Affiliate Agreement

Affiliate Agreement

This Affiliate Agreement (the “Affiliate Agreement”) sets forth the terms and conditions regarding the Service Improvement Manager Affiliate Program (the “Program”) delivered through Service-Improvement.com (the “Site”) and managed by Solisma Pty. Ltd. (“Solisma”).

BY SELECTING THAT YOU HAVE READ THE TERMS OF AGREEMENT AND JOINING THE PROGRAM, YOU (IF YOU ARE ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL) OR YOUR COMPANY (IF YOU ARE ACTING ON BEHALF OF YOUR COMPANY) (THE “AFFILIATE”) AGREE(S) TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.

1. Definitions

Capitalized terms in this Agreement will have the meanings set forth below or attributed to them in various sections of the Agreement. However, use of the term “Affiliate” in this Agreement shall not be interpreted or construed to mean that any party to this Agreement is an “Affiliate” of any other party for purposes of any federal and state securities laws.

  • “SIM” means Service Improvement Manager.
  • “Referral Visitors” means a unique end-user who accesses the Site through i) a Link on an Affiliate’s website or placed banner advertisement, or ii) a Link in an Affiliate message in social media or email.
  • “SIM Brand Collateral” means Service-Improvement.com and Service Improvement Manager trade names, trademark, service mark and/or logo authorized by Solisma and found at the Site or in existing SIM marketing campaigns.
  • “Advertising Content” means Solisma-provided, text adds, banners, marketing and other content.
  • “SIM Product” means the SIM software solution made available through the Site.
  • “Intellectual Property Rights” means all rights in and to trade secrets, patents, copyrights, trademarks, know-how, as well as moral rights and similar rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.
  • “Link” means a hypertext and/or graphical link, provided by Solisma to registered Affiliates, which allows a Referral Visitor to automatically transfer from the Advertising Content to the Site and contains tracking information which connects the Referral Visitor to the particular Affiliate.
  • “Subscriber” means a paying SIM user with an active, paid in full SIM subscription plan who was referred by Affiliate.
  • “Referral” means any of the following: i) a visitor to the Site referred by an Affiliate that has not signed up for SIM, ii) a SIM user that has signed up for a Demonstration/Free Plan, or iii) a SIM user signed up for a paying plan but that is not currently paying Solisma for use of the site, including but not limited to a user that is on a trial or in an expired state.

2. Getting Started in the Program

To get started, Affiliate will click to join the Program, thereby agreeing to these terms and conditions. Solisma may reject your application and reserves the right to refuse or revoke participation in the Program for any reason.

3. Links

Links may not be placed in newsgroups, unsolicited e-mail, banner networks, counters, chatrooms or guestbooks. Any Affiliate Link placed must be done so in such a way that it is not misleading to any potential Referral Visitor and done with the intention of delivering users to the Site for that Link. Affiliate acknowledges that it will use only approved SIM Brand Collateral and Advertising Content provided by Solisma under the Program for outreach to potential Referral Visitors. Affiliate will not use or display the Link(s) or the SIM Brand Collateral or Advertising Content in a manner that is defamatory, misleading, libelous, and obscene or otherwise potentially damaging to the reputation of Solisma, or the goodwill associated with the Solisma and SIM brands.

4. Affiliate Obligations and Restrictions

Affiliate will be solely responsible for the development, operation and maintenance of any Affiliate site, email and/or social media presence (collectively “Affiliate Assets”) and for all materials that appear on Affiliate Assets, including but not limited to: (a) the accuracy and appropriateness of materials posted on Affiliate Assets; and (b) ensuring that materials posted on Affiliate Assets do not violate or infringe upon the rights of any third party. Affiliate agrees to refrain from the following: (a) purchasing and/or using domain name(s) that incorporate any portion of the SIM Brand Collateral; (b) purchasing any search engine keywords that outrank and/or outbid any of the SIM Brand Collateral; (c) identifying the Affiliate Assets as an “official site” (“Affiliate” or “authorized Affiliate” are permitted uses); and (d) changing any SIM Product price and/or offering any additional discounts or rebates on any SIM Product. Affiliate hereby agrees to indemnify, defend and hold harmless Solisma, its shareholders, officers, directors, employees, agents, affiliates, partners, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including, without limitation, attorneys’ fees) arising from the development, operation, maintenance and contents of Affiliate Assets.

5. Order Processing

Solisma will process orders placed by users who follow the Links to the Site. Solisma reserves the right to reject or withhold acceptance or fulfillment of orders for any reason or for no reason, including but not limited to the failure of any Subscriber making an order to comply with our terms and conditions of sale, (which we may revise periodically without notice to you). Solisma will be responsible for all aspects of order processing and fulfillment. The amount of sales generated using the Links to the Site will be tracked by Solisma. Affiliate will have access to a reporting section on the Site where Affiliate can check sales activity. To permit accurate tracking and reporting, Affiliate must ensure that the Links between Affiliate site and the SIM Site are properly formatted and are maintained.

6. Commissions

Terms and conditions of commission payments are as follows:

  • Commission will be calculated each month and credited to the Affiliate’s account by default.
  • Commission will only be credited for Subscribers who originate from the designated Affiliate referral code or URL contained in the Links embedded in the Advertising Content.
  • Solisma will credit commissions only for Subscribers. Commission is not paid for Referrals until they become Subscribers.
  • Commission is calculated starting on the date the Subscriber completes their first order, but does not mature until the Subscriber has been active for 60 days.
  • Solisma will not pay commission on the Affiliate’s own SIM account. An Affiliate who signs-up for a SIM account though their own referral code or URL is not considered a valid Referral or Subscriber.
  • Solisma will credit commission amounts (“Commissions”) to the Affiliate’s account for Subscribers referred by Affiliate based 10% of fees collected by Solisma for the duration of their SIM Subscription.

7. Payments

Subject to Section 6 above, Solisma will calculate and apply the Commissions earned as a credit to the Affiliate’s account every month. Commission will not be paid in cash unless the Affiliate meets a minimum level of performance criteria as determined by Solisma and reviewed from time to time. For Affiliates that qualify for cash payments, these will be made to the Affiliate’s bank account on a quarterly basis, according to the terms to be agreed between the Affiliate and Solisma in writing, less any other fees or reduction for returns that Solisma is required by law to withhold, and excluding fraudulent, redundant, or non-qualifying Commissions. If the Commissions payable to Affiliate for any calendar quarter are less than AUD $1,000.00, Solisma will hold those fees until the total amount due is at least AUD $1,000.00 (unless this Agreement is terminated). Affiliate may be taxed on the accrual of Commissions, depending on the tax laws of Affiliate’s federal, state, and local jurisdictions. Affiliate shall be responsible for any and all tax liability arising out of your accrual or receipt of Commissions and Affiliate hereby agrees to indemnify and hold Solisma harmless from any and all claims, damages and expenses (including, without limitation, attorneys’ fees) arising from such tax liability.

8. License Grant

Affiliate is only entitled to use the SIM Brand Collateral and Advertising Content to the extent that the Affiliate is a member in good standing in the Program.

9. Reservation of Rights

Solisma reserves all rights other than those expressly granted in this Agreement, and no licenses are granted except as expressly set forth herein. Solisma retains all right, title, and interest in and to the SIM Brand Collateral, the Advertising Content and the SIM Product together with all Intellectual Property Rights thereto. In addition, Solisma shall establish all SIM Product pricing and associated fees. Solisma may, in its sole discretion, change the SIM Product pricing with or without notice.

10. Program Information

Solisma will own all right, title and interest in and to all information that is created or collected in the operation of the SIM Site including, without limitation: (i) any contact information collected from any Affiliate Referrals (the “Contact Information”); and (ii) any information collected about product sales at the Site generated through the Link(s), (the “Sales Information”). Solisma (will/can) not share contact information to Affiliates and/or other third parties. Solisma will make certain aggregate Sales Information available online to Affiliate from time to time. Affiliate will not disclose any Sales and Marketing Information to any third party without Solisma’s prior approval. Each party shall comply with its respective privacy policies and statements in handling, using and disclosing any Contact Information and Sales Information.

11. Termination

This Agreement will become effective on the Effective Date and ends when terminated by either party in accordance with this Agreement. This Agreement may be terminated (i) by Solisma, with or without cause, and with or without notice to Affiliate, and (ii) by Affiliate, with or without cause, by ceasing to use or display SIM Brand Collateral and Advertising Content, and by notifying Solisma of its intention to terminate the Agreement. Upon termination or expiration of the Agreement: (i) all licenses granted herein shall terminate; (ii) Affiliate shall immediately remove any Link(s) and SIM Brand Collateral from Affiliate Assets; (iii) Subject to Section 7. Solisma will pay Affiliate any accrued and unpaid Commission, provided such Commission exceed AUD $100.00; and (iv) Sections 13, 14, 15, 16, 17, and 19 and this sentence will survive. If Solisma should terminate this Agreement because Affiliate is in breach of a material term, Solisma may withhold Commissions or Bounties payable to you in an amount equal to the amount by which Solisma believes in good faith that we have been damaged by such breach, including prospective damages and damages resulting from claims by third-parties caused by such breach.

12. Modification

At any time and in Solisma’s sole discretion, Solisma may modify any of the terms and conditions contained in this Agreement by (i) posting a change notice or a new agreement on the Site and/or (ii) e-mailing a revised agreement to Affiliate. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this Agreement. Affiliate’s continued participation in the program following Solisma’s posting of a change notice or new agreement on the Site and/or Affiliate’s receipt of a revised agreement will constitute binding acceptance of the modification.

13. Disclaimer

THE SITE, THE PROGRAM AND RELATED SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY, AND SOLISMA EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SITE OR THE PROGRAM, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, SOLISMA MAKES NO REPRESENTATION OR WARRANTY THAT THE LINKS, THE TRACKING DATA, THE OPERATION OF THE SITE, OR THE PROGRAM FOR TRACKING AND REPORTING SALES GENERATED BY AFFILIATE’S ASSETS WILL BE UNINTERRUPTED OR ERROR-FREE, AND SOLISMA SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA. SOLISMA SHALL HAVE NO LIABILITIES OR OBLIGATIONS UNDER WARRANTY OR OTHERWISE TO ANY OF YOUR CUSTOMERS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF SOLISMA’S PRODUCTS.

14. Limitation of Liability

UNDER NO CIRCUMSTANCES WILL SOLISMA BE LIABLE WHETHER IN TORT, CONTRACT OR OTHERWISE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR ANY LOSS OF REVENUE, PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING FROM OR RELATING TO ANY PROVISION OF THIS AGREEMENT OR THE PROGRAM. WITHOUT LIMITING THE FOREGOING, SOLISMA’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.

15. Authority

If the person entering into this Agreement is acting on behalf of his or her company, such person represents to Solisma that he or she has all requisite corporate power and authority to enter into this Agreement on behalf of Affiliate, that this Agreement has been duly authorized by Affiliate and that this Agreement will constitute the legal, valid and binding obligation of Affiliate. Such person hereby agrees to indemnify and hold Solisma harmless from any and all claims, damages and expenses (including, without limitation, attorneys’ fees) arising from any breach of this Section. If the person entering into this Agreement is acting on one’s behalf, such person represents to Solisma that he or she is an individual, 18 years of age or older.

16. Publicity

Affiliate shall not create, publish, distribute, or permit any original written material that makes reference to Solisma or the SIM Product without first submitting such material to Solisma and receiving written consent from Solisma.

17. Relationship of Parties

Affiliate and Solisma are independent parties, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or the relationship of principal and agent between the parties. Affiliate will have no authority to make or accept any offers or representations on Solisma’s behalf. Affiliate will not make any statement, whether on Affiliate Site or otherwise, that reasonably would contradict anything in this Section. Affiliate, as an independent contractor, will have sole responsibility for its expenses, employees, sales representatives and agents.

18. Communications

Affiliate agrees that by becoming an Affiliate, Solisma will contact you on a periodic basis with information about the Program.

19. Miscellaneous

This Agreement shall be interpreted in accordance with the laws of the State of Victoria without reference to conflicts of laws, provisions, and any legal proceeding arising out of this Agreement will occur in Victoria, Australia. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. This Agreement contains the entire agreement between Solisma and Affiliate with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral, between Solisma and Affiliate with respect to the subject matter hereof. Affiliate may not assign all or any part of this Agreement without Solisma’s prior written consent. Except as set forth in Section 12, this Agreement may not be modified without the prior written consent of both parties.

20. Assignment

You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties to this Agreement and their respective successors and assigns.

21. Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.