Affiliate Marketing Agreement

Affiliate Marketing Agreement
This affiliate marketing agreement (the “Agreement”) governs the terms of the relationship between Podcast Professors, LLC, dba PODCASTPROFESSORS.com (“PODCASTPROFESSORS”), and you (the “Affiliate”) and takes effect on the date on which PODCASTPROFESSORS has accepted you as a member of its affiliate marketing program (the “Program”) (the “Effective Date”).

By choosing to become an Affiliate in our Program, you agree to be bound by the terms of this Agreement and those set forth in the agreement with our Affiliate Servicer (as defined herein). The Affiliate’s continued participation in the Program shall constitute consent and agreement to such terms and conditions. If you choose not be bound by the terms of this Agreement, you may send a notice to PODCASTPROFESSORS notifying them that you will no longer participate as an Affiliate of the Program.

PODCASTPROFESSORS reserves the right to modify the terms of this Agreement at any time without notice. The most current form of this agreement shall be available for your examination at www.PODCASTPROFESSORS.com/affiliate-marketing-agreement. Your continued participation as an Affiliate in the Program shall constitute acceptance of the modified terms.

SERVICES
The Affiliate shall obtain from an PODCASTPROFESSORS-designated third party, one HTML link, at a minimum, to PODCASTPROFESSORS’s designated website(s) (the “Link” or if several of them are provided, “Links”). The designated PODCASTPROFESSORS website, as of the Effective Date, is www.PODCASTPROFESSORS.com (the “Website”). Once the Affiliate is accepted into the Program, it will have the opportunity to display the Links on its own website in accordance with the terms and conditions of this Agreement, in an effort to direct Internet traffic to the Website (the “Services”).

PODCASTPROFESSORS reserves the right to monitor the Affiliate’s website in its discretion to ensure the Affiliate’s compliance with the terms of this Agreement and of the Affiliate Participation Guidelines, which can be found by clicking on the following link: www.PODCASTPROFESSORS.com/affiliate-participation-guidelines. However, it is the Affiliate’s obligation to maintain and manage its own website, and PODCASTPROFESSORS takes no responsibility for its functionality or performance.

LICENSE
Throughout the Term, PODCASTPROFESSORS grants to the Affiliate a limited, non-exclusive, non-transferable, revocable right to publish one or more Links to the Website through HTML, solely in accordance with the terms of this Agreement, and solely as required to allow prospective customers of PODCASTPROFESSORS to obtain access to the Website. The Affiliate may also, solely to the extent provided herein, in connection with providing the Services hereunder, use PODCASTPROFESSORS’s logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) as provided to Affiliate by PODCASTPROFESSORS, or as otherwise authorized by PODCASTPROFESSORS in writing. As of the Effective Date, the Affiliate may use only the following Licensed Materials: the names/trademarks “PODCASTPROFESSORS” and “PODCASTPROFESSORS.com”. Affiliate agrees that all uses of the Licensed Materials will be on behalf of PODCASTPROFESSORS and that any and all of the goodwill associated with Affiliate’s use of such Licensed Materials will inure to the sole benefit of PODCASTPROFESSORS.

The Affiliate may not publish, display or use any Licensed Materials on its website or elsewhere, except with PODCASTPROFESSORS’s prior written consent. All marketing, publicity or other materials used which refer to or use PODCASTPROFESSORS’s or any of its affiliates’ names or which refer to such entities or their respective goods and/or services (the “Ad Materials”), shall be sent to PODCASTPROFESSORS for review and approval, no later than fifteen (15) business days prior to the intended publication, display or other use of the Ad Materials. The Affiliate shall also provide to PODCASTPROFESSORS all reasonably aPodcastProfessorslicable information pertaining to the intended use of the Ad Materials concurrently with its request, providing PODCASTPROFESSORS with sufficient specificity as to where such Ad Materials shall be used, where they will be published, who the intended audience will be, and any other relevant information that will allow PODCASTPROFESSORS to make an educated decision with respect to its review.

PODCASTPROFESSORS shall review the materials and notify the Affiliate no later than fifteen (15) business days after receipt of the Ad Materials and other applicable information, whether such Ad Materials and usage are approved for the intended disclosed use; provided, however, that such approval may be given or not, in PODCASTPROFESSORS’s sole discretion. PODCASTPROFESSORS may also notify the Affiliate that Ad Materials are approved, provided that certain reasonable changes are made to the materials themselves, or the way in which they will be published, displayed or used. The Affiliate shall comply with all such requests.
Subject to the licenses granted herein, PODCASTPROFESSORS retains all right, title and interest in any and all of its intellectual property and confidential information, including in the Licensed Materials.

TERM AND TERMINATION
This Agreement shall commence on the Effective Date, and continue in full force and effect until terminated pursuant to the terms hereunder (the “Term”)
Either party may terminate this Agreement at any time, for any or no reason, without penalty, by giving the other party written notice at least thirty (30) days in advance.
PODCASTPROFESSORS may terminate this Agreement immediately, if the Affiliate, in PODCASTPROFESSORS sole judgment, (i) fails to establish, and comply with, an adequate policy as required by Federal Trade Commission (“FTC”) guidelines with respect to the proper disclosure to consumers of the Affiliate’s goods or services of endorsements for which Affiliate provides or is provided compensation; (ii) commits fraud in its use or display of the Link(s); (iii) engages in any type of misconduct incompatible with the image and reputation established by PODCASTPROFESSORS for Affiliates participating in the Program; and/or (iv) breaches any of the conditions or restrictions set forth in the “Conditions and Restrictions” section below.

Upon any termination of this Agreement, the Affiliate must immediately cease displaying the Link to the Website, and any and all use of the Licensed Materials. The Affiliate must also destroy any marketing or other publicity materials, if any, and certify to PODCASTPROFESSORS that such destruction has been successfully accomplished. Subject to the terms of this Agreement, PODCASTPROFESSORS shall pay the Affiliate any Commissions earned up to and including the effective date of termination.

PAYMENT TERMS
PODCASTPROFESSORS shall pay or cause to be paid to the Affiliate a twenty percent (20%) commission on actual sales of PODCASTPROFESSORS goods/services made (minus any applicable offsets), which shall be calculated based on actual converted sales of PODCASTPROFESSORS goods or services made as a direct result of the referred customer’s use of the Link (the “Commission”). The Commission shall be calculated by a third party engaged by PODCASTPROFESSORS to provide such services (the “Affiliate Servicer”), the calculations of which party shall, in the absence of manifest error, be binding on PODCASTPROFESSORS and Affiliate. Affiliate agrees that as a condition to its acceptance into PODCASTPROFESSORS Program, Affiliate will complete an application supplied by the Affiliate Servicer and agrees to be bound by the terms and conditions imposed by such Affiliate Servicer. PODCASTPROFESSORS shall have no responsibility to resolve any dispute arising between Affiliate and the Affiliate Servicer. PODCASTPROFESSORS shall thereafter provide to the Affiliate information to allow it to create an online account at the facilities of the Affiliate Servicer and log in to such account, to track and see how commissions are calculated for any given reporting period. Affiliate shall be responsible for maintaining electronic and telecommunications connectivity with the Affiliate Servicer’s facilities.

If the Affiliate is engaged in any prohibited conduct described in the “Conditions and Restrictions” Section below, or fails to provide adequate information regarding the Services pursuant to PODCASTPROFESSORS request, then, in addition to and not in lieu of PODCASTPROFESSORS right to termination, the Affiliate’s unpaid current and past commissions may be voided or its future commission level may be set to zero percent (0%) for such period of time as PODCASTPROFESSORS may determine in its sole discretion.
PODCASTPROFESSORS also reserves the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and suspected breaches by Affiliate of the terms of this Agreement, all of which shall be considered offsets to the base amount used to calculate the Commission.

CONDITIONS AND RESTRICTIONS
The Affiliate agrees that it shall: (i) only use linking code obtained from or on behalf of PODCASTPROFESSORS without modification or manipulation, other than as PODCASTPROFESSORS may authorize in writing in advance, and (ii) not to use the Licensed Materials in any manner that is disparaging, misleading, obscene, or otherwise portrays PODCASTPROFESSORS in a negative light.

The Affiliate may not, and agrees not to, engage in any of the following conduct:
• spamming.
• cybersquatting and typosquatting.
• distributing viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system data, or personal information.
• using software or technology that attempts to intercept, divert, or redirect internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website.
• using any of PODCASTPROFESSORS name, Licensed Materials or portions thereof as part of a domain or subdomain name (e.g., PODCASTPROFESSORS.example.com or www.PODCASTPROFESSORS-coupons.com), provided however, that trademarked terms may be used by the Affiliate as a directory of its domain name (e.g., www.example.com/PODCASTPROFESSORS).
• copying, resembling, or mirroring the look and feel of the Website.
• Using any means to create the impression that the Affiliate’s website(s) is, or is associated with, the Website, or any part thereof, including, framing of the Website.
• engaging in cookie stuffing or including false, or misleading links on its website.
• attempting to mask the referring URL information (i.e., the page from where the click is originating).
• using redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that URL.
• using its website to promote sexually explicit materials, violence, discrimination, and/or illegal activities.
• using its website to distribute or sell downloadable software, toolbars, browser helper objects, or other software applications.
• conducting paid search campaigns containing PODCASTPROFESSORS name or Licensed Materials, including by submitting bids on internet advertising networks.
• infringing anyone’s intellectual property, or anyone’s publicity, privacy or other rights.
• violating any law, rule, or regulation.
• posting or using on its website any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials.
• creating, publishing, distributing, or printing any written material that makes reference to any of the PODCASTPROFESSORS programs without first submitting that material to PODCASTPROFESSORS and receiving PODCASTPROFESSORS prior written consent.

WARRANTIES
The parties each represent and warrant that:
• This agreement has been duly and validly executed and delivered and constitutes a legal, valid, and binding obligation, enforceable against it in accordance with its terms.
• It has the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform its obligations under this Agreement, without the approval or consent of any other party.
• It has sufficient right, title, and interest in and to the rights granted in this Agreement and there is no conflict in undertaking the obligations undertaken herein.
The Affiliate also represents and warrants to PODCASTPROFESSORS that it shall at all times comply with all applicable laws, rules, regulations, ordinances and other legal requirements in the conduct of its business and in the provision of the Services.

NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THEIR RESPECTIVE WEBSITES, OR THE PRODUCTS OR SERVICES OFFERED THEREIN. ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, NEITHER PARTY MAKES ANY REPRESENTATION THAT THE OPERATION OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

LIMITATION ON LIABILITY
PODCASTPROFESSORS will not be liable under any contract, negligence, tort, strict liability or other legal or equitable theory for any indirect, incidental, consequential, special or other legal, exemplary, or equitable damages (including, without limitation, loss of revenue or goodwill, or lost business or profits), even if it has been advised of the possibility of such damages. Further, notwithstanding anything to the contrary contained in this Agreement, in no event shall PODCASTPROFESSORS cumulative liability 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 commission fees paid to the Affiliate pursuant to this Agreement during the twelve (12) month period immediately preceding the date of inception of the claim.

INDEMNIFICATION
The Affiliate hereby agrees to defend, indemnify and hold harmless PODCASTPROFESSORS and its subsidiaries and affiliates, and their respective 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 attorneys’ 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 intellectual property, content, copy, displays, or other materials infringe the intellectual property or other rights of a third party, (ii) the Affiliate’s misuse or improper display of the Licensed Materials, (iii) any misrepresentation, or breach of representation or warranty, (iv) any breach of a covenant made by it herein, and/or (v) the Affiliate’s website, including without limitation, content and other materials therein not attributable to PODCASTPROFESSORS.

CONFIDENTIALITY
All confidential information, including, but not limited to, any business, technical, financial and customer information, disclosed by one party to the other prior to, or throughout the Term which is marked “Confidential,” and any and all materials, including the Licensed Materials, provided by PODCASTPROFESSORS to the Affiliate, will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.

MISCELLANEOUS
This Agreement constitutes the entire agreement between the Affiliate and PODCASTPROFESSORS, superseding any prior agreements between the parties.
The parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.

The Affiliate will have no authority to make or accept any offers on PODCASTPROFESSORS behalf, or otherwise bind PODCASTPROFESSORS in any way. The Affiliate will not make any statement, whether on its website or otherwise, that reasonably would contradict anything in this paragraph.

This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws and principles thereof.
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.

This Agreement cannot be amend or modified except through a writing executed by both parties.

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.

Waiver of a claim by one party shall not be interpreted as waiver of any other claims arising hereunder.

The Affiliate may not assign this Agreement without PODCASTPROFESSORS prior written consent, whether by operation of law or otherwise, including by way of merger, acquisition, corporate reorganization, sale of all or substantially all assets or stock, or other corporate event.

Updated: 5-10-15