signs up for a breadcrumbs website plan and agrees to the breadcrumbs Services on behalf of a Customer of the Affiliate, such Customer enters into a Customer Agreement, and pays initial deposit to breadcrumbs.
Affiliate agrees and acknowledges that breadcrumbs’ obligation to pay Affiliate is contingent upon breadcrumbs receiving payment from the Referred Customer in accordance with the Customer Agreement. The Referral Fee shall be Affiliate’s sole compensation under this Agreement and Affiliate shall have no right to receive any additional commission, license fee, expense reimbursement or other payment in connection with this Agreement. Affiliate’s right to receive Referral Fees is subject to and limited by the termination rights under Section 4.
3. INDEPENDENT CONTRACTOR
The relationship between the parties hereunder is that of independent contractors. Nothing in this Agreement shall be construed to create an agency, employment, joint venture, or partnership relationship. Neither party shall have the right to incur any liabilities or obligations on behalf of the other party.
4. TERM & TERMINATION
The term of this Agreement shall commence as of the Effective Date and shall continue perpetually until and unless terminated pursuant to this Section. breadcrumbs may in its discretion terminate the breadcrumbs Affiliate Program or this Agreement at any time by providing written or electronic notice to Affiliate. Affiliate may terminate this Agreement at any time by providing written notice to breadcrumbs and returning all breadcrumbs products or materials in Affiliate’s possession (if any). Upon the effective date of such termination, Affiliate’s performance of Referral Services shall immediately cease and breadcrumbs shall have no further obligations to Affiliate under this Agreement. Sections 5(a), 6 and 7 shall survive termination of this Agreement.
5. PROPRIETARY RIGHTS
(a) The parties agree that breadcrumbs is the sole and exclusive owner of any and all right, title, and interest in, to, or under (a) the breadcrumbs Services and the Affiliate Program and all intellectual property rights associated therewith and (b) any trademark, trade name, trade dress, design, logo, name or other designation used for or in connection with the breadcrumbs Services or the Affiliation Program, and any and all variations or modifications to the foregoing that may be approved by breadcrumbs in its sole discretion (“Trademarks”).
(b) breadcrumbs grants Affiliate a nonexclusive, non-transferable, limited right and license during the term of this Agreement to use the Trademarks solely as necessary to perform Referral Services hereunder. Affiliate shall not assert any claim of ownership of, or any claim to, any goodwill or reputation associated with the Trademarks and shall not take and shall not permit any action or omission in derogation of any of the rights of breadcrumbs in the Trademarks, either during the term of this Agreement or thereafter.
(c) In the event Affiliate submits to breadcrumbs any ideas, materials, or other information (including, without limitation, suggestions for new or improved products or services or changes to the Affiliate Program) (“Ideas”), such Ideas shall thereafter be the sole and exclusive property of breadcrumbs and Affiliate hereby assigns to breadcrumbs all of Affiliates rights in and to such Ideas. Affiliate hereby waives its moral rights in any such Ideas.
6. LIMITATION OF LIABILITY
In no event shall breadcrumbs be liable to Affiliate or its officers, directors, managers, shareholders, or members for any special, indirect, incidental, or consequential damages, including but not limited to lost or anticipated revenues or profits, arising from any claim relating to this Agreement or the breadcrumbs Services, whether such claim is based on warranty, contract, tort (including negligence or strict liability) or otherwise, even if an authorized representative of breadcrumbs is advised of the possibility or likelihood of same.
Affiliate agrees to defend, indemnify and hold harmless breadcrumbs, its affiliates, and its and their directors, officers, employees, agents and assignees (the “Indemnitee”) and shall pay all losses, damages, fees, expenses or costs (including reasonable attorneys’ fees) incurred by the Indemnitee based upon any claim, demand, suit or proceeding arising out of or resulting from: (i) Affiliate’s participation in the Affiliate Program, (ii) any breach of this Agreement by Affiliate; (iii) any negligent or intentional acts of Affiliate; or (iv) any violation of laws, regulations or court orders by the Affiliate. Indemnitee shall have the right to approve Affiliate’s counsel to defend any such claims, which approval shall not be unreasonably withheld, and to approve any settlement agreement. Indemnitee also shall have the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Affiliate hereunder.
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if by e-mail, upon confirmation thereof; or (iii) if by next day delivery service, upon such delivery. All notices to breadcrumbs shall be addressed as follows:
Boogie Graphics, LLC
1314 Central Avenue
Albany, NY 11205
All notices to Affiliate shall be addressed to the address provided by Affiliate in its Application, which address shall be updated in writing, as needed, by Affiliate.
This Agreement may not be modified except by amendment reduced to writing and signed by both breadcrumbs and Affiliate. No waiver of this Agreement shall be construed as a continuing waiver or consent to any subsequent breach thereof.
10. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter herein and supersedes all prior discussions between the parties.
11. GOVERNING LAW; CONSENT TO PERSONAL JURISDICTION
This Agreement will be governed by the laws of the State of New York without regard for conflicts of laws principles, and any action brought in connection with this Agreement shall be brought solely and exclusively in state or federal courts located in Albany County, New York. The parties irrevocably consent to the sole and exclusive jurisdiction of such courts and waive any objections to venue or jurisdiction.
If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect.
Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
14. ELECTRONIC CONTRACTING.
breadcrumbs and Affiliate desire to facilitate certain transactions pursuant to this Agreement by exchanging documents, records and signatures electronically or by utilizing electronic agents. The use of electronic facilities or agents shall be in accordance with procedures established by breadcrumbs and governed by the applicable provisions of the Uniform Electronic Transactions Act as adopted in the State of New York.