Last Modified: September 30, 2020
This Customer Referral Agreement ("Agreement") is made and entered into by and between Aplos Software, LLC ("Aplos" or "Company") with its principal place of business located at 487 W Shaw Ave., Fresno, CA 93704 and the person or company referring prospects to Aplos as described herein ("Referral Partner"), and is effective on the last date that this Agreement is executed by Aplos or Referral Partner ("Effective Date"). Aplos and Referral Partner are sometimes referred to as "party" and together as the "parties."
You acknowledge and agree that you have read, understand, and agree to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies provided by Aplos from time to time, and understand that you are entering into a legally binding agreement with Aplos. If you do not agree with the terms and conditions set forth herein, then you must not provide the referral services described herein.
1.1. This Agreement contains the complete terms and conditions governing your participation in the Aplos Customer Referral Program (the "Program"). The purpose of this Agreement is to allow HTML linking between your website(s), emails, and social media to the Aplos website for the purpose of referring potential customers to Aplos. Please note that throughout this Agreement, "we," "us," and "our" refer to Aplos, and "you," "your," and "yours" refer to the Referral Partner.
2.1. To begin the enrollment process, you will complete and submit the referral partner registration form on the Aplos website. We will evaluate your application within a reasonable timeframe. We may reject your application at our sole discretion.
We will reject your application or terminate the Agreement if we determine that your site is unsuitable for our Program, including if it:
2.1.1. Promotes sexually explicit materials.
2.1.2. Promotes violence.
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
2.1.4. Promotes illegal activities.
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights, or to violate the law.
2.1.6. Includes "Aplos" or variations or misspellings thereof in its domain name.
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable to us in our sole discretion.
2.1.8. Contains software downloads that potentially enable diversions of referral payments from other referral sources participating in our Program.
2.1.9. Promotes "get-rich-quick" schemes that have no tangible business value.
2.1.10. Is in violation of any other term or condition referenced herein.
You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Aplos or any other affiliated business.
2.2.1. Unless otherwise approved in writing by Company, you may not offer incentives to users as a means to enhance your performance under the Program; incentives include, but are not limited to, awarding them cash, points, prizes, contest entries, etc.;
2.2.2. You may not bid on any variations of Aplos brand terms in any keyword-based pay-per-click search engines, including, without limitation, Google, Bing, and Yahoo. This includes any "Trademark Plus" (TM+) bidding, such as "Aplos discount" or "Aplos promo code";
2.2.3. Your website(s) must be fully functional at all levels;
2.2.4. Your policies must be compliant with state and federal laws and regulations, including but not limited to the CAN-SPAM Act of 2003;
2.2.5. Spawning process pop-ups are prohibited; and
2.2.6. Such other criteria as Company may from time to time determine, in its sole discretion.
2.4. As a member of Aplos' Program, you will be provided with a URL with tracking parameters that will be captured using cookies. In order for us to accurately keep track of all guest visits from your site to ours, the guest visit must originate through the specific URL we provide you with. The Company is not responsible for any missed conversions if any supplied link is modified in any way by you without prior approval in writing.
2.5. Aplos reserves the right, at any time, to review your placement and reject the use of links, and require that you change the placement or use to comply with the guidelines provided to you.
2.7. It is entirely your responsibility to comply with all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third-party rights.
2.8. You shall comply with all applicable laws, rules and regulations pertaining to this Agreement, including, without limitation, FTC requirements, CAN-SPAM, CCPA and Aplos brand guidelines.
3.1. We have the right to monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our website are appropriate. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Program.
3.2. Company actively monitors traffic for fraud. If fraud is detected, your account will be made inactive pending further investigation. Fraudulent traffic includes but is not limited to: click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; fraudulent leads as determined and reported by Company's clients; use of fake redirects, automated software, and/or other fraudulent mechanisms to generate payable actions from the Program, and no activity or illicit activity seen in referred accounts.
3.3. If you inflate leads or clicks by fraudulent traffic generation, as determined solely by Company, you will forfeit any and all referral payments owed under the Program, and your account will be terminated. In addition, in the event that you have already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings, or to demand reimbursement from you.
3.4. Aplos reserves the right to terminate this Agreement and your participation in the Aplos Program immediately and without notice to you should you commit fraud in your use of the Aplos Program or should you abuse this Program in any way. If such fraud or abuse is detected, Aplos shall not be liable to you for any referral payments for such fraudulent activity.
4.1. This Agreement will begin on the Effective Date and will continue unless terminated hereunder. Either you or we may terminate this Agreement immediately at any time and for any reason. Termination notice may be provided via email, and if so, you must immediately cease all advertising activities. All referral payments then due will be paid during the next billing cycle, subject to any final accounting and quality assurance verification. Should any violations of Program terms be discovered, any pending payments may be forfeited.
4.2. If you are also a customer of the Company, you may be subject to termination if your activity within your personal account is in violation of any corresponding terms of service.
5.1. We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email, (sent to the email address provided in the course of your registration with the Company). Modifications may include, but are not limited to, changes in the payment procedures and the Aplos Program rules. If any modification is unacceptable to you, you may terminate this Agreement. Your continued participation in the Program following the email of the change notice and the new Agreement on our site will indicate your agreement to the changes.
6.1. We pay active participants in the Program based on the number of tracked referrals that qualify as a New Customer (as defined in paragraph 6.2), subject to compliance with the terms and conditions of this Agreement.
6.2. To qualify as a New Customer, the potential customer must (a) represent an opportunity that has not been previously identified or contacted by Company directly or through its other distribution and representation channels (including any other referral partners or agents), (b) not have been in discussions or other contact with Company within ninety (90) days of the referral date, (c) become a subscriber of one of the Aplos products or services within ninety (90) days of the referral date without receiving any monetary or other incentives from you, (d) have paid subscription fees for one of the Aplos products or services, and (e) otherwise meet any other criteria required by Company for new customers. A referral shall be deemed rejected by the Company if the potential customer has not subscribed to one of the Aplos products or services within ninety (90) days of the referral date, provided that on a case-by-case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend such 90-day period for a particular referral.
6.3. Intentionally Omitted - Pricing available to approved Affiliates.
6.4. Referral payments are processed once a quarter, approximately 30 days after the end of the quarter. Currently, all payments shall be made by check in U.S. dollars only. Additional payment options (including, but not limited to, electronic payments, whether directly or via a third-party provider) may be added at any time. Should this occur, a notice will be sent via email with details and instructions for enrollment. It is your sole responsibility to ensure that your payment information is current and correct.
6.5. Company shall compile and calculate the data required to determine your eligible referral payment. This information will be provided to you with your payment. Any questions or disputes regarding the data or payout provided by Company must be submitted in writing within five (5) business days from the most recent payment date; otherwise, the information will be deemed accurate and accepted as such by you.
6.6. Aplos will only pay customer referrals that are earned and tracked while you are an active participant in the Program. If you are removed from the Program because of non-compliant behavior, you will no longer receive referral payments from any referred customers. If you voluntarily terminate this Agreement, or you are removed from the Program due to cessation of promotion activity (no visible links or click activity for a period of one (1) year or more) and you are not responsive to outreach attempts, you will cease earning referral payments immediately.
6.7. Any previously issued checks that cannot be deposited due to date expiration, checks that have been returned to the Company for any reason, or incorrect email addresses provided for digital payments rejected by a third-party provider, may be re-issued upon request, subject to a $25 reissue fee per item.
6.8. In addition to any other remedies that may be available to Company, in the event of any breaches by you of this Agreement, you shall forfeit your rights to any amounts owed by Company to you.
7.1. You are free to promote your own websites, but you are prohibited from creating or using any promotion mentioning Aplos that could be perceived by the public or the press as a joint effort between you and the Company without the prior written approval of the promotional material from Aplos. Any pending balances owed to you will not be paid if we terminate the Agreement because of unacceptable advertising. To avoid confusion, you are required to follow each of the promotional restrictions set forth below:
7.1.1. Certain forms of advertising are always prohibited by Aplos. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name.
7.1.2. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups, and cross-posting to multiple newsgroups at once.
7.1.3. You may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address.
7.1.4. You may use mailings to customers to promote Aplos so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings.
7.1.5. You may post to newsgroups to promote Aplos so long as the newsgroup specifically welcomes commercial messages.
7.1.6. At all times, you must clearly represent yourself and your website(s) as independent from Aplos and its clients.
7.1.7. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Aplos Program.
7.2. If you advertise among other keywords or exclusively bid in your pay-per-click campaigns on keywords such as Aplos, Aplos.com, www.Aplos, Aplos Software, and/or any misspellings or similar alterations of these—be it separately or in combination with other keywords—you will be considered a trademark violator, and you will be terminated from Aplos' Program. We will do everything possible to contact you prior to the ban, but we have no obligation to do so. We reserve the right to expel any trademark violator from our Program without prior notice, and on the first occurrence of such pay-per-click bidding behavior.
7.3. You are prohibited from keying in prospect's information into the signup form with the intent of misrepresenting or falsifying leads.
7.4. You shall not transmit any so-called "interstitials," "Parasiteware™," "Parasitic Marketing," "deceptive pop-ups and/or pop-unders," or other similar applications or tools to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited your site (i.e., no page from our site or any Aplos' content or branding is visible on the end-user's screen). As used herein, "Parasiteware™" and "Parasitic Marketing" shall mean an application that (a) through accidental or direct intent, causes the overwriting of referral source tracking cookies through any other means than a customer-initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing pop-ups, referral payment tracking cookies to be put in place, or other referral payment tracking cookies to be overwritten, where a user would, under normal circumstances, have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, Bing, Yahoo, AOL, and similar search or directory engines); (c) set referral payment tracking cookies through loading of Aplos' site in IFrames, hidden links, and automatic pop-ups that open Aplos' site; (d) targets text on websites, other than those websites 100% owned by the application owner, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of banners with any other banners, other than those that are on websites 100% owned by the owner of the application.
7.5. We strongly advise you to stay compliant with the Federal Trade Commission (FTC) guidelines on testimonials and endorsements. For example, all endorsements, reviews, testimonials on Aplos' products and services, as well as relationships between other types of content websites (forums, blogs, microblogs and other social media channels) and Aplos must be clearly disclosed in a separate policy on your site(s). The FTC has noted that "when there exists a connection between the endorser and the seller of the advertised product," it is imperative that such connection is "fully disclosed." FTC also scrutinizes that relationship as an endorser-sponsor arrangement and believes that the end user has the right to understand that an endorser-sponsor relationship exists. We share the concept and concern of the FTC's approach and will not tolerate any failure by you to adhere to the FTC's guidance. We reserve the right to terminate your participation in the Program for non-compliance.
7.6. You are rewarded for networking and bringing in new customers through your own marketing efforts. Aplos prohibits you from utilizing your link to refer your own customer account(s) to receive referral payments ("self-referrals"). This also includes accounts that are not under your name but are paid for using a payment medium that you own. This includes forms of online payment (credit/debit cards) as well as checks and money orders. Also prohibited are referrals for members of your immediate family or household, or any other such relationship deemed problematic by the Company.
7.7. If you are doing business within the EU, you are required to be compliant with GDPR regulations regarding data protection enacted on May 25, 2018. Company reserves the right to review your compliance as necessary. Failure to prove compliance may result in termination from the Program.
8.1. Company grants to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Aplos' Program. You agree that all uses of the Licensed Materials will be on behalf of Aplos and the goodwill associated therewith (including any data derived from the Program) will inure to the sole benefit of Aplos.
8.2. Confidentiality. Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information to any third party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement, or any other agreement between the parties; (b) any disclosure is required by applicable law, provided that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof, so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement "Confidential Information" includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, you agree that Company may divulge your personal and/or otherwise Confidential Information to an agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that you have violated this Agreement or any applicable law or regulation.
8.3. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights, and no right, title, or interest is transferred to the other.
APLOS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING APLOS' SERVICE AND WEBSITE, OR THE PRODUCTS OR SERVICES PROVIDED THEREIN. ANY IMPLIED WARRANTIES OF APLOS' ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
You represent and warrant that:
10.1. This Agreement has been duly and validly communicated and agreed to, and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL COMPANY'S CUMULATIVE LIABILITY TO YOU, 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 REFERRAL PAYMENTS OWED TO YOU UNDER THIS AGREEMENT.
12.1. You hereby agree to indemnify and hold harmless Aplos and its subsidiaries and advocates, and its directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorney fees), (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that you infringed on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site.
12.2. You will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
12.3. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.
13.1. You agree that nothing in this Agreement shall be construed as or creates any independent contractor relationship, partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Aplos. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site, any other site, or otherwise, that reasonably would contradict anything in this section.
13.2. Neither party may assign its rights or obligations under this Agreement to any party, except that the assignment to a third party who obtains all or substantially all of the business or assets of a party shall be permitted, subject to the reasonable consent of the other party (i.e. the non-assigning party).
13.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws and principles thereof. Further, the parties hereby consent to the general jurisdiction of the federal and state courts located in Fresno, California, and agree that any action or proceeding concerning this Agreement shall be brought exclusively in such courts.
13.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
13.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
13.6. The headings and titles contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
13.7. If any provision of this Agreement is 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.