Affiliate Program Agreement (this "Agreement")
Essential Engine (the "Owner"), a limited liability company organized and existing under the laws of the State of Minnesota, with offices at 2117 Cliff Drive, Eagan, MN 55122
The Undersigned (the "Recipient")
In consideration of the terms and covenants of this Agreement, and other valuable consideration, the parties agree as follows:
a. The affiliate program covered by this Agreement is named the Essential Engine Affiliate Program (the “Affiliate Program”).
b. The Recipient affirms and warrants to the Owner that they have thoroughly read and comprehended this Agreement and willingly agree to the terms outlined herein.
c. For the purposes of this Agreement, the term “the Owner’s website” pertains to the website maintained by the Owner at https://www.essentialengine.com and all its subdomains. The term “the Recipient’s website” refers to the website on which the Recipient commits to placing a link to the Owner’s website, as specified in Schedule A hereof.
1. AFFILIATE PROGRAM REGISTRATION
To enroll in the Affiliate Program, the Recipient is required to fill out and submit an Affiliate Program Form. This form is accessible on the Owner's website and can be conveniently completed and submitted through the website interface.
2. APPROVAL OR REJECTION OF AFFILIATE PROGRAM APPLICATION
The Owner retains the authority to either approve or reject ANY Affiliate Program Form at its sole and absolute discretion. The Recipient acknowledges and agrees that there is no legal recourse against the Owner in the event of rejection of the Recipient Affiliate Program Form.
3. REASONS FOR REJECTION
While the Owner retains the unrestricted right to reject any application at its absolute discretion, the Recipient's application may be declined if it is incomplete. Additionally, rejection may occur if the content on the Recipient's website is deemed unacceptable or inconsistent with the image the Owner intends to associate with the Recipient. This includes, but is not limited to, the presence of illegal, immoral, defamatory, harassing, or objectionable materials. If the Recipient's website appears to violate intellectual property rights or contains content deemed inappropriate by the Owner, it may lead to rejection.
4. TERMINATION AFTER ACCEPTANCE
Even after the Owner has accepted the Recipient as an Affiliate Program member, the Owner reserves the absolute right to revoke or terminate the Recipient's affiliate status at its sole discretion, including reasons outlined above. If, subsequent to acceptance, the Recipient's website features content that would have warranted rejection initially, the Owner can terminate the Agreement without notice or further compensation.
5. FINANCIAL RESPONSIBILITIES
The Recipient assumes full responsibility for all costs associated with maintaining and marketing the Affiliate Program. This includes, but is not limited to, expenses related to website creation, hosting, modifications, improvements, search engine placement, inserting Owner's links, offline marketing, and postage. The Recipient hereby indemnifies the Owner from any costs and expenses incurred in this regard.
6. NO REPRESENTATIONS REGARDING INCOME POTENTIAL
The Owner explicitly disclaims any representations or warranties regarding potential income resulting from participation in the Affiliate Program. Specifically, the Owner denies any and all warranties related to earning potential from the Recipient's affiliate status.
7. RESPONSIBILITY TO LINK TO THE OWNER’S SITE
a. As an affiliate, the Recipient is obligated to place links on their website directing users to the Owner’s site. The Owner will provide button links, text links, and banner advertisements for placement on the Recipient’s website, facilitating user redirection to the Owner's website via hypertext link. The Recipient, during their active participation as an affiliate, is granted a limited-term license to use the Owner’s logo images on their website.
b. The Owner offers its affiliates, under the Affiliate Program, access to links, banners, and promotional materials for its site, all subject to the terms of this Agreement. These materials will feature the Owner's trademarks and proprietary content. The Recipient is authorized to showcase these materials on their website with the sole purpose of promoting the Owner’s site and participating in the Affiliate Program. In the event of the Recipient discontinuing the Affiliate Program or termination of their participation for any reason, the Recipient must promptly cease using these materials, deleting them from both their website and computer. All links placed by the Recipient on their website to the Owner's site require prior approval from the Owner, and the Recipient agrees to collaborate with the Owner in establishing and positioning these links.
c. The Recipient is exclusively allowed to use the links provided by the Owner on the website specified in Schedule A. Additional websites or entities necessitate the submission of additional Affiliate Program Applications and approval by the Owner.
d. The Recipient is prohibited from modifying the links or any materials provided by the Owner, as well as altering the placement of the links on the Recipient’s page. The Recipient grants consent to the Owner to monitor their website to ensure ongoing compliance with this Agreement.
e. The Recipient grants permission for the Owner to include information regarding traffic from the Recipient’s site in reports generated by or on behalf of the Owner. This information may be shared with external parties.
f. The Recipient is prohibited from inserting links to the Owner's website or website content in newsgroups, message boards, unsolicited emails, and other forms of spam, as well as banner networks, counters, chat rooms, guest books, IRC channels, or any comparable Internet resources.
8. ANTI-SPAM POLICY
The Owner expressly prohibits the use of unsolicited commercial email (UCE) or SPAM campaigns. Consequently, the Owner retains the right to promptly terminate any violating Recipient’s account, or any part thereof, without prior notice or entitlement to further compensation under this Agreement.
Any Recipient discovered engaging in a SPAM/UCE campaign, which includes actions such as flooding newsgroups, distributing messages to unwilling recipients, or any other misuse contravening UCE legislation, will face the following consequences:
a. Immediate closure of the Recipient’s account without the burden of notice or compensation. b. Imposition of a $900.00 US administration fee against the offending Recipient. c. The Owner may share relevant information with investigating authorities or anti-Spam organizations. d. The Recipient will be held responsible for any financial damages incurred by the Owner due to a breach of this Agreement. This encompasses, but is not limited to, punitive damages related to lost clients and damage to the brand.
9. CLIENT SERVICE
a. The Owner will manage all aspects of client inquiries, orders, billing, and collection that originate from the links on the Recipient’s site leading to the Owner’s site. The pricing of Owner products and services is entirely at the Owner's discretion, and the Owner reserves the right to modify pricing structures, discontinue special offers, terminate products or services, or alter the terms of offerings without prior notice to the Recipient or users accessing the Owner’s site. The Owner's sole responsibility to the Recipient in this context is to track client orders generated through links from the Recipient’s website and provide reports to the Recipient on the resulting commissions. All such reports are un-audited. The Owner is not obligated to furnish the Recipient with specific information about any client, irrespective of whether they accessed the Owner’s site through the link from the Recipient’s site.
b. The Owner is not accountable for any failure to assign sales or commissions to the Recipient if such failure stems from the improper formatting of the link on the Recipient’s website. The Recipient must ensure that the link is correctly formatted at all times and promptly report any issues to the Owner.
a. Commissions will be remitted to the Recipient based on a percentage of the sale of Essential Engine publications and the Digital Marketing Platform to users who access the Owner’s site through the Recipient’s site. The calculation of commissions will be derived from the gross sales price, excluding any discounts, shipping and handling, sales tax, special service fees, late charges, collection costs, imports/export duties, and any other payment made to the Owner that does not constitute the purchase price for the product or service ("Net Sales Price"). The Net Sales Price will be further adjusted for amounts related to credit card fraud, credits issued to clients, bad debt write-offs, and returns. The Owner retains the right to make deductions in subsequent months for any commission previously paid for a product or service that is subsequently returned or refunded, or for any other reason if the preceding monthly commission was overpaid or later subject to reduction.
b. The commission percentages stipulated in this Agreement are currently outlined in Schedule A at the Agreement's conclusion. The Owner retains the right to modify and adjust the commission rate structure at any time, at the Owner’s sole discretion.
c. Commissions will only be disbursed for sales tracked through the Owner’s online tracking system, identifying the Recipient’s website’s link as the source ("Eligible Accounts"). No commission entitlement exists, and a client will not be deemed an Eligible Account if, after visiting the Owner’s site through the link from the Recipient’s site, the client makes a purchase through another link or source. Commissions are only tracked and paid when a user makes a purchase during the same visit to the Owner’s site from the link on the Recipient’s site.
d. The Owner will issue commissions solely upon the collection of the applicable sales price. The Recipient has no entitlement to commissions until the respective client has paid the Owner in full. Only purchases made through the Owner’s online ordering process will contribute to commission calculations. For instance, if a client, instead of placing an online order, visits the Owner’s website through the link from the Recipient’s site and places an order via telephone, the Recipient will not be entitled to any commission from that sale.
e. Commissions will be remitted to the Recipient on a quarterly basis for amounts received by the Owner in the preceding quarter. The exact date of commission calculation or payments is not guaranteed by the Owner. Payments will be made via ACH to Recipient bank (info provided by the Recipient).
f. If the Recipient is the first to refer a third party to the Owner, and the third party and the Owner enter into an Affiliate Program Agreement for the Affiliate Program (an "Eligible Referral"), the Owner will make additional payments to the Recipient as specified in Schedule A. The decision to enter into an Affiliate Program Agreement with a third party rests solely with the Owner. The initial source of a referral to the Owner will be determined by the Owner in its reasonable discretion. The Owner retains the right to modify and amend the payment structure for referrals at any time, at the Owner’s sole discretion.
11. OWNER’S CLIENTS
All individuals making purchases of products or services through the Owner’s website, regardless of whether they accessed it through the link from the Recipient’s website, are considered the Owner’s clients, not the Recipient’s clients, concerning the Owner’s products and services. The Owner has the right to contact these clients and send future marketing offers to them. The Recipient has no entitlement to commissions on subsequent purchases made by these clients, except for those that can be traced at the time of purchase through a link from the Recipient’s website. Additionally, all such clients and purchases are subject to the Owner's policies, procedures, rules, and regulations. The Recipient has no authority to amend or offer different terms relative to the purchase of products from the Owner’s website. However, the Owner reserves the right to amend any of its terms, conditions, policies, procedures, pricing, payment policies, collection policies, and other elements of its business and product sales at any time at its sole discretion.
12. TRADEMARKS AND COPYRIGHTS
a. The Recipient is granted a non-exclusive, limited-term license to use the trademarks, logos, and copyrighted material provided by the Owner, solely on the home page designated in the Recipient Affiliate Program Application. The Recipient may use only the images specifically made available by the Owner to affiliates under the Affiliate Program, in the area of its website expressly designated as approved for affiliates. The Recipient may not distribute, reproduce, or modify these images in any way. These images can only be used for the purpose of promoting the Owner’s website and products and services on the Recipient’s website in compliance with the Affiliate Program policies and procedures and the terms of this Agreement. The license granted is contingent upon complete compliance with all terms and conditions of this
Agreement and any policies the Owner may establish or amend from time to time regarding the Affiliate Program.
b. The Recipient shall exclusively utilize the items in the form, size, content, and appearance provided by the Owner and is prohibited from modifying them. These items must be prominently displayed on the Recipient’s website and can only be used if they contain a hypertext link to the Owner’s website. This license will automatically terminate upon the Recipient's removal from the Affiliate Program. The Owner also reserves the right to terminate this license with notice to the Recipient if the Recipient's use of these items contradicts or fails to conform to the Owner's standards, as determined at its sole and absolute discretion. The Recipient acknowledges that the Owner maintains all rights, title, and interest in and to these materials, including any associated goodwill and value. The Recipient does not acquire any trademark, copyright, or other proprietary rights to such materials and agrees not to take any action contrary to or inconsistent with the Owner's rights. The Recipient is prohibited from using these materials in a manner that is damaging, defamatory, disparaging, derogatory, or negative towards the Owner or portrays the Owner falsely or negatively. The Owner retains the right to revoke the limited license at any time in writing to the Recipient. Upon termination or revocation, the Recipient must immediately cease all use of these materials.
c. The Recipient is not authorized to use any other proprietary materials, including but not limited to trademarks, copyrights, logos, text, and any other materials belonging to the Owner or any other party that may appear on the Owner’s website.
d. The Recipient hereby grants the Owner a non-exclusive right and license to use the Recipient’s trademarks, trade names, service marks, business names, web page titles, slogans, logos, and copyrighted materials for the purpose of promoting, advertising, announcing, or marketing the Recipient's participation in the Owner Affiliate Program. The Recipient affirms to the Owner that no other party holds any rights to these materials and that they do not infringe upon or interfere with the rights of any other party. The Recipient declares to be the absolute, sole, and exclusive owner of all such materials, possessing all trademark rights, copyrights, and other proprietary rights related to them. The Recipient asserts the right, power, and authority to license these materials to the Owner as stated herein and confirms that there are no legal or contractual limitations on this right. The Owner is not obligated to announce, advertise, market, or promote the Recipient's participation in the Owner Affiliate Program but reserves the right to do so at its sole discretion.
13. PRODUCT AVAILABILITY
The Owner cannot guarantee the availability of products or services or the duration of any price, special promotion, or offer.
The Recipient is responsible for all aspects of its website, including development, maintenance, operation, and the placement of links on the Recipient’s site in compliance with the terms of the Affiliate Program. The Recipient is fully accountable for all content on its site, ensuring that it does not infringe upon or violate the rights of any other party. The Owner is not responsible for any matters related to the Recipient’s site or its content, and the Recipient indemnifies the Owner from any claims, suits, threats, demands, liabilities, actions, or causes of action related to the Recipient’s website and business. This indemnity includes the Owner's costs and attorney fees in defending any such matter. The Recipient assures the Owner that its site does not and will not contain any illegal materials and that the Recipient’s site is not operated for an illegal purpose or in an illegal manner.
15. REPRESENTATIONS AND WARRANTIES
The Recipient represents and warrants to the Owner that it has the complete power and authority to enter into this Agreement, and this Agreement constitutes a valid and legally enforceable agreement. The entry into this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. The Recipient’s entry into this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule, or regulations, and does not violate any court or administrative order.
This Agreement becomes effective only upon being signed by both parties and shall remain in full force and effect until terminated by either the Recipient or the Owner. Either party may terminate this Agreement at any time, with or without cause, by providing written notice of termination to the other party in accordance with this Agreement. Notices shall be sent via email to the Recipient at the email address indicated in the Recipient Affiliate Program Application. Email notices to the Recipient at such address shall be deemed effective notice for all purposes.
In the event of the Recipient's failure to comply with the terms of this Agreement or any policies and procedures of the Affiliate Program established and amended by the Owner in its discretion, the Recipient will forfeit all rights to receive past commissions that may have accrued. If termination occurs for any other reason, the Recipient retains the right to receive accrued commissions in accordance with the Affiliate Program, as specified in Schedule A at the end of this Agreement. The Owner is entitled to withhold final commission payments for a sufficient duration to ensure the accuracy of the amount paid to the Recipient, free from later adjustments for returns or any other reasons. If, subsequent to the final payment, the Owner determines that the commissions paid to the Recipient were excessive due to subsequent returns or any other adjustments, the differential becomes a debt from the Recipient to the Owner. The Owner has all legal rights to receive a refund of such overpaid commission from the Recipient.
The Owner reserves the right, in its sole and absolute discretion, to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement with notice to the Recipient. Notification of changes may be delivered via email to the Recipient. Such changes and modifications become effective upon the transmission of the email. If any of these modifications are unacceptable to the Recipient, the Recipient may terminate participation in the Affiliate Program, and such termination shall be the Recipient's sole and exclusive remedy. If the Recipient continues to participate in the Affiliate Program following such modifications, the Recipient will be deemed to accept all such changes through its continued participation.
a. The Owner hereby disclaims any and all warranties and liability related to any downtime or failure for users to be able to access its website or to access its website using the link from the Recipient’s website. Furthermore, the Owner shall not be responsible for and hereby disclaims any and all warranties related to its website, the Affiliate Program, the Recipient participation in the Affiliate Program, the Recipient's ability to make any commissions, or otherwise profit through participation in this Affiliate Program. This includes but is not limited to any warranties of fitness for any particular purpose or merchantability, non-infringement, or any claim made based upon the Owner’s course of dealing or usage of trade. The Owner does not represent or warrant that its website or any application, including but not limited to its link tracking features, will be error-free or that they will function without interruption.
b. The Owner shall not be responsible for any direct or indirect damages or liabilities of any nature, including but not limited to incidental, consequential, indirect, or special damages, loss of profits, lost business opportunity, or any other damages; regardless of whether the Owner was or has been advised of the possibility of the same and took no action to prevent the same.
c. Without limiting the foregoing, the Owner’s total liability for any damages arising hereunder shall never exceed the total commissions paid and payable by the Owner pursuant to the terms hereof. In the event that any information is disclosed to the Recipient through the Recipient's participation in the Affiliate Program related in any way to the Owner and its business, which the Owner deems confidential and proprietary, the Recipient agrees to hold such information in the strictest of confidence and not to disclose it to any other party or use it for the Recipient's own purposes. Confidential information includes details regarding changes or modifications to this Agreement or the Affiliate Program (which the Owner is not obligated to make) and any special treatment that the Recipient may receive (which the Owner reserves the right to provide at its sole discretion to any affiliate). Confidential information also encompasses all details related to the Owner’s business, business plans, marketing plans, user statistics, financial information, pricing, profits, affiliations, sales information, and any other information considered confidential and proprietary by the Owner.
The Recipient hereby indemnifies and holds the Owner, as well as all of the Owner’s stockholders, officers, directors, employees, contractors, affiliates, agents, successors, and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto. These claims may arise, wholly or partially, from the Recipient's participation in the Affiliate Program, claims that any of the Recipient's trademarks and other proprietary materials infringe upon the rights of any other party, the Recipient's breach of any term, covenant, condition, representation, or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Recipient's use, operation, or the content of the Recipient’s website or any statement or representation made by the Recipient regarding the Owner’s products or services.
22. GOVERNING LAW
This Agreement shall be interpreted under the laws of the State of Minnesota. Any and all legal actions relative hereto shall be in the courts of the State of Minnesota.
23. RELATIONSHIP OF THE PARTIES
The parties herein are independent contractors, and nothing in this Agreement shall be construed as establishing any relationship other than that of independent contracting parties. The parties are not to be regarded as partners, joint venturers, shareholders, employer/employee, or agent/servant. The Recipient holds no power or authority to bind the Owner to any obligation, agreement, debt, or liability. Furthermore, the Recipient is not authorized to present itself as an agent or representative of the Owner.
Notices to the Owner shall be sent by certified mail, return receipt requested, to the address specified in this Agreement or any other address the Owner may communicate to the Recipient via email. Notices to the Recipient shall be delivered via email to the email address provided by the Recipient in the Recipient Affiliate Program Application.
The Recipient is not permitted to assign this Agreement or any benefits or obligations herein to any other party or legal entity. Any attempted assignment shall be deemed void.
26. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement between the parties regarding the subject matter herein and overrides any prior discussions, understandings, agreements, representations, warranties, or covenants related to the same. Any amendments to this Agreement must be in writing and signed by the authorized representative of each party, except as expressly provided herein. Waiver of a breach or default under this Agreement does not constitute a waiver of any subsequent or other breach or default and does not modify the agreements herein.
If any provision or term of this Agreement is deemed invalid for any reason, it shall not affect the enforceability of the remaining provisions or any other terms or conditions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
Essential Engine LLC
The undersigned (“the recipient”)
COMMISSION RATE STRUCTURE & RECIPIENT’S WEBSITE
Commission Rate Structure
With respect to each Eligible Account, the Recipient shall be paid 20% of the Net Sales Price of magazine copies of the Essential Engine Publication until the earlier of cancellation of such Eligible Account’s relationship with the Owner for any reason or two years.