The Postmark Affiliate Referral Program Agreement
This Postmark Affiliate Referral Program Agreement (this “Agreement”) contains the complete terms and conditions that apply to your participation in the Postmark Affiliate Referral Program for the Postmark web application and/or the Postmark services offered by AC PM (collectively, the “Service”). As used in this Agreement, “we,” “us” or “AC PM” means AC PM LLC and “you,” “your” or “Affiliate,” means you as the affiliate participating in this program. “Affiliate Site” individually and collectively means your website and/or e-mail communications and/or software applications. “Postmark Affiliate Referral Program” means the program we manage or control by which participating entities place links on their Affiliate Site that connect to the Postmark website and for which a commission is earned for new Postmark subscribers.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SIGNING UP AS AN AFFILIATE UNDER THE POSTMARK AFFILIATE REFERRAL PROGRAM AND CLICKING “SIGN UP” BELOW, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS MAY BE SUPPLEMENTED OR REVISED BY AC PM FROM TIME TO TIME. YOUR CONTINUED PARTICIPATION IN THE POSTMARK AFFILIATE REFERRAL PROGRAM CONSTITUTES CONSIDERATION AND YOUR ACCEPTANCE OF THESE SUPPLEMENTAL OR REVISED TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 10, PLEASE DO NOT PARTICIPATE IN THE POSTMARK AFFILIATE REFERRAL PROGRAM OR OTHERWISE STOP YOUR ACTIVITIES PURSUANT TO THIS AGREEMENT.
1. Participation
a. AC PM uses Rewardful Inc (“Rewardful") to manage the Postmark Affiliate Referral Program. You must sign up for an account with Rewardful to join the Postmark Affiliate Referral Program. By participating in the Postmark Affiliate Referral Program through Rewardful, you are agreeing to be bound by the terms and conditions of Rewardful, in addition to AC PM’s standard Terms of Service, including our Privacy Policy and all other applicable terms and policies which are incorporated by reference therein. Once registered, and we have approved your enrollment, you become a participant in the Postmark Affiliate Referral Program. Current and former contractors and employees of AC PM or its parent or subsidiaries, and members of the immediate family of such individuals, are prohibited from participation in the Postmark Affiliate Referral Program.
b. We use PayPal to remit commissions to our affiliates. In order for us to pay you your commissions, you must have a PayPal account linked to your Rewardful account. Your use of PayPal is subject to the terms and conditions of PayPal, Inc. For the sake of clarity, PayPal and Rewardful are third-party service providers, and AC PM will not have any liability or support obligations for any issues relating to your PayPal account or Rewardful account.
c. Affiliates are not eligible for commissions from their own personal accounts or any account directly linked to them, including referred accounts with exact same names, billing address, or e-mail addresses.
d. We currently offer affiliates the following commissions for referred accounts based on the monthly recurring revenue (“MRR”) of referred client accounts active at the time of billing: 20% commission of each referred billing, for a period of up to 12 months.
2. Promotion
a. Once you have signed up as an Affiliate under the Postmark Affiliate Referral Program, you will be provided with a unique referral link through Rewardful (“Link”) that links to the Postmark website. Whenever you tell a potential new subscriber about the Service, you or the potential new subscriber will just use that Link, and we will take care of the rest. You must use the Link; otherwise, we will have no way of tracking or knowing where the new subscriber came from, and we will not be able to pay you your commissions. To qualify under the Postmark Affiliate Referral Program, any new subscriber must not have been a previous subscriber to any of the Service.
b. You and AC PM will cooperate in good faith to promote the Service. Each Link may permit recipients to navigate directly to a page on the Postmark website designated by us via a special tagged link format.
3. Use of Postmark Trademarks
a. AC PM hereby grants to you during the Term (defined in Section 6 below) a non-exclusive, non-transferable, revocable, royalty-free license to establish hyperlinks between your Affiliate Site and the Postmark website and to use AC PM’s trade names, logos, trademarks and service marks (the “Marks”) solely for the purpose of marketing and promoting the Service.
b. The foregoing license does not include the right to, and Affiliate will not, modify the Marks in any manner, incorporate any of the Marks into any other trademark or service mark, or combine the Marks with any other words, logos, designs, service marks or trademarks. Affiliate will comply with any trademark usage guidelines and instructions provided by AC PM in connection with Affiliate’s use of the Marks. We will have the right to review and monitor Affiliate’s use of the Marks. If there is any non-compliance with such guidelines and instructions, at AC PM’s request and direction, Affiliate will, at its sole cost, promptly correct any non-complying use of the Marks. Affiliate will not adopt brands, logos, trademarks, service marks, trade names or other marks which are the same as or confusingly similar to the Marks. Affiliate’s use of the Marks in any advertisement, web page, promotional materials, or other items shall be subject to AC PM’s prior review and approval, and Affiliate will furnish to AC PM an advance copy of each such items. All goodwill arising from Affiliate’s use of the Marks will inure solely to the benefit of Postmark. Affiliate will at all times maintain a high level of quality for the Affiliate Site.
c. Except as set forth above, we each reserve all right, title and interest in our respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks, and other intellectual property rights). Use of Marks except as set forth herein is strictly prohibited.
4. Restricted Activities
a. General Restrictions. Affiliate will conduct its business and activities in a manner that promotes a good, positive image and reputation for AC PM and the Service. Without limiting the generality of the foregoing, Affiliate will not:
i. use any inappropriate form of promotional, marketing, or advertising activity with your Link or Affiliate Site, which includes use of any misleading hyperlinks and making any false, misleading, or disparaging representations or statements with regard to AC PM and the Service;
ii. engage in any unfair or deceptive trade practice involving the Service;
iii. participate in any promotion, advertising, marketing, or sale of any imitation of the Service;
iv. include or provide for in any Affiliate Site any page, screen, or social media platform that contains content that: advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities; violates intellectual property rights of third parties; or contains or promotes deceptive information;
v. impersonate any employee of AC PM or its parent or subsidiaries;
vi. use any Marks to mislead potential new subscribers into believing you are endorsed or employed by AC PM;
vii. use the string “Postmark” for any website domain name;
viii. spam or send bulk-emails including Links;
ix. use paid advertising, search, or social pages for promoting Links;
x. use its own Link to purchase any Service; and
xi. make or authorize any proposal, representation, warranty, guarantee, or communication relating to the Service that is inconsistent with AC PM’s standard terms and policies, or that has not been approved or otherwise authorized by AC PM in writing.
b. Export Controls and Sanctions Compliance. You understand and agree that:
i. The receipt and use of the Service may be subject to export control and economic sanctions laws of the United States and other applicable government authorities (“Export Control and Sanctions Laws”). You agree to abide by all Export Control and Sanctions Laws as they relate to your access, use and recommendation of the Service;
ii. You will not, directly or indirectly, access or use the Service if you are located in a jurisdiction where the provision of the Service is prohibited by law (a “Prohibited Jurisdiction”), including Cuba, Iran, North Korea, Syria and the Crimea region;
iii. You will not allow potential subscribers who are: (A) located in any Prohibited Jurisdiction; or (B) identified on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or subject to any other export control or economic sanctions lists or programs, to register for the Service using your Link; and
iv. You represent and warrant that: (A) you are not named on or subject to any government sanctions programs or list of persons or entities prohibited from receiving U.S. exports or engaging in transactions with any U.S. person; (B) you are not located in, or a company registered in, any Prohibited Jurisdiction; and (C) you will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located.
c. Anti-Corruption Compliance. You understand and agree that:
i. You will comply with all applicable United States and international anti-corruption and anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and others, as they relate to your access, use, and resale of the Service;
ii. You will not, directly or indirectly offer, promise, or give any payment or anything of value to a government official, or any other individual or entity, where the intent is to improperly influence any act or decision of the government official, or other individual or entity, to obtain or retain business or some other benefit or commercial advantage;
iii. You will not, directly or indirectly, solicit or accept any sort of payment or anything of value from anyone, where the intent is to improperly influence any act by you, any third-party acting on your behalf, or AC PM; and
iv. You acknowledge that you have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value in connection with this Agreement.
5. Commissions
a. All Affiliates are required to complete and submit proper tax information to AC PM before commission payments will be issued. If AC PM does not receive proper tax information from you within 90 days of you joining the Postmark Affiliate Referral Program, then your right to receive commission payments arising from any and all subscribers that you refer will be forever forfeited (each, a “Forfeited Subscription”). AC PM will have no obligation to pay you commission associated with a Forfeited Subscription. Once you have completed and submitted proper tax information to AC PM, then you will be eligible to receive commissions payments for any new subscribers that you refer after submitting such tax information, so long as these new subscribers do not involve the same customer associated with a Forfeited Subscription.
b. You don’t have to worry about collecting any funds from any of the new subscribers you refer to us. AC PM will bill the customer directly and will be solely responsible for collecting payment. When a new customer subscribes to the Service through your Link and continues a paid subscription for at least 60 days, we’ll then pay you a commission based on the amount of the monthly payments we collect from them as a Postmark subscriber, including those amounts we collected in the first 60 days but, in any case, excluding amounts that were refunded or paid for with Postmark credit. The base commission for any affiliate is twenty percent (20%) of the monthly revenue received from such subscribers. We will only pay you commissions for the first twelve (12) months of a referred new customer’s paid subscription.
c. As an Affiliate of the Postmark Affiliate Referral Program, you can see a summary report for all new subscriptions directed from your Link, which may include information on new subscriber pricing plans and the associated commissions, through Rewardful.
d. Approved commissions following the first 60-day period will be payable to you within 30 days of the end of each calendar month. We will pay you your commission through your PayPal account as long as you meet or exceed the minimum payout threshold amount of $100. If we pay your commission in a currency that is not United States dollars, we will convert such commission at an exchange rate that we determine, which may include fees and charges for the conversion.
e. You, and not AC PM, will be responsible for paying any applicable taxes and duties that may be imposed with respect to any compensation, commissions, or payments received under or in connection with this Agreement.
f. At AC PM’s discretion, it may increase affiliate commissions based on performance on a case-by-case basis and may revert back to the original percentage if performance does not remain consistent. AC PM does not guarantee increases in commission to any affiliate, and AC PM retains the right to change, modify, or cancel any commission plan at any time.
6. Term and Termination
a. The term of this Agreement (the “Term”) will begin upon your acceptance of this Agreement and will end when terminated. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other at least five (5) days written notice of termination.
b. You are only eligible to earn commissions on new subscriptions occurring during the Term and that remain subscribed for at least 60 days as of the effective date of termination. AC PM may, in its sole discretion, pay you commissions for any new subscribers that remain subscribed for 60 days after the effective date of termination, but has no obligation to do so.
7. Representations and Warranties
Each of the parties hereby represents and warrants to the other that:
a. it has full power and authority to enter into this Agreement and to perform its obligations hereunder;
b. it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Agreement; and
c. it will perform its obligations in compliance with all laws, rules, and regulations applicable to its activities pursuant to this Agreement.
8. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
a. AC PM will remain solely responsible for the operation of the Postmark website and the Service, and you will remain solely responsible for the operation of the Affiliate Site. Each party acknowledges that (i) their respective sites may be subject to temporary downtime due to causes beyond their reasonable control, and (ii) it retains sole right and control over the programming, content, and conduct of transactions over its respective site or service
b. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT, THE SERVICE AND POSTMARK AFFILIATE REFERRAL PROGRAM ARE PROVIDED “AS IS,” AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AC PM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR THROUGH COURSE OF DEALING, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING (I) THE AMOUNT OF COMMISSIONS AFFILIATE MAY GENERATE DURING THE TERM, AND (II) ANY ECONOMIC OR OTHER BENEFIT THAT AFFILIATE MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
c. UNDER NO CIRCUMSTANCES WILL AC PM BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY CLAIMS FOR LOST PROFITS, LOST BUSINESS, OR LOST DATA) ARISING OUT OF THIS AGREEMENT, EVEN IF AC PM HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. AC PM’S ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER CAUSE OF ACTION WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
9. Indemnification
You agree to indemnify, defend and hold harmless us and our parent, affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney's fees) relating to the operation of any Affiliate Site, a breach of your obligations under this Agreement, or the violation of any third party intellectual property rights in respect of your Affiliate Site and activities under this Agreement.
10. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with AC PM and limits the manner in which you can seek relief from us.
a. Except for small claims disputes in which you or AC PM seek to bring an individual action in small claims court, you and AC PM waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement resolved in court. Instead, all disputes arising out of or relating to this Agreement will be resolved through confidential binding arbitration held in Chicago, Illinois in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available at www.jamsadr.com and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
b. YOU AND AC PM AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT IS PERSONAL TO YOU AND AC PM AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.
c. You and AC PM agree that this Agreement affect interstate commerce and that the enforceability of this Section 10 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. All disputes between AC PM and you will be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, consolidate more than one individual’s claims, or preside over any proceeding involving more than one individual, all of which are prohibited by this Agreement. You and AC PM agree that for any arbitration you initiate, you will pay the filing fee and AC PM will pay the remaining JAMS fees and costs. For any arbitration initiated by AC PM, AC PM will pay all JAMS fees and costs. You and AC PM expressly agree that the state and federal courts of Chicago, Illinois shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
d. Any claim related to this Agreement must be filed within one year after the claim arose; otherwise, you and AC PM no longer have the right to assert the claim.
e. You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 10 by sending a written letter to AC PM, Attention: Postmark Affiliate Referral Program, 1 North Dearborn Street, 5th Floor, Chicago, IL, 60602, that specifies (i) your name, (ii) mailing address, and (iii) your request to be excluded from the final, binding arbitration procedure specified above. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 11(c) of this Agreement.
11. General Provisions
a. You and Postmark are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between you and us.
b. Neither you or we will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.
c. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Illinois, without reference to its conflict of laws provisions. You and AC PM expressly agree to exclusive jurisdiction in any competent court in Chicago, Illinois.
d. Any notices under this Agreement will be given in writing. Notices may be given via electronic means, including by AC PM sending an email notification to the address associated with your account or providing notice through the Service, and will be deemed delivered and given for all purposes on the sent date, but, in the case of notices to AC PM, only if AC PM has confirmed its receipt by return electronic mail. Notices sent via traditional means will be sent via postal mail or certified mail, return receipt requested. Notices to AC PM will be sent to: Attention: Postmark Affiliate Referral Program, 1 North Dearborn Street, 5th Floor, Chicago, IL, 60602.
e. You may not assign this Agreement, in whole or in part, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
f. The failure of either you or us to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
g. This Agreement represents the entire agreement between you and us with respect to the subject matter covered by this Agreement and supersedes any other oral or written agreements regarding such subject matter, and may be supplemented or revised by AC PM from time to time.
h. If any provision of this Agreement is determined to be invalid, unlawful, void, or unenforceable to any extent, such provision will be interpreted to best reflect the parties’ intent, and the remainder of this Agreement will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.