Branding Compass Affiliate Program Agreement

This Affiliate Program Agreement (“Agreement”) is effective as of the Effective Date defined below between the company or organization identified as “Affiliate” below (“Affiliate”) and Visible Logic, Inc., a Maine business corporation (“VL”).

THE TERMS OF THIS AGREEMENT MAY BE AMENDED, SUPPLEMENTED, OR MODIFIED AT ANY TIME BY VL IN ITS SOLE AND ABSOLUTE DISCRETION, EFFECTIVE AS FOLLOWS: (a) VL will post the revised version of this Agreement on the Branding Compass website https://brandingcompass.com/terms-and-conditions/; (b) VL will implement an acceptance process requiring Affiliate to click a button or other website feature reading “Create Contract” or otherwise indicating Affiliate’s intent to be bound to the amended, supplemented, or modified Agreement; or (c) VL may provide such other notice as VL may elect in its sole and absolute discretion (in each case, a “VL Amendment”). If any future VL Amendments implemented pursuant to subsections (a) or (c) above are unacceptable to Affiliate, or cause Affiliate to no longer comply with this Agreement, then Affiliate may terminate this Agreement in accordance with this Agreement’s termination provisions. As applicable, Affiliate’s (i) continued participation in VL’s Program (defined below), including the use of the BC Marks, after VL notifies Affiliate of a VL Amendment; (ii) failure to terminate this Agreement in accordance with its termination provisions; or (iii) clicking “Create Contract” to the amended, supplemented or modified Agreement, shall conclusively demonstrate Affiliate’s consent to the VL Amendment. Except as set forth in this Agreement, no amendment to or modification of this Agreement is effective unless it is in writing and signed by VL and Affiliate.

Introduction

VL is the developer and publisher of the Branding Compass Service (defined below). To promote the Service, VL has established the Branding Compass Affiliate Program (the “Program”) to allow organizations and individuals to advertise the Service. This Agreement governs how those organizations and individuals can participate in the Program.

The parties therefore agree as follows.

1. Definitions

“Referral Link” means the unique tracking link identified in Exhibit 1.

“Application” means the application document submitted by individuals and organizations to VL for consideration as potential affiliates.

“Applicable Law” means the federal and state laws of and within the United States of America and the laws of any other jurisdiction worldwide.

“Approved Marketing Assets” means marketing copy, files containing BC Marks and other marketing collateral made available by VL to Affiliate for use as this Agreement expressly authorizes.

“BC Marks” means (a) the BRANDING COMPASS trademark and (b) any and all trademarks, service marks, logos and other branding assets owned or controlled by VL that VL may make available to Affiliate as Approved Marketing Assets.

“Customer” means a person or organization using any product or service offered by VL on the Branding Compass website.

“Effective Date” means the date on which VL confirms in writing to Affiliate that VL has approved Affiliate to participate in the Program.

“Intellectual Property Rights” means copyrights, patents, trademarks, trade secrets, trade dress, and all other intellectual property rights.

“Qualifying Conversion” means an instance of a Prospect becoming a Customer after using an Inbound Link to visit the Website.

“Purchase” means a Customer’s purchase of a single service or product from the Website (whether that service or product is a Comprehensive or Premium package, a logo, or any other service or product).

“Prohibited Content” means written or other content that, in VL’s judgment, consists of or incorporates pornography or obscene material, violence, hate speech, harassment, gambling, sweepstakes or any other games or contests, multi-level marketing (MLM) business arrangements or pyramid schemes, activity that violates any Applicable Law, or activity that infringes on the Intellectual Property Rights or any other rights of a third party.

“Prospect” means a person who, on behalf of themselves or an organization, visits the Website using an Inbound Link from any Source Channel.

“Service” means (i) the Branding Compass suite of products and services provided by VL and accessed via the Website; (ii) the BC Marks; and (iii) all other written, audio, video or other content, material or assets owned by VL, whether appearing in or on the Website or elsewhere, including other trademarks owned or used by VL.

“Source Channels” means any channels designated as “Source Channels” in Affiliate’s Application.

“Website” means the Branding Compass website and software (https://brandingcompass.com).

2. Overview of the Branding Compass Affiliate Program
   • Administrative Matters. Once VL approves Affiliate’s Application, Affiliate must create an account with LeadDyno (https://brandingcompass.leaddyno.com) VL’s third-party solution for administering the Program, and use LeadDyno as directed by VL.
   • Inbound Links. At any time during the Term, Affiliate may place HTML links from any or all Source Channels to the Website (“Inbound Links”). Affiliate will generate all Inbound Links using one or more affiliate links provided by VL. Each Affiliate Link will expire 60 days after VL provides it to Affiliate. Affiliate will not represent to any Prospect that Affiliate has authority to create a legally binding agreement between that Prospect and VL.
   • Nothing in this Agreement requires Affiliate to undertake any particular efforts to refer traffic or Prospects to VL. Affiliate has sole discretion regarding which Prospects to refer to VL and the nature of its advertising efforts.
3. Commissions & Reporting
   • For each Lead who becomes a Customer within 60 calendar days after visiting the Website by clicking an Inbound Link, VL will pay Affiliate a commission (“Commission”) equaling 25% of the total fees paid by the Customer for its first paid Purchase. Commissions are subject to other express terms of this Agreement. This Agreement entitles Affiliate to no compensation for any Purchases by each Customer other than the first Purchase, and entitles Affiliate to no compensation other than the Commissions. VL will pay Commissions via Paypal or bank transfer using the payment information provided in Affiliate’s Application.
   • Batched Commission Payments and Reports. Within 30 days after the end of each calendar month in which Affiliate has earned one or more Commissions, VL will pay Affiliate all Commissions earned in that month in one aggregated payment and will provide Affiliate a written report summarizing the Commissions earned in that month (the “Commission Report”). Affiliate may dispute any aspect of a Commission Report within 30 days after its receipt by a written notice to VL, and in that case the parties will discuss and resolve the dispute in good faith. Affiliate will be deemed irrevocably to have waived any claim to Commissions not identified in a Commission Report or which Affiliate believes are inaccurately summarized in a Commission Report.
   • Taxes and Expenses. Affiliate is responsible for paying all taxes applicable to each Commission. Each party will bear all of its expenses incurred in performing its obligations hereunder.
4. Eligibility

To be eligible for a Commission, (i) the related Qualifying Conversion must have occurred during the Term; (ii) the Commission must not violate any Applicable Law and must not have been obtained fraudulently; and (iii) the Prospect must not be, or be a representative of, a person or organization who is already a Customer (i.e., no self-referring).

5. Affiliate’s Obligations
   • Approved Assets. Affiliate in connection with this Agreement may use any and all Approved Assets that VL makes available to it in connection with this Agreement, but need not use any or all of them.
   • Affiliate Assets. Affiliate at any time may, but need not, submit to VL for review and feedback any advertising assets (other than Approved Assets) that Affiliate wishes to use in connection with this Agreement. VL will make reasonable efforts to provide feedback on any such proposed assets. All Affiliate Assets must comply with this Agreement’s provisions, whether VL provides feedback on them or not.
   • Advertising Guidelines. In connection with this Agreement, Affiliate:
     • will only use those images of BC Marks that VL makes available to Affiliate, without alteration of any type (including cropping or converting from color to black and white);
     • will immediately comply with any written instruction from VL at any time to discontinue using any Approved Marketing Assets that may have been previously authorized;
     • will promptly comply with any separate written guidance that VL may communicate to Affiliate regarding placement of BC Marks in Affiliate’s advertising materials or other VL-related trademark or brand matters;
     • will ensure that any Source Channels owned or operated by Affiliate will include written privacy policies that comply with California law and other applicable privacy and data protection laws (including Europe’s data protection laws, to the extent they apply to Affiliate) and disclose to viewers and visitors any instances in which their personally identifiable information or personal data may be shared with VL in connection with this Agreement;
     • will not use BC Marks in a misleading or disparaging way or in connection with or to promote any product or service that competes with Branding Compass or any other service offered by VL;
     • will not mischaracterize any warranty that VL itself may offer with respect to Branding Compass;
     • will not use BC Marks in a way that implies VL endorses or approves of Affiliate’s services or products;
     • will not use BC Marks or otherwise act in violation of Applicable Law; and
     • will not use BC Marks in connection with, or place Inbound Links in any channels that include or promote, Prohibited Content.
   • Disclosures – Websites and Software Applications. In every Source Channel that is a website or software application, Affiliate will publish a clear disclosure notifying readers, viewers and visitors that Affiliate may receive compensation from VL for referrals. Each such disclosure will consist of either the following disclosure verbatim or any other disclaimer language that VL may approve in writing to Affiliate:

“As a Branding Compass Affiliate, we may earn compensation when we refer customers to Branding Compass.”

• Disclosures – Social Media. In every post to a Source Channel that is a social media account, Affiliate will include a clear disclosure notifying readers and viewers that Affiliate may receive compensation from VL for referrals. Each such disclosure will consist of either (a) any language previously approved in writing by VL or (b) any of the following notifications: Ad, #Ad, Sponsored or #Sponsored. For clarity, each such disclosure must appear in each social media post itself; inclusion in Affiliate’s handle, profile or account itself does not comply with this paragraph.
• Affiliate will provide information reasonably requested by VL regarding Affiliate’s promotion and marketing of the Website or any other information reasonably requested by VL.

6. Prospects and Customers are not Affiliate’s Customers; No Customer Support

Prospects are not Affiliate’s customers. If contacted by a Prospect directly for matters relating to VL, Affiliate will inform the Prospect that the Prospect must follow contact directions on the Website to address customer service issues.

7. Term & Termination
   • The “Initial Term” of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement, will continue in effect until one year from such date and then terminate. This Agreement will then automatically renew for additional successive 1-year terms (each, a “Renewal Term”) unless either party provides the other party with at least 30 calendar days’ prior written notice of nonrenewal. Together, the Initial Term and all Renewal Terms are the “Term.”
   • Either party may terminate this Agreement at any time, with or without cause, by written notice to the other party. After termination, Affiliate will be entitled to those Commissions stated in the next Commission Report following the termination date and to no other Commissions. Termination of this Agreement will contemporaneously terminate all licenses that this Agreement grants.
8. Intellectual Property
   • All Intellectual Property Rights in the Service will, as between the parties, belong exclusively to VL or, as applicable, to its licensors. Affiliate will have no ownership rights in, no license to, and no other rights relating to the Service except as this Agreement expressly grants.
   • VL hereby grants Affiliate a nonexclusive, nontransferable, worldwide, royalty-free right during the Term to use and display the BC Marks only as and to the extent expressly authorized by this Agreement and subject to this Agreement’s limitations, restrictions and conditions.
9. Mutual Representations & Warranties

Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that this Agreement binds such party and is enforceable in accordance with its terms.

10. Disclaimers of Warranties

The Service is provided “as is” without warranty of any kind. VL disclaims all warranties to Affiliate and to any third party, whether express, implied or statutory, regarding the Service, including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, title, non-infringement of third-party rights and any warranties or conditions arising out of course of dealing or usage of trade. VL disclaims any warranty that the Service will be uninterrupted, error-free, virus-free, or secure.

VL makes no representation or warranty regarding the amount of Commissions Affiliate can expect to receive in connection with this Agreement.

11. Limitations of Liability

To the extent permitted by law, in no event shall VL be liable to Affiliate for any incidental, indirect, punitive, special or consequential damages, including lost profits or business opportunities, relating to this Agreement.

If, notwithstanding the other terms of this Agreement, VL is determined by a court to have any liability to Affiliate, then VL’s aggregate liability to Affiliate will be limited to the total Commissions Affiliate has actually earned for Qualifying Conversions in the three-month period before the event giving rise to a claim.

VL will have no liability to any third party for any losses or damages under any theory of liability. This section 11 is intended to disclaim liability to the fullest extent that Maine law permits.

12. Indemnification
    • Affiliate will indemnify, defend and hold harmless (collectively “indemnify” or “indemnification”) VL, VL’s affiliates and all of their officers, employees, directors, independent contractors (collectively, “VL Indemnitees”) from and against any third party claims, allegations, lawsuits, legal complaints, demands, actions and proceedings, and any resulting liabilities, settlements, penalties, fees, fines, losses, judgments, damages, costs and expenses (including reasonable legal fees and expenses) (all of the foregoing collectively, “Claims”), brought against any VL Indemnitee alleging or arising out of Affiliate’s (a) breach of this Agreement or (b) use of the BC Marks in any way not expressly authorized by this Agreement.
    • VL will notify Affiliate in writing promptly after VL becomes aware of any Claim against a VL Indemnitee; will give Affiliate sole control of the defense or settlement of the Claim; and will provide Affiliate (at Affiliate’s expense) with all information and assistance reasonably requested by Affiliate to defend or settle the Claim. Affiliate will not enter into any settlement that (a) imposes an obligation on any VL Indemnitee; (b) requires any VL Indemnitee to make an admission or make a public statement; or (c) imposes liability not covered by these indemnifications or places restrictions on a VL Indemnitees without VL’s prior written consent.
13. Confidentiality
    • This confidentiality section applies to any Confidential Information received by a party (the “Recipient”) from the other party (the “Discloser”) in connection with this Agreement. During the Term and for one year after its termination, a Recipient will use Confidential Information solely to perform its duties under this Agreement and will disclose it only to its affiliates and its and the affiliates’ employees and agents who are bound by obligations of confidentiality at least as strict as those contained in this Agreement. “Confidential Information” means information designated by the Discloser as “confidential” or which a reasonable person would understand to be confidential given the nature of the information and the circumstances of the disclosure. Confidential Information includes, without limitation, information relating to the business, operations, ideas, inventions, strategies and finances of a party or its customers. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of the Recipient; (ii) is in the Recipient’s possession before receipt from the Discloser; (iii) is acquired by the Recipient from a third party without breach of a confidentiality obligation; or (iv) is independently developed by Recipient without reference to the Discloser’s Confidential Information.
    • Money damages will not be an adequate remedy if this section 13 is breached. Therefore, in addition to any other remedies, either party may seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
    • If a third party requests that a Recipient disclose any Confidential Information pursuant to a subpoena, summons, search warrant, governmental order, or other lawful process, that Recipient (if permitted lawfully) will provide prior written notice to the Discloser of the disclosure and will consult with the Discloser’s legal counsel regarding an appropriate response.
    • Upon any termination of this Agreement and upon a Discloser’s written request at any time, a Recipient will promptly destroy or, at the Discloser’s request, return, all of the other party’s Confidential Information in its possession, custody, or control, including deleting or rendering unusable all electronic files and data that contain Confidential Information.
14. Additional Terms
    • Independent Contractors. Each party will act as an independent contractor of the other with respect to this Agreement, and employees of one party will not be considered to be employees of the other. This Agreement creates no agency, partnership, joint venture, other joint relationship or fiduciary relationship between the parties. Neither party may make any commitments binding on the other or make any representation that the first party is acting for or on behalf of the other.
    • No exclusivity. This Agreement does not create an exclusive agreement between the parties. Affiliate may provide similar services to other organizations. VL may enter into agreements similar to this Agreement with other organizations, and those agreements may result in other organizations placing Inbound Links in Source Channels that are not owned by Affiliate.
    • Affiliate may not assign or transfer any of its rights under this Agreement without VL’s prior written consent.
    • Force Majeure. A party’s delay in performance or failure to perform any obligation under this Agreement will not be considered a breach if and solely to the extent such delay or failure is caused by events beyond that party’s reasonable control, including but not limited to pandemics, Acts of God, embargoes, governmental restrictions, terrorist attacks, conflicts, fires, floods, vandalism, power outages or lack of availability caused by a third-party provider of hosting services. The party whose performance is affected by such events will promptly give written notice to the other specifying the force majeure circumstances and the obligations of the party giving notice will be suspended solely to the extent caused by the force majeure and so long as the force majeure continues, and the time for performance of the affected obligation will be extended by the time of the delay caused by such force majeure. The party claiming the delay or failure due to the force majeure event will exercise all reasonable efforts to mitigate the extent of the delay or failure, as applicable.
    • Agreement Binding on Successors. This Agreement binds and will inure to the benefit of the parties and their heirs, administrators, successors, and assigns.
    • If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    • No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or later breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
    • Entire Agreement. This Agreement is the entire understanding of the parties and supersedes all prior agreements, written or oral, between them concerning its subject matter. Any amendment to this Agreement must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
    • Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
    • Governing Law. Maine law, except for conflict of law rules, will govern any dispute related to this Agreement.
    • Dispute Resolution. Before initiating a legal proceeding, the parties will try to settle any dispute between them relating to this Agreement by good-faith consultation. If that consultation fails, then any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Cumberland County, Maine, before one JAMS arbitrator (“Arbitrator”). Judgment on the Arbitrator’s award will be final, will bind the parties, will be the exclusive remedy between the parties regarding any claims, counterclaims, issues or accounting presented to the Arbitrator and may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
    • Notices and other communications to VL required under this Agreement must be communicated by Affiliate to VL at [info@brandingcompass.com]. VL’s communications to Affiliate will be deemed received by Affiliate if sent by VL to any email address specified in Affiliate’s Application.
    • The following sections of this Agreement will survive the Agreement’s termination: sections 5.6, 8.1, 10, 11, 12, 13, 14.3, 14.5, 14.6, 14.7, 14.10, 14.11, 14.12.

[End of Agreement]