DEDUCTR AFFILIATE POLICY
Deductr, Inc. (herein “DDR”) is the developer and owner of a computerized software program of business expense accounting known as Deductr™ (herein “THE SERVICE”) which assists small business owners to identify, track and organize business expenses in order to utilize available income tax deductions.
PARTNER is in the business of selling and marketing various products, coaching, and services directly to the public and wishes to offer THE SERVICE on a subscription basis to its customers, agents, or distributors (herein “Customers”).
DDR will make THE SERVICE available, on special terms, and PARTNER will promote THE SERVICE to its Customers and the Parties will share in the revenue from those who subscribe (herein “Subscribers”) on the terms set forth in this Agreement.
1. PARTNER Responsibilities
1.1 Marketing. PARTNER shall use commercially reasonable efforts to actively market THE SERVICE to its customers. PARTNER shall work jointly with to: A) market and make THE SERVICE available to Customers; B) Establish necessary links and set up marketing to direct Customers to the appropriate websites in the manner provided by DDR; and C) offer THE SERVICE as outlined in Schedule A of this agreement.
1.2 Marketing Material. All promotional communications shall include only such information about THE SERVICE as approved by DDR. PARTNER shall indemnify DDR and hold DDR harmless from any and all claims attributable, in whole or in part, to PARTNER’s failure to accurately communicate information regarding THE SERVICE. (THE SERVICE IS AN AID IN DOCUMENTING AND RECORDING EXPENSES FOR SUBSCRIBERS THAT CAN BE USED TO HELP THEM CALCULATE THEIR TAXES. THE TAX LAWS OF THE UNITED STATES AND OTHER TERRITORIES ARE VERY COMPLEX AND SAMPLES LISTED AND EXAMPLES USED FOR ILLUSTRATION PURPOSES MAY NOT PROPERLY REFLECT SUBSCRIBERS’ SPECIFIC TAX SITUATIONS. ESTIMATED TAX SAVINGS CALCULATIONS IN THE SERVICE ARE NOT INTENDED TO REPLACE THE ADVICE OF TAX PROFESSIONALS. IT IS PROVIDED MERELY TO ILLUSTRATE POTENTIAL TAX DEDUCTIONS AND POSSIBLE TAX CONSIDERATIONS THAT MAY RELATE TO A SUBSCRIBER’S BUSINESS. WE STRONGLY ENCOURAGE SUBSCRIBERS TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE ANY IMPACT A SPECIFIC TAX DEDUCTION MAY HAVE.)
1.3 Representations. PARTNER shall at all times conduct its business in a manner that reflects favorably on THE SERVICE and upon DDR’s good name, goodwill, and reputation. PARTNER shall represent THE SERVICE fairly and shall not make any false or misleading representations regarding THE SERVICE that are inconsistent with DDR’s product literature, warranties, or documentation. PARTNER shall not engage in any illegal, deceptive, misleading, or unethical practices as they relate to THE SERVICE.
1.4 Exclusivity. During the Term of this Agreement, PARTNER shall not market, promote, broker, or sell any product that directly competes with THE SERVICE or which has similar functionality in that it tracks either the expenses, mileage, or hours of the customer or prospective customer.
2. DDR Obligations
2.1 The Service. DDR shall provide THE SERVICE to all Subscribers who subscribe in accordance with the terms of this Agreement. DDR shall have the right to specify all terms applicable to THE SERVICE in its sole discretion. DDR shall have the right to terminate or modify the subscription of any Subscriber who violates the Terms of THE SERVICE they agree to upon signup. Notwithstanding any other provision of this Agreement, DDR shall have no obligation or liability of any kind to PARTNER arising out of, or relating to the terms of, any Subscriber’s subscription, or any breach thereof, other than to disclose such breach. Except as otherwise provided herein PARTNER acknowledges and agrees that it accepts THE SERVICE in “as is” condition and on an “as available” basis and that DDR offers no representations or warranties regarding the completeness, operation, functions, usefulness, compatibility of THE SERVICE or any part thereof. DDR shall not be responsible for any third party software, products or services, which are not provided by DDR to PARTNER or its customers. The failure of third party software or services to perform or meet PARTNER’s requirements or needs shall not affect PARTNER’s obligation to DDR under this agreement, including PARTNER’s payment obligations (if any). DDR shall make all final determinations regarding the features, the attributes, and functionality of THE SERVICE. DDR shall have the right at any time and from time to time, in its sole discretion, to modify THE SERVICE, including, but not limited to, the capabilities, features, and other characteristics of any software upon which THE SERVICE is based.
2.2 Subscriptions. DDR shall provide PARTNER a unique affiliate ID code (herein “ID Code”) and registration page that will be used to link Subscribers to PARTNER. DDR will provide a back office “read only” view of Subscribers associated with this ID Code or registration page.
2.3 Customer Service. DDR shall service all customer and technical support for Subscribers including login information and passwords, training, and use of THE SERVICE by answering general customer service questions in a timely manner through online chat, email and/or telephone where appropriate. Currently, live customer service is available between the hours of 9am to 6pm Mountain Time Zone, Monday through Friday except on US national holidays.
2.4 Marketing. DDR has promotional features built into THE SERVICE, most of which automatically go out to Subscribers or are included as part of the application. These include, but are not limited to: a welcome letter; email campaigns; newsletters; automatic prompts using email; mobile apps and MMS text messages; upgrades of THE SERVICE and/or upgrades related to THE SERVICE; internal communications from customer support; outbound phone calls from customer support to respond to technical questions, provide other services, and solve technical servicing issues; and to gather statistical data regarding overall customer experience and use of THE SERVICE. Some of these services and products may be provided by third parties. Such automatic emails have “opt out” features built in which give Subscribers the option of not receiving additional promotional material from THE SERVICE. The selection of such features will not affect PARTNER’s ability to promote its products and services directly to Subscribers.
3. Covenants and Warranties of Both Parties.
3.1 Disclosures. Each Party represents and warrants that:
- A. Good Standing. It is a legal entity, validly existing and in good standing under the laws of its state of organization and the laws of the state of its principal offices as set forth above (if different).
- B. Full Authority. It has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
- C. No Violation. Its performance of the Agreement shall not violate any applicable law or regulation or any agreement to which it may now or hereafter be bound.
- D. Enforceability. This Agreement represents a valid obligation of the company and is fully enforceable against the company according to its terms.
- E. Compliance. It shall comply with the terms of this Agreement and with all applicable state and federal laws, rules and regulations, and shall indemnify the other party for any fines, looses or liabilities incurred as a result of the company’s failure to so comply.
- F. No Litigation. It and its officers and directors are not a party to any pending litigation, which could adversely affect its obligations hereunder.
4.1 Confidentiality. DDR and PARTNER each agree that it shall not use for its own purposes, shall not disclose to any third party except to fulfill the obligations of Section 2.3 or 2.4, and shall retain in strictest confidence all information and data belonging to or relating to the business of the other (including without limitation the terms of this Agreement), and that each party shall safeguard such information and data by using the same degree of care and discretion that it uses to protect its own confidential information. No party shall be obligated to maintain the confidentiality of information to the extent is required to reveal such information for the purpose of performing is obligations under this Agreement.
5. Effect of Termination/Separation
5.1 Payments At Termination. Unless payments are in dispute, DDR shall provide all payments owed under this Agreement to PARTNER within thirty (30) days of the termination of this agreement. If a dispute arises, DDR shall provide a written notice to PARTNER within ten (10) days and PARTNER shall provide a response to claims of dispute as provided by DDR within ten (10) days of receiving such notice otherwise disputes of payment shall be considered as accepted by PARTNER.
5.2 Payments After Termination. DDR shall continue to pay PARTNER for all users that PARTNER has referred to the Service as long as those users remain on the Service.
5.3 Separation. Due to the nature of the Service and the financial information stored therein by Subscribers, Subscribers who are separated from access to the Service, either because this Agreement between DDR and PARTNER is terminated or expired, or because Subscriber is no longer associated with PARTNER, may have a need and/or desire to continue to have or regain access to the Service. Accordingly DDR retains the right to extend offers directly to separated Subscribers enabling them to continue using the Service.
6. Names and Trademarks
6.1 Name/Trademarks. Either party shall not use the other party’s name or trademarks in any promotional or marketing materials, nor shall either party promote the other party’s programs in any way, without the other party’s prior written consent. Both parties acknowledge and agree that it has no rights to use the other party’s trademarks and service marks without the other party’s prior written consent. The other party’s written consent required under this paragraph shall not be unreasonably withheld. DDR shall retain ownership of all names and/or trademarks associated with the service, which shall apply to Deductr and/or any variation of Deductr.
7. Indemnifications and Limitation of Liability
7.1 Indemnification. DDR and PARTNER shall indemnify, defend and hold each other harmless from and against any and all claims, demands, losses (financial or otherwise), damages, liabilities, costs, fees, increased taxes or expenses (including without limitation, court costs and reasonable attorneys’ fees and expenses), which may be incurred or which may be claimed by any person or as a result of acts or omissions of the other party, its directors, officers, employees or agents relating to the exercise of, or the failure to exercise, either party’s obligations under this Agreement. DDR shall indemnify and hold harmless PARTNER from claims arising from communications by DDR for the Service. DDR shall not be responsible for any communications, associations, or actions taken by PARTNER or any of its affiliates related to the Service.
7.2 Limitation of Liability. The liability, if any, of DDR or PARTNER under this Agreement for any claims, costs, damages, losses and expenses for which it is or may be legally liable, whether arising in negligence or other tort, contract, or otherwise, shall not exceed in the aggregate the amount of any fee owed to PARTNER by DDR for the preceding two (2) month period, measured from the date the liability accrues. In no event shall DDR, PARTNER or its agents, servants, representatives or employees be liable for indirect, special, or consequential damages.
8.1 Assignability. PARTNER shall have rights to assign this Agreement with the prior written consent of DDR. Consent shall not be unreasonably withheld. DDR may assign its rights under this Agreement.
8.2 Notice. All communications under this Agreement shall be in writing and shall be delivered in person or by mail courier, return receipt requested, at the Serviceessed as indicated on the signature page of this Agreement. The parties may, from time to time, designate different persons or at the Serviceesses to which subsequent communications shall be sent by sending a notice of such designations in accordance with this Section.
8.3 Entire Understanding, Amendment. This Agreement, including any Appendix which is incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. Except as otherwise provided in this Agreement, this Agreement may not be amended except in a writing executed by all parties.
8.4 Severability. If any provision of this Agreement is illegal, the invalidity of such provision shall not affect any of the remaining provisions, and this Agreement shall be construed as if the illegal provision is not contained in the Agreement. This Agreement shall be deemed modified to the extent necessary to render enforceable the provisions hereunder.
8.5 No Waiver of Rights. No failure or delay on the part of any party in exercising any right under this Agreement shall operate as a waiver of that right, nor shall any single or partial exercise of any right preclude any further exercise of that right.
8.6 Successors and Assigns. Subject to Section 9.1, this Agreement shall inure to the benefit of and shall be binding upon the parties and their respective permitted successors and assigns.
8.7 Applicable Law. The Agreement shall be deemed to be a contract made under the laws of Utah, and shall be construed in accordance with the laws of Utah without regard to principles of conflicts of law.
8.8 Independent Contractors. PARTNER and DDR shall be deemed to be independent contractors and shall not be considered to be agent, servant, joint venturer or partner of the other.
8.9 Construction. The headings used in this Agreement are inserted for convenience only and shall not affect the interpretation of any provision. All sections mentioned in the Agreement reference section numbers of this Agreement. The language used shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against either party.
8.10 Force Majeure. Neither party shall be liable to the other for any failure or delay in its performance of this Agreement in accordance with its terms if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party.
8.11 Survival. All agreements that by their context are intended to survive the termination of this Agreement, including, but not limited to, the representation and warranties of the confidentiality provisions, the liability and indemnification provisions of Sections 8.1 and 8.2, the attorneys’ fee provision of Section 9.12, and the dispute resolution provision of Section 9.13, shall survive the termination of this Agreement.
8.12 Attorney’s Fees. If any arbitration holds that a party has breached this Agreement, then the non-defaulting parties shall be entitled to recover from the breaching party expenses incurred in enforcing the provisions of this Agreement, including reasonable attorneys’ fees and costs.
8.13 Dispute Resolution. Any dispute or claim arising out of, or in connection with this Agreement shall be settled by final and binding arbitration to be held in Salt Lake County, Utah in accordance with the commercial rules of the American Arbitration Association (“AAA”). Judgment rendered and award determined by the arbitrators may be entered in any court having jurisdiction over: A) the award; B) the party against whom enforcement is sought; or C) that party’s assets. The procedures and law applicable during the arbitration shall be both the AAA rules and the internal substantive laws of Utah (excluding any rules regarding conflicts of law). In such arbitration, the award of decision shall be rendered by at least a majority of the arbitration panel consisting of 3 arbitrators, one of whom shall be appointed by each of the parties hereto and the third appointed by the 2 so-appointed arbitrators. All arbitrators shall be persons who are not employees of DDR or any party. In the event that any party fails to appoint an arbitrator within 30 days after submission of the dispute to arbitration, such arbitrator shall be appointed by the AAA.