This Affiliate Agreement (the “Agreement”), dated as the date of enrollment into the Edge to Trade Affiliate Program through Tapfiliate (the “Effective Date”), is entered into by and between Edge to Trade, LLC, a Florida limited liability company (the “Company”), and Affiliate (the “Affiliate”) (each a “Party” and collectively the “Parties”). Capitalized terms used throughout this Agreement shall have the definition so given in Article 1 herein.
RECITALS
A. The Company has developed and owns proprietary day trading software named Edge to Trade (the “Software,” as defined below).
B. The Company wishes to market the Software to active traders throughout the Territory (as defined herein) to purchase subscriptions from the Company and become registered users of the Software.
C. The Affiliate, by virtue of his professional contacts and experience with day trading, desires to assist the Company by marketing the Software in the Territory.
D. The Company is willing to grant the Affiliate the right to market the Software on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Company and the Affiliate, intending to be bound, agree as follows:
ARTICLE 1
DEFINITIONS
When used in this Agreement, the following terms will have the meanings set forth below:
“Affiliate” has the meaning set forth in the title paragraph above.
“Agreement” has the meaning set forth in the title paragraph above.
“Commissions” has the meaning set forth in Section 5.02.
“Company” has the meaning set forth in the title paragraph above.
“Confidential Information” has the meaning set forth in Section 7.01.
“Effective Date” has the meaning set forth in the title paragraph above.
“Eligible Users” means day traders other than Users.
“Intellectual Property Rights” includes, without limitation, all current and future worldwide patents and other patent rights, copyrights, trademarks, service marks, trade names, mask work rights, trade secret rights, technical information, know-how, moral rights and the equivalents of the foregoing under the laws of any jurisdiction, and all other proprietary or intellectual property rights throughout the universe, including without limitation all applications and registrations (and all renewals and extensions) relating to any of the above.
“Other Affiliate” means an affiliate (other than the Affiliate), which enters into a separate Affiliate Agreement to market the Software on behalf of the Company, but was not referred by the Affiliate.
“Revenues” has the meaning set forth in Section 5.02.
“Software” means and includes certain software developed and owned by the Company called Edge to Trade, and any modifications thereto, including, but not limited to, computer programs (including the structure, sequence, and organization), algorithms and data structure, source codes, object codes, modules, subroutines, macros, module substructure, control flow, files, data flow, and user interface, designed to provide traders access to financial news, research, and historical stock performance data, which the Company authorizes Affiliate to promote from time to time under this Agreement.
“Subscription” means an agreement by a User to purchase by prepayment the right to access and use the Software for a certain period or for a period that auto-renews.
“Subscription Fee” means the monthly fee paid by a User to the Company for the Subscription, which Subscription Fee may vary in accordance with the type of Subscription purchased by such User and as adjusted by the Company in its sole discretion from time to time.
“Territory” means the world (the round one).
“Tier 1 Commissions” has the meaning set forth in Section 5.02.
“Tier 2 Commissions” has the meaning set forth in Section 5.02.
“Users” means day traders who have registered with the Company and purchased a Subscription.
“Website” means and refers to www.EdgetoTrade.com and/or any additional or replacement website designed by the Company.
ARTICLE 2
DUTIES OF THE AFFILIATE
Section 2.01. Appointment. The Company hereby appoints the Affiliate, and Affiliate hereby accepts this appointment, to market the Software in the Territory in accordance with the terms and conditions of this Agreement.
Section 2.02. Relationship of Parties. The Affiliate is an independent contractor and is not the legal representative or agent of the Company for any purpose and will have no right or authority to incur, assume or create in writing or otherwise, any obligation or warranty on behalf of the Company. Nothing contained in this Agreement will be deemed to create any partnership or joint venture relationship between the parties.
Section 2.03. No Exclusivity Rights. Nothing in this Agreement will be deemed to grant the Affiliate the exclusive right to market the Software to Users located in the Territory or elsewhere.
ARTICLE 3
DUTIES OF THE AFFILIATE
Section 3.01. Offer of Services by Affiliate. The Affiliate will use his or her best efforts to market the Software to Eligible Users within the Territory.
Section 3.02. Other Duties of Affiliate. During the term of this Agreement, the Affiliate will:
(a) Coordinate a marketing strategy for the Affiliate’s core target market within the Territory.
(b) Perform such liaison services with Users in the Territory as the Company may from time to time request, including assistance in the resolution of any claims or complaints of such Users, but only with respect to Users that have been referred to the Company by Affiliate.
(c) Comply with the highest ethical standards when performing his duties under this Agreement.
ARTICLE 4
DUTIES OF THE COMPANY
Section 4.01. During the term of this Agreement, the Company will:
(a) Keep the Affiliate advised of updates and changes to the Software to be offered in the Territory.
(b) Support the marketing efforts of the Affiliate is such manner as the Company determines to be appropriate.
(c) Pay to the Affiliate the Commissions required by Article 5.
ARTICLE 5
COMPENSATION OF AFFILIATE
Section 5.01. Compensation of Affiliate. As full compensation to the Affiliate for all services by Affiliate pursuant to this Agreement, the Company will pay the Affiliate the Commissions required by Section 5.02.
Section 5.02. Commissions.
(a) Subject to the provisions of this Article 5, the Company will pay the Affiliate commissions as follows:
(i) 15% of the Revenues received by the Company from Subscriptions in good standing by Eligible Users directly referred to the Company by the Affiliate utilizing the Affiliate’s referral URL (“Commissions”).
(b) “Revenues” means the gross invoiced amount of any subscription. It is understood and agreed that the Commissions are earned by the Affiliate only upon the Company’s receipt of payment from the Users in connection with the subscription to which the Commissions are claimed to be payable. If a User requests a refund or reverses any credit card charges for any Subscriptions where the Company has previously paid a Commission to the Affiliate, the Company may adjust future Commission payments to the Affiliate to compensate for the refunded Subscriptions, if any.
Section 5.03. Payment of Commissions. The Company will pay Commissions to the Affiliate based on the amount of Revenues received by the Company on a monthly basis from the sale of Subscriptions during the term of this Agreement. The Company will pay to Affiliate the Commissions earned by the Affiliate within ten (10) days after the end of each month, provided the Commissions to be paid in any given month exceed US $100.00. In the event that the Commissions in any given month total less than US $100.00, such Commissions will be held by the Company and paid to Affiliate on the earlier to occur of (i) the following month if the US $100.00 minimum Commissions has accrued, or (ii) the termination of this Agreement.
Section 5.04. Cancellation of Subscription, Etc. It is understood that if a Subscription is rescinded, revoked, or repudiated by a User for any reason, or it becomes invalid due to any governmental regulation, the Affiliate will not be entitled to Commissions with respect to such Subscription.
Section 5.05. Method of Payment. Payments to Affiliate to be made under this Agreement shall only be made to Affiliate’s PayPal account. The Affiliate shall provide the details of the PayPal account to the Company within thirty (30) days of the Effective Date. It is understood and agreed that in the event the Affiliate fails or delays in providing the PayPal account information to the Company, Commission payments to the Affiliate will be held by the Company until such time as the Affiliate provides the PayPal account information to the Company.
Section 5.06. Taxes. The Affiliate shall be responsible for any taxes imposed on, or with respect to, Commissions remitted to the Affiliate under this Agreement. The Affiliate may be required to complete form W-9 or W-8 prior to the Company making any Commission payments to the Affiliate.
Section 5.07. Expenses. Except as otherwise provided in Section 6.03 below, all expenses incurred by the Affiliate in connection with his performance under this Agreement are the sole responsibility of the Affiliate.
Section 5.08. Revenues from Other Affiliates. The Affiliate shall not be entitled to receive any compensation or commission from Revenues received by the Company from Other Affiliates.
ARTICLE 6
LICENSING AND MARKETING
Section 6.01. Marketing Plan. The Affiliate will prepare and deliver to the Company a marketing plan for the marketing of the Software in the Territory. All marketing plans will be subject to the review and approval of the Company. The Affiliate will, in its planning and marketing of the Software, follow reasonable guidelines given from time to time by the Company with the aim of putting into effect the marketing plans for the benefit of Affiliate as well as the Company.
Section 6.02. Licensing; Restrictions on Marketing. The Company hereby grants to the Affiliate a non-exclusive, non-transferable, and non-sublicensable limited right, under the terms of this Agreement, (i) to use the Software during the Term of the Agreement as a User, as that term is defined above, and (ii) to use and display the Software in connection with, and solely to the extent reasonably necessary for, the marketing of the Software within the Territory in accordance with the terms and conditions of this Agreement. To protect and preserve the goodwill and image of the Company and its Software, the Affiliate will (i) conduct business in a manner that reflects favorably at all times on the Software and the reputation of the Company; (ii) avoid deceptive, misleading, or unethical practices that are or might be detrimental to the Company, the Software or the public, including any disparagement of the Company or the Software; (iii) make no false or misleading representations with regard to the Company or the Software; (iv) refrain from publishing or employing any misleading or deceptive advertising material; and (v) refrain from making any representations, warranties, or guarantees to Users or to the trade with respect to the Software that are inconsistent with the Company’s mission. It is understood and agreed that the Affiliate’s login credentials to access the Software, including, without limitation, any passwords and access codes, are personal to the Affiliate and are not to be shared with any third party. The Affiliate is strictly prohibited from (i) allowing any third party to access the Software, other than as a registered User as provided in Article 9 below; (ii) selling to any third party the right to utilize the Affiliate’s login credentials and/or password; and (iii) duplicating the Software for any purpose.
ARTICLE 7
CONFIDENTIAL INFORMATION AND COVENANT AGAINST UNFAIR COMPETITION
Section 7.01. Confidential Information. All information received by the Affiliate from the Company, directly or indirectly, concerning technical aspects of the Software, which information is not available to the general public, shall be deemed proprietary (“Confidential Information”) and shall not be disclosed to any third party at any time during the term of this Agreement, or thereafter, for any reason whatsoever, except with the express permission of the Company. Moreover, other than expressly provided in Article 6 above, no Confidential Information shall be used by Affiliate for his own benefit or for the benefit of his employees, agents, consultants or those acting in concert with him. The Affiliate shall refrain from using, disclosing, or otherwise exploiting any Confidential Information for any purpose not specifically authorized by the Company in this Agreement. In addition to any and all remedies which may exist under this Agreement or at law arising out of the violation of this section, the Company shall be entitled to equitable relief to enforce its rights hereunder.
Section 7.02. Injunctive Relief. The Affiliate acknowledges that: (i) the restrictions contained in this Article 7 are reasonable and necessary to protect the Company’s legitimate business interests; (ii) remedies at law will be inadequate; (iii) any violation of these restrictions will cause irreparable damage to the Company not compensable in monetary damages; and (iv) the Company will therefore be entitled to injunctive relief against any violation of the provisions of this Article 7.
ARTICLE 8
INTELLECTUAL PROPERTY RIGHTS
Section 8.01. Ownership of Intellectual Property Rights. The Company will have and retain sole ownership of all Intellectual Property Rights relating to the Software, including the goodwill pertaining thereto.
Section 8.02. Infringement.
(a) The Affiliate will promptly notify the Company of any claims, allegations, or notification that the Software or the marketing, licensing, support, or service of the Software may or will infringe upon the Intellectual Property Rights of any other person or entity. The Affiliate will not take any legal action relating to the protection or defense of any Intellectual Property Rights pertaining to the Software without prior written approval of the Company but, in the event that the Company takes such action, the Affiliate will assist in the protection and defense of such Intellectual Property Rights.
(b) The Affiliate will promptly notify the Company of any possible or potential infringement of the Company’s rights in and to the Software of which the Affiliate becomes aware. The Company will have the exclusive right, exercisable at its discretion, to institute in its own name and to control, all actions against third parties relating to the Software or any Intellectual Property Rights therein. The Company will be entitled to receive and retain all amounts awarded, if any, as damages, lost profits, or otherwise in connection with such suits.
(c) The Affiliate shall not (i) challenge the Company’s Intellectual Property Rights relating to the Software, including the goodwill pertaining thereto; or (ii) register or attempt to register any trademarks or patents related to the Software.
Section 8.03. Use of Software Following Termination. After the termination of this Agreement for any reason whatsoever, the Affiliate’s access to the Software will be immediately discontinued at which time the Affiliate may become a registered User in accordance with Article 9 below.
ARTICLE 9
REGISTRATION OF USERS
Section 9.01. Purchase of Subscriptions.
(a) The Affiliate will refer Eligible Users to the Company by providing to each such Eligible User the Affiliate’s referral URL assigned by the Company, which will allow such Eligible Users to register with the Company and purchase a Subscription.
Section 9.02. No Additional Changes. The Affiliate agrees that it will not impose any direct or indirect charge on Eligible Users relating to the Software. The Affiliate further agrees that it will make no warranties or representations about the Software other than those specifically authorized by the Company.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Section 10.01. Representations and Warranties of the Company. The Company represents and warrants to the Affiliate that it has the authority to enter into this Agreement and to perform its obligations under this Agreement.
Section 10.02. Representations and Warranties of the Affiliate. The Affiliate represents and warrants to the Company as follows:
(a) The Affiliate has the authority to enter into this Agreement and to perform his obligations under this Agreement;
(b) The Affiliate has sufficient resources, knowledge and expertise to perform this Agreement according to its terms, and will do so during the term hereof; and
(c) The Affiliate will not, in the name of the Company, receive funds, accept payments, endorse drafts or checks or establish bank accounts.
ARTICLE 11
INDEMNIFICATION AND LIMITATION OF LIABILITY
Section 11.01. Indemnification by Affiliate. The Affiliate will indemnify the Company and its officers, directors, employees and agents against all loss, damage or liability incurred by any of them, including (by way of example only) all costs, claims, suits, actions, proceedings, damages, losses, penalties, fines, liabilities and expenses of investigation and defense of any claim (including legal fees and disbursements, consultants fees and disbursements) arising out of:
(a) any failure of the Affiliate to comply with any applicable present and future laws, regulations or rules of any governmental body or agency; or
(b) an act, error or omission of the Affiliate or of its employees or agents; or
(c) any failure by the Affiliate’s employees or agents to comply with any provision of this Agreement.
Section 11.02. Limitation of Liability. THE COMPANY WILL NOT BE LIABLE TO THE AFFILIATE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
ARTICLE 12
TERM AND TERMINATION
Section 12.01. Term. Subject to the provisions of Section 12.02, this Agreement will have a term of one (1) year, commencing on the date hereof, and will automatically renew for consecutive one (1) year periods.
Section 12.02. Events of Termination. The Company may terminate this Agreement upon the occurrence of any of the following events:
(a) The Affiliate’s violation of any of the provisions of Section 13.05;
(b) The Affiliate challenges any of the Intellectual Property Rights of the Company, including the Trademarks;
(c) The Affiliate gives the Company false information with respect to this Agreement;
(d) The Affiliate is convicted of any felony;
(e) The Affiliate promotes and markets the Software in a manner not permitted by the terms of this Agreement;
(f) The Affiliate breaches any of the other terms of this Agreement; or
(g) Any governmental body or agency with jurisdiction over the Company asserts that the operation of the Company is in violation of any applicable laws, rules or regulations.
Section 12.03. Notice of Termination. In the event that the Company desires to exercise its rights to terminate this Agreement under Section 12.02, the Company will, except for those items listed in Sections 12.02(a), give the Affiliate written notice of such breach. The Affiliate will have a period of ten (10) days to cure any such breach. If the Affiliate fails to cure such breach within the required period, then this Agreement will terminate.
Section 12.04. Voluntary Termination. This Agreement may be terminated by either Party at the expiration of its term or any renewal term upon thirty (30) days written notice to the other Party.
Section 12.05. Sale of Company. In the event the Company or any of its owners receives a bona fide offer from a third party to acquire any material portion of the assets of the Company or of the interests in the Company, and the Company or its owners desires to accept the offer, this Agreement will automatically terminate upon the closing of such transfer (the “Closing”), at which time the Affiliate will be entitled to receive an amount equal to the Commissions Affiliate would have received for twenty-four months (24), based upon the average Commissions paid by the Company to Affiliate during the three (3) months immediately preceding such Closing, which payment shall be due to Affiliate within thirty (30) days after the Closing.
Section 12.06. Right of Set Off. The Affiliate hereby irrevocably authorizes the Company to deduct from any amounts otherwise payable by the Company to the Affiliate the amount of any debts or liabilities due or owing by the Affiliate to the Company, including any amounts due to the Company by the Affiliate pursuant to Section 5.02(b).
Section 12.07. Certain Obligations Following Termination.
(a) In the event of the termination of this Agreement, in order to protect the Company’s Intellectual Property Rights and reputation, the Affiliate will immediately cease any efforts to sell or market the Software in the Territory or elsewhere.
(b) After the termination of this Agreement, the Affiliate will not:
(i) disclose or use any Confidential Information obtained by the Affiliate during or as a result of this Agreement;
(ii) purport to be an Affiliate of or otherwise associated with the Company;
(iii) use any recommendation or reference provided as a result of the Affiliate’s work as an Affiliate.
Section 12.08. Survival of Certain Obligations. The provisions of Articles 7, 8, 11, 12, and 13 will survive the expiration or termination of this Agreement for any reason whatsoever.
ARTICLE 13
GENERAL
Section 13.01. Waivers and Amendments. The delay or failure by either party to exercise or enforce any of its rights under this Agreement will not constitute or be deemed a waiver of that party’s right thereafter to enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. No amendment or waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party against which it is sought to be enforced.
Section 13.02. Severability. If any item or provision contained in this Agreement or any part thereof (in this Section called the “Offending Provision”) is declared or becomes unenforceable, invalid or illegal for any reason whatsoever, then the other terms and provisions of this Agreement will remain in full force and effect as if this Agreement had been executed without the Offending Provision appearing herein.
Section 13.03. Entire Agreement. This Agreement is intended to be the sole and complete statement of the obligations and rights of the parties as to all matters covered by this Agreement, and supersedes all previous understandings, agreements, negotiations and proposals relating thereto.
Section 13.04. Interpretation. In the interpretation of this Agreement:
(a) masculine includes the feminine, and the singular the plural, and vice versa, and obligations undertaken by more than a single person including a company or firm are joint and separate obligations;
(b) the headings and sub-headings will not affect the construction of this Agreement;
(c) any reference to a person will include natural persons and partnerships, firms and other such unincorporated bodies, corporate bodies and all other legal persons of whatever kind and however constituted.
Section 13.05. Assignability. Neither Party may assign or transfer this Agreement or any of their rights and duties under this Agreement, whether in whole or in part, voluntarily or involuntarily, or by operation of law, without the prior written consent of the other Party, which may not be unreasonably withheld or delayed. Any attempted or purported assignment or other transfer by the Affiliate will terminate this Agreement immediately without further demand or notice from the Company.
Section 13.06. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) upon delivery, if delivered personally to the recipient, (ii) upon delivery, if sent to the recipient by nationally recognized overnight courier service (charges prepaid), or (iii) three days after mailing, if mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to the parties at the addresses indicated below:
To the Company, at:
Edge to Trade, LLC
Attn: Christopher Lecusay
E-mail: clecusay@edgetotrade.com
To the Affiliate, at:
E-mail: Specified email with Tapfiliate
or to such other address or to the attention of such other person as the recipient party may specify by prior written notice to the other parties.
Section 13.07. Non-Representation. The Affiliate acknowledges that: (i) this Agreement was prepared by legal counsel for the Company as an accommodation for the Parties; (ii) the legal counsel for the Company does not represent the Affiliate with respect to the subject matter of this Agreement, (iii) the Affiliate is not represented by the legal counsel for the Company with respect to the subject matter of this Agreement; (iv) the Affiliate has the right to engage its own legal counsel to review this Agreement; and (v) the legal counsel for the Company has not rendered any legal advice to the Affiliate with respect to the terms and conditions of this Agreement.
Section 13.08. Interpretation. No provision of this Agreement is to be interpreted for or against any Party because that Party or that Party’s legal representative drafted such provision.
Section 13.09. Execution in Counterparts. This Agreement may be executed in separate counterparts and when duly executed by both Parties, shall constitute a single agreement binding upon all such Parties.
Section 13.010. Effect of Headings. The headings to the Articles and Sections of this Agreement will not affect the construction of this Agreement.
Section 13.011. Attorneys’ Fees. If either Party commences any action or proceeding against the other Party to enforce this Agreement, the prevailing party in such action or proceeding will be entitled to recover from the other party the actual attorneys’ fees, costs and expenses incurred by such prevailing party in connection with such action or proceeding and in connection with enforcing any judgment or order thereby obtained.
Section 13.012. Governing Law. This Agreement will be governed by, and construed in accordance with the laws of Florida, without regard to its principles of conflicts of laws.
Section 13.013. Resolution of Disputes. If any dispute arises between the parties concerning the construction, interpretation or application of any of the provisions of this Agreement, whether during the term or after the termination of this Agreement for whatever reason (“Dispute”), the Parties shall attempt to resolve the Dispute first by informal good faith negotiations by and among them. In the event the Parties cannot resolve the Dispute and as a condition precedent to the commencement of any legal action, the Parties agree to submit the Dispute to mediation, utilizing a mediator selected jointly by the Parties, pursuant to Chapter 44, Florida Statutes. The Parties shall share the costs of the mediation equally. If the dispute is not resolved in such mediation, then such Dispute shall be resolved in the state and federal courts located in Miami-Dade County, Florida, and each of the Company and the Consultant hereby submits to the exclusive jurisdiction of such courts and waives any defense it or she may have to the maintenance of an action therein, including the defense of an inconvenient forum. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. This Section will not apply to the terms of this Agreement concerning restrictions against competition and non-disclosure and to the Intellectual Property Rights or any matter in which injunctive relief is sought.
Section 13.014. NO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES’ ACCEPTANCE OF THIS AGREEMENT
Section 13.015. Payment in U.S. Dollars. All payments to be made by either Party under this Agreement must be made in U.S. Dollars.