AFFILIATE AGREEMENT
This Affiliate Agreement ( “Agreement”) is entered into as of [INSERT EFFECTIVE DATE] (the “Effective Date”) by and between Ansira Partners II, LLC, a Delaware limited liability company with its principal place of business at 13845 Welch Road, Dallas, Texas 75244 (“Ansira”), and [INSERT PARTNER LEGAL NAME], a [STATE/FORM OF ENTITY] with its principal place of business at [ADDRESS] (“Partner”). Ansira and Partner are referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
Background. Ansira operates a partner referral program (the “Affiliate Program”) through which qualified third parties may refer prospective customers to Ansira in exchange for commission payments on qualifying customer transactions. Partner wishes to participate in the Affiliate Program, and Ansira is willing to permit Partner to participate, in each case subject to the terms and conditions of this Agreement. The Parties therefore agree as follows:
1. Definitions. As used in this Agreement, capitalized terms have the meanings set forth in this Section 1 or as otherwise defined in this Agreement.
“Affiliate Lead” means a prospective customer of Ansira who clicks an Affiliate Link made available by Partner and whose contact information is submitted to Ansira through the Affiliate Tool.
“Affiliate Link” means the unique tracking link assigned to Partner by Ansira through the Affiliate Tool for use in promoting Ansira and the Ansira Services.
“Affiliate Tool” means the online portal, software, and related tracking, reporting, and payment functionality that Ansira makes available to Partner for purposes of participating in the Affiliate Program.
“Ansira Marks” means the trademarks, service marks, trade names, and logos of Ansira and its Corporate Affiliates that are made available to Partner through the Affiliate Tool from time to time.
“Ansira Services” means the products and services made available by Ansira or its Corporate Affiliates from time to time and offered for sale or subscription to customers through the Affiliate Program.
“Commission” means the referral commission payable by Ansira to Partner with respect to a Qualifying Transaction, calculated and payable as described in the Affiliate Tool, the Program Policies, or a separate written commission schedule executed by the Parties.
“Corporate Affiliate” means with respect to any Party, any person or entity that directly or indirectly controls, is controlled by, or is under common control with such Party, where “control” means the ownership of more than fifty percent (50%) of the voting securities or equivalent voting interests, or the power to direct or cause the direction of the management and policies, of such person or entity.
“Customer” means a person or entity that purchases or subscribes to Ansira Services as a result of an Affiliate Lead generated by Partner.
“Customer Transaction” means a binding agreement between Ansira (or a Corporate Affiliate of Ansira) and a Customer for the purchase or subscription of Ansira Services, in respect of which Ansira has actually received payment from the Customer.
“Intellectual Property Rights” means all worldwide intellectual property and proprietary rights, whether registered or unregistered, including patents, copyrights, trademarks, service marks, trade names, trade dress, trade secrets, know-how, moral rights, rights of publicity, domain names, and rights in software and databases, together with all applications, registrations, renewals, and extensions of any of the foregoing.
“Partner Marks” means the trademarks, service marks, trade names, and logos of Partner identified by Partner to Ansira from time to time for use in connection with the Affiliate Program.
“Program Policies” means the operating policies, procedures, guidelines, and trademark usage requirements applicable to the Affiliate Program that Ansira makes available to Partner through the Affiliate Tool or otherwise in writing from time to time.
“Qualifying Transaction” means a Customer Transaction that satisfies all eligibility requirements set forth in Section 6 (Commission Eligibility) and is not subject to forfeiture or disqualification under this Agreement.
“Representatives” means with respect to a Party, the directors, officers, employees, agents, contractors, attorneys, accountants, and other professional advisors of such Party and its Corporate Affiliates.
“Term” means the period commencing on the Effective Date and continuing until this Agreement is terminated in accordance with Section 26 (Term and Termination).
2. Affiliate Program; Non-Exclusivity.
2.1. Program Participation. Subject to and in accordance with the terms of this Agreement and the Program Policies, Ansira grants Partner the right to participate in the Affiliate Program during the Term. Partner’s participation in the Affiliate Program is subject to the Program Policies, which are incorporated into this Agreement by reference. In the event of a conflict between this Agreement and the Program Policies, this Agreement controls.
2.2. Non-Exclusivity. This Agreement is non-exclusive. Each Party retains the right to enter into similar arrangements with third parties, including arrangements involving the design, sale, installation, implementation, or use of products or services similar to or competitive with those of the other Party. Nothing in this Agreement restricts Partner from referring prospective customers to, or otherwise doing business with, third parties (including competitors of Ansira).
2.3. Program Changes. Ansira may modify, suspend, or discontinue, in whole or in part, the Affiliate Program, the Affiliate Tool, the Ansira Services offered through the Affiliate Program, or the commission structure, in each case on no less than thirty (30) days’ prior written notice to Partner (which may be delivered through the Affiliate Tool or by email to the address on file for Partner). If a change materially and adversely affects Partner, Partner may terminate this Agreement on written notice to Ansira delivered within thirty (30) days after the effective date of the change, in which case the Parties’ obligations with respect to Qualifying Transactions arising prior to termination shall continue in accordance with Section 26.6.
3. Partner Acceptance.
3.1. Application. Partner has submitted, or shall submit, an application to participate in the Affiliate Program in the form required by Ansira. Acceptance or rejection of the application is in Ansira’s reasonable discretion, exercised in good faith. Ansira may request additional information as reasonably necessary to evaluate the application. If Partner is not notified of acceptance within thirty (30) days after submission of a complete application, the application shall be deemed rejected, in which case this Agreement shall not take effect.
3.2. Effectiveness. Upon Ansira’s written notice of acceptance, this Agreement shall be effective as of the Effective Date and shall continue until terminated in accordance with its terms. If Partner fails to complete any reasonable enrollment requirements communicated by Ansira within thirty (30) days after acceptance, Ansira may terminate this Agreement on written notice to Partner.
4. Eligibility; Partner Obligations. Throughout the Term, Partner represents, warrants, and covenants that it:
4.1. Is not, and during the Term shall not become, a direct competitor of Ansira or of any Corporate Affiliate of Ansira whose business is materially similar to that of Ansira;
4.2. Shall use commercially reasonable efforts to promote and market the Ansira Services in accordance with this Agreement and the Program Policies;
4.3. Shall conduct its business in a competent and professional manner and in a manner that reflects favorably on Ansira, the Ansira Services, and the goodwill and reputation of Ansira;
4.4. Shall not engage in any deceptive, misleading, fraudulent, or unethical business practices;
4.5. Shall not make any false, misleading, or unauthorized representation, warranty, or guarantee with respect to Ansira or the Ansira Services;
4.6. Shall clearly and conspicuously disclose its referral relationship with Ansira to Affiliate Leads and Customers as and to the extent required by applicable law (including, without limitation, the Federal Trade Commission’s Endorsement Guides and analogous state and foreign laws);
4.7. Shall comply with all applicable foreign and domestic laws, regulations, and orders, and shall obtain and maintain all registrations, licenses, permits, and approvals required for the performance of its obligations under this Agreement; and
4.8. Shall not engage in any of the following activities (and shall ensure that any third party acting on Partner’s behalf does not engage in any of the following activities): (a) cookie stuffing, pop-ups, pop-unders, hidden frames, iframes, false or misleading links, or any similar mechanism designed to obscure or manipulate referral attribution; (b) masking or otherwise misrepresenting the referring URL information; (c) purchasing search engine advertising on Ansira’s branded keywords or any keywords confusingly similar thereto, except as expressly authorized by Ansira in writing; (d) using Partner’s own Affiliate Link to purchase Ansira Services for itself or for its Corporate Affiliates; (e) generating Affiliate Leads from compilations of personal data (such as phone books or third-party data brokers), from automated or robotic processes, or by offering financial or other incentives to consumers to submit Affiliate Leads, in each case except as expressly permitted by the Program Policies; or (f) any activity that violates applicable law, including the CAN-SPAM Act, the Telephone Consumer Protection Act, and any analogous state or foreign laws.
5. Affiliate Leads and Customer Transactions.
5.1. Lead Expiration. Each accepted Affiliate Lead shall remain attributable to Partner for the lead attribution period specified in the Affiliate Tool or the Program Policies, measured from the date the Affiliate Lead first clicked the Affiliate Link. After such period, the Affiliate Lead shall no longer be attributable to Partner for purposes of Commission eligibility.
5.2. Commission Triggering Event. Commission is earned upon the occurrence of a Qualifying Transaction by a Customer attributable to Partner, in accordance with the rates, formulas, and conditions set forth in the Affiliate Tool, the Program Policies, or a written commission schedule executed by the Parties. The start date of a Customer’s subscription is determined by the date of the first purchase or sign-up of the applicable Ansira Service by the Customer.
5.3. One-Time Commission. Unless otherwise expressly agreed in a written commission schedule signed by both Parties, Partner is entitled to Commission only on the initial Customer Transaction by a given Customer, and not on any subsequent purchases, renewals, upgrades, add-ons, or other transactions by the same Customer.
5.4. No Volume Commitment. Ansira makes no representation, warranty, or commitment regarding the volume, frequency, or value of Affiliate Leads that will be accepted, of Customer Transactions that will close, or of Commissions that Partner will earn under this Agreement.
6. Commission Eligibility. To be eligible for Commission with respect to any Customer Transaction:
6.1. the corresponding Affiliate Lead must have been accepted and determined valid in accordance with Section 10 (Acceptance and Validity of Leads);
6.2. a Customer Transaction must have occurred, and Ansira must have actually received payment from the Customer; and
6.3. the Customer must remain a customer in good standing through the applicable “locking period” specified in the Affiliate Tool or the Program Policies.
7. Commission Ineligibility. Notwithstanding Section 6, Partner shall not be eligible to receive Commission with respect to a Customer Transaction if the:
7.1. payment of such Commission is prohibited or limited by applicable law in any relevant jurisdiction;
7.2. applicable Customer prohibits the payment of referral compensation or excludes such compensation from its payments to Ansira;
7.3. Customer has paid or will pay such commission, referral fee, or other compensation directly to Partner;
7.4. Commission was obtained by fraudulent means, by misuse of the Affiliate Link or Affiliate Tool, or by Partner’s material breach of the Program Policies or this Agreement; or
7.5. Customer is or becomes a participant in another Ansira partner or affiliate program with respect to which referral compensation has already been paid for the same Customer Transaction.
8. Partner Account Requirements. To receive any payment under this Agreement, Partner must have: (a) executed this Agreement; (b) completed all required steps to create and maintain an active account in the Affiliate Tool in accordance with Ansira’s reasonable instructions; (c) provided and maintained a valid and current payment method in the Affiliate Tool; and (d) provided all tax documentation (including, as applicable, an IRS Form W-9 or W-8) reasonably required for Ansira to process payments to Partner.
9. Forfeiture. If any of the account requirements set forth in Section 8 remain unsatisfied for six (6) months after the close of the Customer Transaction giving rise to a Commission, Partner’s right to receive Commission arising from that Customer Transaction and any related Customer Transactions with the same Customer shall be forfeited. Upon Partner’s subsequent completion of the requirements in Section 8, Partner shall again be eligible to earn Commission on new Customer Transactions but shall not be entitled to retroactive Commission on Customer Transactions previously forfeited.
10. Acceptance and Validity of Leads.
10.1. Validity Standards. An Affiliate Lead shall be considered valid and accepted if, in Ansira’s reasonable determination, applied in good faith and consistently across similarly situated partners: (a) the Affiliate Lead represents a new potential customer that is not, as of the date of submission or in the sixty (60) days immediately preceding the date of submission, an existing Ansira customer, or an active prospect in Ansira’s documented sales pipeline; and (b) the Affiliate Lead has not been submitted in violation of Section 4 or the Program Policies.
10.2. Rejection. Ansira may reject an Affiliate Lead that does not meet the validity standards in Section 10.1. Ansira shall communicate rejections to Partner through the Affiliate Tool. Upon Partner’s reasonable request, Ansira shall provide a written explanation of the basis for rejection of any disputed Affiliate Lead.
10.3. Conversion Window. If an Affiliate Lead does not complete a Customer Transaction within the conversion window described in the Affiliate Tool or the Program Policies (measured from the date of first click on the Affiliate Link), Partner shall not be eligible for Commission with respect to such Affiliate Lead, regardless of any subsequent purchase by such Affiliate Lead. An Affiliate Lead is not eligible if its first click on the Affiliate Link occurs after the expiration or termination of this Agreement.
11. Engagement with Prospects. Once Ansira has received information regarding an Affiliate Lead, Ansira may engage with the Affiliate Lead directly, regardless of whether the Affiliate Lead is determined to be valid under Section 10. Ansira may retain Affiliate Lead information in its customer relationship management system and engage with such Affiliate Lead at any time thereafter, subject to applicable law and Ansira’s privacy policy. Partner shall have no claim to Commission with respect to engagement by Ansira with an Affiliate Lead that is not, or that has ceased to be, a valid and attributable Affiliate Lead under the terms of this Agreement.
12. License to Use Affiliate Link. Subject to Partner’s compliance with this Agreement, Ansira grants Partner a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free, worldwide license, during the Term, to display the Affiliate Link (in such forms as Ansira may make available, including text, logo, or other graphic form) on the websites, domains, and digital properties identified by Partner in the Affiliate Tool. The license is granted solely for the purpose of generating Affiliate Leads in accordance with this Agreement. Partner shall not sublicense, resell, or otherwise distribute the Affiliate Link, and shall not use the Affiliate Link for any purpose other than the Affiliate Program.
13. Payment Terms.
13.1. Payment Schedule. Ansira shall pay Partner all undisputed Commission earned in a calendar month within forty-five (45) days after the end of such calendar month, provided that the corresponding Customer payments have been received by Ansira and the Commission has not been forfeited under this Agreement.
13.2. Payment Processors. Ansira may use one or more third-party payment processors or service providers (collectively, “Payment Processors”) to facilitate Commission payments. Partner is responsible for providing and maintaining accurate, current contact information and payment instructions with Ansira and the Payment Processors. Ansira shall not be liable for, and shall not be obligated to reissue, payments returned or rejected due to incorrect or outdated payment information provided by Partner.
13.3. Statements and Disputes. Ansira shall provide Partner, through the Affiliate Tool, with periodic statements reflecting Commission earned, paid, and pending. Partner may dispute any statement by delivering written notice to Ansira, with reasonable supporting detail, within ninety (90) days after the statement is made available. The Parties shall negotiate in good faith to resolve any disputed amounts. Statements not disputed within such ninety (90)-day period shall be deemed accepted, provided that this provision shall not limit Partner’s rights with respect to fraud or willful misconduct.
13.4. Offset. Ansira may offset against Commission payable to Partner any undisputed, liquidated amounts owed by Partner to Ansira under this Agreement. Ansira shall provide Partner with reasonable advance notice of any proposed offset and the basis for it. Ansira shall not offset against Commission any amounts owed by Partner to a Corporate Affiliate of Ansira under a separate agreement, except with Partner’s prior written consent.
13.5. Commission Rate Changes. Ansira may change the Commission rates or formulas applicable to future Customer Transactions on no less than thirty (30) days’ prior written notice to Partner. Commission earned with respect to Customer Transactions closed prior to the effective date of a rate change shall not be affected. If a rate change materially and adversely affects Partner, Partner may terminate this Agreement under Section 2.3.
14. Taxes. Partner is solely responsible for the payment of all taxes (including income, withholding, value added, and similar taxes) and all bank or transmission fees applicable to Commission paid to Partner. Ansira may withhold from Commission payments any amounts required to be withheld under applicable law. Each Party is responsible for its own taxes based on its net income, gross receipts, capital, property, or franchise. The Parties shall reasonably cooperate to minimize, in lawful ways, any taxes applicable to the transactions contemplated by this Agreement.
15. Records and Audit.
15.1. Ansira Records; Partner Audit Right. Ansira shall maintain complete and accurate records sufficient to verify the calculation of Commission payable to Partner under this Agreement for the longer of three (3) years after the close of the applicable Customer Transaction or such longer period as required by applicable law. No more than once per calendar year, on at least thirty (30) days’ prior written notice, Partner may, at Partner’s expense, engage an independent certified public accountant reasonably acceptable to Ansira (and subject to a confidentiality obligation no less restrictive than Section 20) to audit Ansira’s books and records solely to verify the accuracy of Commission calculations. Any such audit shall be conducted during Ansira’s regular business hours and shall not unreasonably interfere with Ansira’s operations. If the audit reveals an underpayment of more than five percent (5%) for the audited period, Ansira shall reimburse Partner for the reasonable costs of the audit and shall pay the underpaid amount, in each case within thirty (30) days after the audit findings are delivered.
15.2. Partner Records; Ansira Audit Right. Partner shall maintain complete and accurate records of its marketing and promotional activities under the Affiliate Program, including records sufficient to demonstrate Partner’s compliance with Section 4 and applicable law, for the longer of three (3) years after the activity in question or such longer period as required by applicable law. No more than once per calendar year, on at least thirty (30) days’ prior written notice, Ansira (or its designee subject to confidentiality obligations) may audit such records solely to verify Partner’s compliance with this Agreement. Audits shall be conducted during Partner’s regular business hours and shall not unreasonably interfere with Partner’s operations.
16. Authority of the Parties. Partner has no authority to distribute or resell the Ansira Services or to make any commitment, representation, warranty, or agreement, or to incur any liability, on behalf of Ansira. Except as expressly set forth in the marketing materials, service descriptions, documentation, or other collateral provided to Partner by Ansira for use in connection with the Affiliate Program (the “Ansira Materials”), Partner shall not make any representation or warranty to any Affiliate Lead, Customer, or other third party with respect to Ansira or the Ansira Services. Partner shall be solely responsible for any representation or warranty that it makes regarding Ansira or the Ansira Services that is unauthorized or inconsistent with the Ansira Materials.
17. Quality Control. Partner’s use of the Ansira Services, Ansira Marks, and Ansira Materials shall conform to the quality standards and Program Policies communicated by Ansira to Partner in writing from time to time. Partner shall not modify, sell, license, distribute, or disclose the Ansira Marks or Ansira Materials, except as expressly permitted in writing by Ansira. Upon Ansira’s reasonable request, Partner shall provide Ansira with samples of marketing materials and other collateral that incorporate the Ansira Marks or Ansira Materials, for Ansira’s review.
18. Trademarks.
18.1. License to Ansira. Partner grants Ansira a non-exclusive, non-transferable, royalty-free, worldwide license, during the Term, to use, reproduce, and display the Partner Marks solely in connection with Ansira’s performance and promotion of the Affiliate Program and this Agreement, including in marketing and promotional materials, on Ansira’s websites and platforms, and in lists of program participants. Ansira may sublicense the Partner Marks to its Corporate Affiliates and to service providers acting on Ansira’s behalf, in each case subject to the terms of this Agreement.
18.2. License to Partner. Subject to Partner’s compliance with this Section 18 and the trademark usage guidelines made available by Ansira and updated from time to time (the “Guidelines”), and only if and to the extent Ansira makes the Ansira Marks available to Partner through the Affiliate Tool, Ansira grants Partner a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free, limited license, during the Term, to use and display the Ansira Marks solely in connection with Partner’s participation in the Affiliate Program.
18.3. Required Use. Partner shall: (a) use only the images and forms of the Ansira Marks that Ansira makes available through the Affiliate Tool, without modification, alteration, or addition of any kind; (b) use the Ansira Marks only in connection with the Affiliate Program and this Agreement; (c) comply with the Guidelines and any other written instructions provided by Ansira regarding use of the Ansira Marks; and (d) promptly cease all use of the Ansira Marks upon Ansira’s written request.
18.4. Prohibited Use. Partner shall not: (a) use any Ansira Mark in a manner that is misleading, deceptive, defamatory, or disparaging to Ansira or any of its products or services; (b) use any Ansira Mark in a manner that implies any endorsement, sponsorship, certification, or approval by Ansira of Partner or Partner’s products or services other than as expressly contemplated by this Agreement; (c) use any Ansira Mark in violation of applicable law or in connection with any obscene, indecent, pornographic, hateful, harassing, or otherwise unlawful content; (d) register, attempt to register, or use any Ansira Mark (or any mark, domain name, social media handle, or other identifier confusingly similar to any Ansira Mark) as or as part of its own trademark, trade name, domain name, social media handle, or other identifier; or (e) take any action that may impair, dilute, or be inconsistent with Ansira’s rights in the Ansira Marks.
18.5. Ownership; Goodwill; Reservation of Rights. As between the Parties, Partner retains all right, title, and interest in and to the Partner Marks, and Ansira retains all right, title, and interest in and to the Ansira Marks. All goodwill arising from Ansira’s use of the Partner Marks inures solely to the benefit of Partner, and all goodwill arising from Partner’s use of the Ansira Marks inures solely to the benefit of Ansira. Except for the limited licenses expressly granted in this Section 18, no right, title, or interest in or to either Party’s marks is granted, whether by implication, estoppel, or otherwise.
18.6. Quality Control. Each Party’s use of the other Party’s marks shall conform to quality standards at least as high as those reflected in the owning Party’s own use of such marks. Upon either Party’s reasonable request, the other Party shall provide samples of materials bearing the requesting Party’s marks for the requesting Party’s review.
18.7. Termination of License. The licenses granted in this Section 18 terminate automatically upon the expiration or termination of this Agreement, and each Party shall promptly cease all use of the other Party’s marks, except as otherwise agreed in writing.
19. Proprietary Rights.
19.1. Ownership. As between the Parties, Ansira and its licensors retain all right, title, and interest, including all Intellectual Property Rights, in and to the Ansira Services, the Affiliate Tool, the Ansira Marks, the Ansira Materials, and all related documentation, software, content, data, and technology, together with all derivative works, enhancements, updates, modifications, and copies of any of the foregoing, in whole or in part (collectively, the “Ansira IP”). As between the Parties, Partner retains all right, title, and interest, including all Intellectual Property Rights, in and to the Partner Marks and any materials independently developed by Partner that do not incorporate Ansira IP.
19.2. No License; Reservation of Rights. Except for the limited licenses expressly granted in this Agreement, no license or other right is granted by either Party in or to its Intellectual Property Rights, whether by implication, estoppel, or otherwise. All rights not expressly granted are reserved.
19.3. Goodwill. All goodwill arising from Partner’s use of the Ansira Services, Ansira Marks, and Ansira Materials inures solely to the benefit of Ansira.
19.4. No Assistance to Third-Party Challenges. Partner shall not, directly, or indirectly, knowingly assist any third party in challenging or contesting the validity, enforceability, or Ansira’s ownership of any Ansira IP, except as required by applicable law or legal process.
19.5. Proprietary Notices. Partner shall not remove, alter, obscure, or conceal any copyright, trademark, patent, or other proprietary rights notice appearing on or in any Ansira IP. Partner shall not use any language or display any Ansira IP in any manner that may create the impression that any Ansira IP belongs to Partner or to any third party.
19.6. Feedback. Each Party may, from time to time, provide the other Party with comments, suggestions, ideas, improvements, or other feedback regarding the Affiliate Program, the Ansira Services, or other products or services of the receiving Party (collectively, “Feedback”). Feedback is provided on a non-confidential basis. The providing Party grants the receiving Party a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, and transferable license to use, reproduce, modify, distribute, display, perform, create derivative works of, and otherwise exploit such Feedback for any purpose, without compensation, attribution, or other obligation to the providing Party. The receiving Party shall not identify the providing Party as the source of Feedback in any public-facing materials without the providing Party’s prior written consent.
20. Confidentiality.
20.1. Definition. “Confidential Information” means any non-public information disclosed by or on behalf of one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether before, on, or after the Effective Date, in any form, that is either (a) marked or otherwise identified as confidential or proprietary at the time of disclosure, or (b) by its nature or the circumstances of disclosure would reasonably be understood to be confidential or proprietary. Confidential Information includes, without limitation, information relating to the Disclosing Party’s or its Corporate Affiliates’ assets, personnel, customers, suppliers, products, technology, services, current or proposed business plans, marketing and roll-out plans, distribution channels, financial information, pricing, trade secrets, know-how, formulae, processes, source code, data, designs, and specifications. The terms of this Agreement are the Confidential Information of both Parties.
20.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by competent written evidence: (a) was rightfully in the Receiving Party’s possession without confidentiality obligation before disclosure by the Disclosing Party; (b) is or becomes generally available to the public through no act or omission of the Receiving Party or its Representatives in breach of this Agreement; (c) is rightfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
20.3. Obligations. The Receiving Party shall: (a) hold the Disclosing Party’s Confidential Information in strict confidence and protect it using at least the same degree of care it uses to protect its own confidential information of similar nature and importance, but in no event less than a reasonable degree of care; (b) use the Disclosing Party’s Confidential Information solely to perform its obligations and exercise its rights under this Agreement (the “Permitted Purpose”); (c) not disclose the Disclosing Party’s Confidential Information to any third party, except as expressly permitted under Section 20.4; and (d) be responsible for any breach of this Section 20 by its Representatives as if such breach had been committed by the Receiving Party itself.
20.4. Permitted Disclosures. The Receiving Party may disclose Confidential Information only to its and its Corporate Affiliates’ Representatives who (a) have a need to know such information for the Permitted Purpose, and (b) are bound by written or professional obligations of confidentiality and use restriction at least as protective as those in this Section 20.
20.5. Required Disclosure. If the Receiving Party is required by applicable law, regulation, or legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent legally permitted, (a) promptly notify the Disclosing Party in writing prior to disclosure so the Disclosing Party may seek a protective order or other appropriate remedy, (b) reasonably cooperate with the Disclosing Party (at the Disclosing Party’s expense) in any effort to obtain such protection, and (c) disclose only that portion of the Confidential Information that is legally required to be disclosed.
20.6. Return or Destruction. Upon the expiration or termination of this Agreement, or earlier upon the Disclosing Party’s written request, the Receiving Party shall promptly, at the Disclosing Party’s election, return or destroy all Confidential Information of the Disclosing Party in its or its Representatives’ possession or control, and shall certify such return or destruction in writing upon request. The Receiving Party may retain (a) copies required by applicable law, regulation, or bona fide internal record retention or compliance policies, and (b) Confidential Information contained in routine electronic backups not readily accessible, in each case subject to the continuing obligations of this Section 20 for so long as such information is retained.
20.7. Term of Obligations. The obligations in this Section 20 apply during the Term and continue for three (3) years following expiration or termination; provided that with respect to any Confidential Information that constitutes a trade secret under applicable law, the obligations shall continue for so long as such information remains a trade secret.
20.8. Equitable Relief. The Receiving Party acknowledges that any breach or threatened breach of this Section 20 may cause irreparable harm to the Disclosing Party for which monetary damages would be inadequate. Accordingly, the Disclosing Party is entitled to seek injunctive and other equitable relief, in addition to any other remedies available at law or in equity, without the necessity of posting bond.
21. Data Protection and Privacy.
21.1. Compliance. Each Party shall comply with all applicable data protection, privacy, and electronic communications laws in connection with its performance under this Agreement, including, as applicable, the California Consumer Privacy Act and California Privacy Rights Act, the EU and UK General Data Protection Regulations, the CAN-SPAM Act, and the Telephone Consumer Protection Act.
21.2. Consent and Notice. Partner represents and warrants that Partner has provided all required notices to, and obtained all required consents from, each Affiliate Lead and Customer to permit Partner to collect, use, and disclose to Ansira the personal information of such Affiliate Lead or Customer for the purposes contemplated by this Agreement. Partner shall maintain records sufficient to demonstrate such notice and consent for the longer of three (3) years or such period as required by applicable law.
21.3. Security. Partner shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to protect personal information of Affiliate Leads and Customers from unauthorized access, use, disclosure, alteration, or destruction. Partner shall promptly (and in any event within seventy-two (72) hours after discovery) notify Ansira in writing of any actual or reasonably suspected unauthorized access, use, or disclosure of personal information of Affiliate Leads or Customers in Partner’s possession or control.
21.4. Data Processing. If and to the extent the Parties’ activities under this Agreement involve the processing of personal data subject to a law that requires a written data processing or data sharing agreement, the Parties shall execute a separate data processing addendum or similar agreement that supplements this Agreement, in such form as is mutually agreed.
22. Compliance with Laws; Anti-Corruption; Sanctions.
22.1. General Compliance. Each Party shall comply and shall ensure that any third party acting on its behalf in connection with this Agreement complies, with all applicable foreign and domestic laws, regulations, and orders, including those applicable to marketing, advertising, sweepstakes, electronic communications, and consumer protection.
22.2. Anti-Corruption. Each Party shall comply with the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and all other applicable anti-bribery and anti-corruption laws. Neither Party shall, directly or indirectly, offer, promise, give, or authorize any improper payment or benefit to any government official or any other person to obtain or retain business or any improper advantage in connection with this Agreement.
22.3. Sanctions and Export Control. Each Party shall comply with all applicable economic sanctions and export control laws, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce. Neither Party shall, directly or indirectly, export, re-export, transfer, or otherwise make available the Ansira Services or any related materials to any person, entity, or jurisdiction in violation of such laws.
22.4. Disclosure of Affiliate Relationship. Partner shall clearly and conspicuously disclose its referral relationship with Ansira to Affiliate Leads and Customers in accordance with all applicable laws and the FTC’s Endorsement Guides, including by stating, where required, that Partner is an Ansira affiliate or partner.
23. Representations and Warranties.
23.1 Mutual. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation; (b) it has full power and authority to enter into and perform this Agreement; (c) the execution and performance of this Agreement do not and will not conflict with or violate any other agreement to which it is a party or any applicable law; and (d) this Agreement, when executed and delivered, will constitute its valid and binding obligation, enforceable against it in accordance with its terms.
23.2. Partner. Partner further represents, warrants, and covenants that: (a) Partner has all rights and permissions necessary to participate in the Affiliate Program and to provide Affiliate Leads to Ansira for the purposes set forth in this Agreement; (b) Partner’s participation in this Agreement does not conflict with any of its existing agreements or arrangements; (c) Partner owns or has sufficient rights in the Partner Marks to grant the license set forth in Section 18.1; and (d) Partner’s performance of this Agreement, including its marketing and promotional activities, shall not infringe, misappropriate, or violate any Intellectual Property Right or other right of any third party.
23.3. Ansira. Ansira further represents, warrants, and covenants that: (a) Ansira owns or has sufficient rights in the Ansira Marks and Ansira Materials to grant the licenses set forth in this Agreement; and (b) Ansira’s performance of this Agreement, including its provision of the Affiliate Tool and the Ansira Materials, shall not infringe, misappropriate, or violate any Intellectual Property Right of any third party.
24. Indemnification.
24.1. Indemnification by Partner. Partner shall defend, indemnify, and hold harmless Ansira and its Corporate Affiliates and their respective officers, directors, employees, agents, and representatives (collectively, the “Ansira Indemnitees”) from and against any third-party claim, suit, action, or proceeding (each, a “Claim”), and any resulting losses, damages, liabilities, settlements, judgments, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), to the extent arising out of or relating to: (a) Partner’s breach of any representation, warranty, or covenant in this Agreement; (b) Partner’s gross negligence, willful misconduct, or fraud; (c) Partner’s marketing, promotional, or sales activities, including any unauthorized representation or warranty made by Partner regarding Ansira or the Ansira Services; (d) any allegation that the Partner Marks or any materials provided by Partner (other than Ansira IP) infringe, misappropriate, or violate any Intellectual Property Right or other right of any third party; or (e) Partner’s violation of applicable law, including data protection, anti-spam, and consumer protection laws.
24.2. Indemnification by Ansira. Ansira shall defend, indemnify, and hold harmless Partner and its officers, directors, employees, agents, and representatives (collectively, the “Partner Indemnitees”) from and against any Claim, and any resulting Losses, to the extent arising out of or relating to: (a) Ansira’s breach of any representation, warranty, or covenant in this Agreement; (b) Ansira’s gross negligence, willful misconduct, or fraud; or (c) any allegation that the Ansira Marks, the Affiliate Tool, or the Ansira Materials (in each case as provided by Ansira and used by Partner in accordance with this Agreement) infringe, misappropriate, or violate any Intellectual Property Right of any third party; provided that Ansira shall have no obligation under this Section 24.2(c) to the extent the Claim arises from (A) modification of the Ansira Marks, Affiliate Tool, or Ansira Materials by Partner or any third party other than Ansira, (B) use of the Ansira Marks, Affiliate Tool, or Ansira Materials in combination with materials or services not provided or authorized by Ansira, where the Claim would not have arisen but for such combination, or (C) Partner’s use of the Ansira Marks, Affiliate Tool, or Ansira Materials in violation of this Agreement or the Program Policies.
24.3. Procedure. The Party seeking indemnification (the “Indemnified Party”) shall (a) promptly notify the other Party (the “Indemnifying Party”) in writing of the Claim (provided that failure to give prompt notice shall not relieve the Indemnifying Party of its obligations except to the extent it is materially prejudiced thereby); (b) give the Indemnifying Party sole control of the defense and settlement of the Claim, except that the Indemnifying Party shall not enter into any settlement that imposes any obligation, admission of liability, or restriction on the Indemnified Party without the Indemnified Party’s prior written consent (not to be unreasonably withheld); and (c) provide reasonable cooperation in the defense, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense at its own expense with counsel of its choice.
25. Disclaimers; Limitation of Liability.
25.1. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT EITHER PARTY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED BY SUCH LAW.
25.2. EXCLUSION OF INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE EXCLUDED CLAIMS DESCRIBED IN SECTION 25.4, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) AND REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
25.3. CAP ON LIABILITY. EXCEPT WITH RESPECT TO THE EXCLUDED CLAIMS DESCRIBED IN SECTION 25.4, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (I) THE TOTAL AMOUNT OF COMMISSION PAID OR PAYABLE TO PARTNER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY, AND (II) FIFTY THOUSAND U.S. DOLLARS (US$50,000).
25.4. Excluded Claims. The limitations in Sections 25.2 and 25.3 shall not apply to: (a) a Party’s indemnification obligations under Section 24; (b) a Party’s breach of its confidentiality obligations under Section 20 (provided that with respect to confidentiality breaches not involving willful misconduct or breach of trade secrets, a Party’s aggregate liability shall not exceed three (3) times the amount of the cap in Section 25.3; (c) a Party’s gross negligence, willful misconduct, or fraud; (d) Partner’s breach of Sections 4.8 (prohibited marketing practices), 18.4 (prohibited use of Ansira Marks), or 22 (Compliance with Laws); or (e) amounts owed to Partner for accrued but unpaid Commission with respect to Qualifying Transactions occurring prior to termination.
26. Term and Termination.
26.1. Term. This Agreement shall commence on the Effective Date and shall continue until terminated as provided in this Section 26.
26.2. Termination for Convenience. Either Party may terminate this Agreement at any time, with or without cause, on thirty (30) days’ prior written notice to the other Party.
26.3. Termination for Material Breach. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice describing the breach in reasonable detail (or within ten (10) days, in the case of non-payment of undisputed amounts due).
26.4. Termination for Insolvency. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party becomes the subject of a voluntary or involuntary petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, in each case that is not dismissed within sixty (60) days or ceases to do business as a going concern.
26.5. Termination for Cause (Specific Grounds). In addition to the foregoing, Ansira may terminate this Agreement immediately upon written notice to Partner if: (a) Partner engages in any of the prohibited practices set forth in Section 4.8; (b) Partner breaches Section 20 (Confidentiality), Section 21 (Data Protection), Section 22 (Compliance with Laws), or Section 18.4 (Prohibited Use of Ansira Marks); or (c) Partner engages in conduct that, in Ansira’s reasonable good-faith judgment, has caused or is reasonably likely to cause material reputational, regulatory, or financial harm to Ansira or its Corporate Affiliates, provided that Ansira provides Partner with a written description of the conduct and, where the conduct is reasonably curable, ten (10) days to cure.
26.6. Effects of Termination. Upon expiration or termination of this Agreement: (a) all licenses and other rights granted to Partner under this Agreement (including the right to use the Affiliate Link, the Ansira Marks, and the Affiliate Tool) shall immediately terminate, and Partner shall promptly cease all use of the foregoing and remove all references to Ansira, the Affiliate Program, and the Ansira Marks from Partner’s websites and other materials; (b) Ansira shall pay Partner all Commission earned with respect to Qualifying Transactions for which payment was received by Ansira prior to the effective date of termination and within ninety (90) days thereafter, except that no Commission shall be payable for transactions occurring after termination, and Partner shall not be entitled to Commission with respect to any Customer Transaction if this Agreement is terminated by Ansira under Section 26.3, 26.4, or 26.5; and (c) the Parties shall comply with the return or destruction obligations in Section 20.6.
26.7. Survival. The following Sections shall survive expiration or termination of this Agreement: Section 1 (Definitions); Section 13.3 (Statements and Disputes) and 13.4 (Offset), with respect to amounts accrued prior to termination; Section 14 (Taxes); Section 15 (Records and Audit); Section 16 (Authority of the Parties); Section 18.5 (Ownership of Marks); Section 19 (Proprietary Rights); Section 20 (Confidentiality), as provided therein; Section 21 (Data Protection and Privacy), as to information collected prior to termination; Section 24 (Indemnification); Section 25 (Disclaimers; Limitation of Liability); Section 26.6 and 26.7; and Section 27 (General), in each case to the extent necessary to give effect to the provision.
27. General.
27.1. Independent Contractors. The Parties are independent contractors. Nothing in this Agreement creates any agency, partnership, joint venture, employment, or fiduciary relationship between the Parties. Neither Party has authority to bind the other or to make any commitment or representation on the other’s behalf, except as expressly authorized in writing.
27.2. Amendments. No amendment to or modification of this Agreement shall be effective unless in writing and signed by an authorized representative of each Party. Ansira may update the Program Policies from time to time on no less than thirty (30) days’ prior written notice to Partner (which may be delivered through the Affiliate Tool); however, no update to the Program Policies shall modify any material right or obligation of the Parties under this Agreement (including Commission rates, payment terms, indemnification, limitations of liability, term, or termination) absent a written amendment signed by both Parties.
27.3. No Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, and no single or partial exercise of any right or remedy shall preclude any other or further exercise of any other right or remedy. A waiver by either Party of any term or condition of this Agreement on one occasion shall not be deemed a waiver of such term or condition on any subsequent occasion.
27.4. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflict of laws principles. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
27.5. Force Majeure. Neither Party shall be liable for any failure or delay in performance (other than payment obligations) caused by an event beyond its reasonable control, including acts of war, terrorism, hostility, or sabotage; acts of God; pandemics or epidemics; electrical, internet, or telecommunications outages not caused by the obligated Party; government restrictions; and labor disputes not involving the obligated Party’s own workforce. The affected Party shall use commercially reasonable efforts to mitigate the effect of the force majeure event and shall promptly notify the other Party. If a force majeure event continues for more than sixty (60) days, the unaffected Party may terminate this Agreement on written notice.
27.6. Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld, conditioned, or delayed). Notwithstanding the foregoing, either Party may assign this Agreement, without consent, to a Corporate Affiliate or in connection with a merger, reorganization, change of control, or sale of all or substantially all of the assigning Party’s assets or equity interests to which this Agreement relates, provided that (a) the assignee is not a direct competitor of the non-assigning Party, and (b) the assignee assumes in writing all of the assigning Party’s obligations under this Agreement. Any purported assignment in violation of this Section is void. This Agreement is binding on and inures to the benefit of the Parties and their permitted successors and assigns.
27.7. Notices. All notices under this Agreement shall be in writing and shall be deemed delivered: (a) upon personal delivery; (b) one (1) business day after deposit with a nationally recognized overnight courier (signature required); (c) three (3) business days after deposit in the U.S. mail, certified or registered, return receipt requested; or (d) upon confirmed delivery by email to the addresses set forth below, provided that a copy is also sent by one of the foregoing methods within three (3) business days. Notices shall be sent to:
If to Ansira: Ansira Partners II, LLC,
7733 Forsyth Blvd.,
Suite 900,
St. Louis, MO 63105
Attention: Legal Department;
Copy to: [email protected].
If to Partner: to the address and email set forth in Partner’s account information in the Affiliate Tool, or as otherwise designated by Partner in writing.
Either Party may change its notice address by written notice to the other Party.
27.8. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the minimum extent necessary to make it enforceable, or, if it cannot be so modified, severed from this Agreement, and the remainder of this Agreement shall continue in full force and effect.
27.9. Entire Agreement. This Agreement, including the Program Policies and any commission schedule(s) executed by the Parties, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous understandings, agreements, representations, and warranties, whether written or oral, including the terms of any purchase order or other ordering document. In the event of a conflict, the order of precedence is: (1) this Agreement; (2) any commission schedule executed by both Parties; and (3) the Program Policies.
27.10. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity other than the Parties any right, benefit, or remedy of any nature, except that the Ansira Indemnitees and Partner Indemnitees are intended third-party beneficiaries of Section 24.
27.11. Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic transmission (including by PDF, DocuSign, or other electronic signature platform) shall be deemed original signatures for all purposes.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
ANSIRA PARTNERS II, LLC
By: ____________________________________
Name: __________________________________
Title: __________________________________
Date: __________________________________
[INSERT PARTNER LEGAL NAME]
By: ____________________________________
Name: __________________________________
Title: __________________________________
Date: __________________________________