Joint Venture Affiliate Agreement
Effective Date: January 1, 2016
THIS AGREEMENT is entered into as of the date of your reply email that indicates your acceptance of this Agreement ("Effective Date") by and between SMARTEST Wealth Systems ("SWS") and Joint Venture Affiliate ("JV-Affiliate").
1. SWS's Product(s)/Service(s). SWS's Product(s)/Service(s) consists of personal finance educational and/or business coaching materials to the general public designed to help them achieve a reasonable level of personal financial success.
2. JV-Affiliate's List. JV-Affiliate's email list consists of an active list hosted by a reputable online Customer Relationship Management service consisting of not less than 500 email address of persons interested in the field of personal finance(("List").
3. Offer. The Offer will consist of the following: Seller's digitally delivered personal finance educational material at a discounted price of a single payment of $497, or 3 payments of $177, plus bonus material ("Offer").
4. Affiliate Relationship. The parties agree that JV-Affiliate will become an authorized affiliate of SWS for purposes of promoting the Offer to JV-Affiliate's List in accordance with this Agreement.
5. Marketing Responsibilities. The following responsibilities will be performed and/or provided at the responsible party's expense.
5.1 SWS and JV-Affiliate to collaborate regarding the creation of copy for promotional emails.
5.2 SWS to create content for a live sales presentation by SWS.
5.3 JV-Affiliate to send promotional emails to JV-Affiliate's List as mutually agreed regarding (i) the number of email broadcasts, and (i) the schedule for the email broadcasts.
5.4 SWS to provide affiliate tracking for JV-Affiliate for the Offer.
5.5 SWS to provide transaction processing for sales resulting from the Offer.
5.6 SWS to be the sole contact for questions from purchasers, warranties, and returns.
6. Contingencies. The following contingencies must be satisfied or waived by the non-performing party before the Offer may be presented.
6.1 SWS and JV-Affiliate to agree regarding copy for promotional emails, and the number of email broadcasts and the schedule for email broadcasts.
6.2 SWS to provide and/or demonstrate to JV-Affiliate's satisfaction the quality and/or functionality of the products and/or services relating to the Offer.
6.3 SWS to provide and/or demonstrate to JV-Affiliate's satisfaction the capability of transaction processing for sales resulting from the Offer.
6.4 SWS to provide and/or demonstrate to JV-Affiliate's satisfaction that appropriate affiliate tracking is available for sales resulting from the Offer and tested as functional.
6.5 JV-Affiliate to provide evidence satisfactory to SWS regarding the size and composition of JV-Affiliate's email list.
6.6 Approval by JV-Affiliate of SWS's sales presentation content.
7. Offer Period. The Offer will be open after the contingencies are satisfied for a period of time as mutually agreed upon by the parties ("Offer Period").
8. No Exclusivity. This Agreement shall not be construed to be a commitment by either party to work exclusively with the other party regarding joint marketing activities.
9. Revenue Shares. SWS shall pay to JV-Affiliate forty (40%) percent of Net Revenues. "Net Revenues" means monies actually received by SWS for sales resulting from the Offer during the Offer Period, excluding (i) returns, and (ii) any taxes, duties, or tariffs relating to the sale or licensing of the Offer (not including taxes based on SWS's net income).
10. Payment. SWS shall pay all Net Revenues to JV-Affiliate within thirty (30) days after the close of the Offer Period. At the time of payment, SWS shall provide a written summary of all sales in connection with the Offer and a calculation of Net Revenues and the payment of the revenue share to JV-Affiliate.
11. Expenses Not Shared. Each party will bear its own expenses for its own marketing responsibilities separately. The parties will not share the burden of their respective expenses; therefore, the expenses assumed separately by the parties may not be equal resulting in an individual profit or loss rather than joint profits and losses.
12. Resolution of Conflicts Regarding Revenue Shares. SWS shall not be liable for more than a single revenue share or affiliate commission for each single sale. If any third party should make a claim for any revenue share, commission, or part thereof, the payment by SWS shall be apportioned among the claimants as determined by SWS at its sole discretion. SWS shall make a reasonable effort to consult with all relevant parties regarding any apportionment; however, the final decision of SWS regarding apportionment shall be final.
13. JV-Affiliate's Audit Rights. SWS shall maintain records of the Offer sales, whether in electronic format or otherwise, for a period of at least three (3) years from the close of the Offer. Upon ten (10) business days' advance written notice, JV-Affiliate or its agent shall have the right to examine, during normal business hours at SWS's principal place of business, SWS's records, whether in electronic format or otherwise, for purposes of verifying the accuracy of the revenue share payment. If any audit reveals underpayment of five percent (5%) or greater for the revenue share payable, then SWS shall, in addition to promptly paying the underpayment, reimburse JV-Affiliate for all the costs and expenses of the audit.
14. Confidentiality. Each party may disclose non-public confidential information regarding its products, pricing, and marketing plans. The receiving party agrees to use and disclose such confidential information from the disclosing party only for purposes of this Agreement. These restrictions will last for a period of three (3) years from the Effective Date; however, they will not apply to information that (i) is known to the receiving party prior to receipt from the disclosing party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
15. Limitation of Liability. EXCEPT FOR CLAIMS BASED ON A CONFIDENTIALITY VIOLATION, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for claims based on a confidentiality violation, either party's aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the greater of the sum total of revenue share payments paid or payable under this Agreement.
16. Term and Termination; Survival. The initial term of this Agreement shall commence as of the Effective Date hereof and shall continue for a period of thirty (30) days, after which the Agreement will continue automatically from month-to month, unless terminated as provided below. Notwithstanding the forgoing, either party may terminate this Agreement at any time for any reason by five (5) days by written notice to the non-terminating party. The obligations to pay fees and to protect Confidential Information, and the liability limitations shall survive the termination hereof.
17. Arbitration. All disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in YOUR CITY, IL if initiated by SWS and in Litchfield Park, AZ if initiated by JV-Affiliate, and will be conducted by telephone or online. The arbitrator shall apply the laws of the State of the non-moving party to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $1000.00.
18. No Authority To Enter Into Contracts. Neither party is authorized to enter into contracts or any obligation in the other party's name, or to transact any business on behalf of the other party.
19. No Assignment. This Agreement is personal to the parties and non-assignable without the prior written consent of the non-assigning party.
20. General. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
End of Agreement.