Affiliate Partner Agreement
THIS AFFILIATE PARTNER AGREEMENT (the “Agreement”), is by and between OneUp Trader (hereafter referred to as “OUP”) and YOU (hereafter referred to as “Affiliate Partner”) (sometimes individually referred to as a “Party” and collectively as “Parties”).
RECITALS
WHEREAS, the Affiliate Partner is a company/individual involved in the business of trading of commodity futures, equities, trader education, trader blog, and/or related products and services, and OUP is in the business of providing an online SaaS trading placement services and evaluations called OneUp Trader to its customers and clients; and
WHEREAS, OUP and the Affiliate Partner have agreed to create an affiliation between them in which OUP and the Affiliate Partner will share the revenue created by business through the promotion of OUP Websites to leads provided by the Affiliate Partner during the term of this Agreement, the date of such affiliation being the date of this Agreement, as set forth above.
NOW THEREFORE, toward this end, and in consideration of the promises, covenants and agreements contained herein, and the mutual benefits to be derived from this Agreement, the Parties agree as follows:
AGREEMENT
This agreement governs participation in the OneUp Trader Affiliate Partnership Program only. Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement. You should also note that if you are accepted to participate in the Program and your Site is thereafter determined (in our sole discretion) to be unsuitable based on the criteria below for the Program, we may terminate this Agreement:
2.1 “Offer” means a specific offer posted by OUP on its Affiliate Partnership Program site located within Ontraport. The terms and conditions of such Offers shall be incorporated into this Agreement.
2.2 “Qualifying Link” means a OUP link from your Email or Site to OneUp Trader’s Site using one of the Required URLs or any other URL or graphic link provided by OUP for use in the Program. A Qualifying Link or “Linking Materials” shall be defined as hyperlinks, buttons, banners or other user interface established by OUP for your Emails or Web site.
2.3 “Qualifying Product Revenues” means revenues derived by us from Product or Membership Sales, less chargebacks, taxes, surcharges and processing fees.
2.4 “Required URLs” means the special URLs specified in an Offer to be used to link from your Emails or Site to OUP’s Site.
2.5 “Site” means a World Wide Web Site and, depending on the context, includes the website that you will link to the OUP Site as identified in your Affiliate Partnership Program.
3.1. You shall only link your Emails & Site to areas within OUP’s Site using Required URLs for the Program. You may post as many links to the Required URLs as you like.
3.2. You agree to display OUP Link materials appropriately on your Web site and/or Email and to respect OneUp Trader’s trademarks, service marks and other rights in the Link Materials. You will use only these Link materials to link your Web site to OUP’s Web site, and you will not alter the look or feel of these Link Materials or of our Web site in any way. You will update to new versions of Link Materials as OUP makes them available or you submit a request for a specific type of Linking Material.
3.3. OUP will not, and is not obligated to, make any representations, warranties or other statements concerning you, your Site, any of your products or services, or your Site policies.
3.4. You will be solely responsible for the development, operation and maintenance of your Site and for all materials that appear on your Site. We disclaim all liability for such materials. You shall indemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorney’s fees) relating to the development, operation, maintenance and contents of your Site. You are also responsible for notifying us of any malfunctioning of the Required URLs or other problems with your participation in the Program in accordance with the terms of the Offer and this Agreement. OUP will respond in normal course to all concerns upon notification.
3.5. You will (1) not make any representations, warranties or other statements concerning OneUp Trader, OneUp Trader’s Site, Evaluation Program, Trader Placement, Funded Trader Program, or Funding Partners, and (2) protect OneUp Trader’s confidential information.
As an approved participant of OneUp Trader Affiliate Partnership Program, you may earn commissions for affiliate services in accordance with this Section 4. OUP may change or terminate the provisions of this Section 4 at any time and at OneUp Trader’s sole discretion.
4.1 Indefinitely, following the date of this Agreement, any product/subscription sold through OUP website to any client resulting from an Affiliate Partner website lead:
OUP will maintain records in sufficient detail for the purpose of determining the amount of the commission. OUP holds the right to change percentage commission based on individual and product basis. Any product/service returns, refunds, cancellations, charge-backs will be deducted from the commission that is due to the Affiliate Partner.
4.2. OUP agrees to pay you the commission specified in this Agreement if OUP sells to a visitor to OneUpTrader.com site (a “Customer”) a product or service that is the subject of this Agreement and if that Customer has accessed OUP’s site and purchased the product or service via a Qualifying link.
4.3. OUP shall have the sole right and responsibility for processing all payment processing and fulfillment of orders for our Products sold pursuant to this Agreement. You acknowledge that all agreements relating to sales to Customers shall be between OUP and the Customer.
4.4. You acknowledge that your entitlement to any compensation reported with respect to any tracked or reported activity is solely a function of the terms of your agreement with OUP and that OUP is solely responsible for its payment. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to you from OUP, since payment may be subject to conditions established by OUP, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and minimums for earned compensation before payment is made. All determinations of Qualifying Links and the compensation due to you shall be final and binding.
4.5. All determinations of Qualifying Links and whether a commission is payable will be made by OUP and will be final and binding on both parties. Prices for the products will be set solely by OUP in its discretion.
4.6. Only those who are approved by OneUp Trader Affiliate Partnership Program at the time of receipt of a Customer offer(s) will be eligible for payment under this Agreement.
4.7. As an independent contractor, you will be solely and entirely responsible for any and all taxes and/or other fees or obligations associated with the receipt of payment under this Agreement.
4.8. The terms and conditions of this Section 4, including the fee amounts, may be changed at any time and for any reason within OUP’s sole discretion.
Unless otherwise stated in an Offer Addendum, we will pay you referral fees on a monthly basis. Approximately thirty (30) days following the end of each month, we (or our designee) will send you a payment via PayPal for the referral fees earned on Qualifying Product revenues for that month, less any returns, canceled orders, and chargebacks. However, if the referral fees payable to you for any month are less than $250.00, we will hold those referral fees until the total amount due is at least $250.00 or (if earlier) until this Agreement is terminated.
6.1. Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.12.2. We grant you a limited, revocable, non-exclusive, license to use the graphic image and text, which may include our name, logos, trademarks, service marks (collectively, the “OneUp Trader Marks”), designated in the Offer, only as provided to you through the OneUp Trader Affiliate Partnership Program and solely for the purpose of creating links from your Emails and Site to our Site pursuant to this Agreement. Except as expressly set forth in this Agreement or permitted by applicable law, you may not copy, distribute, modify, reverse engineer, or create derivative works from the same. You may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void. Any prominent use of the OneUp Trader Marks on your Site must be approved by OneUp Trader prior to publishing. We may revoke your license at any time by giving you written notice.
6.2. As a condition to your acceptance and participation in the Program, you agree not undertake or engage in the following practices and any violation of this Section shall be deemed a material breach of this Agreement:
(a) Use or otherwise incorporate the word “OneUp Trader” or variations or misspellings in the domain name(s) of your Site(s), on any meta tags of Web pages comprising your Site, or in advertising or searchable keywords where your ad outranks ours;
(b) Modify or alter OneUp Trader’s Site in any way;
(c) Make any representations, either express or implied, or create an appearance that a visitor to your Site is visiting OneUp Trader’s Site, e.g. “framing” the OneUp Trader Site, without OneUp Trader’s prior written approval; or
(d) “Scrape” or “spider” the OUP Site or any other OneUp Trader website for content (such as images, logos and text).
Furthermore, upon OneUp Trader’s request, you shall immediately remove from your Site any Link to our Site which is displayed on a page which we, in our sole discretion, deem objectionable.
6.3. Pay Per Click Search Engine Placement Policy: Affiliates ARE NOT permitted to out bid OneUpTrader.com for placement on any search terms or any variation of our brand trademark, at any time, in any search engine. These include, but are not limited to:
www OneUptrader com
www OneUp Trader com
www OneUptrader www
OneUp trader
OneUptradercom
OneUptrader com
OneUp Trader com
OneUp Trader site
OneUp Trader web site
wwwOneUptradercom
OneUp Trader
OneUptrader funding
OneUptrader evaluation
OneUptrader funded account
www.OneUptrader
Funded Trader by OneUp Trader
To administer this policy, we will enforce the following:
– Publishers that violate these rules could be deactivated from the program immediately.
– Publishers that do not remove their listings within 2 calendar days could be subject to legal action.
– Publishers that do not follow the correction policy will be removed from the program immediately and forfeit all commission currently owed.
6.4. Customers that link from your Email and Web site to OUP’s Web site under this program become OneUp Trader’s customers and OneUp Trader’s responsibility for purposes of their business relationship with OUP. OneUp Trader Customer lists and other OneUp Trader Customer information are OneUp Trader’s trade secret information.
7.1. The rights and obligations created hereunder shall continue in full force and effect for one (1) year following the date of this Agreement and will automatically renew for successive one year terms unless terminated in writing by either party.
7.2. Either party may terminate this Agreement at any time, for any reason, by deleting their acceptance of the Offer through support@OneUpTrader.com upon five (5) days prior written notice of such termination to the other party. In addition, OneUp Trader shall be entitled to terminate this Agreement immediately if you materially breach or violate any terms or conditions of this Agreement, or if OneUp Trader determines, in its sole discretion, that there are technical, or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect the implementation of the Program, or the orders/referrals were obtained fraudulently, or through misrepresentation, in which case OneUp Trader reserves the right to withhold payment of associated referral pending an investigation of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Offer. However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination, shall survive termination of this Agreement.
7.3. Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your Site, all links to our Site, and all OneUp Trader trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.
7.4. You are only eligible to earn commissions on Qualifying Product Revenues occurring during the term of this Agreement, and referral fees earned through the date of termination will remain payable only if the related Qualifying Products are not canceled or returned by a Customer.
8.1. You represent and warrant that (a) you have the authority to enter into this Agreement and sufficient rights to grant any licenses expressed herein, and (b) any material displayed on your Site will not: (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; (vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; (viii) contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines’ or (ix) otherwise constitutes an “unsuitable Site” as determined by OneUp Trader in accordance with the terms outlined in the Section 1 above titled “Participation in the Program.”
8.2. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ONEUP TRADER MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM OR THAT OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
In no event will either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages arising from or related to this Agreement or the Program, even if informed of the possibility of such damages. Further, neither party’s aggregate liability arising from this Agreement and the Program shall exceed the total referral fees paid or payable to you under this Agreement.
11.1. No Agency. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect, and nothing in this Agreement (including any Offer) shall create any partnership, joint ventures, agency, franchise, sales representative or employment relationship between the parties. Neither party shall make any statement, whether on their sites or otherwise, that reasonably would contradict anything in the paragraph.
11.2. Responsibility for Binding Agreement. You acknowledge that you have read this Agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit Customer referrals on terms that may differ from those contained in this Agreement or operate Sites that are similar to or compete with your Site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
11.3. Jurisdiction; Venue. This Agreement shall be governed by the laws of the State of Delaware, without reference to rules governing choice of laws and you irrevocably consent to the jurisdiction of such courts. OneUp Trader may freely assign their rights in this Agreement. An affiliate may not assign affiliate rights in this Agreement.
11.4. Counterparts; Manifestation of Assent. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution and manifestation of assent may be achieved in any format convenient to the parties.
11.5. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
11.6. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which may be withheld in our sole discretion. 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. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
11.7. Equitable Relief. The parties agree that any breach of either of the party’s obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party’s obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.
11.8. Obligation to Mediate in Good Faith. Except as provided in this Section 11.7, before either party initiates a lawsuit against the other relating to this Agreement, the parties agree to mediate all disputes and claims arising out of or relating to this Agreement, the parties’ performance under it, or its breach. To this end, either party may request, after informal discussions have failed to resolve a dispute or claim, that each party designate an officer or other management employee with authority to bind the party to meet in good faith and attempt to resolve the dispute or claim through mediation. During their discussions, each party will honor the other’s reasonable requests for information that is not privileged and relates to the dispute or claim. This Section does not apply (i) should the expiration of the statute of limitations for a cause of action be imminent, or (ii) if a party is seeking an injunction pursuant to Section 11.8.
11.9. Force Majeure. You acknowledge that OneUp Trader’s servers, equipment, and services (e.g. tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond OneUp Trader’s reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement. OUP will use commercially reasonable efforts to provide the services contemplated under this Agreement and to remedy any temporary interruptions or other problems that adversely affect the Program.
11.10. Attorneys’ Fees. In the event any action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party is be entitled to receive from the other party, will be entitled to receive its reasonable attorneys’ fees and costs incurred in bringing such action.
11.11. Survival. Sections 7 (Termination), 9 (Indemnification), 10 (Limitation of Liability), and 11 (General), including all subsections thereof, shall survive the termination of this Agreement.
11.12. Modifications. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the OUP Affiliate Partner Site and giving you notice of the modification through Ontraport. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.