Affiliate Agreement
AFFILIATE AGREEMENT
This Affiliate Agreement (this “Agreement”) is made and entered into as of the date of the last signature on this Agreement (the “Effective Date”) by and between Blue Acorn Marketing LLC, an Arizona limited lability company DBA StartVirtual (“Company”) and Registered Affiliates (“Affiliate”).
RECITALS:
A. The Company is engaged in the business of offering virtual assistant services for investors and professionals working in the real estate, insurance and other industries (the “VA Services”).
B. The Company also provides bookkeeping services, but those services are not included in the definition of VA Services and are not part of this Agreement.
C. The Company desires for Affiliate to participate in the Company’s Affiliate Program.
D. Affiliate desires to be part of the Company’s Affiliate Program. NOW THEREFORE, in consideration of the promises and the mutual covenants herein contained, and for other good and valuable consideration, it is agreed between the parties as follows:
COVENANTS:
DEFINITIONS
All words and phrases that are capitalized in this Agreement will have the meanings given them in this Section 1 or elsewhere in this Agreement.
(a) “Affiliate Program” means the program pursuant to which Affiliate markets and sells the Company’s VA Services pursuant to the terms of this Agreement but does not include marketing and selling any bookkeeping services offered by the Company, which are
not part of the Affiliate Program and excluded from this Agreement.
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(b) “New Customer Account” means any account for VA Services originated by Affiliate during the term of this Agreement.
(c) “Qualified Account” means any New Customer Account in which the customer has executed a contract with the Company.
DELIVERY OF NEW CUSTOMER ACCOUNTS TO COMPANY
If Company determines that any New Customer Account delivered by Affiliate does not constitute a Qualified Account, Affiliate will have ten (10) business days following Company’s rejection of such New Customer Account in which to cure any such deficiencies and resubmit the New Customer Account to Company. In the event Affiliate fails to (or elects not to) cure such deficiencies within such time period, the rejected New Customer Account will be treated as a “Non-Qualified Account” for which Affiliate shall not be entitled to compensation under this Agreement.
COMPENSATION
3.1 The Company will compensate Affiliate for each Qualified Account
originated by Affiliate as follows: Five percent (5%) of all amounts collected by the Company for every Qualified Account (the “Qualified Account Payment”). (Bonuses given to VA’s are not eligible for commission).
3.2 Company will make the Qualified Account Payment to Affiliate within sixty (60) days from the date the account is accepted by the Company as a Qualified Account.
3.3 Except for the items listed in this Agreement, Affiliate is not entitled to further payment from the Company or any reimbursement from the Company for any of Affiliate’s expenses.
3.4 The Affiliate will receive a Form 1099. Affiliate will be responsible for paying all of Affiliate’s Federal, state, municipal, or other taxes as are required by any applicable law, regulation, or ruling. Affiliate will also be responsible for all statutorily required benefits, including workers’ compensation insurance, if any. Affiliate shall indemnify, protect, defend, and hold the Company harmless from and against any claim by any state or federal taxing authority based on Affiliate’s failure to pay any self-employment tax, or any other tax lawfully imposed on Affiliate or to which Affiliate is or may be subject.
TERM AND TERMINATION OF AGREEMENT
The term of this Agreement shall commence as of the Effective Date and continue until terminated as provided in this
section.
4.1. The Term of this Agreement shall be for one (1) year from the Effective Date and will automatically renew for successive periods of one (1) year unless Affiliate gives notice to the Company of its intention to terminate the Agreement at least thirty (30) days prior to the start of the renewal period. In the event Affiliate terminates this Agreement as provided in
this Section 4.1, the Affiliate will only receive its Qualified Account Payment for amounts received by Company for any Qualified Account prior to the date of termination. Affiliate will not receive a Qualified Account Payment for amounts received by Company after the date of
termination.
4.2 Notwithstanding the foregoing, Company may terminate this Agreement at any time by giving Affiliate thirty (30) days prior written notice of its intent to terminate. In the event Company terminates this Agreement as provided in this Section 4.2, the Affiliate will only receive Qualified Account Payment for amounts received by Company for any Qualified Account prior to the date of termination and during the six (6) month period following the date of termination. Affiliate will not receive a Qualified Account Payment for any amount collected by the Company after the six (6) month period following the date of termination.
4.3 Upon termination of this Agreement, Company will pay Affiliate the compensation provided for in this Agreement for all Qualifying Accounts originated by Affiliate up to the date of termination and will thereafter not owe any further amounts to Affiliate.
EXCLUSIVITY
5.1 During the term of this Agreement, Affiliate understands, and specifically agrees: (i) that all accounts for VA Services generated by Affiliate shall be originated exclusively on behalf of Company: and (ii) that Affiliate shall contract exclusively with the Company to market and sell VA Services.
5.2 Affiliate specifically understands and acknowledges that Company may enter into affiliate agreements with other companies and entities. Affiliate understands and specifically agrees that Company may, at its sole and absolute discretion, enter into any such agreements with other companies or entities on terms substantially similar to the terms set forth herein or on any other terms that Company may from time to time determine to be appropriate.
DEVICES, DOCUMENTS AND INFORMATION
Company may, in its sole and absolute discretion, provide Affiliate documents, forms, templates, usernames, passwords, or other items belonging to the Company. If Company provides Affiliate with any documents, forms, templates, usernames, passwords or other items belonging to the Company, Affiliate shall immediately return such items to the Company upon the termination of this Agreement and shall not retain any images, files, duplicates, or copies of the same.
INDEPENDENT CONTRACTOR
It is understood and agreed, and it is the intention of the parties hereto, that Affiliate is an independent contractor, and is not an employee, agent, joint venturer, or partner of Company for any purpose whatsoever. Affiliate shall be free to dispose of his/her/its time, energy, and skill as Affiliate deems appropriate, and shall retain the sole and absolute discretion and judgment in the manner and means of rendering the services
contemplated by this Agreement. Affiliate shall furnish his/her/its own computer, electronic devices, automobiles and/or other travel arrangements, and anything else necessary or helpful in Affiliate’s execution of his/her/its performance under this Agreement. Affiliate shall not be entitled to any monetary or other benefits customarily associated with employment, such as paid time off, the right to participate in any plans, arrangements or distribution by the Company pertaining to or in connection with any pension, stock, bonus, or profit-sharing plan, or any
similar benefit, except as expressly set forth in this Agreement. The Company shall have no right to and shall not control the manner or prescribe the method by which Affiliate markets and sells the VA Services. Affiliate shall be entirely and solely responsible for his/her/its acts and the
acts of his/her/its agents, and employees, if any, while engaged in the Affiliate Program.
CONFIDENTIAL INFORMATION
8.1 Company owns and has developed and compiled, and will develop and
compile, certain proprietary and confidential information, which has great value to its business
(referred to in this Agreement collectively as “Confidential Information”).
Confidential
Information includes information that is designated as confidential by Company, is not known or is not reasonably known to the general public, and is either disclosed to, or learned by Affiliate during the course of Affiliate’s participation in the Affiliate Program and that has or could have
commercial value in the business in which Company is engaged or contemplates engaging, and that could be detrimental to the interests of Company if disclosed without authorization. By example and without limitation, Confidential Information includes any and all information
concerning trade secrets, business practices, future plans, assets, private discussions, pricing, training materials, manuals, processes and means of generating revenue, sources of revenue, revenue projections, revenue calculations, software development and programs, product
specifications, future product plans, research, test results, reports, specifications, business and marketing plans, employment, contractor, and affiliate policies or compensation, affiliate agreements, including this Agreement, forecasts, financial information, budgets and projections,
customer and client identities, customer and client contact information, customer and client lists, customer and client characteristics and agreements, the names of any sources who refer clients and customers to the Company, the equipment owned and operated by the Company, the names of Company’s personnel, including employees and contractors, the names of the Company’s affiliates, subcontractors and vendors, the financial affairs of the Company, and any other information of, about, or concerning the business of the Company that has not been made
available to or disclosed to the general public. As used in the Agreement, “trade secret” means information, including a formula, pattern, compilation, program, device, method, technique or process, that both: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
8.2 Affiliate will not, either during or after the termination of this Agreement, directly or indirectly, use, disclose, or otherwise communicate to any third party, any of the Company’s Confidential Information without prior written authorization of the Company.
8.3 All materials (including but not limited to user names and passwords, papers, documents, writings, records, manuals, training materials, education materials, resources, contracts, templates, customer and client lists, price lists, notebooks, data files, software, and software documentation) that are furnished to Affiliate by the Company, or that Affiliate otherwise acquires during the course of this Agreement, are the exclusive property of the Company. Upon termination or written request from the Company prior to termination, Affiliate will promptly surrender to the Company, all such materials and all copies of such materials. Affiliate will not retain any such materials or any duplicates of them after termination or upon written request prior to termination.
NON-DISPARAGEMENT.
In consideration for Company entering into this Agreement with Affiliate and Affiliate participating in the Affiliate Program, Affiliate expressly
covenants and agrees that during the term of this Agreement and after the termination of this Agreement, Affiliate shall not, directly or indirectly, defame or disparage the Company or any of its affiliates, members, managers, employees, or contractors to any third party.
COVENANT NOT TO INTERFERE
In consideration for the Company enteringinto this Agreement with Affiliate and Affiliate participating in the Affiliate Program, Affiliate expressly covenants and agrees that during the term of this Agreement and for a period of two (2) years after the termination of this Agreement, Affiliate shall not, directly or indirectly, employ, hire, contract with, retain, or solicit the employment or other services of any affiliate, employee, contractor, partner, or consultant of the Company.
DATA PROTECTION
While participating in the Affiliate Program, Affiliate may have access to or come into possession of sensitive or confidential financial information
belonging to customers of the Company (“Sensitive Data”). Affiliate shall keep and maintain this Sensitive Data as confidential and shall use reasonable safeguards to protect against the unauthorized access to this Sensitive Data. If the Company reasonably believes that the
Sensitive Data has or may have been accessed by one or more unauthorized third-parties, Affiliate, upon request of the Company, will immediately provide all paper documents and electronic devices in Affiliate’s possession containing the Sensitive Data to the Company.
Affiliate authorizes Company to deliver the electronic devices to its attorneys and/or one or more computer and/or data experts to determine if there has been unauthorized access to the Sensitive Data and to remove the Sensitive Data from the electronic devices if the Company deems it is necessary for the protection of the Sensitive Data. Affiliate will fully cooperate with the Company and any attorney, expert, contractor, or other professional Company employs to analyze the electronic devices, which cooperation includes providing any and all necessary passwords to access the device and data. Affiliate shall be responsible for paying any and all attorneys’ and expert fees arising out of or related to the Company’s investigation into any actual or suspected unauthorized access to the Sensitive Data. Should Affiliate refuse or be unable to
pay such attorneys’ and expert fees, the Company is entitled to use any compensation owed to Affiliate under this Agreement for the same. Affiliate shall immediately return any Sensitive Data in his/her/its possession to Company upon the termination of this Agreement and shall not
retain any images, files, duplicates, or copies of the same.
REASONABLE RESTRICTIONS
Affiliate and the Company acknowledge that the provisions and restrictions contained in Paragraphs 9 through 12 of this Agreement shall
survive the termination of this Agreement, are reasonable and necessary to protect the legitimate interests of the Company, and any violation of such provisions or restrictions will result in irreparable injury to the Company. Therefore, Affiliate acknowledges that, in the event of a violation of this Agreement, the Company may seek a temporary restraining order without notice and without posting a bond, preliminary and permanent injunctive relief without the posting of a bond, damages, and an accounting of all earnings, profits and other benefits arising from such
violation, which remedies shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled under this Agreement or by law.
HOLD HARMLESS AGREEMENT
Affiliate shall exonerate, protect, indemnify, defend, and hold harmless the Company, its members, managers, employees, and contractors for any loss, damage, liability, or claim paid or incurred by the Company, its members, managers, employees, and/or contractors by reason of liability or administrative action resulting from Affiliate’s marketing and selling of the VA Services. Affiliate is responsible for the payment of any insurance deductible that must be paid to any insurance carrier for any claim resulting from Affiliate’s marketing and selling of the VA Services. Should Affiliate refuse or be unable to pay such deductible or refuse to protect, indemnify, defend, and hold harmless the Company, the Company is entitled to use any compensation owed to Affiliate under this Agreement for the purpose of paying the deductible, to reimburse the Company if it paid the deductible, and for the costs and attorneys’ fees incurred or to be incurred by the Company to defend or resolve any claims or administrative actions.
GENERAL
14.1 Entire Agreement. This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to Affiliate participating in the Affiliate Program. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by the party to be charged.
14.2 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
14.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona without respect to conflicts of laws principles.
14.4 Attorneys Fees. The prevailing party in any lawsuit or arbitration arising out of or related to this Agreement shall be entitled to an award of their attorneys’ fees, expert fees, and costs against the non-prevailing party, which attorneys’ fees, expert fees, and costs shall include, but are not limited, to those incurred in collecting any judgment awarded in favor of the prevailing party.
14.5 Non-Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right. The obligations of either party with respect to such right shall continue in full
force and effect.
14.6 Affiliate’s Future Cooperation. Upon the Company’s request, Affiliate will do or cause to be done such further acts or things as Company may reasonably request to carry out the intent of this Agreement.
14.7 Use of the Name “StartVirtual”. Affiliate may market and sell the VA Services via use of the “StartVirtual” name. Affiliate acknowledges that the name “StartVirtual” and all variations thereof as well as any other service marks, trade names or trademarks used by Company (the “Marks”) will remain the exclusive property of Company, and Affiliate will not acquire any proprietary rights therein. Affiliate agrees to use the Marks only as directed by Company in writing. Affiliate shall have no further right to use the name “StartVirtual” and the Marks upon termination of this Agreement.
14.8 Electronic Execution and Counterparts. This Agreement may be executed by electronic means and in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The parties may execute this Agreement by electronic means and may deliver their signatures by e-mail delivery, and such transmission shall have the same effect as delivery of original signatures.
14.9 Assignment. This Agreement and any duties or obligations under this Agreement may be assigned by the Company in its sole and absolute discretion. This Agreement and any of its benefits, duties or obligations may not be assigned by Affiliate without the prior written consent of the Company.
14.10 Advice of Counsel. The parties agree that they have had an opportunity to review and negotiate the content of the Agreement and have an opportunity to seek the advice of legal and other professional counsel. The parties expressly and knowingly waive any common law or statutory rule of construction that ambiguity shall be construed against the drafter of this Agreement and acknowledge that both parties had the opportunity to contribute equally to the drafting of this Agreement.
