THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. BY SUBMITTING THE ONLINE APPLICATION TO JOIN OUR AFFILIATE PROGRAM, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. These terms and conditions (these “Terms”) apply to the Affiliate Program through Flawless Followup (the “Site”). These Terms are subject to change by Bottom Line Marketing Automation, Inc., a Texas corporation (referred to as the following herein: the “Company”, “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” referenced on the Site. You should review these Terms prior to applying to the Affiliate Program. Your continued use of this Site after the “Last Updated Date” will constitute your acceptance of and agreement to such changes. We have created a program that enables approved “Affiliates” to refer potential customers of Flawless Followup to the Site in exchange for the fees described herein. This Agreement does not preclude either of us from entering into an agreement with any other person related to the sale, resale, or distribution of other goods or products, including those that are similar to the products and services of Flawless Followup.
Application and Enrollment. You must complete and submit an online application to become part of our Affiliate Program. All applications must be accepted by us. We may choose not to accept your application at our sole discretion. We will notify you if we have accepted your application within 30 days from your application.
Use of Linking Code. Your acceptance into the Affiliate Program means you agree to abide by the following: A. You will only use the Linking Code we provide to you without manipulation. A “Linking Code” is a code provided by us to you for the purpose of promoting the sale of goods or services on the Site. A Linking Code is used to track customers who are directed from an Affiliate to our Site and make a purchase from our Site which results in a Fulfilled Order (as defined below). B. You will only be eligible for payment for any customer referral derived from the Linking Code that we make available to you and that are accepted by us in our sole discretion. C. All prices, discounts, and promotions posted on this Site are subject to change without notice. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
Fee Consideration. For any third-party who purchases our services through a properly authorized Linking Code (“Fulfilled Order”), we will pay you in accordance with our current fee schedule which can be found at https://flawlessfollowup.com. You will be paid approved fees for the previous month by the 25th day of the following month. We reserve the right to refuse any fulfillment of an order to a customer in our sole and absolute discretion.
Limited License Rights. Subject to the express rights and licenses granted by us in this Agreement, you acknowledge and agree that: (a) any and all our Intellectual Property Rights are the sole and exclusive property of the Company; (b) you shall not acquire any ownership interest in any of our Intellectual Property Rights under this Agreement; (c) any goodwill derived from the use by you of our Intellectual Property Rights inures to the benefit of the Company; and (d) you shall use our Intellectual Property Rights solely for the purposes of performing your obligations under this Agreement and only in accordance with this Agreement and the instructions of the Company. Nothing by virtue of this Agreement shall be deemed as granting a party the Intellectual Property Rights of the other party unless explicitly set forth in this Agreement. For purposes of this Agreement, “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) Trademarks; (c) internet domain names, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights, and copyrightable works and other specifications and documentation; (e) Trade Secrets; and (f) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction throughout in any part of the world. For purposes of this Agreement, “Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein. This Agreement is not, however, to limit any rights that we may have under trade secret, copyright, patent or other laws that may be available to us. The provisions of this Section shall survive any termination of this Agreement.
Trademarks. Subject to the terms and conditions of this Agreement, we hereby grant to you a non-exclusive, worldwide, royalty-free, and non-transferable license to use our Trademarks during the Term solely in accordance with the terms and conditions of this Agreement. You will promptly discontinue the display or use of any Trademark when requested by the Company. Other than the express licenses granted by this Agreement, we grant no right or license to you, by implication, estoppel, or otherwise, to the Products or any Intellectual Property Rights of ours. You shall not: (i) take any action that intentionally interferes with any of our rights in or to our Intellectual Property Rights, including our ownership or exercise thereof; (ii) challenge any right, title, or interest of ours in or to our Intellectual Property Rights; (iii) make any claim or take any action adverse to our ownership of our Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for our Trademarks or any other Trademark that is similar to our Trademarks or that incorporates our Trademarks in whole or in confusingly similar part; (v) use any mark, anywhere, that is confusingly similar to our Trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement or any our Trademarks; (vii) misappropriate any of our Trademarks for use as a domain name without prior written consent from us; and (viii) alter, obscure, or remove any of our Trademarks or trademark or copyright notices or any other proprietary rights notices, marketing materials, or other materials that we may provide. After the expiration or earlier termination of this Agreement your rights under Section 6 shall cease; and you shall promptly cease all display, advertising, promotion, and use of all of our Trademarks and shall not thereafter use, advertise, promote, or display any Trademark, trade name, or any part thereof that is similar to or confusing with our Trademarks or with any trade name or services associated with us. For purposes of this Agreement, “Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world. The provisions of this Section shall survive any termination of this Agreement.
Confidentiality. From time to time during the Term, we (as “Disclosing party”) may disclose or make available you (as “Receiving party”) information about our business affairs, goods and services, confidential information, and materials comprising or relating to Intellectual Property Rights, Trade Secrets, third-party confidential information, and other sensitive or proprietary information; such information, as well as the terms of this Agreement, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Confidential Information excludes information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 7 by Receiving party or any of its Representatives; (b) is or becomes available to Receiving party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (b) was known by or in the possession of Receiving party or its Representatives before being disclosed by or on behalf of Disclosing party; (c) was or is independently developed by Receiving party without reference to or use of, in whole or in part, any of Disclosing party’s Confidential Information; or (d) must be disclosed under applicable law. Receiving party shall: (i) protect and safeguard the confidentiality of Disclosing party’s Confidential Information with at least the same degree of care as Receiving party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use Disclosing party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any Person, except to Receiving party’s Representatives who must know the Confidential Information to assist Receiving party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. Receiving party shall be responsible for any breach of this Section 7 caused by any of its Representatives. The provisions of this Section 7 shall survive termination or expiration of this Agreement for any reason. At any time during or after the Term, at Disclosing party’s written request, Receiving party and its Representatives shall, promptly return all Confidential Information including copies that it has received under this Agreement. For the purposes of this Agreement, the term “Representatives” shall mean collectively the following: Recipient’s affiliates, or to any of such Recipient’s or its affiliates’ employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors
Term and Termination. A. Term. The term of this Agreement (the “Term”) commences on upon our approval of you as an Affiliate and continues thereafter in perpetuity, unless and until sooner terminated as provided in this Section 8. B. Termination Without Cause. Either party in its sole discretion, may terminate this Agreement at any time, without cause, by providing at least twenty (20) days’ prior written notice to the other party. C. Termination With Cause. This Agreement may be terminated before the expiration date of the Term on written notice by either party if the other party materially breaches any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching party within five (5) days after the breaching party’s receipt of written notice of such breach. D. Effect of Termination. (a) No Release. The expiration or termination of this Agreement, for any reason, shall not release either party from any obligation or liability to the other party, including any payment and delivery obligation, that: (i) has already accrued hereunder; (ii) comes into effect due to the expiration or termination of the Agreement; or (iii) otherwise survives the expiration or termination of this Agreement. (b) Return of Materials and Property. Each party shall promptly following the expiration or termination of this Agreement: (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information; and (ii) permanently erase all of the other party’s Confidential Information from its computer systems.
Representations and Warranties. (a) You represent and warrant to us that: (i) You have the full right, power, and authority to enter into this Agreement, to grant to us the rights and licenses set forth herein, and to perform your obligations hereunder; (ii) the execution, delivery, and performance of this Agreement by you will not violate, conflict with, require consent under or result in any breach or default under any of your organizational documents, any applicable law, or the provisions of any contract or agreement to which you are a party to; (iii) this Agreement has been executed, and delivered by you and constitutes the legal, valid, and binding obligation of you, enforceable against you in accordance with its terms; (iv) you have all of the requisite resources, skill, experience, and qualifications to perform all of the services under this Agreement in a professional and workmanlike manner, in accordance with best industry standards for similar services; and (v) you have the full right, power, and authority (by ownership, license, or otherwise) to use all patents, copyrights, trademarks, or other intellectual property and to grant us the rights and licenses set forth herein, on the terms and conditions of this Agreement. (b) NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED HEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE EXTENTS PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS REPRESENTATIVES BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. TO THE EXTENT PERMITTED BY LAW, OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID TO YOU IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Indemnification. Subject to the terms and conditions of this Agreement, you (as “Indemnifying party”) shall indemnify, hold harmless, and defend the Company and its officers, directors, partners, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified party (collectively, “Losses”), arising out of or relating to any claim of a third party: (i) relating to a breach or non-fulfillment of any representation, warranty, or covenant under this Agreement by Indemnifying party; or (ii) alleging or relating to any negligent or more culpable act or omission of Indemnifying party or its Representatives (including any recklessness or willful misconduct) in connection with the performance of your obligations under this Agreement.
Independent Contractors. You agree and acknowledge that each of us are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between us. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, you have the sole discretion to determine your methods of operation, your accounting practices, the types and amounts of insurance you carry, your personnel practices, your advertising and promotion, your customers, and your service areas and methods. You acknowledge and agree that you are obligated to report as income all compensation received by you pursuant to this Agreement, and you agree to and acknowledge the obligation to pay all self-employment and other taxes thereon. You are solely responsible for all taxes, withholdings and other statutory or contractual obligations of any sort, including, but not limited to, Workers’ Compensation Insurance. You agree to indemnify and hold harmless the Company and its directors, officers, shareholders and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (i) any negligent, reckless or intentionally wrongful act of you or your consultants, employees or agents; (ii) a determination by a court or agency that you are not an independent contractor; (iii) any breach by you or your consultants, employees or agents of any of the covenants contained in this Agreement.
Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, epidemics, pandemics, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
Waiver of Jury Trials and Binding Arbitration. (a) YOU AND THE COMPANY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. (b) The arbitration will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced. You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 16 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of the Company.
Notices. (a) To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to the Site. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current. (b) To Us. To give us notice under these Terms, you must contact us as follows: by personal delivery, overnight courier or registered or certified mail to the Company at 5000 Gattis School Road, Suite 100-167, Hutto, Texas 78634. We may update the facsimile number or address for notices to us by posting a notice on the Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.