This Affiliate Agreement (the “Agreement“) defines the terms for selling Wovax, LLC.’s services and proprietary products as an Affiliate.
This Agreement is between WOVAX, LLC, an Idaho limited liability company (“Company”), and the “Affiliate”. It is entered into as of the date of completing the Agreement application via the wovax.com website (the “Effective Date”), provided the application is approved by the Company.
The name, address, and all other contact information for the Affiliate for purposes of this agreement is entered by the Affiliate during the online Agreement application process via wovax.com and stored on their wovax.com account. The Affiliate is responsible for keeping their information up to date on their wovax.com account.
The Affiliates’s completion of the online affiliate agreement application process via wovax.com is considered equivalent to their agreement to and signature of this agreement, and Wovax, LLC’s approval of the application is considered equivalent to Wovax, LLC’s agreement to and signature of this agreement.
Name: WOVAX, LLC
Address: 120 E 3rd St.
Moscow ID 83843
WHEREAS, Company is the provider of certain services and products embodied in the Products described further herein; and
WHEREAS, Affiliate wishes to be appointed a Affiliate seller of some or all of the Products and Company is willing to make such appointment on the terms contained herein;
NOW, THEREFORE, Company and Affiliate hereby agree, for and in consideration of the mutual covenants in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, as follows:
The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the Agreement.
1.1. “Confidential Information” means all proprietary information disclosed by one party to the other party including (without limitation)
(a) proprietary product-related technology, software, code, ideas and algorithms;
(b) trade secrets;
(c) either party’s technical, business or financial information and plans;
(d) the terms of this Agreement; and
(e) any item marked as confidential by the disclosing party.
1.2. “Confidential Information” shall not include information that the receiving party can show
(a) is or becomes generally known or publicly available through no fault of the receiving party;
(b) is known by or in the possession of the receiving party prior to its disclosure, as evidenced by business records, and is not subject to restriction;
(c) is lawfully obtained from a third party who has the right to make such disclosure;
(d) is disclosed pursuant to a lawful requirement of a governmental agency or to a court order in connection with a judicial proceeding, but then only to the extent so required or ordered; in such case Receiving Party will use reasonable efforts to timely advise the Disclosing Party prior to disclosure so that Disclosing Party will have an opportunity to seek a protective order or other appropriate relief.
1.3. “Documentation” means any user documentation, on any media, provided by Company for use with the any of the products or services.
1.4. “End User” means any person or entity that purchases a Product or Products solely for its own use.
1.5. “Product” means the Company’s website development and maintenance (including hosting and domain management) services and themes, Internet Data Exchange (IDX) Multiple Listing Service (MLS) data management tools and services, and mobile application (app) tools and services, and any other products or services currently sold through wovax.com or any products of services sold in the future through wovax.com. It is further defined in Appendix 1.
1.6. “Products” means more than one Product (either several different types of Product or more than one of the same type of Product, or both).
1.7. “Software” shall mean software products and software or firmware incorporated in Products.
1.8. “Territory” is defined in Appendix 1.
2. Appointment of Affiliate
2.1. Authorization and Appointment. Upon the Affiliate’s completion of the Agreement application via the wovax.com website and the Company’s approval of the application, the Company authorizes and appoints Affiliate and Affiliate accepts the appointment, as a non-exclusive Affiliate to sell Products from the Company to End Users in the Territory.
2.2. Restrictions on Appointment. Affiliate’s authorization from Company to sell Company Products is limited to the Territory.
2.3. Revision of Authorization. Company reserves the right to revise the list of Products and End User Services at any time without prior notice to Affiliate for any or all Products not yet under contract.
3. Price and Payment
3.1. Product Pricing & Commissions. Pricing terms for product sales and commissions payable to the Affiliate are specified in Appendix 1.
3.2. Sale Prices. The Sale prices for the product will be the values listed on the wovax.com website at the time of sale. The Company may, from time to time, offer promotional pricing via coupon codes. In this event, the sale prices for the product(s) would be the values listed on the wovax.com website after the discount code(s) have been successfully applied at the time of sale.
3.3. Revision of Prices. Company may, at any time without prior notice to Affiliate, change the pricing for any or all Products not yet under contract. This includes the Company’s ability to suspend any promotional pricing via coupon codes.
3.4. Payment. All commissions payable hereunder shall be paid within the timing and terms specified in Appendix 1.
3.5. Taxes. Company shall only bear the responsibility for the payment of taxes and fees related to the monies received from the End User(s)’ purchase of the product through the wovax.com website. Any other taxes or fees pertaining to the Affiliate’s work with the End User, including the commissions received from the Company, shall be the Affiliate’s responsibility.
4.1. Sales. All sales of the Products by Affiliate shall be performed via the wovax.com website using the Affiliate system established and communicated to the Affiliate by the Company. All sales must be in accordance with the terms, conditions, scope, and pricing of the products at the time of purchase.
4.2. Acceptance. The Company reserves the right to reject any sale by the the Affiliate with or without cause prior to commencing work on the products or services purchased. In the unlikely event of the rejection of a sale, the Company shall provide electronic communication of the rejection to the Affiliate and shall refund any payments made during that sale. If not rejected by the Company, the sale of the Product shall be considered accepted.
4.3. Contract. By selling the Company’s products, the Affiliate agrees to be bound by the terms and conditions of the products sold on behalf of the client(s) they are re-selling to. The Affiliate is not authorized to modify the terms and conditions of the products sold on behalf of the company. In the event of a breach of terms and conditions of the products sold by the Affiliate and/or the Affiliate’s clients, the Company reserves the right to suspend and/or terminate not only this Agreement, but also potentially up to all products and/or licenses purchased through the wovax.com Affiliate system that are associated with the Affiliate’s account depending on the extent of the breach. In the event of a breach, the Company would provide notice to the Affiliate of the breach and corresponding suspension(s) and/or termination(s), and the Affiliate would have an opportunity to work with the Company towards a resolution. If the breach was resolved to the satisfaction of the Company, the Company would reverse the suspension(s) and or termination(s).
4.4. Client status after termination. If this agreement with the Affiliate is terminated and/or if the Affiliate ceases their work and/or communications with their Client(s), the End User(s), the Company reserves the right to continue servicing the End User(s) provided the End User(s) continue to meet the payment conditions and other terms and conditions of the products purchased from the Company. The Affiliate would not be eligible for any commissions on such ongoing support of the End User(s).
5.1. Fulfillment. The Company shall be responsible for fulfilling the products purchased via accepted sales by the Affiliate through the wovax.com Affiliate system.
6. Affiliate Responsibility
6.1. Selling. Affiliate shall use its best efforts to sell the Product in the Territory.
6.2. Cooperation. Affiliate agrees to work closely with Company and use its best efforts to sell the Product in the Territory.
6.3. Reverse Engineering and/or Modifications. Affiliate hereby agrees not to
(a) create or attempt to create by reverse engineering, disassembly, decompilation, or otherwise, the internal structure, the source code, hardware design, or organization of the Product, or any part thereof, or to aid or to permit others to do so, except and only to the extent expressly permitted by applicable law;
(b) remove any Product identification or notices of any proprietary or copyright restrictions from any Product or any Product support material;
(c) copy, modify, or translate the Software or, unless otherwise agreed in writing, develop any derivative works thereof or include any portion of the Software in any other software program; and
(d) separate the Product into component parts for distribution or transfer to a third party.
6.4. Modification or removal of standard configurations and/or user accounts. Affiliate hereby acknowledges that the removal or modification of any of the standard product configurations, Company supporting user accounts, or plugins that the Company implements related to the products and services could reduce or eliminate the Company’s ability to service or support the purchased products. The Affiliate assumes full responsibility and liability for any consequences of such actions by any non-Company staff, and acknowledges that they and/or their client(s) will still be liable for any setup or ongoing costs related to the products, even if the Company is not able to service or support them as a consequence of such removal or modification actions.
6.5. Possible conflicts with non-Company products. Affiliate hereby acknowledges the possibility of conflicts between the Company’s products and non-Company products that may be existing on End User’s websites, servers, or devices or implemented in the future on End User’s websites, servers by non-Company staff, (including but not limited to: non-Company-supported server configurations, non-Company-supported WordPress theme files or configurations, non-Company-supported WordPress plugin files or configurations, other non-Company-supported files or configurations.) If present, these non-Company products could reduce or eliminate the Company’s ability to service or support the purchased products. The Affiliate assumes full responsibility and liability for any consequences of such actions by non-Company staff, and acknowledges that they and/or their client(s) will still be liable for any setup or ongoing costs related to the products, even if the Company is not able to service or support them as a consequence of existing or future non-Company products.
6.6. End User Information. The End User’s name, address, and contact information will be collected by the Company during the sales process via the wovax.com website using the Affiliate system established and communicated to the Affiliate by the Company.
6.7. Records and Reports. The Affiliate’s record of sales shall be automatically collected via the wovax.com website using the Affiliate system established and communicated to the Affiliate by the Company.
The Company’s support of the products sold by the Affiliate only extends to the scope of the Product(s) sold, under their respective terms and conditions. While it is preferable that the Affiliate’s Client(s), the End User(s), interact directly with the Affiliate for any support needs and the Affiliate then interacts with the Company as-needed, the Company reserves the right to provide direct support to the End Users for the products purchased on an as-needed basis.
In certain cases (including but not limited to the examples provided in sections 6.4 and 6.5 above), the Company’s ability to support the Product(s) can be reduced or eliminated by factors outside of the Company’s control. In these scenarios, the Company will provide the Affiliate and/or End User(s) with as much information as is known about the factors limiting the Company’s ability to provide support, and it will be the Affiliate and/or End User(s)’ responsibility to correct these issues before the Company can provided the purchased support. If the issues are not corrected the Affiliate assumes full responsibility and liability for any consequences for not resolving the issues, and acknowledges that they and/or their client(s) will still be liable for any setup or ongoing costs related to the products, even if the Company is not able to service or support them as a consequence of the unresolved issues.
8.1. Company warrants solely for the benefit of Affiliate that the Service will materially conform to the Documentation. This warranty does not apply to any damage resulting from unauthorized use or negligence on the part of Affiliate. THIS SECTION SETS FORTH COMPANY’S SOLE OBLIGATION, AND Affiliate’S SOLE AND EXCLUSIVE REMEDY, FOR A BREACH OF THE WARRANTY IN THIS SECTION.
8.2. EXCEPT AS PROVIDED HEREIN, THE PRODUCT IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. COMPANY DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED.
9. Confidential Information
Each party shall protect the other’s Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information. Neither party shall disclose to third parties the other’s Confidential Information without the prior written consent of the other party. Neither party shall use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Each employee or agent of Affiliate, performing duties hereunder, shall be made aware of this Agreement and shall execute a document that binds said employee or agent of Affiliate to the same level of confidentiality contained herein.
10. Ownership of Intellectual Property
Affiliate hereby agrees and acknowledges that Company, its suppliers, partners and licensors (if any), own and shall retain all right, title and interest in and to
(a) the manufacture and/or production of Product (including all copies and derivative works thereof, by whomever produced), and associated Product Documentation, including all intellectual property rights embodied therein;
(b) all of the service marks, trademarks, trade names or any other designations, and
(c) all copyrights, patent rights, trade secret rights, and other proprietary rights in the Product, and Affiliate shall have no rights with respect thereto other than the limited rights expressly set forth in this Agreement.
Affiliate may, whether in connection with its own trademarks, use the then current Product names, logos and other marks (“Marks”) on the Product and all marketing and promotional material therefore as authorized by Company for all proper purposes in the performance of Affiliate’s duties hereunder. Affiliate’s use of such Marks shall be in accordance with Company’ policies in effect from time to time, including, but not limited to, trademark usage and advertising policies. Affiliate shall have no claim or right in such Marks and Affiliate shall not make any claim or contest the use of any such Mark authorized by Company. Except as expressly authorized in writing by Company, Affiliate shall not file or attempt to register any Mark or any mark confusingly similar thereto.
12. Term and Termination
12.1. Term. This Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated under this Agreement.
12.2. Reviews. the Company reserves the right to schedule periodic reviews between the Company and the Affiliate to evaluate the sales progress and the working relationship to determine whether the Agreement should be continued. If the Agreement is not terminated before or at the first review, subsequent reviews to evaluate the sales progress and the working relationship will be scheduled on an as-needed basis as determined by the Company.
12.3. Termination. Either party may terminate this Agreement at any time with or without cause upon written notice to the other party.
Termination of this Agreement under this Section will be without prejudice to any other remedy which may be available to a party under applicable law.
12.4. Effects of Termination. Upon any termination or expiration of this Agreement:
(a) Affiliate shall cease to be an authorized seller of Product and all rights and licenses granted to Affiliate hereunder shall cease;
(b) Affiliate shall immediately:
(i) cease all distribution of the Product;
(ii) discontinue any use of the Marks; and
(iii) cease to promote, solicit or procure orders for the Product.
(c) No further commissions shall be paid to the Affiliate by the Company
12.5. Continuing Obligations. The termination of this Agreement shall not release Affiliate from the obligation to pay any sum that Affiliate may then owe to Company, or from the obligation to perform any other duty or to discharge any other liability incurred by Affiliate prior thereto. The termination of this Agreement shall not release Company from the warranties in this Agreement.
13.1. Indemnity. Affiliate shall indemnify and hold Company harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney’s fees) which Company incurs as a result of any claim based on any breach of any representation or warranty, covenant, or agreement by Affiliate under this Agreement or any breach of this Agreement by Affiliate.
13.2. Conditions to Indemnity. Affiliate’s obligations under this Section are contingent upon:
(a) Company promptly gives written notice of any claim to Affiliate;
(b) at Affiliate’s expense, Company provides reasonable assistance which Affiliate may reasonably request for the defense of the claim; and
(c) Affiliate has the right to control the defense or settlement of the claim, provided, however, that Company shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense.
14. Intellectual Property Infringement
14.1. Indemnity. Company agrees to hold Affiliate harmless from and indemnify all liability for infringement of any patent, copyright or trademark rights or other intellectual property rights of third parties which result from the sale of Products. Company agrees to defend Affiliate in such infringement suit or any Product liability suit resulting from the use or sale of Products, including but not limited to, out of court settlements, court costs, reasonable attorney’s fees or any money judgment awarded at the conclusion of such suits subject to the understanding that Company shall have exclusive control over the defense and/or settlement of such suits.
14.2. Conditions to Indemnity. Company’s obligations under this Section are contingent upon Affiliate
(a) giving prompt written notice to Company of any such claim;
(b) allowing Company to control the defense and any related settlement of any such claim; and
(c) furnishing Company with reasonable assistance in the defense of any such claim, so long as Company pays Affiliate’s reasonable out-of-pocket expenses.
14.3. Limitations of Indemnity. Company shall have no obligation under this Agreement for any claim of infringement or misappropriation to the extent that it results from
(a) modifications to the Products made other than by Company;
(b) failure of Affiliate to use updated or modified Products provided by Company to avoid a claim of infringement or misappropriation;
(c) compliance by Company with designs, plans or specifications furnished by or on behalf of Affiliate; or
(d) any opening of or other tampering with a Product by non-Company personnel.
14.4. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND THE EXCLUSIVE REMEDY OF EACH PARTY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS
15. LIMITATION OF LIABILITY.
COMPANY WILL NOT BE LIABLE UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REPUTATIONS), WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS IN ADVANCE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST THE OTHER PARTY. IN NO EVENT WILL COMPANY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY Affiliate. IN ADDITION, IN NO EVENT WHATSOEVER SHALL COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FROM Affiliate DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH COMPANY LIABILITY.
16. General Provision
16.1. Notice. Any notices required or permitted shall be given to the appropriate Party in writing at the address as the Party shall specify on their wovax.com user account or in this agreement, and shall be effective upon actual receipt.
16.2. Assignment. The parties may not assign this agreement or any right or obligation of this agreement, by operation of law or otherwise without prior written consent of the party, which shall not be unreasonably withheld.
16.3. Independent Contractors. The parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement.
16.4. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
16.5. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
16.6. Interpretation. In construing or interpreting this Agreement, the word “or” shall not be construed as exclusive, and the word “including” shall not be limiting. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
16.7. Amendments. No change or modification of this Agreement will be valid unless it is in writing and signed by each party to this Agreement.
16.8. No Waiver. A party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
16.9. Governing law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Idaho, without regard to its conflict of laws rules.
16.10. Jurisdiction. The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of the State of Idaho.
16.11. Compliance of Law. The parties shall comply with any and all applicable laws, rules and regulations of the governmental authorities concerned.
16.12. Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Sales thereunder by a written notice to the defaulting party.
16.13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
16.14. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.
A1.1 Product Minimum Pricing and Terms
A1.1.1 Product packages. All product package details including scope, price, terms and conditions are subject to change at any time without notice. The current product package details in effect for purposes of this agreement shall be displayed on the wovax.com website at the time of sale.
A1.1.2 The minimum pricing and terms for the sale of each of the Product Packages described in A1.1.1 above shall be displayed on the wovax.com website at the time of sale.
A1.1.3 MLS Board Data Fees: Some MLS Boards charge additional fees (setup and/or monthly) in order to provide the RETS data feed required for certain Product Packages to work as designed. Affiliate is responsible to determine what those fees are and pay them in full in addition to the Product Package cost. These additional fees are not eligible for commissions.
A1.2.1 Eligibility. Affiliate shall be eligible to receive commissions on sales of product packages that:
(a)have been accepted by Wovax, LLC
(b)have been sold via the wovax.com website using the Affiliate system established and communicated to the Affiliate by the Company.
(c)are in accordance with the terms, conditions, scope, and pricing of the products at the time of purchase.
A1.2.2 Commissions. For Sales where the Affiliate is eligible to receive commissions on sales of product, commissions shall be paid as follows:
(a)Applicability. Commissions will only be payable on actual monies received by Wovax, LLC.
(b)Setup Fees. A fixed rate of twenty percent (20%) of the Setup fees for the product(s) purchased through the Affiliate’s wovax.com account shall be payable as commissions. If a coupon code is applied to reduce the setup fees, the commission shall be calculated based on the reduced setup fee, not the original setup fee. Commissions will be rounded to the nearest US Dollar cent.
(c)Ongoing (Monthly or Annual) Fees. A fixed rate of ten percent (10%) of the Ongoing (monthly or annual) fees for the product(s) purchased through the Affiliate’s wovax.com account shall be payable as commissions. If a coupon code is applied to reduce the ongoing fees, the commission shall be calculated based on the reduced ongoing fee, not the original ongoing fee. Commissions will be rounded to the nearest US Dollar cent.
(d)Examples. The following examples are provided for demonstrating how the above commissions would be applied. The example product packages and coupon codes used are not necessarily representative of the actual product packages on wovax.com. Always refer to wovax.com for final product package pricing and terms.
|Example 1:||Scenario: A Affiliate sells a product package for a $ 1,000 setup fee and $79 ongoing monthly fee
|Example 2:||Scenario: A Affiliate sells six product packages for a $4,999 setup fee each and $99 ongoing monthly fee each. These sales require the Affiliate to purchase MLS board data at a cost of $6,000 upfront and $60 per month.
|Example 3:||Scenario: A Affiliate sells two product packages that are listed with a $4,999 setup fee each and $99 ongoing monthly fee each, applying a discount code for $500 off the setup fee for each, and $10 per month off the ongoing fees for each. These sales require the Affiliate to purchase MLS board data at a cost of $1,000 upfront and $10 per month.
A1.2.3 Payment. Commissions will be calculated as part of Wovax, LLC’s accounting processes with the target of paying commissions on a monthly basis, and no later than ninety (90) days after the receipt of moneys from the accepted Sale of the product(s). If a commission is due (because commission-eligible funds have been received), payment will be issued to the Affiliate via the wovax.com Affiliate account, unless an alternative arrangement has been prepared in writing and signed by both Wovax, LLC and the Affiliate.
A1.3.1 Limitations. Wovax is currently limiting the sale of its Real Estate IDX MLS Product to regions where Multiple Listing Service (MLS) Boards provide data in a Real Estate Transaction Standard (RETS) format — it is the Affiliate’s responsibility to verify that prospective clients are in an MLS Board region that releases MLS data in the RETS format. It is also the Affiliate’s responsibility to pay all fees associated with that RETS data feed.
A1.3.2 First Come First Serve. No territory limitations are placed on Affiliates other than the Limitations in A1.3.1. Multiple Affiliates may work in the same regional area on a First Come First Serve basis.
Last updated 27 January 2016