We're all adults and want to help nonprofits. But our lawyers like use to spell that out in a bit more detail. This is that detail.
The Fundraising Coach, LLC (the “Fundraising Coach”)
You or the company that you represent (“Marketer”)
WHEREAS, Marketer operates one or more internet presences on which it wishes to promote goods and services of others; and
WHEREAS, the Fundraising Coach is engaged in providing fundraising coaching and training products and services and wishes to market the same on the internet;
WHEREAS, the parties wish to create an affiliate marketing relationship through which Marketer will earn a commission on any products or services it sells for Fundraising Coach, according the terms herein;
NOW, THEREFORE, in consideration of the matters described above and of the mutual benefits and obligations set forth in this Agreement, along with the receipt of good and valuable consideration, the parties hereby agree as follows:
Subject to the terms of this Agreement, Marketer will earn 40% forty percent commission on sales of any Products sold through the Link. Marketer earns an additional 5% five percent commission on sales of any Product sold through a Sub-Marketer’s Link. All commissions are paid through PayPal; as a material term of this agreement Marketer shall maintain an active PayPal account in good standing in order to receive any payments hereunder.
The following terms shall have the following definitions as used in this Agreement:
“Clawback” means any event in which a purchase is refunded or denied, or in any way does not go through to a valid transfer of funds from the user to Fundraising Coach
“Control Panel” means a web-based interface through which Marketer can get customized links, sample marketing material, view statistics related to clicks and payments related to the Links.
“Link” (singular or plural) means a unique web link created by a third-party PPS (pay-per-sale) affiliate program used by Fundraising Coach that directs a user to purchase the Products. The PPS affiliate program utilizes browser cookies to track the activity of said user for as long as the cookie remains on the user’s browser.
“Products” means any products and services created or sold by Fundraising Coach and offered as part of the Affiliate Program.
“Sub-Marketer” means any person or company who becomes a party to an agreement with Fundraising Coach substantially similar in substance to this Agreement, upon a direct referral to Fundraising Coach from Marketer.
“User” means any person or company that clicks on the Link displayed by Marketer.
1. Marketer Rights and Obligations
1.1. Marketer has the sole responsibility for maintaining its various internet presences, including, but not limited to, websites, electronic mailings and social media sites, and ensuring they are in compliance with this Agreement.
1.2. Marketer has the sole responsibility to regularly check the Terms of Service supplied to them by Fundraising Coach and ensure compliance therewith.
1.3. Marketer shall be compliant with all state and federal laws and regulations.
2. Fundraising Coach Rights and Obligations
2.1. Fundraising Coach has the right to monitor Marketer’s website to determine if Marketer is following this Agreement and guidelines, including but not limited to, at any time, review Marketer’s placement of the marketing Link, reject the use of the Links, and require that Marketer change the placement or use of the Link to comply with the guidelines provided herein.
2.2. Fundraising Coach shall make one or more Links available to Marketer, and Fundraising Coach shall generate new Links for Marketer when appropriate.
3. Marketer Representation and Warranties
3.1. Marketer warrants that it shall not design, or allow to be designed, its website or any other website under its control in any manner which creates the impression, or leads customers to believe, that Marketer is sponsored by, or in a legal partnership with Fundraising Coach, or tends to confuse customers in any way regarding the source of the services or products delivered thereon.
3.2. Marketer represents and warrants that this Agreement, and all ancillary agreements, have been duly and validly executed and delivered by Marketer and constitutes Marketer’s legal, valid and binding obligation, enforceable against Marketer in accordance with its terms.
3.3. Marketer has the full right, power and authority to enter into and be bound by the terms and conditions of this Agreement and to preform the obligations under this Agreement, without the approval or consent of any other party.
3.4. Marketer has the rights, title and interest in and to the rights granted to Fundraising Coach in this Agreement.
3.5. Marketer will not make any claim of ownership over the Products, or any materials or intellectual property provided by Fundraising Coach.
3.6. Marketer will not engage in the distribution of bulk or spam emails in any way mentioning Fundraising Coach or Fundraising Coach’s website. All email advertising preformed by Marketer must be done with the intended recipient’s express consent.
3.7. Marketer represents and warrants that its website does not contain materials that are sexually explicitly, obscene or pornographic; offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory in any way; graphically violent; or solicitous of any unlawful behavior.
4. Term and Termination of Agreement
4.1. This Agreement shall commence upon Marketer’s submission of the sign up form located at https://fundraisingcoach.com/affiliates/ (or replacement site thereof, as timely notified by Fundraising Coach to Marketer). The term shall expire upon termination of this Agreement by either party under the terms herein.
4.2. Marketer agrees that it is an Independent Contractor and that nothing in this Agreement shall be construed to represent the creation of a partnership, joint venture, agency, franchise, sales representative or employment relationship between Marketer and Fundraising Coach.
4.3. Neither party may assign its rights or obligations under this Agreement unless expressly agreed upon in writing by the parties. Such unauthorized assignment of rights may result in Fundraising Coach terminating this Agreement, and any commissions paid to Marketer or its assignee or successor that assigns this Agreement without authorization may be rescinded.
4.4. Fundraising Coach may terminate this agreement if Marketer adds to, subtracts from or in any way alters the advertising material as they are prepared by Fundraising Coach. If Marketer desires to in any way alter the advertising material, they must obtain the express written consent from Fundraising Coach prior to the modification.
5. Commissions and Payment
5.1. Marketer shall earn a forty percent (40%) commission on sales of any Products sold through the Link, and Marketer shall earn an additional five percent (5%) commission on sales of any Product sold through a Sub-Marketer’s Link, except that Fundraising Coach is not responsible, and shall not be required to make commission payments to Marketer, in the event that said cookies are lost or destroyed in any manner, including but not limited to a user’s clearing of the cache or cookies on their web browser.
5.1.1. All commissions hereunder are subject to change and Fundraising Coach shall notify Marketer in writing in the event that any such change in the commission percentage is deemed necessary.
5.2. Fundraising Coach will monitor and determine commissions and payment according to the click-through data obtained by the placement of tracking cookies on the user’s computer.
5.3. Marketer shall have access to Link statistics via the Control Panel. Marketer shall notify Fundraising Coach in writing within 14 days of the discovery of any discrepancy in user click-through rates; otherwise Marketer waives its right to claim such discrepancy, and the parties agree that Fundraising Coach’s records, at that time or later amended, shall be conclusive. Marketer hereby acknowledges that the Control Panel may not represent the final data used by Fundraising Coach to determine commission payments owed to Marketer, and Marketer hereby acknowledges that any Clawbacks may not be displayed in the Control Panel for a period of at least fourteen (14) days after the original purchase date, as displayed in the Control Panel.
5.4. Fundraising Coach shall make all payments to Marketer no sooner than 14 days after the close of the previous month’s accounting date so that all Clawbacks may be accounted for. All payments will be made from Fundraising Coach to Marketer via PayPal accounts. It is Marketer’s sole responsibility to maintain an active PayPal account and Fundraising Coach is not responsible for any fees charged to Marketer from PayPal.
5.5. In the event this agreement is terminated, Marketer shall not receive commissions on any sale made after the date of notification of termination.
5.6. In the event of a Clawback, Fundraising Coach shall not pay any commissions on such Clawback, and shall be authorized hereunder to cancel any commission payment already made to Marketer. If Marketer attempts to block or invalidate any bona fide attempt by Fundraising Coach to cancel said commission payment as a result of a Clawback, Marketer shall have violated this material term of this Agreement and this Agreement shall become immediately void.
6.1. Fundraising Coach makes no express or implied representations or warranties regarding Fundraising Coach’s Products or web site. Fundraising Coach makes no representation that its website(s) will be uninterrupted or otherwise error free, and Fundraising Coach will not be liable for any harm caused to Marketer as a result of an interruption or error.
7.1. Marketer hereby agrees to indemnify and hold harmless Fundraising Coach and their directors, officers, employees, agents, and designees, against any and all claims, actions, demands, liability, losses, damages, judgments, settlements, costs and expenses (collectively “Losses”) insofar as such Losses arise out of or are based on any claim that Marketer infringed on the intellectual property or other proprietary rights of any third party, any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or any claim related to your site.
8. Limitations of Liability
8.1. Fundraising Coach will not be liable to Marketer with respect to any subject matter in this Agreement under any contract, negligence, tort or other legal or equitable theory for any indirect, incidental, consequential, special or exemplary damages, even if Fundraising Coach has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained in the Agreement, in no event shall Fundraising Coach’s cumulative liability to Marketer arising out of or related to this Agreement, whether based in contract, negligence, strict liability, tort or other legal or equitable theory, exceed the total commission fees paid to Marketer under this Agreement.
9.1. This agreement shall be governed by Maine law, and Maine courts shall have exclusive jurisdiction. Both parties waive personal jurisdiction to the State of Maine and any state or federal court thereof. Any dispute shall be mediated in good faith, with the parties splitting the cost thereof, in the State of Maine until a resolution or an impasse is reached.
9.2. Should any provision or provisions of this Agreement be held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
9.3. Marketer’s clicking the submit button on the form at https://fundraisingcoach.com/affiliates/ constitutes its intention to be legally bound by these terms.