NON-EXCLUSIVE AFFILIATE VENDOR AGREEMENT
By enrolling into our
affiliate program You (Affiliate) herby accept the terms of this Non-Exclusive Affiliate Vendor Agreement (“Agreement) with the National Point and Insurance
Reduction Course, a Florida Corporation
(the “Company”)
RECITALS
WHEREAS,
the Company is engaged in the business of operating online traffic safety program
courses under the fictitious business names “Improv Traffic School” and “Improv
Aware Driver” (hereinafter, the “Company” refers to the Company (as
defined above), Improv Traffic School and Improv Aware Driver);
WHEREAS,
the Company owns and has developed online traffic safety program courses
including “Improv’s Aware Driver™”, a distinctive driver safety course which
includes unique presentation formats (the “IAD Course”);
WHEREAS,
Affiliate desires to be an authorized vendor of the Company’s Courses (as
defined below) and the Company desires to engage Affiliate for the purposes of referring
students to the Company’s Courses, under the terms and conditions as set forth
herein;
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
conditions contained herein, the parties agree as follows:
1.
SCOPE OF
AGREEMENT
1.1 Definitions. As used in this Agreement, the
following terms shall have the following meanings:
“Banner(s)”
shall mean web banners or banner ads that are embedded advertisements on a
website that link to the Company’s website.
“Commission”
shall mean a percentage of gross profit paid to Affiliate for a Course
Completion (as defined below) that is a result of a Referral (as defined below)
by Affiliate. Commission is deemed
payable, in accordance with the terms as set forth in Sections 3 and 8,
only upon Course Completion and not merely upon a Referral.
“Course(s)”
shall mean any and all traffic safety program course owned and/or developed by
the Company, including but not limited to the IAD Course. Courses offer curriculum specific to a local,
city, state, or organizational jurisdiction which may or may not satisfy
statutory requirements, and shall in no way be defined by broad classification,
such as traffic violator or insurance reduction.
“Course Completion” shall mean a
student’s successful completion of the final examination of a Course.
“Marks”
shall mean those trademarks, tradenames, servicemarks, logos and commercial
symbols listed in Exhibit A attached hereto, and other such trademarks,
tradenames and servicemarks which may be added or removed by the Company in the
Company's sole discretion from time to time during the term of this Agreement.
“Referral” shall mean a new student
(not a Registered Student as defined below) who is directed by Affiliate to a Course
offered at the Company’s website and who shall be identified by means of Vendor
Code (as defined in Section 2.2 below).
“Registered
Student” shall mean a student who is or was registered for a Course through
means other than a Referral by Affiliate.
1.2 Purpose. The parties enter into this Agreement
for the sole and limited purpose of engaging Affiliate to perform the Vendor
Services. The scope of such activities shall be limited to those
activities necessary to accomplish such purpose.
1.3 No Separate Business. The activities set forth herein shall not be operated
as a separate business. In connection with this Agreement and the
activities set forth herein, there shall be no name, no business premises, no
federal Employer Identification Number, no bank account, no books of account,
no employees and no property.
1.4 No Separate Entity For Tax
Purposes. It is not the
intention of the parties to form an entity that is recognized for tax
purposes. The parties agree that no Schedule K-1 or other partnership tax
return will be prepared with respect to the agreements and activities set forth
herein.
1.5 Independent Parties. It is understood and agreed
between the Company and Affiliate that nothing herein contained shall create a
relationship of employer and employee, or principal and agent between the
parties hereto. Neither party to this Agreement is, by virtue of this Agreement
or otherwise, authorized as an agent or legal representative of the other party
to this Agreement. Neither party to this Agreement is granted any right
or authority to assume or to create any obligation or responsibility, express
or implied, on behalf of or in the name of the other party to this Agreement or
to bind such other party to this Agreement in any manner.
1.6 Right To Engage In Other
Business. Except as
expressly set forth in this Agreement, each party to this Agreement shall have
the right to engage in other business, and shall have no obligation to offer
any opportunity to the other.
1.7 No Fiduciary Duty. It is expressly agreed by and between the
parties that neither party is the fiduciary of the other and neither party
shall have any fiduciary duty to the other under this Agreement, express or
implied.
2. VENDOR
SERVICES
Subject
to the terms and conditions set forth herein, Affiliate agrees to provide the
following services (“Vendor Services”):
2.1 Referrals. Affiliate shall refer students to
enroll in a Course provided by Company. The Affiliate will direct the student to enroll via the Company’s
website. Referrals (as defined above in Section 1.1) will be tracked by
the Company as described below in Section 2.2.
2.2 Website;
Referral Tracking. Affiliate
will place Banners with an imbedded unique “Vendor Code” on its website
as the means to refer students to the Company’s Course. The Vendor Code will be used for tracking
purposes in allocating Referrals. Affiliate will have access to the tracking software used by the Company
to track Referrals so that Affiliate may review the number of Referrals and the
status of its Referrals.
2.3 Services
Not Required; Prohibited Activities. The Vendor Services shall not include, and Affiliate shall
not engage in (nor shall it have authority to engage in) on behalf of the
Company, any of the following: (a) registration or payment processing; (b) processing
of phone calls from known Registered Students of the Company; (c) provision of
technical support; or (d) processing or mailing of completion certificates.
2.4 Registered
Students. The parties acknowledge that a Registered Student may contact
Affiliate directly rather the Company and may request assistance from Affiliate. Affiliate agrees to make its best efforts
to identify such Registered Students and upon identification, cease further
assistance and refer the Registered Student to the Company’s customer support
telephone number.
2.5 Ownership
of Student Information. Affiliate acknowledges and agrees that the Company has exclusive rights
to the information collected from the student during the Course registration
process. Upon referring a student
to the Company’s website, Affiliate waives all rights to the student and to the
student’s information that is provided in the Course registration process.
However, this Agreement does not prohibit or restrict Affiliate’s ability to
collect personal information separate and apart from the Course registration
process for Affiliate’s own marketing purposes. Affiliate retains the right to
market to students (a) prior to the referral of the student to the
Company’s website and (b) after a Referral has completed a Course.
2.6 Privacy
of Student Information. Affiliate shall make available a privacy policy disclosing the purpose
of the collection of personal information as it relates to students being
referred to the Company’s website. Affiliate assumes full liability for personal
information collected and stored by it and for any attempted solicitation made
using such information.
3. COMPENSATION
3.1 Commissions. The Company will pay Affiliate a
Commission for a Course Completion that is a result of a Referral in accordance
with the commission schedule set forth in Exhibit B attached hereto.
3.2 Payment
of Commissions. For the term
of this Agreement, Commissions will be paid on a monthly basis, by the 15th day of the month following the previous month. For example, Commissions will be paid on February 15th for Commissions earned in the month of January.
4. LICENSE OF THE
MARKS
4.1 Non-transferable,
Revocable License. Subject to
the terms and conditions of this Agreement, the Company grants to Affiliate a
non-transferable, revocable license, without right of sublicense, to use the
Marks solely in connection with the Vendor Services. Affiliate shall not use the Marks except as expressly
permitted herein.
4.2 Prior
Approval of Marketing Materials. All representations of the Marks and all marketing materials (printed
or online) related to the Company and/or Courses that Affiliate intends to use,
including but not limited to Banners, shall first be submitted to the Company
for written approval.
4.3 Restrictions. Affiliate shall not alter any of the
Marks. Except as set forth in this Section 4, nothing contained in this Agreement grants or shall be
deemed to grant to Affiliate any right, title or interest in or to the Marks. All uses of the Marks shall inure solely
to the benefit of the Company, and Affiliate shall obtain no rights with
respect to any of the Marks, other than the right to perform the Vendor
Services as set forth herein. At
no time during or after the term of this Agreement shall Affiliate challenge or
assist others in challenging the Marks or the registration thereof or attempt
to register any trademarks, servicemarks, marks or trade names confusingly
similar to the Marks.
4.4 Termination
of Use. Upon termination of this Agreement, Affiliate shall immediately cease
to use any and all of the Marks and/or marketing materials (printed or online) related
to the Company and/or the Courses and discontinue the use of Banners on its
website.
5. DUTIES
OF AFFILIATE
5.1 Affiliate’s
Covenants Relating to the Company and Course Representations. Affiliate
will: (a) conduct business in a manner that reflects favorably at all times on
the Courses and the good name, goodwill and reputation of the Company; (b)
avoid deceptive, misleading or unethical practices that are or might be
detrimental to the Course; (c) make no false or misleading representations with
regard to the Company or the Courses; (d) not publish or employ, or cooperate
in the publication or employment of, any misleading or deceptive advertising
material with regard to the Company or the Course; and (e) make no
representations with respect to the Courses other than those expressly
authorized in writing by the Company.
5.2 Costs
and Expenses. Affiliate shall
be solely responsible for all costs and expenses related to the advertising,
marketing and promotion incurred in providing the Vendor Services and for performing
its obligations hereunder.
5.3 Compliance
with Law. In providing the
Vendor Services and its performance of its obligations hereunder, Affiliate
shall comply with all applicable laws, rules and regulations of all federal,
state and local governmental authorities and agencies, including but not
limited to Article 12-C of the New York State Vehicle and Traffic Law and Parts
138 and 141 of the Commissioner’s Rules and Regulations. Affiliate represents and warrants that
its execution of this Agreement, providing Vendor Services and/or its performance
of its obligations hereunder does not and will not violate any law or
regulation, whether local, state or federal.
5.4 Indemnification. Affiliate agrees to indemnify and
hold the Company, its officers, directors, employees, successors, and assigns
harmless from and against any and all losses, damages or expenses of whatever
form or nature, including attorneys' fees and other costs of legal defense,
whether direct or indirect, that they, or any of them, may sustain or incur as
a result of any acts or omissions of Affiliate or any of its directors,
officers, employees, or agents in connection with this Agreement, including but
not limited to (i) breach of any of the provisions of this Agreement, (ii)
negligence or other tortious conduct, (iii) representations or statements not
specifically authorized by the Company herein or otherwise in writing, or (iv)
violation by Affiliate (or any of its directors, officers, employees, or
agents) of any applicable law, regulation, or order.
6. DUTIES OF THE COMPANY
6.1 Course
Compliance with Applicable Rules and Regulations. The Company agrees to provide each Referral with an online
Course that fulfills all the requirements for such a course as required by the regulating
body in the jurisdiction it is offered. The Company agrees to ensure that its
Course materials comply with the applicable rules and statutes, regulations,
vehicle code, and/or policies. The
Company will notify Affiliate upon receipt of any official notification that
the Company or any of its content, curriculum, materials or program are not in
compliance with the applicable rules, statutes, regulations, vehicle code,
and/or policies.
6.2 Completion
Certificate. The Company
agrees to process and provide a completion certificate to each Referral upon
his or her successful Course Completion.
6.3 Vendor
Codes and Referral Tracking. The
Company shall provide a unique Vendor Code to Affiliate and will maintain
web-based tracking functionality such that all Referrals by Affiliate are
tracked using the Vendor Code and Affiliate has access to the tracking software
so that Affiliate may review the number of Referrals and the status of its
Referrals.
6.4 Website
Development and Hosting Services. In the event Affiliate does not have its own website, the Company agrees
to make provide website development and hosting services to Affiliate in
exchange for a fee payable by Affiliate to the Company upon implementation of
the website as well as on a monthly basis for the hosting services. These services include the development,
set-up and hosting of a basic website to be used by Affiliate in order to
facilitate the referral of students to the Company’s Courses via Banners.
7. COURSES
7.1 Course
Offerings. The Company
reserves the right, in its sole discretion, without prior notice, and with
incurring any liability to Affiliate, to modify or discontinue any Courses as
it sees fit.
7.2 Course
Pricing. The current price for
the New York Online Course and related fees is included on Exhibit B,
attached hereto; however, the Company reserves the right to change the prices
and fees at any time without prior notice.
8. PAYMENT;
TAXES
8.1 Payment
Terms. Payment of any and all
amounts due under this Agreement shall be in accordance to payment schedule set
forth in Section 3.
8.2 Offsets. Any credits, allowances, or other
amounts payable to or creditable by Affiliate shall be subject to offset for
any claims or other amounts owed by Affiliate to the Company pursuant to the
provisions of this Agreement.
8.3 Taxes. Affiliate shall be responsible for and
shall pay governmental taxes or charges of any kind that may be applicable to
payments of Commission made to it by the Company.
9. CONFIDENTIALITY
AND PROPRIETARY RIGHTS
9.1 Confidentiality. Affiliate acknowledges that by
reason of its relationship to the Company hereunder it may have access to
certain information and materials concerning the Company's business, plans,
customers, technology, and products that are confidential and of substantial
value to the Company, which value would be impaired if such information were
disclosed to third parties (“Confidential Information”). Affiliate agrees that it will not use in
any way for its own account or the account of any third party, nor disclose to
any third party, any Confidential Information revealed to it by the Company. Affiliate shall take every reasonable
precaution to protect the confidentiality of Confidential Information. Upon request by Affiliate, the Company
shall advise whether or not it considers any particular information or
materials to be confidential. Affiliate
shall not publish any description of the Courses beyond the description
published by the Company. In the
event of termination of this Agreement, there shall be no use or disclosure by Affiliate
of any Confidential Information of the Company, and Affiliate shall not
reproduce, have reproduced or have created any courses or website similar to
the Courses or website of the Company using any of the Company's confidential
information.
Company acknowledges that under no circumstances it will sell, license or lease any mailing lists or other personal information of clients that were referred by an Affiliate. All marketing activities of the Company direct or indirect will only be limited to promoting its defensive driving courses.
9.2 Proprietary
Rights. Affiliate agrees that the
Company retains all of its right, title and interest in and to all patents,
trademarks, trade names, inventions, copyrights, know-how and trade secrets
relating to the Courses. The use
by Affiliate of any of these property rights is authorized only for the
purposes herein set forth and upon termination of this Agreement such
authorization will cease.
10. TERM AND TERMINATION
10.1 Term. Unless earlier terminated pursuant to Section
10.2, the initial term of this Agreement shall commence upon the Effective
Date and shall continue for a period of one (1) year (the “Initial Term”). Thereafter, this Agreement will be
automatically renewed for successive one (1) year terms by unless either party
gives written notice to the other party that such renewal is not desired at
least thirty (30) days prior to the expiration of the current term.
10.2 Termination. This Agreement may be terminated prior
to the expiration of the Initial Term or then current term as follows:
(a) By either party, with or without cause,
at any time, by written notice to the other party effective immediately upon
delivery of written notice; or
(b) By either party upon written
notice of termination, to be effective immediately, if the other party breaches
any material term or condition of this Agreement and fails to cure that breach within
ten (10) days after receiving written notice stating the nature of the breach
and the non-breaching party's intent to terminate; or
(c) By either party, effective immediately,
if any law or regulation should be adopted or go into effect in the relevant
jurisdiction that would cause this Agreement and/or the performance of the
parties obligations hereunder to be unlawful or in violation of applicable laws
and regulations.
10.3 No Release of
Existing Obligations. Termination of this Agreement for any cause shall not release either
party hereto from any obligation, including but not limited the payment of
outstanding fees payable in connection with Section 6.4 or Commissions,
which at the time of termination has already accrued to such party or which
thereafter may accrue in respect of any act or omission prior to such
termination.
10.4 Required Upon
Termination or Expiration. Immediately
upon termination or expiration of this Agreement, Affiliate shall (a) return to
the Company and immediately cease all use of Confidential Information
previously furnished by the Company and then in Affiliate's possession, (b) remove
from its website and immediately discontinue all use, directly or indirectly,
of the Marks, or of any word, title, expression, trademark, design, or marking
that, in the opinion of the Company, is confusingly similar thereto,(c) cease
to use any and all marketing materials (printed or online) related to the
Company and/or the Courses and discontinue the use of Banners on its website,
and (d) certify in writing to the Company that Affiliate has completely
terminated its use of any and all such marketing materials (printed or online),
the Marks, trademarks, designs, or markings, or any other word, title, or
expression similar thereto that appeared in or on any devices or other
materials used in conjunction with Affiliate's business.
10.5 Survival. The following provisions shall survive
any termination or expiration of this Agreement: Sections 1, 9 and 11,
in their entirety, and Sections 1.5, 2.5, 2.6, 4.3, 5.4, 10.3 and
10.4. In addition, all
representations and warranties made by the parties shall survive the
termination or expiration of this Agreement.
11. MISCELLANEOUS PROVISIONS
11.1 Governing Law. This Agreement shall be governed by the
laws of the State of California. The parties hereby consent to the exclusive jurisdiction of and venue in
the federal and/or state courts located in Los Angeles County, in the State of California.
11.2 Attorneys’
Fees. In the event any
litigation or other proceeding is brought by either party arising out of or
relating to this Agreement, the prevailing party in such litigation or other
proceeding shall be entitled to recover from the other party all costs,
attorneys’ fees and other expenses incurred by such prevailing party.
11.3 Assignment. Affiliate may not transfer or assign any
of its rights or obligations under this Agreement without the prior written
consent of the Company. Subject to
the foregoing, this Agreement will be binding upon and inure to the benefit of
the parties hereto, their successors and assigns.
11.4 No Implied Waivers. The failure of either party at any
time to require performance by the other of any provision hereof shall not
affect the right of such party to require performance at any time thereafter,
nor shall the waiver of either party of a breach of any provision hereof be
taken or held to be a waiver of a provision itself.
11.5 Severability. If any provision of this Agreement is
held to be invalid by a court of competent jurisdiction, then the remaining
provisions will nevertheless remain in full force and effect.
11.6 Headings. Headings of paragraphs herein are
inserted for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
11.7 Notice. Any notice required or permitted to be
given under this Agreement shall be delivered (a) by hand, (b) by registered or
certified mail, postage prepaid, return receipt requested, to the address of
the other party first set forth above, or to such other address as a party may
designate by written notice in accordance with this Section 11.7, or (c)
by overnight courier. Notice so
given shall be deemed effective when received, or if not received by reason of
fault of addressee, when delivered.
11.8 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and supersedes
all prior agreements relating thereto, written or oral, between the parties. Amendments to this Agreement must be in
writing, signed by the duly authorized officers of the parties. The terms of any purchase order are expressly
excluded.
11.9 Injunctive Relief. AFFILIATE AGREES THAT ANY
VIOLATION OR
THREATENED VIOLATION OF
SECTIONS 2.5, 2.6, 4.3, 9.1, 9.2 AND 10.4 WILL CAUSE IRREPARABLE INJURY TO THE
COMPANY, ENTITLING THE COMPANY TO OBTAIN INJUNCTIVE RELIEF IN ADDITION TO ALL
LEGAL REMEDIES.
11.10 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
EXHIBIT A
TRADEMARKS, TRADENAMES AND SERVICEMARKS
Improv
Aware Driver ™
Improv’s
Aware Driver™
