Upto11.co Marketing Affiliate Program Agreement
PLEASE READ THIS MARKETING AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the “Affiliate”) and us, Upto11.co (“Upto11.co”). This contract describes how we will work together and other aspects of our business relationship.
This Marketing Affiliate Program Agreement applies to your participation in our Marketing Affiliate Program (the “Affiliate Program”), and we cannot have you participate in our Affiliate Program unless you agree to them.
We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including our partner programs. If we update or replace the terms we will let you know via electronic means, which may include notification via email or your Affiliate Program Dashboard. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
DEFINITIONS
In this Agreement:
“Affiliate Program” means the program specified on our website and operated by us under the terms and conditions stipulated within this Agreement.
“Agreement” means this Marketing Affiliate Program Agreement and all materials referred or linked to therein.
“Associated Company” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to the Agreement. For purposes of the foregoing, “control” means the ownership of (i) greater than fifty percent (50%) of the voting power to elect directors of the company, or (ii) greater than fifty percent (50%) of the ownership interest in the company.
“Clawback” means any event in which a Subscription Fee is refunded or denied, or in any way does not go through to a valid transfer of funds from the intended End User to us.
“End User” means our client or customer to whom Upto11.co delivers the Upto11.co Services.
“Upto11.co”, “We”, “us”, “our” and “Upto11.co” means the Upto11.co entity defined at the first page of this Agreement.
“Upto11.co Account” means a registered Upto11.co affiliate account accessible via the following link.
“Upto11.co Platform” means platform operated by Upto11.co which enables to share and unlock content and other b2b freebies.
“Upto11.co Services” means services, tools and features to integrate and automate various third party applications, websites and services together offered for sale by us and specified in the then-current Product Descriptions.
“Upto11.co Trademarks” means the trademarks, trade names, and designations owned or licensed by Upto11.co or by its Associated Companies.
“Intellectual Property Rights” means all rights, title and interest in and to any and all forms of intellectual property rights including, without limitation, all rights to inventions, patent applications and patents, copyrights, mask work rights, design rights, trademarks, trade names, domain name rights, trade secret rights, database or other sui generis rights, moral rights, neighboring and other related rights, rights in know-how, confidential information and other trade secret rights, and all other rights associated with the authorship and/or the creation of artistic, intellectual or industrial property; and all forms of protection of a similar nature anywhere in the world and of every kind and nature however designated; whether arising by operation of law, treaty, contract, or license; whether tangible or intangible; whether or not registered, deposited or published.
“Party” means Upto11.co or Affiliate, as the case may be (collectively, the “Parties”).
“Product Description“ means overview of Upto11.co Services available on the Upto11.co website.
“You” and “Affiliate” means the party, other than Upto11.co, entering into this Agreement and participating in the Affiliate Program.
GENERAL RULES OF THE AFFILIATE PROGRAM
The Affiliate will be granted access to the Affiliate Program Dashboard. Within the Affiliate Program Dashboard, one or more special affiliate links (each, a “Link”) will be generated and made available to Affiliate to refer new End Users to the Upto11.co Platform. Via the Link, the potential End Users may directly register to subscribe to the Upto11.co Services. We may generate new Links for you when appropriate.
Affiliate is permitted to use the Link in order to promote online the Upto11.co Services and gain new End Users (e.g. by placing the Link on websites, within blogs, vlogs, articles or webinars, or using the Link within any other type of advertisement) (collectively, “Online Promotion”). When conducting the Online Promotion, Affiliate will observe the rules stipulated in Section 4 below.
Provided that an End User has successfully registered via the Link and upgraded its account to a paid subscription of the Upto11.co Services, we will pay the Commission (as defined below) to you under the terms and conditions stipulated in this Agreement.
Nothing stated in this Agreement shall be construed as creating the relationship of employer and employee, principal and agent/sales representative, franchisor and franchisee, joint venturers, or corporate partnership between the Parties, and Upto11.co and Affiliate agree that this is not a “franchise” or equivalent agreement under applicable law and that Affiliate is not required to pay any “franchise fee” or other consideration for entering into this Agreement. Affiliate shall have no right or authority, whether express or implied, to assume or create, or purport to assume or create, any obligation in the name of or on behalf of Upto11.co or any of its Associated Companies.
The Upto11.co Services are the only products and/or services authorized to be promoted by Affiliate under this Agreement. Without incurring any liability to Affiliate, We may, in our sole discretion, add or remove any Upto11.co Services eligible to be promoted by Affiliate at any time.
Upto11.co reserves the right in its sole discretion to reject any End User attempting to utilize the Link.
AFFILIATE’S OBLIGATIONS AND PERFORMANCE
Affiliate has the sole responsibility for maintaining its various internet presences, including, but not limited to, websites, electronic mailings and social media sites, and ensuring they are in compliance with this Agreement.
Affiliate shall be compliant with all state and federal laws and regulations.
Affiliate shall post in a conspicuous manner on its website a privacy policy that clearly and adequately describes how consumer information is collected and used. Said privacy policy must fully and accurately disclose use of third-party technology, use of cookies and options for discontinuing use of such cookies. Failure to have and maintain a privacy policy may result in termination of this Agreement.
Affiliate is not authorized to negotiate or execute any contracts with End Users on behalf of Upto11.co or its Associate Companies.
Affiliate shall not market, advertise and promote the Upto11.co Services to End Users in a manner that will adversely affect the image, credibility, or reputation of Upto11.co, its Associated Companies, or the Upto11.co Services.
Affiliate shall not (i) advertise Upto11.co Services or circulate the Link through bulk or spam mailing, (ii) use the Link in campaigns in any manner that could mislead others regarding the purpose of the Link (such as systems for coupon/discount sites, etc.), (iii) promote Upto11.co Services or the Link via postings to non-commercial newsgroups or cross-postings to multiple newsgroups at once, (iv) advertise in any way that effectively conceals or misrepresents Affiliate’s identity, or (v) use the keyword “Upto11.co” or any Upto11.co Trademark within online ad campaigns (including, without limitation, within metadata or search-based advertising such as Google Adwords) without prior written consent from Upto11.co.
All email advertising performed by Affiliate must be done with the intended recipient’s express consent.
Affiliate shall Upto11.co no false or misleading representations regarding Upto11.co or its Associated Companies, or the Upto11.co Services and shall Upto11.co no representations to End Users with respect to the specifications or features of the Upto11.co Services except for those representations that were previously approved in writing or published by us.
We have the right to monitor Affiliate’s website and other instances of Link placement to determine if Affiliate is following this Agreement and guidelines, including but not limited to, at any time, review Affiliate placement of the Link, reject the use of the Link (and/or any claimed Commission resulting from a use of the Link) that is in violation of the terms of this Agreement, and require that Affiliate change the placement or use of the Link to comply with the guidelines provided herein.
AFFILIATE REPRESENTATION AND WARRANTIES
Affiliate warrants that it shall not design, or allow to be designed, its website or any other website under its control in any manner which creates the impression, or leads prospective End Users to believe, that Affiliate is sponsored by, or in a legal partnership with Upto11.co or any of its Associated Companies, or tends to confuse customers in any way regarding the source of the services or products delivered thereon.
Affiliate represents and warrants that this Agreement, and all ancillary agreements, have been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid and binding obligation, enforceable against Affiliate in accordance with its terms.
Affiliate has the full right, power and authority to enter into and be bound by the terms and conditions of this Agreement and to perform the obligations under this Agreement, without the approval or consent of any other party.
Affiliate will not Upto11.co any claim of ownership over the Upto11.co Services, or any materials or intellectual property provided by us.
Affiliate represents and warrants that its website does not contain materials that are sexually explicitly, obscene or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory in any way; graphically violent; or solicitous of any unlawful behavior.
TRADEMARK LICENSE – BRANDING
Upto11.co hereby grants to Affiliate a non-exclusive, non-transferable, limited license to use the Upto11.co Trademarks during the term of this Agreement solely for the purpose of Online Promotion in accordance with the terms of this Agreement and Upto11.co’s trademark usage guidelines as may be provided from time to time. All intellectual property rights in the Upto11.co Trademarks shall remain the property of Upto11.co and/or its Associated Companies. Affiliate will not use (for purposes other than stipulated within this Agreement), register or attempt to register any trade name, trademark, service mark, design or domain name which, in whole or in part, incorporates or is confusingly similar to any Upto11.co Trademarks.
COMMISSIONS AND PAYMENT
Affiliate shall earn a commission equal to 15% of eligible subscription fees (“Commission”). Eligible subscription fees include basic monthly or annual subscription payments only. Extra operations or add-ons shall not be eligible for commission under this Agreement. Eligible subscription fees shall be the first twelve (12) subscription payments received by us for Upto11.co Services from the End User referred to us by Affiliate via the Link, provided such subscription payments are received within twelve (12) months from the date on which the End User first registers with us via the Link.
The Commission rate hereunder is subject to change and we will notify Affiliate in writing in the event that any such change in the Commission rate is deemed necessary.
The Commission figure shall appear on the user’s dashboard within fourteen (14) days of Upto11.co receiving the subscription fee payment that meets the criteria set out in 6.1 above.
A user may request Upto11.co to pay user owed Commission once (a) the Commission figure appears on the user’s dashboard and (b) the criteria in the following subsections are met:
the Commission accumulated as a result of at least three (3) unique End Users having registered for paid subscription of Upto11.co Services and duly paid the subscription fee for the Upto11.co Services to us,
the aggregate total of the Commissions payable is at least USD 100; and
Affiliate is not in violation of the provisions of this Agreement.
The Affiliate is responsible for the payment of all taxes and/or mandatory levies applicable to the conduct of Affiliate’s business. The payment of Commissions to Affiliate shall be subject to any withholding tax obligations applicable by law, and Affiliate is responsible for all taxes applicable to the Commissions.
The Commission is paid out via one or more payment services that we designate and may from time to time change. Currently, we utilize Bank Transfers for this purpose. We will not be responsible for delays in Commission payout attributable to Affiliate’s failure to properly register with an approved payment service.
The Affiliate can check the status of its earned Commission amount on the Upto11.co affiliate dashboard of its Upto11.co Account.
All costs and expenses incurred by Affiliate in the performance under this Agreement, including without limitation in connection with all rentals, facilities, salaries, commissions, taxes, licenses, permits, telephone and facsimile services, utilities, promotional efforts, advertising, and travel, shall be paid by Affiliate. Affiliate shall not be entitled to any payment or reimbursement from us in this respect.
In the event of a Clawback, we will not pay any commissions on such Clawback, and shall be authorized hereunder to cancel any related Commission payment already made to Affiliate or set-off any related Commission payment already made against future Commissions payable.
Commission is not eligible on payments received from enterprise customers of Upto11.co. When a non-enterprise (i.e. a self-serve) End User referred to us by Affiliate via the Link subsequently becomes an enterprise customer of Upto11.co, Commission shall not be eligible on subsequent payments made by such End User.
In the event this Agreement is terminated, Affiliate is not entitled to receive any Commission for any Subscription Fee received after the date of notification of termination.
TERM AND TERMINATION
Either you or Upto11.co may end this Agreement AT ANY TIME, with or without cause, by giving the other Party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by Affiliate.
Upon any termination of this Agreement, Affiliate shall immediately (i) stop using the Link and delete it from all websites and other locations where the Link has been published and (ii) otherwise discontinue promoting the Upto11.co Services.
INDEMNITY
Affiliate agrees to indemnify and hold harmless Upto11.co, and its Associated Companies, and their directors, officers, employees, agents, and designees, against any and all claims, actions, demands, liability, losses, damages, judgments, settlements, costs and expenses (collectively “Losses”) insofar as such Losses arise out of or are based on (i) any claim that Affiliate infringed on the intellectual property or other proprietary rights of any third party, or (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by Affiliate herein, or (iii) any claim related to Affiliate’s website.
LIMITATION OF LIABILITY
We will not be liable to Affiliate with respect to any subject matter in this Agreement under any contract, negligence, tort or other legal or equitable theory for any indirect, incidental, consequential, special or exemplary damages, even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained in the Agreement, in no event shall our and our Associated Companies’ cumulative liability to Affiliate arising out of or related to this Agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total Commission fees paid to Affiliate under this Agreement.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed under the laws of the United Kingdom and controlling United Kingdom law, excluding its conflicts of laws principles, and the Parties agree that all disputes arising out of the Agreement shall be subject to the exclusive jurisdiction and venue of courts located in London, United Kingdom.
FINAL PROVISIONS
We Upto11.co no express or implied representations or warranties regarding the Upto11.co Services, the Link(s) or our website(s). We Upto11.co no representation that our website(s) or the operability of the Link(s) will be uninterrupted or otherwise error free, and we will not be liable for any harm caused to Affiliate as a result of an interruption or error.
Amendments in Writing. This Agreement may not be modified, or any term or condition waived except in a writing signed by a duly authorized representative of each Party. This also applies to any waiver of the written form requirement. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof.
Severability. If any provision of this Agreement or the application of such provision to any person, entity, or circumstance is found invalid or unenforceable by a court of competent jurisdiction, the determination shall not affect the other provisions of this Agreement and all other provisions of this Agreement shall be deemed valid and enforceable.
Notices. Any notice required or permitted to be sent under this Agreement shall be delivered by first class mail, return receipt requested, or via an international courier service (e.g. FedEx, DHL, UPS, etc.) to the addresses of the Parties, and with a copy emailed to the contact email stated on the first page of this agreement. Notice so sent will be deemed effective one day after email and three days following deposit in the mail.
Surviving Provisions. Any terms of this Agreement which by their nature extend beyond the day this Agreement ends remain in effect until fulfilled, in particular any terms protecting the Intellectual Property Rights of Upto11.co and its Associated Companies, and apply to respective successors and permitted assignees.
Assignment. This Agreement may be assigned by us to any of our Associated Companies or to any entity that assumes our obligations or acquires ownership of or the right to use and license the Upto11.co Services and Affiliate hereby expressly consents to such transfer. Neither this Agreement, nor any right or obligation hereunder, may be assigned, transferred, delegated or subcontracted, by operation of law or otherwise, in whole or in part, by Affiliate without our prior written consent.