In consideration of Qpractice, LLC. (“Company”) maintaining an Affiliate Program for its Qpractice NCIDQ prep programs, and you (“Affiliate”) desiring to participate in the Affiliate Program, it is agreed as follows:
In order to enroll in the Company Affiliate Program, the Affiliate must complete an application for each website through which the Affiliate desires to promote the products and services sold through the Affiliate Program. Applicant agrees that any registration information provided to the Company will always be accurate, correct, and up to date. The account will not be used for any illegal or unauthorized purpose. The Company will evaluate applications, and Company reserves the right to deny entrance into its Affiliate program to any applicant deemed unqualified for any reason at Company’s sole and absolute discretion.
a. Affiliate will be paid a referral fee (“Commission”) for each customer who completes a purchase on the Company website using the unique affiliate link assigned to Affiliate (“Link”). Commissions will be calculated based on the Gross Sales Price less deductions (Net Revenue as noted below). Gross Sales Price is defined as all payments received by the Company by the sale of the product, but not including any shipping and handling, sales tax, special service fees such as gift wrapping or packaging, late charges, collection costs, imports/export duties, amounts due to credit card fraud, credits given to customers, bad debt write-off and refunded products or services. The Affiliate shall be paid Commissions only on sales tracked through the Company’s online tracking system and indicate the Link as the source. It shall not apply to advertised product packages, groupings of products, or products not provided by the Company.
b. The Commission rate will be fifteen percent (15%) of the Net Revenue of each completed purchase of the following products and programs made through the Affiliate’s Link and paid to the Company. Net Revenue is defined as total sales revenue minus credit card fees, discounts, and returns.
c. Qpractice may change content, pricing, or availability of programs at any time and introduce additional products and programs at other commission rates. The Company will provide notice of additional products or programs and the associated commission rate in advance. Affiliate’s continued use of the Affiliate Program will be deemed consent to these additions.
d. Commissions will be paid to the Affiliate at the end of each exam season. Commissions will be adjusted for orders that are canceled, returned orders, or where payment is otherwise refunded to the purchaser. All payments will be made to the Affiliate’s PayPal account unless the Company approves other arrangements.
The Term of this Agreement is for one (1) year. At the end of the Term, this Agreement will automatically renew for an additional 1-year term unless canceled by either party in accordance with Paragraph 4.
Company or Affiliate may cancel this Agreement for any reason by giving the other party 30 days written notice. Failure to comply with the terms of this Agreement will result in immediate cancellation of this Agreement by the Company and forfeiture by Affiliate of any accrued, unpaid commissions. In addition, Company shall pay any pending commissions owed to the Affiliate through the cancellation date if a cancellation of this Agreement occurs for any reason other than a violation of this Agreement on the part of the Affiliate. Upon cancellation by either party, Affiliate’s limited license to use the intellectual property of Company for the purpose of promoting the products and/or services offered through the Affiliate Program will cease as of the cancellation date.
5. PROMOTIONAL MATERIALS
The Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, as specified by the Company.
6. USE OF PROMOTIONAL MATERIALS
The Affiliate’s use and display of the Promotional Materials on the Affiliate’s website shall conform to the following terms, conditions, and specifications:
- The Affiliate may not use any trademarks, logos, graphics, textual, informational, or other materials to promote Company’s website, products, or services other than the Promotional Materials provided by Company unless Company approved such other materials in writing prior to their display.
- The Affiliate may only use the Promotional Materials to promote the Company’s website (and the products and services available thereon) and for linking to Company’s website.
- Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by Company. If Affiliate wishes to change or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from the Company for such alteration or modification.
The Promotional Materials will be used to link only to Company’s website, to the specific website page specified by Company.
- The Affiliate agrees to follow the guidelines for the use of promotional materials, which can be found within the Affiliate dashboard Links & Banners (“Guidelines.”)
In case of a conflict or inconsistency between the Guidelines and this Agreement, this Agreement will prevail.
7. LIMITED LICENSE TO USE INTELLECTUAL PROPERTY
Upon acceptance into the Affiliate Program, Company grants the Affiliate a revocable, non-exclusive, worldwide, royalty-free license to use the Promotional Materials provided by the Company during the Term of this Agreement.
- The Affiliate may display these materials on the Affiliate’s website to participate in the Affiliate Program.
- The Affiliate is prohibited from distributing, reproducing, modifying, amending, or creating derivative works of the Promotional Materials. Upon cancellation by either party, the Affiliate’s limited license to use the Promotional Materials to promote the products and/or services offered through the Affiliate Program will cease as of the cancellation date.
- Upon the cancellation, the Affiliate must immediately cease using the Promotional Material.
- The Affiliate is not granted a license to use any of the Company’s intellectual property or proprietary material other than the Promotional Materials discussed above.
8. AFFILIATE INTELLECTUAL PROPERTY
The Affiliate grants the Company a revocable, non-exclusive, worldwide, royalty-free license to use the Affiliate’s trademarks, trade names, service marks, business names, web page titles, slogans, logos, and copyrighted materials for the purposes of promoting, advertising, announcing, or marketing the Affiliate’s participation in the Affiliate Program. The Company has no obligation to announce, advertise, market, or promote the Affiliate participation in the Company Affiliate Program but reserves the right to do so at its sole discretion.
9. AFFILIATE’S DUTIES
- The Affiliate is solely responsible for the development, maintenance, and operation of the Affiliate’s website and for placing Links on the Affiliate’s website in compliance with the terms of the Affiliate Program.
Affiliate is responsible for disclosing that the Links provided on its website or marketed to potential customers by other means are affiliate links in accordance with Section 5 of the Federal Trade Commission Act.
Affiliate is responsible for all materials that appear on Affiliate’s website and for ensuring that such items do not infringe upon the rights of any third party, including, but not limited to, copyright, trademark, privacy, or other proprietary rights.
10. CUSTOMER SERVICE
The Company will handle all aspects of customer service for customers who purchase through the Affiliate’s Link, including customer inquiries, product orders, customer billing and collection, and product shipment. Company reserves the right to change the Company’s policies and procedures, pricing structure, add or cancel any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advance notice to the Affiliate or customers purchasing through the Affiliate’s Link.
a. Company’s Warranties: Company represents, warrants, and covenants that Company has full authority to enter into this Agreement and that all of the services, whether performed by Company or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.
b. Affiliate’s Warranties: Affiliate represents, warrants, and covenants that Affiliate has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases, or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Affiliate’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term. The Affiliate represents warrants and covenants that its website does not and will not contain any materials that are illegal and that the Affiliate’s site is not operated for an unlawful purpose or in an illegal manner.
c. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.
12. LIMITATION OF LIABILITY
a. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND
b. IN NO EVENT SHALL A PARTY’S LIABILITY EXCEED THE FEES PAID UNDER THIS
AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY.
c. THE FOREGOING LIMITATIONS IN THIS PARAGRAPH 12 SHALL NOT APPLY TO THE OBLIGATIONS UNDER PARAGRAPHS 6, 7, 13, and 21.
The Affiliate hereby indemnifies and holds harmless the Company, its officers, directors, employees, contractors, affiliates, agents, successors, and assigns from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Company may incur and which are based in whole or in part upon the Affiliate’s participation in the Affiliate Program, any claims that any of the Affiliate trademarks and other intellectual property and proprietary material infringe upon the rights of any third party, the Affiliate breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Affiliate use, operation or the content of the Affiliate’s website.
14. EFFECT OF HEADINGS
The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
15. ENTIRE AGREEMENT; MODIFICATION; WAIVER
This Agreement constitutes the entire Agreement between the parties pertaining to the subject matter and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. The Company may modify the Affiliate Program or this Agreement by providing notice to Affiliates in advance. Affiliate’s continued use of the Affiliate Program will be deemed consent to these amendments. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
16. NEUTRAL CONSTRUCTION
This Agreement was prepared by Company and/or its counsel. It is expressly understood and agreed that this Agreement shall not be construed against Affiliate merely because the Company’s counsel prepared it; each provision of this Agreement shall be construed in a manner that is fair to both parties.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument.
This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns; provided, however, that Affiliate may not assign any of its rights under this Agreement, except to a wholly-owned subsidiary entity of Affiliate. No such assignment by Affiliate to its wholly-owned subsidiary shall relieve Affiliate of its obligations or duties under this Agreement.
All notices, requests, demands, and other communications under this Agreement shall be in writing. They shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given or by email, or on the day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
To Company at:
535 N Interlachen Ave.
Suite 305 Winter Park, FL 32789
To Affiliate at the email address and/or physical address provided on the application form completed by Affiliate at the time of enrollment.
Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.
20. GOVERNING LAW; VENUE
This Agreement shall be construed in accordance with, and governed by, the laws of the State of Florida as applied to contracts that are executed and performed entirely in Florida. The exclusive venue for any court proceeding based on or arising out of this Agreement shall be Orange County, Florida.
21. RECOVERY OF LITIGATION EXPENSES
If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
If any term, provision, covenant, or condition of this Agreement is held by any arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
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Updated as of July 2022