AFFILIATE REFERRAL AGREEMENT
This Affiliate Referral Agreement (the “Agreement”) is made as of the signature date (the “Effective Date”) by and between The Psychic School, Inc., a Nevada Non-Profit Corporation (“Company”) and the other party identified on the application form (“Affiliate”) (each a “Party” and collectively the “Parties”).
1. Definitions. Defined terms have the meanings set forth in this Section 1 and elsewhere in this Agreement when capitalized, and may be read in singular, plural, or an alternative tense as the context requires.
1.1. “Company Marks” means Company’s name, trademarks, trade names, service marks, and logos.
1.2. “Company Services” means the products and services offered through the Company’s website(s), including Excluded Company Services, as described in Schedule 1 attached hereto and as may be updated by the Company from time to time at its sole discretion and upon notice to the Affiliate.
1.3. “Excluded Company Services” means those Company Services that will not generate a Referral Fee for Affiliate as described in Schedule 1 attached hereto and as may be updated by the Company from time to time at its sole discretion and upon notice to the Affiliate. Notwithstanding the foregoing, Qualified Leads who enroll in any Excluded Company Service may be credited to Affiliate as described in the Entitlement program described in Section 4.3 herein.
1.4. “Referral Fees” means those fees payable to Affiliate upon Qualified Leads purchasing Company Services. The specific Referral Fees payable are described in Schedule 1 attached hereto as may be updated by the Company from time to time at its sole discretion and upon notice to the Affiliate.
2. Grant of Rights. Subject to the terms and conditions of this Agreement, Company hereby authorizes Affiliate to market, on a non-exclusive basis, the Company Services to Referrals (as defined below) by means of Company provided Identifiers (as defined below). Affiliate shall not have the authority to enter into any contracts on Company’s behalf or otherwise make any commitments whatsoever on behalf of Company. Affiliate shall not under any circumstances make any warranties or representations with respect to the Company Services, without the prior written approval of the Company.
3. Marketing the Company Services.
3.1. Generally. Affiliate shall market the Company Services to persons interested in the Company Services (each a “Referral”) at Affiliate’s own expense. Affiliate may create marketing materials, sales literature, and other information to promote the Company Services (“Marketing Materials”) using one or more Company Marks, provided that all such Marketing Materials require Company’s prior, written approval before each use by Affiliate, which approval may be withheld or conditioned at Company’s sole discretion. In addition, at Affiliate’s request, Company may, but is not obliged to, provide Affiliate its own Marketing Materials for Affiliate’s use in connection with this Agreement. Affiliate shall not use any Marketing Materials outside of the scope of this Agreement. In connection with its marketing efforts, Affiliate shall generate its own unique links to the Company Services for Referrals (defined below) using a Company provided user account; Company may also provide the Affiliate with coupon codes to use in its Marketing Materials. The forgoing links and coupon codes are collectively and individually referred to as “Identifiers.”
3.2. Restrictions. Affiliate shall not engage in any marketing efforts related to the Company Services that disparage or remark negatively on any other person or entity or are dishonest or misleading. Affiliate may not make any representations or warranties regarding the Company Services that are not explicitly made by the Company or without the Company’s prior written approval.
3.3. Requirement. If Affiliate posts Identifiers in any public forum, Affiliate must identify itself as part of the Company’s affiliate program and that it may receive compensation as a result of the Referral’s use of the Identifier.
3.4. Penalties. Any violation of this section may result in the Company cancelling payments already generated by the Affiliate and/or voiding the Affiliate’s Identifiers, imposing a temporary or permanent ban from the Company Services or affiliate program, and/or additional damages allowed by law.
4. Qualifying Leads; Entitlement.
4.1. Referrals and Cookies. When a Referral visits the Company’s website(s) through an affiliate link, a 90-day cookie is installed in the Referral’s browser. Alternatively, if an Affiliate has an approved direct link, and the Referral goes directly from the Affiliate’s website to the Company’s website, the same 90-day cookie is installed, even if no affiliate link is clicked. This cookie allows the Referral to be tracked and credited to the Affiliate’s account for any bona fide purchases made within the 90-day window. The cookie must remain active and not be deleted or blocked by the Referral for this tracking to occur. If the Referral makes a bona fide purchase within the 90-day period, the Affiliate will earn an Entitlement credit and/or Referral Fees as described herein.
4.2. Credit Last Referrer and Qualified Leads. The Company uses a “Credit Last Referrer” system. This means that if a Referral clicks on multiple affiliate links, the last affiliate link clicked before a purchase will determine which Affiliate is credited for the Referral. For example, if a Referral clicks on affiliate A’s link but later clicks on affiliate B’s link or uses affiliate B’s coupon code to make a bona fide purchase, affiliate B will be credited with the Referral and earn an Entitlement credit and/or Referral Fees as described herein. A Referral is considered a “Qualified Lead” if they make a bona fide purchase of any Company Service within the 90-day window established by the cookie or through the use of a coupon code provided by the Affiliate. If no bona fide purchases are made within the 90-day window, the cookie expires, and the Referral will no longer be tracked unless the Referral clicks on another affiliate link, triggering a new 90-day window.
4.3. Entitlement. Once Qualified Lead makes a bona fide purchase that is not subject to a refund or charge back, the Affiliate shall be entitled to the Referral Fees from any subsequent purchases of the Company Services (but excluding the Excluded Company Services) of such Qualified Lead, regardless of when such purchases may be made and regardless if such Qualified Lead clicks on other affiliate links or uses different affiliate coupons in the future (the “Entitlement”). The Company may unilaterally on notice to the Affiliate and at its sole discretion revise or discontinue the Entitlement.
5. Referral Fees.
5.1. Determination. As the sole compensation due to Affiliate, Company will pay Affiliate the Referral Fees. Company shall have no obligation to pay Affiliate any Referral Fee or other amount: (a) if a Qualified Lead cancels their purchase of Company Services without paying or, if an Excluded Company Service, if the Qualified Lead does not participate with the Excluded Company Service; (b) if a Qualified Lead requests a refund within the terms of Company’s refund policy, if any; (c) the Company has in good faith believes that the Affiliate has engaged in fraud or other wrongdoing to generate Referral Fees; or (d) if for any other reason payment in full is not received and held by Company.
5.2. Payment Schedule. The Company shall endeavor to pay Affiliate its Referral Fee on the 5th of each calendar month for completed Company Services from the previous month. For course-related Company Services, commission payments are made on the 5th of the month following the completion of the first class. Notwithstanding the foregoing, the payment may be delayed or accelerated if the Company requires the same in its reasonable discretion. In all events, however, the payment shall not be delayed more than thirty (30) days from the 5th of each calendar month if a payment is due to Affiliate.
6. Confidential Information. To facilitate this Agreement, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Upon the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Representations and Warranties. Affiliate and Company each warrant that it is duly authorized to enter into this Agreement and make the commitments set forth in this Agreement. In addition, Affiliate represents and warrants that (a) the performance of this Agreement by it does not, and will not, violate or conflict with the terms of any existing agreement or understanding to which it is a party, including, but not limited to, any non-disclosure, non-compete or other similar obligations to any other person, (b) it shall comply with all applicable laws, rules, and regulations in connection with its business and the performance of its obligations under this Agreement, and (c) it shall obtain and maintain all necessary licenses and permits as may be required by the applicable governing authorities having jurisdiction over the Affiliate’s performance of its obligations under this Agreement.
8. Disclaimer. THE COMPANY SERVICES, AND ANY OTHER INFORMATION, IDENTIFIERS, OR MATERIALS PROVIDED BY COMPANY HEREUNDER ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY SERVICES WILL MEET ANY PARTICULAR REQUIREMENT, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY HARDWARE, SOFTWARE, DEVICE, SYSTEM, OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF ANY VIRUS, MALWARE OR OTHER HARMFUL CODE, OR ERROR FREE. AFFILIATE SHALL HAVE NO AUTHORITY TO MODIFY THE REPRESENTATIONS AND WARRANTIES ABOUT THE COMPANY SERVICES. ANY ATTEMPT BY AFFILIATE TO MODIFY THESE REPRESENTATIONS AND WARRANTIES SHALL BE NULL AND VOID. TO THE EXTENT THAT COMPANY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
9. Indemnification. Affiliate shall defend, hold harmless, and indemnify Company, and any party claiming by or through Company (the “Company Indemnified Parties”) from and against any all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees incurred by a Company Indemnified Party in connection with any third-party claim, action, or proceeding to the extent arising out of or based upon (a) any misstatement or omission of any material fact or other misrepresentation by Affiliate concerning Company or the Company Services, (b) any violation of any applicable law, rule, or regulation by Affiliate, (c) any breach by Affiliate of, or failure to perform its obligations under, this Agreement, or (d) any gross negligence or willful misconduct on the part of Affiliate.
10. Limitation of Liability. SUBJECT TO THE EXCEPTIONS BELOW, (A) IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS REPUTATION OR GOODWILL, OR COSTS OF SUBSTITUTE GOODS OR SERVICES), WHICH AFFILIATE MAY INCUR OR EXPERIENCE, DIRECTLY OR INDIRECTLY, ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), AND (B) COMPANY’S ENTIRE LIABILITY TO AFFILIATE, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, OR OTHER LEGAL THEORY, SHALL NOT EXCEED THE TOTAL REFERRAL FEES ACTUALLY PAID BY COMPANY TO AFFILIATE UNDER THIS AGREEMENT. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO AFFILIATE’S INDEMNIFICATION OBLIGATIONS HEREUNDER, BREACH BY AFFILIATE OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AFFILIATE.
11. Term and Termination.
11.1. The term of this Agreement begins on the Effective Date and will continue for one (1) year, unless otherwise extended pursuant to the written agreement of the Parties, or unless earlier terminated under this Section. Either Party may terminate this Agreement for any reason or no reason, upon one (1) week’s prior written notice to the other Party.
11.2. Following expiration or termination of this Agreement, Affiliate shall be entitled to Referral Fees only for any sale made to a Qualified Lead prior to the expiration or termination of this Agreement, even if such Referral Fees do not become earned or payable until after such expiration or termination, unless Company terminates this Agreement based on a breach by the Affiliate. In all events, upon expiration or termination of this Agreement, Affiliate shall immediately cease all marketing activities with respect to the Company Services and shall return to Company and/or destroy all Marketing Materials.
11.3. Sections 1 and 6 through 14 shall survive any termination or expiration of this Agreement.
12. Intellectual Property. All right, title, and interest in and to the Company Services and the Company Marks, including all intellectual property rights therein (collectively referred to as the “Company IP”), are and will remain, respectively, with Company. Affiliate has no right or license with respect to the Company IP except as expressly provided in this Agreement. All other rights in and to Company IP are expressly reserved by the Company. Upon expiration or earlier termination of this Agreement, all rights to use the Company IP by Affiliate shall immediately terminate. Affiliate acknowledges, represents, warrants, and covenants that it shall not, directly or indirectly, challenge or assist any other person or entity in challenging, Company’s right, title, and/or interest in or to the Company Marks. Affiliate agrees that, to the extent it creates any marketing materials for the Company, the Company shall own the same as a “work made for hire”, or if such materials were pre-existing or made independently of this Agreement, then the Company shall have a perpetual, worldwide, transferable, fully paid up, and royalty-free license to the same.
13. Harmful Code. Affiliate represents and warrants that any website it uses to promote the Company shall not knowingly contain any Harmful Code. For purposes herein, “Harmful Code” means any computer code or any other procedures, routines, or mechanisms designed to (a) damage, disrupt, disable, harm, or otherwise impede in any manner, the orderly operation of any other software, data files, firmware, hardware, computer system, or network (sometimes referred to as “viruses” or “worms”); (b) disrupt, disable, harm, or impair in any way such software’s (or any other software’s) orderly operation based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date, or other numeral (sometimes referred to as “time bombs,” “time locks,” or “drop dead” devices); (c) permit Affiliate, its personnel, its licensors, or any other third party to access such software for any reason (sometimes referred to as “traps,” “access codes,” or “trap door” devices).
14. Miscellaneous. This Agreement may only be amended in writing and signed by both Parties. The Affiliate cannot assign, transfer, delegate, or subcontract any rights or obligations without the Company’s prior written consent, while the Company may freely assign the Agreement. This Agreement supersedes all prior agreements regarding its subject matter. Headings are for convenience only and not for interpretation. The Parties are independent contractors, not partners, employees, or agents. If any provision is deemed illegal, invalid, or unenforceable, it shall not affect other provisions, and the Agreement shall be reformed to best achieve the Parties’ intent. A waiver of breach does not constitute a waiver of another breach, and failing to enforce a provision does not create a waiver or estoppel. The Agreement may be executed in multiple counterparts, each being an original but together constituting one instrument. This Agreement shall be governed by the laws of the State of Nevada. For all such matters each Party submits to the exclusive jurisdiction of the state and federal courts located in Las Vegas, Nevada and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
IN WITNESS WHEREOF, the Parties have caused their respective authorized representatives to execute this Agreement as of the signature date.