Affiliate Program Agreement

Last Modified: Tuesday, October 1 2024

This is a contract between you and us, Superset Technologies LLC dba Auto Posher (“Auto Posher”). This Affiliate Program Agreement (this “Agreement”) applies to your participation in our Affiliate Program (the “Affiliate Program”).

1. Definitions

  • “Affiliate Lead” means a customer prospect referred by you to the Auto Posher Service via a Referral Code.
  • “Affiliate Site(s)” means websites or other channels you maintain that contain Referral Codes.
  • “Auto Posher Service” means the products and services we make available via our SaaS platform at http://www.autoposher.com, mobile applications, or through any other URLs or channels we designate.
  • “Commission” means an amount we will pay you for each Auto Posher Subscription resulting from a referral through a Referral Code.
  • “Customer” means an Affiliate Lead who has purchased an Auto Posher Subscription.
  • “Auto Posher Subscriptions” means a subscription to the Auto Posher Service.
  • "Auto Posher Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
  • “Program Guide” means the resources we make available to you regarding your participation in the Affiliate Program.
  • “Referral Code” means a unique tracking link, promotional code or other technology that we provide to you, and that you place on your Affiliate Sites, that allows Affiliate Leads to purchase Auto Posher Subscriptions.

2. Program Participation

  1. Application. After you apply for and we accept you into our Affiliate Program, you may post Referral Codes on your websites, and receive commissions for referring Customers to the Auto Posher Service as described below.
  2. Conditions of Participation. In order to participate in the Affiliate Program, you must have: (a) agreed to the terms of this Agreement; and (b) provided the payment information and tax information required by the Program Guide and completed the other steps described there.
  3. Program Guide. The Program Guide contains key information regarding Commission eligibility, rates and other details of the Affiliate Program. By consenting to this Agreement, you also agree to the terms in the Program Guide. We may change the Program Guide from time to time. We will send you a notice regarding any changes. If you do not agree to changes, you may withdraw from the Affiliate Program and terminate this Agreement as provided in Section 6.2 below.
  4. Covenants. You agree that: (a) you will comply with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are participating in the Auto Posher Affiliate Program on any website(s) you own where you make a Referral Code available); (b) you will accurately identify all Affiliate Sites to Auto Posher on request; (c) you will not purchase ads that direct to your site(s) or through a Referral Code that could be considered as competing with Auto Posher's own advertising, including, but not limited to, our branded keywords; (d) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (e) you will not attempt to mask the referring URL information; (f) you will not use your own Referral Code to purchase Auto Posher Subscriptions for yourself; (g) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, iframes, or hidden frames), or offering incentives to encourage purchases or signups; and (h) you will not post your Referral Code on any third-party coupon, discount, or promotional websites.
  5. Nonexclusive. This Agreement does not create an exclusive agreement between you and us. We will engage other affiliates to refer prospective customers to the Auto Posher Service, and you may provide referrals to other websites and products.

3. Customer Referrals

  1. Earning Commissions. We will pay you Commissions as described in the Program Guide for each Affiliate Lead who purchases an Auto Posher Subscription via a Referral Code, subject to your continuing eligibility described below.
  2. Eligibility. To be eligible for Commission: (a) an Affiliate Lead must be accepted and valid in accordance with the 'Acceptance and Validity' section, (b) the Affiliate Lead must have converted to a Customer by purchasing an Auto Posher Subscription, and (c) the Customer must remain a customer during the locking period in the Program Guide, if any. You are not eligible to receive Commission or any other compensation from us if: (v) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (w) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us; (x) the Customer has paid or will pay such commissions, referral fees, or other compensation directly to you, or (y) the Commission payment has been obtained by fraudulent means, misuse or violation of the Affiliate Program, Program Guide or Referral Codes, or other breach the spirit of the Affiliate Program. We will not pay more than one Commission per Affiliate Lead. In competitive situations with other affiliates, we may elect to provide the Commission to the affiliate that we deem to be the most eligible for Commission, at our discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
  3. Acceptance and Validity. We may choose not to accept an Affiliate Lead in our reasonable discretion, including situations where the Affiliate Lead has recently been a customer or has previously been in contact with us regarding an Auto Posher Subscription. Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid.
  4. Taxes. You are responsible for payment of all taxes and fees (including bank fees) applicable to your Commissions. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

4. Proprietary Rights

  1. Auto Posher's Proprietary Rights. No license to any software is granted by this Agreement. The Auto Posher Service and all components of it are protected by intellectual property laws. The Auto Posher Service belongs to and is the property of us or our licensors (if any). We retain all ownership rights in the Auto Posher Service. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Auto Posher Service, or the Auto content therein, in whole or in part, by any means, except as expressly authorized in writing by us.

5. Confidentiality

  1. As used herein, “Confidential Information” means all confidential information disclosed by a party to the other party: (a) whether orally or in writing, that is designated as confidential, and (b) Auto Posher customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (x) is or becomes generally known to the public without breach of any obligation owed to the disclosing party or (y) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party.
  2. The receiving party shall: (a) protect the confidentiality of the Confidential Information of the disclosing party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (b) not use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement, (c) not disclose Confidential Information of the disclosing party to any third party, and (d) limit access to Confidential Information of the disclosing party to its employees, contractors and agents. The receiving party may disclose Confidential Information of the disclosing party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

6. Term and Termination

  1. Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.
  2. Termination Without Cause. Either you or we may terminate this Agreement for any reason on 15 days written notice to the other party.
  3. Termination for Cause. We may terminate this Agreement: (a) upon 30 days' notice to you of a material breach if such breach remains uncured at the expiration of such period, (b) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (c) immediately, if you breach the terms applicable to your subscription with us (if you have one), including your payment obligations, or (d) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
  4. Effects of Expiration/Termination. Promptly following termination of this Agreement or any reason other than your material breach, we will pay you all unpaid Commissions that are due as of the termination date. You will not receive Commissions for Auto Posher Subscription payments we receive after the termination date. Upon termination or expiration, you will discontinue all use of and delete the Program Guide. Upon termination or expiration, you will immediately discontinue all use of our trademarks and references to this Affiliate Program from your website(s) and other collateral. Termination or expiration of this Agreement shall not cause any Customer's Auto Posher Subscriptions to be terminated. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.

7. Representations and Warranties; Disclaimer

  1. Authority. You represent and warrant that: (a) you have the full right, power and authority to enter into and fully perform this Agreement; (b) entering this Agreement does not violate any other agreement by which you are bound; (c) if agreeing on behalf of an entity, the person consenting to this Agreement on its behalf is a duly authorized representative of such entity who has in fact been authorized to execute this Agreement; and (d) such entity is in good standing in the jurisdiction of its formation.
  2. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable laws in the United States and any other jurisdiction whose laws apply to you (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury and any other applicable export control laws.
  3. Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE AUTO POSHER SUBSCRIPTIONS, THE AFFILIATE PROGRAM OR THE PROGRAM GUIDE FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE AUTO POSHER SERVICE AND PROGRAM GUIDE ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE AUTO POSHER SERVICE AND THE PROGRAM GUIDE INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

8. Indemnification

  1. You will indemnify, defend and hold us harmless, at your expense, against all liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorneys' fees and disbursements) (“Costs”) arising from or relating to claims, demands, suits, actions or proceedings (collectively, “Claims”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Claim is based upon or arises out of: (a) your participation in the Affiliate Program, or (b) your noncompliance with or breach of this Agreement. We will: notify you as promptly as possible on becoming aware of any such Claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the Claim. You shall not accept any settlement that: (x) imposes an obligation on us; (y) requires us to make an admission; or (z) imposes liability not covered by the indemnification provisions herein, or places restrictions on us without our prior written consent.

9. Limitations of Liability

  1. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
  2. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

10. General

  1. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
  2. 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 hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  3. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
    To Auto Posher: [email protected]
    To you: your address as provided in our affiliate account information for you.
    We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you.
  4. Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Auto Posher Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Auto Posher Service.
  5. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
  6. Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. We will notify you by email if we materially change this Agreement or the Program Guide. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version. The updated versions Agreement will become effective and binding 15 days after the Last Modified date. If you don't agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
  7. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Commission and Payment', 'Proprietary Rights', 'Confidentiality', 'Effects of Termination/Expiration', 'Indemnification', 'Disclaimers; Limitation of Liability', and 'General'.
  8. Applicable Law. This Agreement shall be governed by the laws of the State of New York, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in the Southern District of New York.
  9. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.