Affiliate Terms of Service

AFFILIATE TERMS OF SERVICE

Winningware.com Affiliate Agreement

INTRODUCTION

In order to be accepted as an Affiliate in the WinningWare.com Affiliate Program, you must submit a completed affiliate program application. Upon receipt of your application the Company will evaluate it and notify you of its acceptance or rejection. Although we hope your application will be successful, we reserve the right to reject applications for any or no reason.

As used in this Agreement, “we” or “us” or “Company” refers to WinningWare.com, a division of ConXentric, Inc., and “you” refers to the applicant. You must be 18 years of age or older to enter into this Agreement with the Company. If we reject your application, you are welcome to reapply to the Program at any time. You should note that if we accept your application and your site is later determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement at any time.

We will not be liable to you for any costs, damages or lost profits as a result of the termination of this agreement. If you are accepted to the ConXentric Affiliate Program, this Affiliate Agreement will become effective immediately upon your acceptance into the Program by the Company. This Affiliate Agreement contains the complete terms and conditions that apply to your participation in the ConXentric, Inc. Affiliate Program. You should familiarize yourself with the terms and conditions of this affiliate agreement, as well as any and all agreements that have been incorportated in their entirety by reference herein, including but not limited to the ConXentric.com and WinningWare.com Terms of Use Agreements.

You agree to the terms and conditions outlined in this Affiliate Agreement ("Agreement"), the Agreements incorporated by reference herein, and accept, and do agree to be bound by said terms so long as you shall remain an Affiliate of ConXentric, Inc. (Company). This Agreement, and any other Agreement incorporated herein by reference, constitute the entire and only agreements between the Company and you, and supersede all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Affiliate relationship with Company hereby established, the content and computer programs provided by or through the Company, and the subject matter of this Agreement. This Agreement may be amended at any time by us from time to time without specific notice to you. The latest Agreement will be posted on the Company’s Web Site, and you should review this Affiliate Agreement, and the related Terms of Use Agreement (herein incorporated by reference in its entirety) prior to each use of the Site.

WHEREAS Affiliate wishes to include certain materials promoting Company, and to include a link to Company’s website within those materials on Affiliate’s website, and to use said link and other promotional procedures and materials to market the company’s products and webinars.

NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:

1. Promotional Materials. Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, as specified by Company.

2. Use of Promotional Materials. The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:

a. Affiliate may not use any graphic, textual or other materials to promote Company’s website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.

b. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products and services available thereon), and for linking to Company’s website.

c. The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.

d. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.

3. License. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.

4. Intellectual Property. Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.

5. Relationship of Parties. This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.

6. Commissions.

a. In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”), the amount of which shall be determined in accordance with the following:

an amount equal to 40% of the Net Sales Revenue generated by the sale of the Company’s Webinars and products to a purchaser that accesses Company’s website through the affiliate’s link. These purchasers are for purposes of this Agreement to be referred to as Tier 1 purchasers of the Company’s products.

or,
an amount equal to 10% of the Net Sales Revenue generated by the sale of the Company’s Webinars and products to a purchaser that accesses Company’s website through a link referred by a tier 1 Affiliate. These purchasers are for purposes of this Agreement to be referred to as Tier 2 purchasers of the Company’s products.

IN NO EVENT SHALL THE COMPANY BE REQUIRED TO PAY AN AFFILIATE ANY COMMISSIONS, OF ANY TYPE WHATSOVEVER, IN ADDITION TO THE COMMISSIONS DESCRIBED ABOVE. THE COMMISSIONS TO BE PAID TO AFFILIATE WILL BE PAID TO THE AFFILIATE SOLELY FOR THE TIER 1 AND TIER 2 PURCHASERS OF THE COMPANY’S WEBINARS AND PRODUCTS THAT ARE DIRECTED BY THE AFFILIATE TO THE COMPANY. THE COMPANY CONTEMPLATES THAT PURCHASERS OF THE COMPANY WEBINARS AND PRODUCTS MAY, FROM TIME TO TIME, DESIRE AND ELECT TO ENGAGE THE COMPANY AS A PROVIDER OF PROFESSIONAL CONSULTING SERVICES THAT ARE NOT CONCERNED SPECIFICALLY WITH COMPANY WEBINARS OR PRODUCTS. THE COMPANY SHALL NOT PAY ANY COMMISSIONS ON ANY SALES OTHER THAN THOSE GENERATED BY THE AFFILIATE SALE OF THE COMPANY’S WEBINAR AND PRODUCTS. UNDER NO CIRCUMSTANCES SHALL THE COMPANY PAY TO AN AFFILIATE ANY COMMISSIONS OF ANY TYPE FOR ANY PRODUCT OR SERVICES WITHOUT AN EXPRESS AND EXPLICIT AGREEMENT BETWEEN THE COMPANY AND AFFILIATE GOVERNING THE TYPE OF PRODUCT OR SERVICE TO BE COVERED, AND THE AMOUNT AND PAYMENT TERMS OF ANY COMMISSION THAT WILL BE PAID.

b. Company, or a qualified 3rd party service provider, shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 14 days of discovering such discrepancy.

c. Company shall pay all Commissions accrued and payable to Affiliate within 10 days of the first day of each month (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $100.00, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month. If at any time, the balance of accrued and payable Commissions is held over for 2 consecutive months, then Company shall pay all accrued and payable Commissions to Affiliate in the third month, regardless of the total amount owed.

d. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.

7. Affiliate’s Representations and Warranties. Affiliate represents and warrants the following:

a. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.

b. Affiliate’s website does not contain any materials that are:
i. Sexually explicit, obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent, including any violent video game images; or
iv. Solicitous of any unlawful behavior

c. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.

d. Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above.

e. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.

f. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.

g. IMPORTANT - ANTI-SPAM POLICY. The Company is committed to the implementation of a permission-based marketing strategy. It fully intends to use the marketing power of the Internet and various related activities to promote the sale of its products and webinars, and to exploit an appropriate set of business opportunities. However, consistent with its commitment to the implementation of a permission-based marketing strategy, it will not tolerate any form of Internet-related email marketing effort that it deems to be inconsistent with this strategy; e.g., an affiliate will not engage in the distribution of any unsolicited or bulk emails – SPAM – that in any way mentions or references the Company or Company’s website or products, or that involves use of the affiliates’ link or promotional efforts arising from this Agreement.

For purposes of this Agreement, SPAM is defined as any email sent to a party who did not explicitly provide the sender of said email permission to contact the party.
For email marketing purposes, affiliate may only send emails to subscribers who have explicitly opted in and subscribed to the affiliate's own proprietary list, using either double opt-in or single opt-in from a web form. No other form of email promotion is allowed. Affiliate may not use rented lists or email lists that have been purchased, or “coregistration” lists.

Any marketing effort an affiliate employs in the promotion of the company’s products must comply with the Company’s permission-based marketing strategy. Any Internet-related marketing activity employed by an affiliate that the Company deems to be inconsistent with its permission-based marketing strategy or that involves use of SPAM email will not be tolerated. In the event that the Company determines, in its sole discretion, that an affiliate has engaged in inappropriate non-permission-based marketing activities or used SPAM email techniques of any kind in promoting Company’s products or webinars, the Company shall have the right to terminate this Agreement immediately.

Upon such termination of the agreement, an affiliate will forfeit any and all commissions that may be due to affiliate. The Company will pursue any and all legal remedies available for enforcement of its rights. The Affiliate may be held liable for any and all damages to ConXentric, including but not limited to, business interruption due to domain, web hosting or Internet access interruptions arising from affiliate's use of unauthorized email or SPAM advertising.

8. Indemnification. Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.

9. Confidentiality. Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.

10. Term.
a. This Agreement shall take effect on upon acceptance of the Affiliate’s formal application by the Company, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.

b. Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination.

11. Taxes. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.

12. Limitation of Liability. Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.

13. Governing Law. This Agreement shall be construed in accordance with, and governed in all respects by, the laws of the State of Texas, without regard to conflicts of law principles.
14. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.

15. Severability. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.

16. Notice. Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, addressed as follows:

If to Company: 9211 West Rd., Suite 143-162, Houston, Texas 77064

If to Affiliate: Affiliate’s mailing address on file via the affiliate application.

17. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.

18. Entire Agreement. This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.