PLEASE READ THIS MARKETING AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This is an agreement between you ("Affiliate") and us ("Botamp"). It describes how we will work together and other aspects of our business relationship. This is a legal document and some of the language is necessarily "legalese", but we have tried to make it as readable as possible.
The Affiliate Marketing Program Agreement applies to your participation in our affiliate marketing program (the "Affiliate Program"). These terms are so important that we cannot have you participate in our affiliate program unless you agree to them.
We periodically update these terms. We may also choose to replace these terms in their entirety if, for example, the affiliate program is changed, terminated, or integrated into an existing program.
If we update or replace the terms, we or the Affiliate Tool will notify you electronically, which may include an in-application or email notification. If you do not agree to the update or replacement, you may choose to terminate the Agreement as described below.
"Affiliate Marketing Program" means our affiliate marketing program as described in this Agreement.
"Affiliate Prospect" means a customer prospect who clicks on the affiliate link we have made available to you via the Affiliate Tool.
"Affiliate Contact" means an Affiliate Prospect who after clicking on the Affiliate Link has created a Botamp account.
"Affiliate Link" means the unique tracking link that you place on your site or promote through other channels.
"Affiliate Policies" means the policies applicable to affiliates that we may make available to you from time to time.
"Affiliate Space" means the tool we make available to you upon your acceptance into the Affiliate Program that you must use in order to participate in the Affiliate Program.
"Agreement" means this Affiliate Marketing Program Agreement and all documents referred to or linked to herein.
"Commission" means an amount described in the Affiliate Tool (or, if applicable, in the Program Policies) for each Customer transaction.
"Customer" means the actual user of the Botamp product who has purchased or enrolled in the Botamp product after being an Affiliate Prospect.
"Customer Transactions" means transactions made by Affiliate Contacts that are eligible for a commission pursuant to the "Customer Transactions" section of this Agreement.
"Customer Data" means all information that Customer submits or collects through the Botamp product and all documents that Customer provides or posts, uploads, inputs or submits for public display through the Botamp product.
"Botamp Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images and tags that we incorporate into our services.
"Botamp Product" means the Botamp service that provides access to the various features.
"Program Policies Page" means the landing page: https://www.botamp.com/botamp-affiliate-program-policies?locale=en where we will provide all up-to-date guidelines and policies for the Affiliate Program.
"Service Subscription" means the software developed, operated and maintained by us, accessible via http://www.botamp.com.
"We", "us", "our" and "Botamp" means Botamp, Inc.
"You" and "Affiliate" means the party, other than Botamp, that enters into this Agreement and participates in the Affiliate Program.
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar third party products and services and to work with other parties in the design, sale, installation, implementation and use of similar third party services and products.
Once you complete an affiliate application, we will review it and notify you whether or not you have been accepted to participate in the affiliate program. Before accepting an application, we may want to review your application with you so that we can contact you for more information. We may require that you meet certain requirements or obtain one or more certifications before we accept your application. If we do not notify you that you have been accepted to participate in the Affiliate Program within thirty (30) days of your application, your application is considered rejected.
If you are accepted to participate in the Affiliate Program, upon notification of your acceptance, the terms and conditions of this Agreement will apply in full, until terminated, in accordance with the terms set forth below.
You will at all times comply with the terms and conditions of this Agreement.
Affiliate Program Limitations.
Each accepted affiliate lead will expire in accordance with the information provided in the program policies as of the date the affiliate lead clicked on the affiliate link you made available. We will pay you a commission as described in the Program Policies for each new Customer who completes an applicable Customer Transaction after clicking on an Affiliate Link you have made available, provided that you remain eligible to receive a commission in accordance with the terms of this Agreement.
The commencement of Customer's subscription is determined by the date of Customer's subscription to the Service and you will receive a Commission payment for that Customer Transaction only, regardless of any additional or subsequent purchases made by that Customer. For example, if the Customer renews their subscription, the Affiliate will not receive a commission payment again.
Eligibility.
To be eligible to receive commission, (i) the Affiliate contact must be accepted and valid in accordance with the "Acceptance and Validity" section, (ii) a transaction must have occurred, (iii) the customer must remain a customer for the lock-in period indicated in the program policies.
You are not eligible to receive Commission or other compensation from us based on transactions for Other Products or if: (i) such compensation is prohibited or limited by any federal, state or local law or regulation in the United States or by the laws or regulations of your jurisdiction; (ii) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us or Botamp Affiliates ; (iii) Customer has paid or will pay such commissions, referral fees or other compensation directly to you; (iv) the commission payment was obtained by fraudulent means, through misuse of the affiliate link, in violation of any affiliate program policy made available by us.
Acceptance and Validity.
You will only be entitled to payment of a Commission for Customer Transactions that result from Affiliate Leads generated by the Affiliate Link we provide to you and that are accepted by Botamp. An Affiliate Contact will be considered valid and accepted if, in our reasonable determination: (i) he or she is a new prospect to our company, and (ii) he or she is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers or involved in our active sales process. Notwithstanding the foregoing, we may decide not to accept an Affiliate Contact in our reasonable discretion. If an affiliate lead does not sign up within the time period described in the program policies after their first click on the affiliate link, you will not be entitled to payment of a commission, even if the affiliate lead decides to purchase after the time period has expired. An affiliate lead is not considered valid if his or her first click on the affiliate link occurs after the expiration or termination of this Agreement.
Commission and Payment.
In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement; (ii) completed all steps necessary to create your account in the Affiliate Tool in accordance with our instructions.
Commission Payment.
We or the Affiliate Tool will determine the currency in which we pay the Commission and the applicable conversion rate. We will not pay more than one Commission or other similar referral fee for any given customer transaction (unless we decide to do so in our discretion). You are responsible for paying all taxes and fees (including bank charges) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
Commission Amounts.
We reserve the right to modify or change the amount of the Commission in accordance with the policies of the Program.
We may make available to you, free of charge, various webinars and other resources made available as part of our Affiliate Program. If we make these resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in the training and/or other certifications that we recommend and may make available to you from time to time. We may change or discontinue any or all of the benefits or offerings of the Affiliate Program at any time without notice.
You grant us a non-exclusive, non-transferable, royalty-free right to use and display your trademarks, service marks and logos ("Affiliate Marks") in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, if we make our Brand available to you in the Affiliate Tool, you may use our Brand provided you comply with the terms of use in this section.
You must: (i) only use the images of our Brand that we make available to you, without modifying them in any way; (ii) only use our Marks in connection with the Affiliate Program and this Agreement; (iii) comply with our Style Guide and Brand Use Guidelines; and (iv) comply immediately if we ask you to discontinue use.
You must not: (i) use our Brand in a deceptive or disparaging manner; (ii) use our Brand in a manner that implies that we support, sponsor or endorse your services or products; or (iii) use our Brand in violation of applicable law or in connection with obscene, indecent or illegal subject matter or materials.
You grant us a non-exclusive, non-transferable, royalty-free right to use and display your trademarks, service marks and logos ("Affiliate Marks") in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, if we make our Brand available to you in the Affiliate Tool, you may use our Brand provided you comply with the terms of use in this section.
You must: (i) only use the images of our Brand that we make available to you, without modifying them in any way; (ii) only use our Marks in connection with the Affiliate Program and this Agreement; (iii) comply with our Style Guide and Brand Use Guidelines; and (iv) comply immediately if we ask you to discontinue use.
You must not: (i) use our Brand in a deceptive or disparaging manner; (ii) use our Brand in a manner that implies that we support, sponsor or endorse your services or products; or (iii) use our Brand in violation of applicable law or in connection with obscene, indecent or illegal subject matter or materials.
Botamp's Proprietary Rights.
No license to any software is granted by this Agreement. The Botamp product is protected by intellectual property laws. The Botamp Product is owned by us or our licensors (if any). We retain all proprietary rights in the Botamp product. You agree not to copy, rent, lease, assign, sell, distribute or create derivative works based on the Botamp Content or the Botamp Product, in whole or in part, by any means, except as expressly authorized in writing by us. If you wish to use the Botamp Content, you must comply with our Content Use Guidelines. The Botamp logo is our trademark and you may not use it without our prior written permission, except as otherwise provided in this Agreement. We encourage all customers, affiliates and partners to comment on the Botamp Product, make suggestions for improvement and vote for suggestions they like. You agree that all such comments and suggestions are non-confidential and that we retain all rights to use and incorporate them into the Botamp Product, without payment from you.
Customer's Proprietary Rights. As between you and Customer, Customer retains the right to access and use the Customer Portal associated with the Botamp Product. For the avoidance of doubt, the Customer will own and retain all rights to their data.
As used herein, "Confidential Information" means all confidential information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party"), (i) whether orally or in writing, that is designated as confidential, and (ii) information relating to Botamp's customers and prospects, whether or not designated as confidential. Confidential Information does not include information that (i) is or becomes generally known to the public without breach of any obligation to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Disclosing Party's Confidential Information using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use the Disclosing Party's Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose the Disclosing Party's Confidential Information to any third party, and (iv) restrict access to the Disclosing Party's Confidential Information to its employees, contractors and agents. The Receiving Party may disclose the Disclosing Party's Confidential Information if required to do so by federal, state, or local law, statute, rule, or regulation, subpoena, or legal process.
Duration.
This Agreement shall continue for as long as you participate in the Affiliate Program, until terminated.
Termination Without Cause.
Either you or we may terminate this Agreement upon fifteen (15) days written notice to the other party.
Termination for Agreement Changes.
If we update or replace the terms of this Agreement, you may terminate this Agreement upon five (5) days' written notice to us, provided that you send us written notice within ten (10) days after we send notice of the change.
Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days' notice for a material breach, if such breach is not cured by the expiration of such period, (ii) upon fifteen (15) days' notice for non-payment of any amount due to us, if such amount remains unpaid by the expiration of such period, (iii) immediately, if you become subject to a bankruptcy or other insolvency proceeding, receivership, (iv) immediately, if we determine that you are acting, or have acted, in a manner that adversely affects or may adversely affect us, our prospects or customers.
Effect of Expiration/Termination.
The expiration of this Agreement, and the termination of this Agreement: (i) without cause by us, (ii) by you with cause, (iii) by you in accordance with the "Termination for Changes to the Agreement" section, will not affect our obligation to pay you a commission, so long as the corresponding payment by the Customer Transaction is acknowledged by us within thirty (30) days of the date of such termination or expiration. We will not pay you any commission on Customer Transactions acknowledged by us after thirty (30) days following the termination or expiration date referred to above. Provided, however, that in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any commission shall terminate as of the date of such termination, whether or not you were eligible to receive a commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after the expiration or termination of this Agreement. In the event of termination or expiration, you will cease to use and delete the affiliate tool we provide for your participation in the affiliate program. In the event of termination or expiration, an affiliate lead is not considered valid, and we may choose to retain it in our database and engage with that lead. In the event of termination or expiration, you will immediately cease using our brand and referring to this Affiliate Program on your websites and other materials. For the avoidance of doubt, the termination or expiration of this agreement will not result in the termination of a customer's subscription agreement.
You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provide Botamp with Affiliate leads for use by us in our sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and grant us the right to use the Affiliate Marks.
You further represent and warrant that: (i) you will ensure that you are in compliance with all business or regulatory requirements that may apply to your participation in the Affiliate Program (e.g., by clearly indicating that you are a Botamp Affiliate on any website(s) you own where you make an Affiliate link available); (ii) you will share with us any strategies you use to attract Affiliate leads to Botamp; (iii) you will not purchase ads that link to your site(s) or through an affiliate link that could be considered to compete with Botamp's ads, including, but not limited to, our branded keywords; (iv) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (v) you will not attempt to hide referral URL information; (vi) you will not use your own affiliate link to purchase Botamp products for yourself; and (vii) you will not use any mechanism to provide leads other than through the intended consumer. This includes seeking leads through personal data compilations such as telephone directories, using false redirects or other automation tools or devices to generate leads (including, but not limited to, bots, frames or hidden frames), or offering incentives to encourage purchases or registrations.
You agree to indemnify, defend and hold us harmless, at your expense, from any claim, suit, action or proceeding brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by any third party not affiliated with us, to the extent that such action is based on or arises out of (a) your participation in the Affiliate Program, (b) our use of the marketing data you provided to us, (c) your breach or violation of this Agreement, (d) your use of the Affiliate Tool, or (e) our use of the Affiliate Marks. We will notify you in writing within thirty (30) days of the date we become aware of any such claim, will give you sole control over the defense or settlement of such claim, and will provide you (at your expense) with all information and assistance you reasonably request to defend or settle the claim. You will not accept any settlement that (i) imposes an obligation on us, (ii) requires us to make an admission, or (iii) imposes a liability not covered by these indemnities or imposes restrictions on us without our prior written consent.
Disclaimer of Warranties.
WE, OUR AFFILIATES AND OUR AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE BOTAMP PRODUCT, BOTAMP CONTENT, AFFILIATE PROGRAM OR AFFILIATE TOOL FOR ANY PURPOSE. THE APPLICATION PROGRAMMING INTERFACES (API) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ANY TIME. TO THE EXTENT PERMITTED BY LAW, THE BOTAMP PRODUCT AND AFFILIATE TOOL ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH RESPECT TO THE BOTAMP PRODUCT AND THE AFFILIATE TOOL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
No Indirect Damages.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOST BUSINESS OPPORTUNITIES.
Limitation of Liability.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, IT IS DETERMINED THAT WE HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY SHALL BE LIMITED TO THE TOTAL AMOUNTS OF COMMISSIONS ACTUALLY EARNED BY YOU FOR THE RELEVANT CUSTOMER TRANSACTIONS DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
Affiliate Tool.
WE ARE NOT RESPONSIBLE FOR THE AFFILIATE TOOL YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, AT OUR DISCRETION.
Cookie Duration.
THE COOKIES USED IN THE AFFILIATE TOOL HAVE A SPECIFIC DURATION. IF A POTENTIAL CUSTOMER DELETES THEIR COOKIES DURING THIS PERIOD, BOTAMP WILL NOT BE RESPONSIBLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN DUE TO YOU.
Amendment; No Waiver.
We may update and modify all or part of this Agreement, including replacing it in its entirety. If we update or modify this Agreement, the updated Agreement will be made available to you via the Enrollment Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool notify you. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement regularly. If you do not agree to the update, modification or replacement, you may choose to terminate it as we describe above. No delay in exercising any right or remedy or failure to object will constitute a waiver of that or any other right or remedy. A waiver on one occasion shall not constitute a waiver of any right or remedy on any future occasion.
Applicable Law.
This Agreement shall be governed by the laws of the State of Delaware, USA, without regard to its conflict of laws provisions. If either of us brings an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction for such action shall be the state and federal courts located in Delaware.
Force Majeure.
Neither party will be liable for failure or delay in performance if caused by: an act of war, hostility or sabotage; an act of God; a power, internet or telecommunications failure not caused by the obligated party; governmental restrictions; or any other event beyond the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
Actions Permitted.
Except for actions for nonpayment or violation of a party's property rights, no action in any form arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action arose.
Relationship of the Parties.
You and we both agree that no joint venture, partnership, employment or agency relationship exists between you and us as a result of this Agreement.
Compliance with Applicable Laws.
You will comply with, and ensure that any third party conducting sales or referral activities on your behalf complies with, all applicable foreign and domestic laws (including, but not limited to, export laws and laws applicable to the sending of unsolicited email), government regulations, court orders and administrative orders. You must not engage in deceptive, misleading, illegal or unethical marketing activities, or activities that may be harmful to us, our customers or the public. United States export laws and regulations and any other relevant local export laws and regulations may apply to the Botamp Product.
Severability.
If any part of this Agreement is held invalid or unenforceable by applicable law, the invalid or unenforceable provision will be deemed superseded by a valid and enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Notices.
Notices shall be sent to the contact address set forth herein (as may be changed by notice to the other party), and shall be deemed delivered on the date of actual receipt. To Botamp, Inc: Botamp, Inc. 651 N BROAD ST STE 206, MIDDLETOWN DE, 19709 To you: Your address as provided in your affiliate account information. We may send you specific electronic notices by email to your email address(es) as provided in your account information. We may send you notifications by telephone at the telephone numbers listed in your account information.
Entire Agreement.
This Agreement constitutes the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent upon the delivery of any future functionality or feature of the Botamp Product and are not dependent upon any oral or written public comments we make regarding future functionality or features of the Botamp Product. You and we expressly intend this Agreement and all related documents to be written in English. We may make available versions of this Agreement in languages other than English. In that event, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be construed to modify the English version of this Agreement.
Assignment.
You will not assign or transfer this Agreement, including any assignment or transfer by reason of a merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of a merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
No Third Party Beneficiaries.
Nothing in this Agreement, express or implied, is intended to confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any kind under or by reason of this Agreement.
Program Policies Page.
We may amend the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference.
No License.
We grant you only the rights and licenses expressly set forth in this Agreement, and you receive no other rights or licenses to us, the Botamp Product, our trademarks or any other property or rights owned by us.
Sales by Botamp.
This Agreement does not limit in any way our right to sell the Botamp Product, directly or indirectly, to any customer or potential customer.
Authority.
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that this Agreement is binding on such party and enforceable in accordance with its terms.
Survival.
The following sections shall survive the expiration or termination of this Agreement: "Commission and Payment," "Proprietary Rights," "Confidentiality," "Effects of Termination/Expiration," "Indemnification," "Disclaimers; Limitations of Liability," and "General."