This Affiliate Agreement (the “Agreement”) is made this ___ day of ___________________, 20___, (the “Effective Date”), by and between SpiritDog Training, LLC (“SpiritDog”) and [INSERT AFFILIATE NAME], (“Affiliate”) (together referred to as the “Parties”).
WHEREAS, SpiritDog is in the business of providing dog training resources and classes and has created, owns, and offers online dog training courses, videos, and pet training consultation for purchase;
WHEREAS, Affiliate has a background in marketing online and via traditional methods;
And WHEREAS, the Parties desire to enter into an agreement to provide for the non-exclusive advertising and promotion of SpiritDog and its products and to share certain resulting revenues from the sale thereof;
NOW, THEREFORE, the Parties agree as follows:
- Term. The term of this Agreement (“Term”) shall begin on the Effective Date, as provided above, and shall continue until terminated by either Party in accordance with this Agreement or as otherwise specified herein.
- “SpiritDog Marketing Materials” or “Marketing Materials” shall mean all marketing materials created for the promotion of SpiritDog, its website, and its product.
- “SpiritDog Website” shall mean and refer to “https://spiritdogtraining.com/” as well as “https://academy.spiritdogtraining.com/” and any additional or replacement website designated by SpiritDog and provided to the Affiliate.
- “SpiritDog Product” shall mean and include such pet training programs, videos, online courses, materials, products, consulting services, and events created and owned by SpiritDog, which SpiritDog authorizes Affiliate to promote in accordance with this Agreement. Affiliate acknowledges that the content of SpiritDog’s Products may be changed by SpiritDog in its sole discretion.
- “Confidential Information” shall mean all information shared between the Parties which is not generally published by the Parties, including but not limited to, the terms of this agreement, financial information, marketing plans, customer information, commission percentages, and other information transmitted or delivered which would be expected under reasonable circumstances to be held private between the Parties.
- “Gross Revenue” shall mean all revenue received from the sale of one or more of SpiritDog’s Products by Affiliate.
- “Net Revenue” shall mean Gross Revenue, less any and all refunds, taxes, and other expenses related to the sale.
- “Sales Commission” shall mean a percentage of Net Revenue from sales made through online links provided to customers by Affiliate. Sales Prices shall be set by SpiritDog for each of its product lines and adjusted from time to time at SpiritDog’s sole discretion. Sales under this definition are subject to the “Last Cookie Rule” as set forth under Section 3, below.
- “Ongoing Sales Commission” shall mean an accruing percentage of Net Revenue from sales made through online links provided to customers by Affiliate of ongoing and continuing subscriptions to SpiritDog product. Subscription Sales Prices shall be set by SpiritDog for each of its product lines and adjusted from time to time at SpiritDog’s sole discretion. Sales under this definition are subject to the “Last Cookie Rule” as set forth under Section 3, below.
- “Proprietary Rights” shall mean all rights held by a Party in that Party’s products, services and programs and confidential information, including, without limitation, copyrights, authors’ rights, trademarks, service marks, patent rights, trade names, know-how and trade secrets, software source codes and proprietary algorithms irrespective of whether such rights arise under U.S. intellectual property, unfair competition, or trade secret laws.
- “Customer” shall mean a person who purchases one or more SpiritDog Products from SpiritDog during the Term of this Agreement as a direct result of being referred to SpiritDog’s Website in response to Affiliate’s marketing efforts hereunder. Purchases under this definition are subject to the Last Cookie Rule as set forth under Section 3, below.
- “Visitor” shall mean any person or user that clicks on a link to SpiritDog’s Website, accessed through the Affiliate’s weblink. Visitors under this definition are subject to the Last Cookie Rule as set forth under Section 3, below.
- Last Cookie Rule. To avoid confusion and potential conflicts between different marketing affiliates as well as SpiritDog, the Parties expressly agree that the commission, ongoing or otherwise, from a sale is available to the Affiliate only if the link provided by the Affiliate to the prospective customer is the final link and access point the customer uses when accessing the SpiritDog Wesbite. A potential customer may choose to access the SpiritDog website multiple times before making a purchase. Customer website access data, or “cookies” are logged by SpiritDog, and show which link or access point ultimately results in the purchase. Each cookie will remain in effect for 24 hours from the time of access through an Affiliate link. A subsequent access to the SpiritDog Website by the same customer will automatically overwrite the cookie generated by the customer’s previous access. The last cookie generated by the customer’s access, if that link was provided by the Affiliate, will result in a commission to the Affiliate.
- Retargeting Customers. The Parties expressly agree that marketing generated by the Affiliate does not entitle the Affiliate to exclusive access to any potential customers of SpiritDog. Any potential customers who access SpiritDog’s Website, regardless of whether it was through an Affiliate link, may, in turn, be retargeted by SpiritDog or other marketing affiliates. The Affiliate agrees that it is only entitled to commissions under the Last Cookie Rule, and hereby waives any potential cause of action, legal or otherwise, arising from the retargeting of customers sent to the SpiritDog Website.
- License. Affiliate shall have the non-exclusive, limited right, under the terms hereof, to use and market SpiritDog Marketing Materials, Website, and Product, as that term is defined hereinabove, during the Term of this Agreement for the sole purpose of marketing SpiritDog Products. All images, technology, and content provided for Affiliate’s use is and shall remain the sole property of SpiritDog and no part thereof shall be deemed assigned or licensed to Affiliate except as explicitly provided for herein. All intellectual property rights, including trademarks, copyrights, patent rights and applications, trade names and service marks related to the Marketing Materials and SpiritDog’s Products shall remain SpiritDog’s sole property, including rights in and to any derivatives thereof. Affiliate may not modify the trademarks, banners, the content, or any of the images provided to Affiliate in any way without explicit written consent from SpiritDog. Affiliate shall not represent that it has any right, title or interest in or to such items other than the license granted by SpiritDog as set forth in this Agreement. Affiliate acknowledges SpiritDog’s ownership and exclusive right to its images, technology, and content provided to Affiliate for marketing purposes.
- Termination. This Agreement may be terminated by any Party without notice. Upon Termination, Affiliate will be compensated for any Sales Commissions earned up to the date of Termination.
- Commissions. The Parties agree that the percentages of sales commissions and the term of ongoing sales commissions are subject to change. Upon entering into this Agreement, SpiritDog will provide Affiliate the current percentages for sales commissions and ongoing sales commissions. SpiritDog will also provide Affiliate with changes to these percentages and terms when they occur. Any such changes are not retroactive and will only apply to sales made after the percentages or terms have been changed.
- Marketing Data. Affiliate agrees to maintain and, if requested, provide data to SpiritDog regarding the following:
- The names and URLs of websites and channels where Affiliate intends to promote SpiritDog products;
- Whether Affiliate will attempt to drive traffic to SpiritDog through popups and/or popunders;
- Whether Affiliate will attempt to drive traffic to SpiritDog through Pay-per-Click and/or paid advertising;
- Affiliate’s Paypal address;
- The SpiritDog products Affiliate will attempt to promote;
- The methods Affiliate will use to promote SpiritDog products.
- Obligations of SpiritDog. During the term of this Agreement, SpiritDog shall:
- Provide the Affiliate access to SpiritDog Website and information regarding SpiritDog Products as necessary for the sole purpose of marketing SpiritDog’s Products under the terms of this Agreement.
- Advise Affiliate of any changes or updates to Marketing Materials and SpiritDog’s Products.
- If needed, provide for a hyperlink to be placed either on Affiliate’s own website or a sponsored link displayed as part of any Internet search engine results that, when clicked on, sends a Visitor to SpiritDog’s Website.
- Allow Affiliate to post or link to the SpiritDog Website on Affiliate’s own website and/or in Links created and posted online by Affiliate.
- Fulfill the sales made to Customers.
- Pay Affiliate a Sales Commission of the Net Revenue on sales made to its procured Customers thirty (30) days from when SpiritDog receives the Gross Revenue.
- Provide its services with due care, skill and ability.
- Obligations of Affiliate. During the term of this Agreement, Affiliate shall:
- Endorse SpiritDog and market SpiritDog’s Products online to potential, prospective, and likely customer bases.
- Refrain from posting any marketing for SpiritDog on any hate sites, adult sites, or any other similar websites unless previously approved by SpiritDog.
- Maintain the integrity of the marketing of all SpiritDog product and not represent SpiritDog’s product inconsistently with the services SpritDog provides on SpiritDog’s website.
- Refrain from making any use of its own links or access points to make purchases from SpiritDog or its Website.
- Representations and Warranties of Affiliate. Affiliate represents and warrants that:
- Affiliate has the right and authority to enter into this Agreement.
- Affiliate, if an individual, is at least eighteen (18) years of age and a resident of the United States.
- Affiliate shall obtain all necessary licenses for any sales events, telemarketing or otherwise and shall obey all applicable laws, regulations and rules of any applicable government body or agency or other authority.
- Affiliate agrees that SpiritDog has made no representations whatsoever and accepts no liability relative to any other website which may be accessed through SpiritDog’s Website or through a link from SpiritDog’s Website to another website or for the content or the use thereof.
- Affiliates’ website content, if any, is solely owned by Affiliate and does not infringe on the rights of any third party, including but not limited to intellectual property rights, and is not defamatory, libelous, unlawful or otherwise objectionable and Affiliate shall not provide, promote, distribute, place or otherwise publish or host any website that includes content which is libelous, defamatory, obscene, pornographic, abusive, fraudulent, or which violates any law.
- No proceeding in bankruptcy or receivership has ever been instituted by or against Affiliate, nor has Affiliate made any assignment for the benefit of creditors and there are no civil actions, proceedings, judgments, bankruptcies, liens or executions in any State or Federal Court in the United States that could in any way affect the subject matter of this Agreement.
- Affiliate is not now and has never been the subject of any action, suit or investigation by any regulatory agency of any state or local government or of the federal government.
- Affiliate will ensure all marketing of SpiritDog by Affiliate is not presented in an unfair or deceptive manner, and ensure all such marketing meets the standards set forth in the Federal Trade Commission Act, as well as all related state unfair practices acts where the marketing material is displayed or may be accessed.
- Indemnification. Affiliate shall indemnify, defend and hold harmless the SpiritDog, its affiliates, and licensees against any and all demands, suits, damages, third party claims, losses, or expenses, including attorney fees, suffered as a result of any breach of the warranties and covenants set forth above.
- Confidentiality. Each Party agrees to keep confidential and not disclose or use, except in performance of its obligations under this Agreement, the terms of this Agreement, confidential or proprietary information related to the other Party’s products or business that the Receiving Party learns in connection with this Agreement, and any other information received from the other which is not explicitly and clearly meant to be customer-facing. Neither Party shall disclose the terms of this Agreement to any third party without the prior written consent of the other Party. Neither Party shall disclose sales numbers, sales commission percentages, or ongoing sales commission terms to a third party without the prior written consent of the other Party. Each Party shall use reasonable precautions to protect the other’s Confidential Information and employ at least those precautions that such Party employs to protect its own confidential or Proprietary Information.
- Assignment & Assumption. Affiliate may not assign this Agreement without the prior express written permission of SpiritDog.
- Relationship of the Parties. The Parties hereto expressly understand and agree that their relationship is that of independent contractors and that each Party is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection with this Agreement. Neither Party nor its agents or employees are the representatives of the other Party for any purpose and neither Party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever. Nothing in this Agreement shall be deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership or formal business entity of any kind, nor shall either of the Parties hereto be deemed a joint venturer or partner or agent of the other. Neither Party shall claim any status; which is contrary to the foregoing terms of this Agreement regarding the relationship of the Parties. Neither Party shall become liable by reason of any representation, act, or omission of the other Party contrary to the provisions hereof.
- Exclusive Terms of Agreement. The Parties agree that no terms set forth in this agreement create any expectation or obligation for the parties to furnish similar or identical terms with other affiliate marketers.
- Notices. Notices under this Agreement shall be sufficient if in writing and delivered to addressee by email.
- Construction. The Parties acknowledge and agree that this Agreement has been drafted and prepared through the efforts of both Parties and the rule of construction that any vague or ambiguous terms are to be construed against the Party drafting such terms shall not be applied to either Party to this Agreement.
- Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico. In the event of a dispute regarding this Agreement or the respective rights of the Parties hereunder, the Parties herein agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in Bernalillo County, New Mexico, and in the event litigation results with respect thereto, the Parties agree to be individually responsible for their own attorney’s fees, court costs, and all other expenses.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior discussions, documents, agreements and prior course of dealing, and shall not be effective until signed by both Parties.
- Amendment and Waiver. Except as otherwise expressly provided herein, any provision of this Agreement may be amended or modified and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of both Parties. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
- Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. Transmission by facsimile of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
- Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date written in the preamble.
SPIRITDOG TRAINING, LLC,
[INSERT AFFILIATE NAME],