Postscript Partner Terms of Service
Updated: February 1, 2020
POSTSCRIPT AFFILIATE PROGRAM AGREEMENT
This Affiliate Program Agreement (the “Agreement”) is a binding agreement between Stodge, Inc. (“Postscript”, the “Company”) and you, the business entering into this Agreement, (“Affiliate”), (collectively “the Parties”). This Agreement governs your
participation in the Postscript Affiliate Program as further described herein (the “Program”).
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS ARBITRATION PROVISIONS AND LIABILITY LIMITS, AMONG OTHER THINGS. YOU MAY NOT PARTICIPATE IN THE PROGRAM IF YOU DO NOT ACCEPT THIS AGREEMENT.
Purpose. Company is in the business of offering an SMS marketing platform to ecommerce businesses. Affiliate is in a position to refer prospective customers to Company.
This Agreement provides the terms and conditions under which Affiliate
will do so as part of the Program.
Purpose. Company is in the business of offering an SMS marketing platform to ecommerce businesses. Affiliate is in a position to refer prospective customers to Company. This Agreement provides the terms and conditions under which Affiliate will do so as part of the Program.
Referral Arrangement. By accepting this Agreement and participating in the Program, Affiliate may, from time to time, refer new prospective customers (the “New Customers”) to Company on a non-exclusive basis. Company will pay Affiliate a Referral Fee for each Successful Referral. A “Successful Referral” occurs where: (a) a New Customer signs up for the Postscript services directly using: (1) Affiliate’s dedicated “Affiliate Link” provided by Company or (2) a “Lead Form” provided to Affiliate by Company and submitted to the Company by the New Customer and (b) the New Customer converts to a paid Postscript account directly following the New Customer’s access to the Postscript services following the use of the Affiliate Link or submission of the Lead Form to Company. Further, a referral will only be a “Successful Referral” if the New Customer is not a customer that (i) the Company has already contracted with or contacted about its services or (ii) has already been referred to Company by a third party.
Referral Fee. For each Successful Referral, Company shall pay Affiliate a monthly fee of 10% of the referred New Customer’s monthly subscription fees collected by Company for the first 12 months of such New Customer’s subscription to the Company’s services (the “Referral Fee”); provided that such Referral Fee is due and payable to Affiliate only (i) for so long as the subscription is in effect, and (ii) net thirty (30) days after the New Customer’s monthly subscription fee is received by Company.
Payments in the Postscript Partner Program are handled by third-party provider (currently GrowSumo a.k.a PartnerStack) (the “Payment Provider”). In order to receive payments under this Agreement, Affiliate must create and maintain an account with Payment Provider in the Payment Provider’s online or app-based dashboard (“Payment Provider Platform”), which is provided pursuant to terms directly between the Payment Provider and Affiliate. Affiliate must keep all information updated and complete within the Payment Provider Platform to receive proper payments. Payments returned due to incorrect payment email addresses or other incorrect information will not be returned. The Payment Provider Platform will reflect payment history to Affiliate, and the parties agree that: (a) the data shown in the Payment Provider Platform will govern payments to be made, subject to Company’s right to correct errors based on its own records and (b) records and payments will be deemed complete, incontestable, and final twelve (12) months after the applicable Successful Referral occurs.
Relationship of the Parties. Affiliate is an independent contractor of Company and nothing in this Agreement shall be construed to create any association, partnership, joint venture, employee or agency relationship between the Company and Affiliate for any purpose. Affiliate has no authority (and shall not hold itself out as having authority) to bind Company and Affiliate shall not make any agreements or representations on Company’s behalf. Either Party is solely responsible for paying all of its costs and expenses related to this Agreement.
Term. This Agreement shall commence upon the date that Affiliate joins the Program and will continue until otherwise terminated by one of the Parties pursuant to Section 7 of the Agreement.
Confidentiality. During the course of this Agreement, it may be necessary for either Party to share proprietary and/or confidential information with the other Party, including, but not limited to trade secrets and non-public industry knowledge (the “Confidential Information”). Either Party will not share any Confidential Information with any third party at any time. Affiliate will also not use any Confidential information for his/her or a third party’s personal benefit at any time. This section remains in full force and effect even after termination of the Agreement.
Termination. This Agreement may be terminated at any time by: (a) either Party upon 30 days written notice to the other Party or (b) by Company immediately upon notice if Affiliate breaches any provision of this Agreement. If Company terminates the Agreement under Section 7(a), payment obligations pursuant to Section 3 of the Agreement for Successful Referrals shall survive for a period of three (3) months after termination of the Agreement; provided that Affiliate is only entitled to Referral Fees for New Customers which it has referred to Company through a Successful Referral sent prior to the effective date of termination of the Agreement. Payment obligations will cease immediately upon Company’s termination of the Agreement under Section 7(b) or Affiliate’s termination of the Agreement under Section 7(a). Sections 6 through 19 will survive termination of this Agreement.
Representations and Warranties. Both Parties represent that they are fully authorized to enter into this Agreement and that each Party shall comply with all applicable laws, rules, regulations and not violate or infringe upon any third-party rights in its performance of its rights and obligations under this Agreement. Affiliate further represents and warrants that: (a) it will comply with all laws, rules, and regulations; (b) it will conduct itself in an ethical manner and refer only bona fide New Customers to Company; and (c) it will not infringe or otherwise violate any third-party right.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO AFFILIATE OR ANY THIRD PARTY UNDER ANY CONTRACT, NEGLIGENCE, STRICT LABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
COMPANY WILL HAVE NO LIABILITY FOR THE ACTS OR OMISSIONS OF THE PAYMENT PROVIDER OR THE PAYMENT PROVIDER PLATFORM.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH in this Agreement, COMPANY DOES NOT MAKE ANY OTHER REPRESENTATION, WARRANTY, OR GUARANTY, as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of THE PROGRAM PROVIDED OR offered hereunder. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PROGRAM IS PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING COMPENSATION OR ANY OTHER BENEFITS THAT AFFILIATE WILL RECEIVE. ALL OF COMPANY’S OBLIGATIONS ARE AS, AND ONLY AS, EXPRESSLY STATED IN THIS AGREEMENT. AFFILIATE HAS NO RESPONSIBILITY TO COMPANY IF REFERRALS DO NOT LEAD TO SUCCESSFUL REFERRALS.
No License Grant. Nothing in this Agreement shall be construed as granting Affiliate, by implication, estoppel or otherwise, any license or other right under any intellectual property rights of the Company.
Severability. In the event any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, that part shall be severed from the remainder of the Agreement and all other provisions should continue in full force and effect as valid and enforceable.
Waiver. The failure by either Party to exercise any right, power or privilege under the terms of this Agreement will not be construed as a waiver of any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
Governing Law and Jurisdiction.
This Agreement, and any disputes, actions, claims, or causes of action arising out of related to this Agreement, will be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules. Any disputes, actions, claims, or causes of action arising out of related to this Agreement shall be submitted to and finally settled by arbitration in Los Angeles, California, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (JAMS) then in effect, by one or more commercial arbitrator(s) appointed in accordance with said
rules. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each Party shall have the right to institute an action in any court of competent jurisdiction for injunctive relief.
No Class Action.Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the Parties may be consolidated with any
other arbitration proceeding involving Company and any other person or
entity. Each Party shall file and prosecute arbitration proceedings separately and individually in the name of the respective Parties, and not in any representative capacity. Each Party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section. BY AGREEING TO THIS AGREEMENT, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT (i) TO A COURT TRIAL OR (ii) TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST COMPANY AND/OR RELATED THIRD PARTIES, EVEN IF ARBITRATION IS NOT REQUIRED UNDER THIS AGREEMENT.
Limitations. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED.
Assignment. Affiliate shall not assign, transfer, or delegate any of its rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise,
without the prior written consent of the Company. Company may freely assign this Agreement.
Notice. Notice to Affiliate may be given by a notification within the Payment Provider Portal and/or email to Affiliate to the address provided to Company. Notice will be effective when given. Notice to Company may be given by email to Company at firstname.lastname@example.org and will be effective when received.
Entire Agreement.The Parties acknowledge and agree that this Agreement represents the entire agreement between the Parties, and supersedes all prior agreements related to the Program or any other commission based program. Postscript may amend this Agreement from time to time based on changes to the Program, in which case the new Agreement will supersede prior versions.the latest version. The Parties may also document modifications to this Agreement by way of an amendment signed (in ink or electronically) by the Parties.