YouMail Affiliate Agreement
YOUMAIL AFFILIATE AGREEMENT FOR CURRENT PREMIUM CUSTOMERS
This YouMail Affiliate Agreement for Current Premium Customers (this "Agreement") is by and between YouMail, Inc., a Delaware corporation ("YouMail"), with its principal office at 65 Enterprise, Aliso Viejo, California 92656, and you ("Affiliate").
CERTAIN DEFINITIONS
Active YouMail User: with respect to a given calendar month, a bona fide end-user who has subscribed to YouMail voicemail service and used such service for at least one telephone call that hit the YouMail platform during such calendar month.Basic YouMail Service: YouMail’s free offering to members of the general public using its service, consisting of use of YouMail’s centralized system that allows for the recording, storage and retrieval, via a mobile device, landline telephone, e-mail or web interface, of voice messages left for such mobile users.
Affiliate-Driven User: A user that has signed up with YouMail for Basic YouMail Service who is identified by YouMail "tracking codes" and "links" in such user’s initial sign-up process as having been directed to YouMail by Affiliate using YouMail pre-approved messaging.
Third Party: Any individual, company or other entity unaffiliated with (i) either party to this Agreement or (ii) any affiliate of either party to this Agreement.
AGREEMENT
In consideration of the promises, covenants, understandings and agreements set forth above and below, the parties hereto agree as follows:1. PAYMENT TO AFFILIATE
1.1 Revenue Share. During the Term, YouMail will credit and pay Affiliate the following revenue share ("Revenue Share"): YouMail will credit and pay Affiliate 10% of monies actually collected and retained by YouMail for YouMail’s completed sales of premium content and/or premium services directly to Affiliate-Driven Users for cash, less the aggregate of any (a) sales, value added, use and similar taxes, and (b) credits, bill reconciliations, or similar transactions (for avoidance of doubt, Affiliate understands that YouMail will at no time have control over any carrier’s (or any similarly situated party’s) decision to credit or return monies to users/customers).
1.2 Payments and Reporting; Withholding Affiliate must provide YouMail with Affiliate’s active PayPal account information (or, in YouMail’s sole discretion at a future date, another payment method as requested and approved in advance by YouMail) so that YouMail may send Affiliate funds. YouMail will first credit Affiliate’s Revenue Share against Affiliate’s YouMail account(s) and against any other monies owed to YouMail by Affiliate. YouMail will provide Affiliate with access to a report showing Revenue Share within twenty (20) days of the end of each calendar month during the Term. YouMail will provide Affiliate with any payments due to Affiliate within forty-five (45) days of the end of each such calendar month, provided, that if Affiliate shall be owed less than $20.00 with respect to such calendar month, then no payment shall ensue at that time, and payment of such owed amount shall be deferred until Affiliate shall be owed an amount greater than $20.00 by YouMail in the aggregate. YouMail will keep records of transactions relating to this Agreement during the Term and for nine (9) months thereafter. Notwithstanding any other provision of this Agreement, however, no payment shall be due to Affiliate with respect to any calendar month that begins more than six (6) months following the end of the Term. YouMail may offset payments due to Affiliate under this Agreement by any amounts owed to YouMail by Affiliate for any reason, and whether or not in connection with this Agreement. If YouMail is obligated by law or applicable regulation to obtain tax or identification information regarding Affiliate, and Affiliate does not provide such information to YouMail after YouMail has requested it, YouMail may withhold Affiliate’s payments until Affiliate provides such information. Under no circumstances shall YouMail have any liability or responsibility to Affiliate (whether with respect to notification or payment or otherwise) (a) if Affiliate does not provide YouMail with current and updated PayPal account information for Affiliate or (subject to the conditions set forth in the first sentence of this Section 1.2) any other YouMail approved account for Affiliate, or (b) if for any reason funds attempted to be sent or credited to Affiliate by YouMail are rejected or attempts to send the same are for any reason not successful, and furthermore, any such credit or payment that otherwise would be payable to Affiliated by YouMail will be forfeited and YouMail shall not have any obligation to hold any such credit or cash amount for Affiliate on its books (though YouMail may, in its sole discretion, choose to make such a payment or credit to Affiliate once such issues are addressed without affecting the interpretation of the foregoing with respect to any other Affiliate Program participant or with respect to Affiliate as regards any payments or credits accrued, past, present or future).
2. MARKETING
2.1 Tracking Code. YouMail will provide Affiliate with one or more unique "Tracking Codes" to embed in all links distributed by Affiliate that drive traffic to the YouMail web site. Affiliate is solely responsible for ensuring that any and all links to YouMail include this tracking code, are that these links are updated if and when Affiliate is notified that tracking codes need to be changed, and that links are in an acceptable format to YouMail.
2.1 Materials for Affiliate Distribution. Through the end of the Term, YouMail may, in its sole discretion, make available to Affiliate certain YouMail-created materials (banners, text copy, a landing page, a URL for that landing page, and the like) for Affiliate’s use in connection with distribution of messages regarding YouMail premium products and services; provided, that YouMail makes no warranty of any kind with respect to any such materials, including, without limitation, the usefulness or efficacy of such materials for any purpose.
2.3 Promotional Representations. Affiliate represents and warrants that no promotion by Affiliate shall contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that Affiliate will not mislead others. Affiliate represents and warrants that Affiliate’s and the actions of Affiliate’s officers, directors, employees, contractors, agents, attorneys, accountants and other consultants and advisors, if any, under this Agreement (a) will at all times be done in accordance with and as permitted by all laws, rules and regulations, including, without limitation, the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation and/or any other laws and/ or regulations that govern email marketing and/or communications), (b) that all such actions will be done in accordance with each of their respective privacy policies (and that such privacy policies shall be no less protective of end-users’ privacy than such policies are protective of privacy on the Effective Date), and (c) will not constitute or facilitate spamming, indiscriminate advertising or unsolicited commercial email.
2.4 Promotional Restrictions. Affiliate may not place any links/tracking code in (or distribute the same, directly or indirectly to or via) newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Affiliate must places links in ways that do not mislead potential Affiliate-Driven Users, and such that the links deliver only bona fide individual end-users to YouMail. Affiliate shall not cause any introduction, registration or use to be made that is not in good faith, including, without limitation, via any device, program, robot, Iframes, or hidden frames.
3. TERM AND TERMINATION
3.1 Term. The term of this Agreement (the "Term") shall run from the Execution Date through the date that is thirty (30) days following such date; provided, that the Term shall automatically extend for additional thirty (30) day periods until such time as Affiliate shall notify YouMail of termination or YouMail shall earlier terminate the term pursuant to Section 3.2.
3.2 Early Termination. Notwithstanding Section 3.1, YouMail may terminate the term at any time, in its sole discretion, and without notice, if:
3.2.2 YouMail encounters or suspects any fraudulent, abusive or otherwise illegal content or activity by Affiliate or its promotional methods, or YouMail deems Affiliate’s promotional activities inappropriate;
3.2.3 YouMail determines to terminate the affiliate program under which Affiliate is operating as a YouMail affiliate;
3.2.4 Affiliate materially breaches this Agreement; or
3.2.5 Affiliate becomes subject to any bankruptcy or insolvency proceeding, or the appointment of receiver, or if Affiliate makes an assignment for the benefit of Affiliate’s creditors.
3.3 Termination Behavior. At the end of the Term, YouMail will continue to provide the Basic YouMail Service to previous Affiliate-Driven Users in good standing in accordance with YouMail’s terms of service as they shall be in effect from time to time. During the time that such service remains in effect, unless the termination took place under one or more of Sections 3.2.2 through 3.2.5, all monies and payments that accrue under this Agreement shall continue to accrue as though the Term had not ended, and such monies and payments accrued through such date shall continue to be paid out following the end of the Term. Notwithstanding any other provision of this Agreement, however, no payment shall be due to Affiliate with respect to any calendar month more than six (6) months following the end of the Term.
4. MISCELLANEOUS
4.1 Force Majeure. YouMail shall not be responsible for any failure to perform any obligation or provide service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, in any such case which are being experienced by providers of telecommunications services generally and not targeted or directed at YouMail specifically, or (d) other similar force beyond YouMail’s reasonable control.
4.2 Limited Liability. Except with respect representations and warranties made under this Agreement, in no event shall YouMail or any of its officers, directors, employees, contractors, agents, attorneys, accountants and other consultants and advisors (collectively "Representatives") be liable to or through Affiliate for any of the following: claims or demands brought against Affiliate by third parties; or (b) any lost profits, loss of business, loss of use (or interruptions of business), lost savings, lost opportunities or other consequential, special, incidental, indirect, exemplary or punitive damages, any or all of which arise from or in connection with the delivery, use, or performance of service governed by this Agreement, even YouMail and/or any of its Representatives has been advised of the possibility of such loss.
4.3 Further Assurances. Each party hereto shall execute and/or cause to be delivered to each other party hereto such instruments and other documents, and shall take such other actions, as such other party may reasonably request for the purpose of carrying out or evidencing any of the transactions contemplated by this Agreement.
4.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals, diagrams, charts, illustrations or undertakings, oral or written, with respect to the subject matter expressly set forth herein.
4.5 Independent Contractors. This Agreement is between independent contractors, and shall not form or be deemed to form a partnership or joint venture. Under no circumstances shall any person associated with one of the parties hereto be deemed an employee of the other party hereto or of any of its affiliates or customers at any time.
4.6 Interpretation; Amendment; Waiver; Severability. No provision of this Agreement or any exhibit or annex hereto shall be construed strictly against any party hereto, including, without limitation, the drafter hereof or thereof. Neither this Agreement nor any provision hereof may be amended, waived or modified in any way other than by a writing executed by the party against whom such amendment, waiver or modification would be enforced. No failure to exercise, and no delay in exercising and no course of dealing with respect to any right hereunder shall operate as a waiver thereof. Nor shall a waiver by any party hereto of a breach of any provision herein be deemed a waiver of any subsequent breach. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either party hereto (or by its successor), whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies. The headings or titles of the several paragraphs of this Agreement are inserted solely for convenience and are not a part of, nor shall they be used or referred to in the construction of, any provision of this Agreement. Words in the singular number shall include the plural, and vice versa. Whenever examples are used in this Agreement with the words "including," "for example," "any," "e.g.," "such as," "etc." or any derivation thereof, such examples are intended to be illustrative and not in limitation thereof. All references to the masculine, feminine or neuter genders shall mean and include all genders. In case any one or more of the provisions contained in this Agreement for any reason shall be held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, any such provision(s) shall be severed, and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any action in any other jurisdiction. Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad or unreasonable as to the period, scope or geographical area so as to be unenforceable at law, such provision or provisions shall be modified or substituted by the appropriate judicial body so as to cover the maximum period, scope or geographical area permitted by applicable law.
4.7 Expenses. Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of this Agreement.
4.8 Attorneys' Fees. If any legal action or other legal proceeding (including arbitration) relating to the transactions under this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, each party shall pay its own fees for attorneys’ fees, costs and disbursements of outside legal counsel except with respect to such fees, costs and disbursements as are incurred in connection with successful enforcement of YouMail’s rights under Section 7.
4.9 Choice of Law; Venue. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to choice of law. Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement shall be brought or otherwise commenced or maintained exclusively in a state or federal court located in the City of Los Angeles. Each of the parties specifically consents to the exercise of personal jurisdiction over it for this purpose and waive any objection based on improper venue or inconvenient forum.
5. NOTICES
All notices or other communications required or permitted to be delivered to any party under this Agreement shall be in writing and shall be sent by registered or certified mail, by courier or express delivery service, return-receipt requested, addressed or sent: (a) if to YouMail: YouMail, Inc., 65 Enterprise, Suite 235, Aliso Viejo, California 92656, Attention: Dave Key, and (b) if to Affiliate, by email to the email address of Affiliate on file with YouMail. Questions regarding this Agreement or any matter relating hereto should be sent to YouMail by email to referrals@youmail.com. Affiliate may also call YouMail on 800-374-0013.
6. CHANGE OF TERMS
Affiliate understands and agrees that YouMail may, in its sole discretion, and at any time and without notice, may change any of the terms of this Agreement and the revised terms shall constitute a new agreement between YouMail and Affiliate. In such an event, YouMail’s credit and payment obligations with respect to Affiliates referrals achieved under the "old" terms will be effected and followed pursuant to Section 3.3 as though the "old" agreement between Affiliate and YouMail has been terminated, and any new terms shall constitute a "new" agreement between Affiliate and YouMail effective on a going-forward basis.
7. INDEMNIFICATION
Affiliate agrees to defend, indemnify and hold harmless YouMail and its Representatives from and against any and all claims, losses, judgments, damages, liabilities or claims for attorneys' fees, whether or not involving a third party ("Claims"), relating to (a) personal injury, death or tangible physical property damage which results from Affiliate’s act or omission, and (b) without limiting the foregoing, Affiliate’s acts or omissions in connection with or arising out of this Agreement or Affiliate’s breach hereof, in each case to the extent such Claim or Claims do not result solely from the gross negligence, recklessness or intentional act of YouMail or its Representatives.