TECH MINDED AFFILIATE AGREEMENT
This Affiliate Agreement (the “Agreement”) is made and entered into as of the Effective Date by and between and Tech Minded, dbas of Xplain Corp. (herein known as “Tech Minded”), and Affiliate (“Affiliate”).
WHEREAS, Tech Minded sells Smart Spacer® systems, accessories and products (collectively, “Products”); and
WHEREAS, Tech Minded desires to appoint Affiliate as one of Tech Minded’s affiliate, to refer prospective end user customers (“Customers”), and Affiliate desires to be so appointed.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- APPOINTMENT. Tech Minded hereby appoints Affiliate to promote and refer Customers who may buy the Products, and Affiliate hereby accepts such appointment. Affiliate shall use reasonable efforts to abide by the policies and procedures of Tech Minded.
- Subject to the terms and conditions contained within this Agreement, Tech Minded will pay Affiliate a percentage (as specified in Affiliate welcome email) of the revenue received by Tech Minded for product sold to Customers that were referred by Affiliate not including taxes, fees or shipping charges (hereafter, “Compensation”). The amount of Compensation received by Tech Minded that is, in turn, paid by Tech Minded to Affiliate shall be referred to hereafter as “Commissions”. It is up to the Affiliate to use links and referral methods provided by Tech Minded to associate a Customer with Affiliate. No commissions shall be paid to Affiliate without this referral.
- Tech Minded shall use commercially reasonable efforts to pay Commissions to Affiliate within 30 days of Tech Minded’s receipt of Compensation from customer. Tech Minded will not be liable for Commissions to Affiliate until Compensation is received for applicable sale. Tech Minded will use commercially reasonable efforts to collect Compensation from customers.
- Tech Minded may, in its sole discretion, modify, revise, amend, increase or reduce Commissions, in the event a Precipitating Event occurs. For purposes of this paragraph, a “Precipitating Event” includes but is not limited to a customer refund or credit, reducing or increasing Compensation.
- Affiliate will not incur any processing fees in connection with Commission payments that are made via ACH. If, on the other hand, Affiliate requests that Tech Minded pay Commissions in the form of a check, Tech Minded may charge a $30.00 per check writing fee.
- In the event a customer is issued a chargeback against Compensation previously paid by Tech Minded, Tech Minded may charge back the corresponding Commissions previously paid by Tech Minded to Affiliate. If Tech Minded believes a chargeback is likely to occur within sixty (60) days, Tech Minded may withhold Commissions for that potential chargeback from Commissions paid.
- If Tech Minded cannot locate Affiliate in order to pay Commissions to Affiliate, Tech Minded will keep the unpaid Commissions. If after one hundred eighty (180) days Tech Minded still cannot locate Affiliate, Affiliate will lose the right to such Commissions.
- In the event Tech Minded receives Compensation for a sales order and does not know which Affiliate to pay Commissions to, Tech Minded will use commercially reasonable efforts to determine who to pay Commission to for such order. Tech Minded will keep the unpaid Commissions. If after ninety (90) days Tech Minded cannot determine the correct Affiliate to pay Commissions to, Affiliate will lose the right to such Commissions.
- Subject to the terms of this Agreement and provided Affiliate continues to perform any and all obligations set forth herein, Tech Minded will continue to pay Commissions to Affiliate, while this Agreement remains in effect as well as after the termination hereof, for as long as Tech Minded is receiving Compensation from Providers for Products resulting directly from referral by Affiliate.
- TERM. The initial term (the “Initial Term”) of this Agreement shall commence on the Effective Date and continue for a period of one (1) year. This Agreement shall automatically renew thereafter for successive one (1) year terms (each a “Renewal Term”) unless terminated in writing by either party at least sixty (60) days prior to expiration of the Initial Term or the Renewal Term then in effect, as applicable. The Initial Term and all applicable Renewal Terms shall hereafter be referred to collectively as the “Term”.
- This Agreement may be terminated for convenience by either party by providing thirty (30) days prior written notice.
- Tech Minded may terminate this Agreement effective immediately for cause (“Cause”) in the event any of following circumstances occur:
- if Affiliate breaches any term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice from Tech Minded;
- if, at any point after the Initial Term, the Commissions owed to Affiliate are less than $100 for two consecutive months;
- if Affiliate becomes the subject of bankruptcy proceedings, has a receiver appointed, makes an assignment for the benefit of creditors, or otherwise avails itself, or becomes the subject, of any insolvency or dissolution proceedings; or
- if Affiliate commits any illegal or dishonest act, participates in any fraudulent activity, or makes any misrepresentations that damages Tech Minded or harms the reputation of Tech Minded.
- If any agreement between Tech Minded and suppliers is terminated or modified to such an extent that Tech Minded, in its sole discretion, determines that it cannot continue to permit Affiliate to refer the Products, Tech Minded’s obligations to Affiliate shall terminate as to the Products upon the same date and year that the applicable supplier’s agreement is terminated or modified. IN NO EVENT SHALL TECH MINDED INCUR ANY LIABILITY OR OBLIGATION WHATSOEVER TO AFFILATE AS A RESULT OF THE FOREGOING.
- If this Agreement is terminated for any reason (other than by Tech Minded for Cause pursuant to Section 3(c) above), Tech Minded shall continue to pay Affiliate Commissions in accordance with Section 2(h) above.
- Upon termination of this Agreement, Affiliate shall immediately: (1) cease referring new customers; (2) deliver to Tech Minded all materials relating to Tech Minded and/or any agent or Provider, including but not limited to all price and customer prospect lists, and sales literature; (3) discontinue the use of any service or trademark authorized by Tech Minded and/or any Provider; and (4) discontinue representing itself in any fashion as an Affiliate, contractor, or representative of Tech Minded and/or any Provider.
- AFFILATE PROGRAM TERMS AND CONDITIONS. Affiliates will convey to potential Customers basic information about Tech Minded with the goal of referring potential Customers to the Smart Spacers™ web site or to speak to a Tech Minded representative. Affiliates interested in greater involvement should contact Tech Minded about becoming an Agent with Tech Minded.
- Headings are for convenience only and will not be used to interpret the terms of this Agreement.
- Any notice, request or other communication under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular or airmail, or one (1) day after such notice is sent by overnight courier or facsimile transmission followed by hard copy, to the applicable party’s address set forth below.
- This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by e-mail, facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart. This Agreement may also be executed using a generally accepted electronic signature and delivery platform, such as DocuSign, AdobeSign, Hellosign, etc.
- This Agreement shall be governed by and construed in accordance with the laws of the State of California. Should any contained in this Agreement violate any laws of any other state in which this Agreement is to be performed, that provision shall be deemed void to the extent it is in violation without invalidating any other provision contained herein. Any action arising out of or relating to this Agreement shall be filed in the courts located in Ventura County, California and each party agrees to submit to the exclusive jurisdiction of the federal and state courts located in Ventura County, California and to waive all defenses to such jurisdiction and venue. In the event of any dispute or controversy or legal action of any kind concerning the terms of this Agreement, the prevailing party shall be entitled to all reasonable attorneys’ fees and costs. This Agreement may not be changed or modified except by a written agreement signed by the parties hereto.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and shall supersede all previous communications, representations, understandings, and agreements, whether oral or written, between the parties.
Applying for Affiliate status is expressed agreement to these terms.