Affiliate program agreement

This Affiliate Program Agreement (the “Agreement”) is a binding agreement between Cakemail, Inc. (“Cakemail”, the “Company”) and you, the business entering into this Agreement, (“Affiliate”), (collectively “the Parties”). This Agreement governs your participation in the Cakemail Affiliate Program as further described herein (the “Program”).

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS ARBITRATION PROVISIONS AND LIABILITY LIMITS, AMONG OTHER CLAUSES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PROGRAM. BY ENTERING INTO THIS AGREEMENT, YOU REPRESENT THAT YOU ARE AT LEAST THE AGE OF MAJORITY IN YOUR STATE OR PROVINCE COUNTRY OF RESIDENCE, OR THAT YOU ARE THE AGE OF MAJORITY IN YOUR STATE OR PROVINCE OR COUNTRY OF RESIDENCE AND YOU HAVE GIVEN US YOUR CONSENT TO ALLOW ANY OF YOUR MINOR DEPENDENTS TO USE THE PROGRAM.

YOU MAY NOT PARTICIPATE IN THE PROGRAM IF YOU DO NOT ACCEPT THIS AGREEMENT.

To enroll in the Program the Affiliate must accept the Program terms available through the Cakemail Affiliate Link:   https://affiliates.cakemail.com
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These Terms Of Service were last updated on May 8, 2024.

Company is in the business of offering an email marketing platform to businesses. Affiliate is in a position to refer prospective customers to Company. This Agreement provides the terms and conditions under which Affiliate will do so as part of the Program.

By accepting this Agreement and participating in the Program, Affiliate may, from time to time, refer new prospective customers (the “New Customers”) to Company on a non-exclusive basis. Company will pay Affiliate a Referral Fee for each Successful Referral. A “Successful Referral” occurs where: (a) a New Customer signs up for the Cakemail services directly using Affiliate’s dedicated “Affiliate Link” provided by Company and (b) the New Customer converts to a paid Cakemail account directly following the New Customer’s access to the Cakemail services following the use of the dedicated Affiliate Link to Company. Further, a referral will only be a “Successful Referral” if the New Customer is not a customer that (i) the Company has already contracted with or contacted about its services or (ii) has already been referred to Company by a third party or (iii) has been suspended for non-payment or for violation of the Cakemail Terms of Use.

For each Successful Referral, Company shall pay Affiliate a payout based on the upgraded subscription of each New Customer that Affiliate refers. For the specific payouts, see here: https://affiliates.cakemail.com

Payments in the Cakemail Partner Program are handled by the “Payment Provider”. In order to receive payments under this Agreement, Affiliate must create and maintain an account with Payment Provider in the Payment Provider’s online or app-based dashboard (“Payment Provider Platform”), which is provided pursuant to terms directly between the Payment Provider and Affiliate. Affiliate must keep all information updated and complete within the Payment Provider Platform to receive proper payments. Payments returned due to incorrect payment email addresses or other incorrect information will not be returned. The Payment Provider Platform will reflect payment history to Affiliate, and the parties agree that: (a) the data shown in the Payment Provider Platform will govern payments to be made, subject to Company’s right to correct errors based on its own records and (b) records and payments will be deemed complete, incontestable, and final twelve (12) months after the applicable Successful Referral occurs.

Affiliate is an independent contractor of Company and nothing in this Agreement shall be construed to create any association, partnership, joint venture, employee or agency relationship between the Company and Affiliate for any purpose. Affiliate has no authority (and shall not hold itself out as having authority) to bind Company and Affiliate shall not make any agreements or representations on Company’s behalf. Either Party is solely responsible for paying all of its costs and expenses related to this Agreement.

This Agreement shall commence upon the date that Affiliate joins the Program and will continue until otherwise terminated by one of the Parties pursuant to paragraph 8 of the Agreement.

During the course of this Agreement, it may be necessary for either Party to share proprietary and/or confidential information with the other Party, including, but not limited to trade secrets and non-public industry knowledge (the “Confidential Information”). Either Party will not share any Confidential Information with any third party at any time. Affiliate will also not use any Confidential information for his/her or a third party’s personal benefit at any time. This section remains in full force and effect even after termination of the Agreement.

This Agreement may be terminated at any time by: (a) either Party upon 30 days written notice to the other Party or (b) by Company immediately upon notice if Affiliate breaches any provision of this Agreement. If Company terminates the Agreement, payment obligations of the Agreement for Successful Referrals shall survive for a period of one (1) month after termination of the Agreement; provided that Affiliate is only entitled to Referral Fees for New Customers which it has referred to Company through a Successful Referral sent prior to the effective date of termination of the Agreement.

Both Parties represent that they are fully authorized to enter into this Agreement and that each Party shall comply with all applicable laws, rules, and regulations and will not violate or infringe upon any third-party rights in its performance of its rights and obligations under this Agreement. Affiliate further represents and warrants that:

UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO AFFILIATE OR ANY THIRD PARTY UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.COMPANY WILL HAVE NO LIABILITY FOR THE ACTS OR OMISSIONS OF THE PAYMENT PROVIDER OR THE PAYMENT PROVIDER PLATFORM.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT MAKE ANY OTHER REPRESENTATION, WARRANTY, OR GUARANTY, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PROGRAM PROVIDED OR OFFERED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PROGRAM IS PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN PARTICULAR, COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING COMPENSATION OR ANY OTHER BENEFITS THAT AFFILIATE WILL RECEIVE. ALL OF COMPANY’S OBLIGATIONS ARE AS, AND ONLY AS, EXPRESSLY STATED IN THIS AGREEMENT. AFFILIATE HAS NO RESPONSIBILITY TO COMPANY IF REFERRALS DO NOT LEAD TO SUCCESSFUL REFERRALS.

It is the mission of Company to treat all our customers well. In line with this, we require all Affiliates to comply with applicable laws, regulations and guidelines regarding advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which requires disclosure of communications between advertisers and sponsors. This means that all of Affiliate’s materials (e.g. emails, websites, blogs) must clearly disclose the fact that you are receiving compensation for referred customers. Company reserves the right to withhold the Referral Fee and terminate the relationship if Affiliate does not comply with any of the foregoing guidelines or other FTC regulations or guidelines that we deem appropriate. Cakemail reserves the right to permanently withhold the Referral Fees and terminate this agreement if we determine, in our sole discretion, that you do not comply with any of the foregoing guidelines or other FTC regulations or guidelines that we deem appropriate.

Nothing in this Agreement shall be construed as granting Affiliate, by implication, estoppel or otherwise, any license or other right under any intellectual property rights of the Company. EXCEPT AS EXPRESSLY PERMITTED HEREUNDER, YOU SHALL NOT AND ARE NOT PERMITTED TO (i) USE THE CAKEMAIL TRADEMARK, NAME, LOGO OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, THE “CAKEMAIL IP”) (OR ANY MISSPELLINGS OR VARIATIONS THEREOF OR OTHER TERM OR TERMS SIMILAR TO ANY OF THE FOREGOING) WITHOUT CAKEMAIL’s EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE CAKEMAIL IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), SEARCH TERMS, KEYWORDS, CODE, OR ADVERTISING; (iii) ACT IN ANY WAY THAT CAUSES OR COULD CAUSE, CREATES OR COULD CREATE AN “INITIAL INTEREST CONFUSION” OVER THE USE OF CAKEMAIL IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF CAKEMAIL IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF CAKEMAIL’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO THE CLAIMS FOR DAMAGES (INCLUDING POTENTIAL DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY CAKEMAIL’S LEGAL COSTS AND FEES IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH CAKEMAIL SEEKS TO IMPLEMENT ITS RIGHTS UNDER THIS AGREEMENT OR IN REGARD TO ANY OF CAKEMAIL’S INTELLECTUAL PROPERTY RIGHTS.

Unless the company first gives you written permission, you agree to abide by the following restrictions:

When advertising or promoting the program on Facebook, Twitter, Instagram, YouTube and any other social media platforms, you indicate and warrant that you will comply with the following requirements:

In the event any provision of this Agreement is deemed invalid or unenforceable, in whole or in part, that part shall be severed from the remainder of the Agreement and all other provisions should continue in full force and effect as valid and enforceable.

The failure by either Party to exercise any right, power or privilege under the terms of this Agreement will not be construed as a waiver of any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege.

This Agreement, and any disputes, actions, claims, or causes of action arising out of or related to this Agreement, will be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of New York, excluding its conflicts of law rules. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, each Party shall have the right to institute an action in any court of competent jurisdiction for injunctive relief.

Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the Parties may be consolidated with any other arbitration proceeding involving Company and any other person or entity. Each Party shall file and prosecute arbitration proceedings separately and individually in the name of the respective Parties, and not in any representative capacity. Each Party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section. BY AGREEING TO THIS AGREEMENT, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT (i) TO A COURT TRIAL OR (ii) TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST COMPANY AND/OR RELATED THIRD PARTIES, EVEN IF ARBITRATION IS NOT REQUIRED UNDER THIS AGREEMENT.

REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICES, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED.

Affiliate shall not assign, transfer, or delegate any of its rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the Company. Company may freely assign this Agreement.

Notice to Affiliate may be given by a notification within the Payment Provider Portal and/or email to Affiliate to the address provided to Company. Notice will be effective when given. Notice to Company may be given by email to Company at partners@cakemail.com and will be effective when received.

The Parties acknowledge and agree that this Agreement represents the entire agreement between the Parties, and supersedes all prior agreements related to the Program or any other commission-based program. Cakemail may amend this Agreement from time to time based on changes to the Program, in which case the new Agreement will supersede prior versions. Cakemail will notify Affiliate of any material changes affecting its rights through a notification within the Payment Provider Portal and/or email referencing the latest version. The Parties may also document modifications to this Agreement by way of an amendment signed (in ink or electronically) by the Parties.