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EDPS Affiliate Program Agreement
Last Updated: 2021-03-18 14:50:35 UTC
EDPS AFFILIATE PROGRAM AGREEMENT Please read this carefully. By clicking “I ACCEPT” and registering a New Customer, you are agreeing to the following terms and conditions (this “Agreement”) governing your participation in the EDPS Affiliate Program (the “Program” or “Affiliate Program”). This Agreement is between EDC Group, Inc. (“we” or “EDPS”) and the Affiliate Partner who signs below (“you” or “Affiliate Partner”). Each of EDPS and the Affiliate Partner may be referred to as a “Party” and collectively as the “Parties.” BACKGROUND EDPS provides merchant services sales and services to customers. Affiliate Partner wishes to promote, market and advertise the EDPS Services to potential EDPS customers through its website(s) and other marketing channels, in accordance with the EDPS Affiliate Program. The Parties desire to enter into a referral relationship under which Affiliate Partner shall refer potential New Customers to EDPS in exchange for a Commission. AGREEMENT 1. DEFINITIONS. “Affiliate Partner” means a person or entity who is referring Leads and New Customers to EDPS. “Affiliate Partner Portal” means the website utilized to register New Customer and provide information regarding the Program, currently found at http://affiliates.GoEDPS.com/. “Affiliate Program” means the program under which the Partner shall refer potential New Customers to EDPS in exchange for a Commission. Further details can be found at http://www.GoEDPS.com/information/legal/affiliate-rules. “Commission” means the compensation that EDPS awards a Affiliate Partner who has referred a New Customer. “Confidential Information” means all proprietary information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential. Information that is developed by one of us on our own, without use of or reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other Party. “Lead” means a prospective customer referred to EDPS by a Affiliate Partner and registered with EDPS using the Affiliate tracking URL provided to the Affiliate Partner by EDPS. “New Contract” means a contract with a New Customer. “New Customer” means a Lead that does not use the EDPS Merchant Services at the time you register the customer and is accepted by EDPS in its sole discretion as described in the Affiliate program benefits at http://www.GoEDPs.com/information/legal/affiliate-rules. 2. MARKETING. 2.1 Any marketing by Affiliate Partner of EDPS Services, utilization of EDPS information and/ or materials, or use of either party’s names, logos, trademarks, trade names, domain names, URLs and other identifying indicia, (a complete list of which can be found athttp://www.GoEDPS.com/information/legal/tmlist) (“Marks”) shall be undertaken in accordance with this Agreement and the Affiliate Program. 3. LICENSE. 3.1 Subject to this Agreement and its terms, EDPS hereby grants to Affiliate Partner a royalty-free, non-exclusive, non-transferable and revocable license for the term of this Agreement to use the Marks, and associated materials, language or code (collectively, “Marketing Materials”) for the sole purpose of promoting the Services to potential New Customers (collectively, “Marketing Materials”) subject to EDPS’s Trademark Usage Guidelines which can be found at http://www.GoEDPS.com/information/legal/copyrights_trademarks), as updated from time to time by EDPS at its sole discretion. EDPS may revoke this license at any time by giving Affiliate Partner written notice (including via email). 3.2 We may, at our option, market your products or services in compliance with your guidelines and instructions communicated to us from time to time and you agree to grant us a license to do so accordingly. 3.3 You may: (i) establish a hypertext link from your approved web site (the “Affiliate Web Site”) to https://SimpFee.com (the “SimpFee marketing web site”) and use EDPS’s name and approved domain name solely for the purpose of displaying this link; (ii) use the Affiliate web banners provided by EDPS; and (iii) use the EDPS Marks as part of your use of any EDPS provided marketing materials or information on which the Marks are reproduced. 4. COMMISSIONS. 4.1 EDPS will pay Commissions for New Customers in accordance with the Affiliate Program. 5. INDEMNIFICATION. 5.1 Indemnification. If either Party (the “Indemnified Party”) or its affiliates, or any of their respective employees, agents, or owners, are faced with a legal claim by a third party arising out of its use of the other Party’s (the “Indemnifying Party”) Marketing Materials as permitted by this Agreement, or arising out of the Indemnifying Party’s use of the Indemnified Party’s Marketing Materials other than as permitted in this Agreement, the Indemnifying Party will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is reasonably incurred by the Indemnifying Party as a result of the claim. 5.2 Notice and Defense Requirements. The Indemnifying Party will have no obligation with respect to any claim under this Section 5 unless: (i) such Indemnifying Party is promptly notified of such claim; (ii) the Indemnified Party allows the Indemnifying Party sole control of the defense and settlement of such claim; and (iii) the Indemnified Party provides the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with the Indemnifying Party’s defense and settlement of such claim. 6. TERM & TERMINATION. 6.1 The initial term of this Agreement will begin on the date you click “Accept” to accept the terms and conditions of this Agreement and will continue for twelve (12) months (“Initial Term”). On expiration of the Initial Term, the Agreement will automatically renew for consecutive twelve (12) month renewal terms unless either party gives the other written notice of non-renewal at least thirty (30) calendar days prior to the expiration of the Initial Term or then-current renewal term, as applicable. Either of us may terminate this agreement prior to the expiration, with or without cause, by giving the other party thirty (30) calendar days advance written notice. Each of us agrees to stop using the other party’s Marks as soon as reasonably possible following receipt of a notice of non-renewal or termination, and in all events by the effective date of expiration or termination of the Agreement. 6.2 EDPS’s obligation to pay Commission (with respect to New Contracts referred prior to the expiration or termination of the Agreement) will end immediately upon the expiration or termination of the Agreement. 6.3 The following sections shall survive expiration or termination of the Agreement: 3, 4, 5, 6, 7, 9, 10, 11, 13, 14, 16, 17, 18 and all other sections that by their nature are intended to survive expiration or termination of the Agreement. 7 CONFIDENTIAL INFORMATION. 7.1 Use of Confidential Information. Each of us agrees not to use the other’s Confidential Information except in connection with the performance of this Agreement, the exercise of our respective legal rights under this Agreement, or as required by law. EDPS may use your Confidential Information to the extent necessary to provide the services contracted for under a New Contract and as necessary to generally manage its business with respect to the provision of such services. 7.2 Disclosure of Confidential Information. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows: (i) to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement, (ii) to a law enforcement or government agency if requested, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law; (iii) as required by law; or (iv) in response to a subpoena, court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) calendar days prior to disclosing Confidential Information under this Subsection (or prompt notice if seven (7) calendar days advance notice is not reasonably feasible), unless the law forbids such notice. Neither party will make any public statements, press releases or other public announcements regarding the parties’ relationship and any terms and conditions under this Agreement without the prior written consent of the other party. Such consent shall not be unreasonably withheld. 8 REPRESENTATIONS AND WARRANTIES. You represent and warrant to EDPS that: (i) all information you have provided and will provide in connection with this Agreement, including the information on the Partner Portal is true, correct, and complete, (ii) you have not been and are not currently the subject of any investigation or legal proceeding of any kind in relation to spamming or the violation of any consumer protection or deceptive trade practices law or regulation, and (iii) entering into this Agreement does not and will not violate any agreement or obligation existing between you and any third party. 9 DISCLAIMERS OF WARRANTIES. Any service warranty stated in a contract with a New Customer hereunder shall be for the benefit of the customer and not you. EDPS makes no representation or warranty whatsoever to you regarding its services. 10 LIMITATION OF DAMAGES. 10.1 Except for liability under Section 7 (Confidential Information) and liability for infringement of the other Party’s intellectual property, neither of us (nor any of our employees, agents, affiliates, or suppliers) is liable to the other for: (i) any indirect, special, incidental or consequential loss or damages of any kind; (ii) any loss of profit; (iii) any loss of business; (iv) any loss of data; (v) any anticipated savings or revenue; or (vi) any loss that could have been avoided by the damaged Party’s use of reasonable diligence, even if the Party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages. 10.2 Notwithstanding anything in the Agreement to the contrary, except for claims based on (a) each Party’s indemnification obligations set forth in Section 5 (Indemnification) and (b) each Party’s confidentiality obligations set forth in Section 7(Confidential Information), the maximum aggregate monetary liability of each Party and any of its employees, agents, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed the amount of Commissions due and unpaid. 10.3 Nothing in this Agreement shall exclude or limit liability to a greater extent than is permitted by applicable law and nothing in this Agreement shall exclude or limit liability for fraud, fraudulent misrepresentation, or for death or personal injury caused by negligence. 11 GOVERNING LAW/DISPUTES. The laws of the State of Ohio shall govern this Agreement. In addition, the parties agree to comply with all applicable US government laws and regulations. In the event of any dispute, prior to initiating any legal action, the parties agree to use their best efforts to resolve or settle the dispute by consulting and negotiating with each other in good faith. 12 ASSIGNMENT. Neither of us may assign this Agreement without the other’s prior written consent, except to a subsidiary or an affiliate, or as part of a transaction by which all or substantially all of that Party’s assets are transferred to a third party, in which case the Party assigning the Agreement shall provide written notification of such assignment to the other Party. Subject to the preceding sentence, this Agreement will inure to the benefit of the Parties' successors and assigns. 13 NOTICES. Notices under this Agreement must be given via e-mail, return receipt requested, and confirmed in writing via first class mail or by established and well-known express courier to the address for EDPS appearing below, and to the address for Partner appearing on EDPS’s Partner Program records. legalnotice@GoEDPS.com EDC Group, Inc.?59 S. Main St?Johnstown, Ohio 43031 14 RELATIONSHIP BETWEEN THE PARTIES. We agree that we are independent contractors, and that neither of us has any fiduciary duty to the other. We each acknowledge that the Commission provided for in this Agreement is the sole and exclusive compensation for our activities under this Agreement. Neither Party is the agent of the other. Neither Party may represent to any person that it has the power to bind the other on any service contract or other agreement or take any action reasonably likely to lead the public to believe that it is the agent or representative of the other. The Agreement is non-exclusive. 15 NON-SOLICITATION. You agree that during the term of this Agreement (Initial Term plus any renewal terms) and for thirty-six (36) months following expiration or termination of this Agreement, you will not solicit or encourage any New Customer to move their Merchant Processing Services account to another provider, unless EDPS has failed to perform its obligations under its agreement with the New Customer. Nothing in this Section prohibits the New Customer from initiating a move of its Merchant Services account or prohibits you from soliciting the New Customer for services other than the hosting service for which the New Customer was referred. 16 FINAL AGREEMENT. This Agreement is the complete and exclusive agreement between the Parties regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral. 17 TERMINATION OF FORMER AFFILIATE PROGRAM AGREEMENT. This Agreement supersedes any existing and prior agreements between you and EDPS in which EDPS has agreed to pay you a Commission, or other benefits in exchange for your referral, marketing or resale of Merchant Services, and you hereby agree that any such existing agreement(s) are TERMINATED. 18 MISCELLANEOUS. Neither party grants the other any rights to any of its intellectual property except for the license to use the Marketing Materials described in Section 3 (License) above. Each party shall retain all right, title, and interest in and to its intellectual property, including intellectual property that it may develop during the term of the Agreement. Except as expressly set out otherwise, this Agreement may be amended only by a formal written agreement signed by both parties. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. There are no third-party beneficiaries to the Agreement. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
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