CITYGRO AFFILIATE PARTNER TERMS AND CONDITIONS
Any person and/or entity referring End Users to CityGro for the purpose of receiving a commission will be considered an Affiliate Partner and shall be bound by the terms as follows:
1. Scope of Services. Subject to the conditions herein, Affiliate hereby intends to promote and perform services (“Services”) for CityGro. The scope of Services include the following: (i) establish contacts with potential CityGro End Users, (ii) market CityGro’s software to potential CityGro End Users (iii), and refer prospective End Users to CityGro.
2. Affiliate Commissions.
a. Commissions on CityGro Subscriptions. For each End User that agrees to the CityGro service agreement (“Sale”), as a result of the Affiliate’s direct marketing efforts, CityGro will pay the Affiliate a commission (“Affiliate Commission”) in accordance with the commission schedule set forth on Schedule 1. CityGro will not be responsible for the payment of any additional compensation in connection to a Sale or Affiliate Fee.
b. Referral Eligibility. In order for a referral to be considered eligible, Affiliate must directly introduce the CityGro to a member of the End User organization. Affiliate SHALL NOT receive commissions for suggesting prospects that Affiliate has no connection to or contact for. Indirect referrals, including referrals of referrals, contacts derived from referrals, and other End Users that were not directly introduced to CityGro by Affiliate are NOT commissionable nor are they credited to the Affiliate.
c. Right to Adjust Commissions. CityGro reserves the right to correct or reverse any Monthly Residual Commission owed to Affiliate if, in CityGro’s sole discretion, (i) Affiliate has acted in a fraudulent manner; (ii) Affiliate has breached any portion of these terms and conditions; (iii) Affiliate is obligated to indemnify CityGro for actual or anticipated losses; (iv) CityGro has overpaid Affiliate; or (v) a customer is determined to have been referred to CityGro outside of the Affiliate’s marketing efforts.
d. Commission Schedule. CityGro pays commissions on or before the 5th of every month for all relative subscription fees collected by CityGro during the previous month.
e. Active vs Inactive Affiliates. Affiliates are considered active if they bring on any new accounts during a twelve-month period. Affiliates are considered inactive if the Affiliate has not added any new account in twelve consecutive months.
Recurring Commissions. After a commissionable account has been open for two years, commissions on that account will phase to half of the then-current Commission Rate and will continue to be paid as long as the Affiliate is either active or has been active for at least 5 years. Recurring commissions will cease to be paid if the Affiliate has not brought on any new accounts in twelve consecutive months and has not been active for 5 years.
3. Affiliate Marketing Restrictions.
a. Posting links to CityGro. Affiliate will be provided an affiliate link by which Affiliate will receive credit for anyone referred to the CityGro website (See 4. Protection of Affiliate and Prospect Relationships). Affiliate may post any number of links on Affiliate website(s) directed to the CityGro website. The position, location, prominence and nature of such links on Affiliate website shall comply with any requirements specified herein, but shall otherwise be at Affiliate’s discretion.
b. Affiliate Representation of CityGro. Affiliate shall not make any representation, warranty or other statement concerning CityGro, the Destination Sites, or CityGro’s softwares, except as expressly authorized herein. Affiliate shall not advertise or promote advertisements that are misleading and/or which claim inflated discounts, in CityGro’s sole discretion. Affiliate may only advertise or promote advertisements that state the actual discount that a visitor may derive by clicking on a Link.
c. Email and Text Marketing. Affiliate shall not send any email, SMS text message, or other form of electronic message or advertisement containing CityGro’s name, product, website address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from Affiliate or unless Affiliate has a pre-existing business relationship with the recipient. In addition, Affiliate shall provide all recipients of any such communication with the ability to opt out of further communications from Affiliate by permitting such recipient to “one click unsubscribe,” or call a toll free number. In short, Affiliate must follow ALL aspects of the 2003 CAN SPAM Act.
d. Online Advertising.
i. The CityGro Domain. Affiliate may not use www.citygro.com, or ANY variation of CityGro’s brand terms as the domain name or URL in any paid search engine marketing campaign, except upon prior written consent by CityGro.
ii. Pay Per Click. Affiliate SHALL NOT bid on or use any word, keyword or term in a Pay-Per-Click campaign which contains CityGro’s registered or unregistered trademarks or any word, keyword or term that is likely to cause confusion regarding Affiliate’s affiliation with CityGro. Examples of CityGro Keywords include, but are not limited to the following: www.citygro.com, citygro.com, www.citygro, citigrow, citigro, citygrow, citygro.co, etc.
iii. Fat-finger or Typo Squatter Redirects. Affiliate shall not use any fat-finger or typosquatter domain name to redirect Internet traffic to Affiliate website or the Destination Sites without CityGro prior written approval. A fat-finger or typosquatter domain name is a domain name that amounts to a misspelling of any registered or unregistered CityGro trademark. Examples of fat-finger or typosquatter domain names include, BUT ARE NOT LIMITED to the following: itygro.com, citygr.com, citgro.com, etc.
iv. Domains, Sub-domains and URL Paths. Affiliate shall not place CityGro Keywords in Affiliate domain or sub-domain. Examples of non-permissible use are: citygro.yourwebsite.com, citygro.yourwebsite.co, yourwebsite.citygro.co, and yourwebsite.citygro.com. Affiliate may place CityGro Keywords in Affiliate URL path. An example of permissible use is: yourdomain.com/citygro.
v. Traffic Intercept and Redirects. Affiliate shall not employ the use of any manual or automated software, device, application, robot or any other technology which attempts to intercept or redirect traffic or referrals to or from any website without the prior written consent of CityGro.
vi. Misrepresenting the CityGro Website. Affiliate shall not frame the CityGro website so that it appears to viewers of Affiliate website that such viewer is viewing the Destination Sites. Affiliate shall not do anything to its website or any website it controls that makes such website appear as though it is the CityGro website.
4. Protection of Affiliate and Prospect Relationships. CityGro will protect the Affiliate’s claim to a specific client based on the Affiliate being the first to introduce CityGro to the client. In the event that a dispute arises between multiple Affiliates, CityGro reserves the right to credit the appropriate Affiliate at their sole discretion. CityGro will base their decision on the Affiliate who can prove first written contact while maintaining a continuous relationship. CityGro will make every effort possible to identify the source of all leads and credit the Affiliate appropriately.
5. Expenses. Affiliate will not be reimbursed for any expenses incurred in connection with CityGro.
6. Minimum Advertised Price. Affiliate will not advertise any price below the advertised price offered by CityGro. CityGro reserves the right to change prices at any time and for any reason.
7. Processing New Subscriptions. Affiliate shall refer all potential end users to CityGro and is not authorized to process new subscriptions. A subscription is not sold until the CityGro Agreement is signed and Payment is received.
8. Subscription Billing. Unless otherwise agreed to in a written letter to Affiliate by CityGro, or through an addendum to this agreement signed by both parties, all subscription fees, INCLUDING commissions paid to Affiliate, will be paid directly to CityGro by a valid credit card.
9. Affiliate Fees.
a. Yearly Minimums. Affiliate is NOT required to pay a yearly minimum to be authorized to refer CityGro Products.
10. Servicing CityGro Accounts.
a. Authorization to Support Accounts. Affiliate IS NOT authorized to Support CityGro accounts unless certified by CityGro through written approval. Servicing includes, but is not limited to, account configuration, equipment provisioning, design, campaign creation, trouble shooting, or any other engagement that requires changing settings or preferences in the End User’s account. Upon completion of a Sale, Affiliate will turn over the servicing and maintenance of the subscription to CityGro. Affiliate may, and is encouraged to, maintain regular communication with subscribers in efforts to lengthen the duration of their subscription.
b. Scope of Account Maintenance and Support. CityGro will provide, but is not limited to, the following support to End Users in accordance with the CityGro package that is subscribed to (Refer to the CityGro Packages and Pricing): account configuration, equipment provisioning, design, campaign creation, trouble shooting, etc.
11. Independent Contractor Status. The relationship of Affiliate to CityGro is that of an independent contractor, and nothing herein shall be construed or deemed as creating any other relationship.
12. Affiliate’s Representatives. Affiliate shall be solely responsible for the actions of its employees, agents, and independent contractors (“Agents”). All equipment and tools used by Affiliate and its Agents to provide the Services (e.g., cell phones, computers, etc.) shall be furnished by Affiliate, at Affiliate’s sole cost and expense.
13. Compliance with Laws and Ordinances. Affiliate and Affiliate’s Agents shall comply with all applicable laws, ordinances, codes, standards and regulations and with all requirements of governmental authorities having jurisdiction with respect to the performance of the Services.
14. Territory. No territories are currently designated by CityGro. However, CityGro reserves the right to establish one or more exclusive geographical territories, or territories defined by industry or market, for the benefit of a protected party. If CityGro grants an exclusive territory to a third party, CityGro agrees to provide at least 30 days’ prior written notice to Affiliate of such exclusive territory. In such instance, Affiliate will be permitted to maintain existing Contracts in such territory so long as this Agreement is in force. After such notice is delivered to Affiliate, Affiliate agrees not to solicit Contracts in such designated territory.
15. Confidential Information; Non-Disclosure; Non-compete; Non-Circumvent.
a. Defined. “Confidential Information” means any trade or business information, business model, electronic data capture technology, automated messaging process (i.e., electronic capture, verification, and communication based on behavior and interests), financial information, protected health information, and other information confidential in nature that relates to the disclosing party’s business or to the business of the CityGro’s subscribers. Confidential Information does not include any information, materials, data or know-how which (i) is in the possession of the non-disclosing party at the time of disclosure, as shown by the non-disclosing party’s files and records immediately prior to the time of disclosure; (ii) prior to or after the time of disclosure becomes public knowledge or part of the public domain, not as a result of any inaction or action of the non-disclosing party; (iii) is disclosed to the non-disclosing party by another third party having the right to disclose such information without any violation of any rights of, or obligations to, the disclosing party or the applicable subscriber; or (iv) is approved for release in writing by the disclosing party.
b. Non-Disclosure. Each party agrees to maintain the Confidential Information of the other party in confidence and to use such Confidential Information only as necessary to carry out the purpose for which it was disclosed. Each party agrees not to disclose the Confidential Information of the other party without such other party’s prior written consent.
c. Non-Compete. Affiliate agrees not to compete directly or indirectly against CityGro with respect to ratings and verification services for anytime during the term of this Agreement and for a period of eighteen (18) months thereafter.
d. Non-Disparagement. Each party agrees not to make any false, disparaging, or derogatory statements about the other party or any subscriber.
e. Non-Circumvent. In no event may the Affiliate attempt to circumvent CityGro with respect to contacts, relationships, agreements, customers, manufacturers, or other Confidential Information provided to the Affiliate in order to enter into a transaction (directly or indirectly) other than in connection with the Services. In no event may CityGro attempt to circumvent the Affiliate with respect to the Affiliate’s contacts and relationships introduced to CityGro by Affiliate as long as the Agreement is in force.
16. Indemnification. Each party (“Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party (“Indemnitee”) from and against any and all claims, losses, liabilities, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs and expenses of dispute resolution) and damages and injuries (including, without limitation, injuries to persons, loss of life, damage to property, wherever occurring) arising out the Indemnifying Party’s breach of any of the provisions of this Agreement or the Indemnifying Party’s negligence or intentional wrongdoing in the performance of the Services; provided, however, that the Indemnifying Party shall not be required to indemnify the Indemnitee against any of the above mentioned claims or losses which are caused by the gross negligence of the Indemnifying party. Indemnitee’s obligations with respect to indemnification hereunder shall remain effective notwithstanding completion of the Services or the termination of this Agreement.
17. Arbitration. Any dispute, controversy or claim, which relates in any way to this Agreement which has not been resolved by the parties shall be arbitrated in Salt Lake City, Utah in accordance with the Rules of the American Arbitration Association. CityGro and Affiliate each shall bear their own fees, costs and expenses of the arbitration. Any award rendered shall be final and any judgment thereon may be enforced in any court having jurisdiction.
18. Attorneys’ Fees. Subject to arbitration required by Section 13, in the event of any action at law or equity to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and court costs in addition to any other relief to which such party may be entitled.
19. Assignability. Affiliate may not assign this Agreement without the prior written consent of the CityGro.
20. Notices, Etc. All notices shall be in writing and sent by certified mail, overnight delivery, fax, or email to the respective party’s last known address.
21. Amendments, Etc. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by each of the parties hereto.
22. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous understandings, agreements, communications, and representations, whether written or oral, concerning the treatment of information and other matters to which this Agreement relates.
23. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Utah.
24. Counterparts. A signature delivered by fax, pdf, or other electronic means shall be deemed an original signature for all purposes, and may be delivered in counterparts.