Affiliate Agreement

Last Modified: January 2016

 

ATTENTION: PLEASE READ THIS AFFILIATE AGREEMENT CAREFULLY.

 

By submitting your application to become an authorized affiliate marketer of CinchShare Services, you (“Affiliate”, “you”, or “your”), agree to be bound by the terms and conditions of this Affiliate Agreement (“Agreement”). If you do not agree to these terms, do not accept this Agreement; and do not continue with your application to become an Affiliate. This Agreement is enforceable against you and any entity on whose behalf Affiliate membership is sought.

 

CinchShare offers a variety of social media services to its customers, including enabling its customers to create and manage social media content through a variety of tools to more easily and effectively interact with social media outlets (“CinchShare Services”). CinchShare offers the CinchShare Services to its customers through its website, www.cinchshare.com (“CinchShare Site”), where customers create a CinchShare account (“CinchShare Account”) and are charged a monthly fee (“Monthly Fee”) or an annual fee (“Annual Fee”) for the CinchShare Services.

 

This Agreement is effective on your acceptance of the terms of this Agreement.

 

In consideration of the mutual promises contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, CinchShare and Affiliate, intending to be bound, agree as follows:

 

1. Appointment. CinchShare appoints you as an Affiliate for the sole purpose of promoting and marketing CinchShare Services (“Promotional Services”).

 

2. Affiliate Services. Subject to the terms of this Agreement, Affiliate shall display CinchShare Links (as defined below) on Affiliate’s website (“Affiliate Site”) for the purpose of promoting CinchShare Services (“Promotional Services”).

 

3. Affiliate Referral Fees. Affiliate shall earn a referral fee of $10.00 (“Referral Fee”) for each New Customer (as defined below) directed to the CinchShare Site from the Affiliate Site, or other social media site where Affiliate may establish a link, and the New Customer creates a CinchShare Account and pays CinchShare three (3) consecutive Monthly Fees or a one (1) time Annual Fee. CinchShare shall pay Affiliate all Referral Fees owed Affiliate on the 5^th day of the month after CinchShare has received and Affiliate has earned such Referral Fees. CinchShare shall pay all Referral Fees to Affiliate through PayPal. In order to be paid a Referral Fee, Affiliate must establish a PayPal account and agree to pay all transaction fees imposed by PayPal. CinchShare will deduct the amount of the transaction fee from the referral fees due Affiliate. A New Customer is an individual who has never been a CinchShare customer, or a returning customer whose subscription has terminated.

 

4. License. CinchShare grants Affiliate a non-exclusive, non-transferable, revocable right to access the CinchShare Site through its Customized Affiliate Dashboard, HTML links solely through the use of the HTML banners, buttons, and other promotional matters provided by CinchShare under the Affiliate section of the CinchShare Site (“CinchShare Links”), and solely for the purposes of providing Promotional Services. Affiliate shall not otherwise use CinchShare trademarks or service marks, or in any way copy the content, or look and feel of the CinchShare Site in providing Promotional Services. CinchShare reserves the right, at any time, to review Affiliate’s placement of CinchShare Links and require that Affiliate change the placement or use of CinchShare Links.

 

5. Restrictions. In providing Promotional Services to CinchShare, Affiliate may not engage in any action adverse to CinchShare or CinchShare’s current or potential customers, including without limitation:

1. conceal Affiliate’s identity, domain name, email or other contact information;
2. engage in spam or other mass email, text, or other mass communication activities using any CinchShare Links;
3. spread computer viruses, tracking software (including spyware), or other deceptive software in connection with CinchShare Links;
4. engage in or otherwise support any disparaging or misleading activities regarding CinchShare;
5. engage in disseminating or making available any obscene or otherwise offensive material in connection with CinchShare Links;
6. take any action that may create a perception that Affiliate has any type of joint relationship with CinchShare or that Affiliate is acting on behalf of CinchShare. Affiliate may not make any claims or representations in excess of those made by CinchShare.

 

6. Affiliate Representations and Warranties. Affiliate hereby makes the following representation and warranties to CinchShare:

1. You have the full right, power and authority to enter into this Agreement, and if Affiliate is a person, you are at least eighteen (18) years of age;
2. You currently have an active CinchShare subscription.
3. This Agreement has been duly and validly executed and constitutes your legal, valid and binding obligation in accordance with its terms; and
4. Your appointment and performance as an Affiliate (i) is not in breach of any non-compete, non-solicitation or employment agreement with any third party, (ii) it is not in violation of any agreement to protect the confidential or trade secret information of any third party, and (iii) does not create a conflict of interest for you or any third party.

 

7. Term and Termination

1. Affiliate status is conditioned upon your maintaining an active CinchShare account. You will no longer be an Affiliate if, for any reason, your subscription is terminated,
2. This Agreement shall be in effect for a period of one (1) year from the date first set forth above unless otherwise terminated as provided herein. The term of this Agreement shall renew automatically for successive one-year terms unless either Party provides notice to the other Party at least ten (10) days prior to the end of the then-existing term. This Agreement may be terminated by either Party at any time without notice. CinchShare may terminate this Agreement immediately if Affiliate violates the provisions of Section 5 hereof or otherwise breaches the Agreement.
3. In the event of a termination, Affiliate shall immediate return all CinchShare proprietary information and take all actions requested of Affiliate by CinchShare in accordance with the terms of this Agreement.

 

8. Independent Contractor. Affiliate is an independent contractor. Nothing contained in this Agreement shall be deemed to create any partnership, joint venture, or relationship of principal and agent or employer and employee between CinchShare, or any parent company, affiliate or subsidiary thereof, and Affiliate, or to provide either Party with the right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other Party. You shall not hold Yourself out as an employee of, or partner, joint venture, co-principal, or co-employer with CinchShare. Affiliate shall have no right to bind or otherwise obligate CinchShare.

 

9. Taxes. CinchShare shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with CinchShare as set forth in this Agreement. CinchShare shall not withhold any taxes from the amounts earned by Affiliate.

 

10. Intellectual Property Ownership.

1. Affiliate agrees that CinchShare owns all right, title and interest in and to CinchShare Intellectual Property which shall include, without limitation, the CinchShare Site, CinchShare Services, and CinchShare designs, written materials, software programs, and all other materials and inventions (whether or not patentable), works of authorship, derivative works, programming (including but not limited to source code), trade secrets, domain names, improvements, processes, methods, ideas, concepts, designs, and trademarks or service marks.
2. Affiliate agrees that any inventions, original works of authorship, developments, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws, created, conceived, or prepared by Affiliate in performance of Affiliate’s services pursuant to this Agreement (“Works”) shall belong exclusively to CinchShare. Affiliate agrees to immediately make full written disclosure of such Works, will hold the Works in trust for the sole right and benefit of CinchShare, and hereby assigns to CinchShare, or its designee, all of Affiliate’s right, title, and interest in and to any and all Works, which Affiliate may solely or jointly conceive or develop or reduce to practice, or causes to be conceived or developed or reduced to practice, as the result of its business relationship with CinchShare. Affiliate further acknowledges and agrees that all original works of authorship which are made by it (solely or jointly with others) during the course of its performance under this Agreement and any predecessor agreement, and which are protectable by copyright are “works made for hire” as that term is defined in the United States Copyright Act.
3. Affiliate agrees to execute any documents deemed necessary by CinchShare to perfect its ownership rights to any such Works, including without limitation further written assignments, applications, and conveyances and supply such information as CinchShare shall request, in order to permit CinchShare and its assigns to protect, perfect, register, record and maintain CinchShare’s rights in the Works and to effect ownership thereof throughout the world.

 

11. Trademark and Service Mark Use. During the term of this Agreement, Affiliate shall have the right to indicate to the public that it is an authorized affiliate of CinchShare Services. Affiliate shall not alter or remove any trademarks or service marks on the CinchShare Site. Nothing herein shall grant to Affiliate any right, title or interest in the trademarks or service marks of CinchShare. At no time during or after the term of this Agreement shall Affiliate challenge or assist others to challenge the trademarks or service marks, or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to the trademarks or service marks.

 

12. Indemnification. Affiliate shall indemnify CinchShare and hold harmless CinchShare from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s obligations set forth in this Agreement. Affiliate shall also indemnify and hold harmless CinchShare for any damage, loss or other cost arising out of Affiliate’s use of the CinchShare Links.

 

13. Limitation of Liability. CinchShare shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages (whether CinchShare was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the CinchShare Links, or other performance of services under this Agreement. Notwithstanding the prior sentence, CinchShare shall never be liable to Affiliate for any amount greater than the Referral Fees that CinchShare paid to Affiliate under this Agreement.

 

14. Disclaimer. CINCHSHARE MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING ANY SERVICES OFFERED BY CINCHSHARE, INCLUDING SERVICES OFFERED THROUGH THE CINCHSHARE SITE. THE CINCHSHARE SITE AND THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. YOU AGREE THAT PERFORMING PROMOTIONAL SERVICES IS ENTIRELY AT YOUR OWN RISK. CINCHSHARE DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, SECURITY, RELIABILITY, PERFORMANCE, COMPLETENESS, CURRENCY, CONDITION, DURABILITY, NON-INFRINGEMENT, MERCHANTABILITY, TIMELINESS OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE OF THE CINCHSHARE SITE. CINCHSHARE DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY INCOMPLETENESS, ERRORS, SECURITY, VIRUSES, BUGS, PROBLEMS, OMISSIONS, INACCURACIES OR OTHER LIMITATIONS IN, OR INTERRUPTIONS IN THE OPERATION OF, THE CINCHSHARE SITE. CINCHSHARE MAKES NO WARRANTY THAT ANY INFORMATION OR DATA RECEIVED ON OR THROUGH THE CINCHSHARE SITE WILL BE FREE OF INFECTION BY VIRUSES, BUGS, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED.

 

15. Amendments. – CinchShare reserves the right, for any reason, at its sole discretion, to amend this Agreement at any time and without prior notice, including changing the amount and/or timing of the Referral Fees. It is your responsibility to check this Agreement periodically for changes. If CinchShare modifies the conditions of this Agreement, it will post the modification on the Site. CinchShare will also update the “Last updated on” date at the bottom of this page. By continuing to provide Promotional Services after CinchShare’s modification of the terms of the Agreement, you have accepted the modified terms. If the modified terms are not acceptable to you, your only recourse is to terminate the Agreement and cease providing Promotional Services.

 

16. Miscellaneous.

1. Affiliate shall not assign or transfer Affiliate’s interests in this Agreement, without the prior written consent of CinchShare. CinchShare may assign its interests in this Agreement without consent of Affiliate.
2. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and may not be amended or modified by Affiliate except in a written document signed by CinchShare.
3. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement in any other jurisdiction as if such invalid or illegal or unenforceable provision had ever been contained herein and such provision shall be reformed so that it would be valid, legal and enforceable to the maximum extent permitted in such jurisdiction.
4. Affiliate acknowledges and agrees that damages are an inadequate remedy in the event of an actual, intended or threatened breach of this Agreement and that any such breach by Affiliate will cause CinchShare irreparable injury and damage. Accordingly, Affiliate agrees that CinchShare shall be entitled to preliminary and permanent injunctive relief in the event of an actual, intended or threatened breach by Affiliate, without any requirement to post a bond or prove any actual damages. CinchShare’s right to injunctive relief shall be in addition to all of its other rights or remedies, including monetary damages, otherwise available to CinchShare at law, in equity or by statute.
5. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to its conflicts of law rules. Any disputes hereunder shall be within the exclusive jurisdiction of the state courts of Brevard County Florida, and/or federal courts located in, the Middle District of Florida and the Parties irrevocably consent to such exclusive jurisdiction and waive objections to venue therein and jurisdiction thereof. In any action to enforce this Agreement, the prevailing Party will be entitled to recover its costs and attorneys’ fees.

 

If you have any questions or concerns about this Agreement, please feel free to contact us by email to support@cinchshare.com.