HOLISTIC CARING AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (the “Agreement”) is entered into by and between Emack Enterprises, dba: Holistic Caring, (“Company”) a California Limited Liability Corporation, and Affiliate Applicant. (“Affiliate”), hereinafter referred to collectively as the “Parties” and individually as a “Party.”
1.1. The Company hereby engages Affiliate, and Affiliate hereby accepts such engagement, as an independent contractor to provide certain services to the Company on the terms and conditions set forth in this Agreement.
1.2. Affiliate shall provide to the Company the services set forth on Schedule I to the Agreement (the “Services”).
1.3. The Company shall not control the manner or means by which Affiliate or Affiliate’s employees or contractors perform the Services, including but not limited to the time and place Affiliate performs the Services.
1.4. Unless otherwise set forth in Schedule I, Affiliate shall furnish, at Affiliate’s own expense, the equipment, supplies, and other materials used to perform the Services. The Company shall provide Affiliate with access to its marketing materials and other sales and marketing related resources to the extent necessary for the performance of the Services. Holistic Caring will extend our professional Affiliate software management to Affiliates.
1.5. “Client” shall refer to the end user of Company’s services.
1.6 “Affiliate Members” refers to the Clients of Company’s services that were obtained through Affiliate services as set forth in Schedule I.
2.1 The term of this Agreement shall commence as of the date set forth above and shall continue for a period of one year, unless earlier terminated in accordance with Section 10 of this Agreement (the “Term”). This Agreement will automatically renew for additional one-year periods unless written notice of non-renewal is given by either party at least ninety (90) days prior to such renewal.
III. RELATIONSHIP OF THE PARTIES
3.1. Affiliate is an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between Affiliate and the Company for any purpose. Affiliate has no authority (and shall not hold itself out as having authority) to bind the Company and Affiliate shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent.
3.2. Without limiting Section 3.1, Affiliate will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on Affiliate’s behalf. Affiliate shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by Affiliate in connection with the performance of the Services shall be Affiliate’s employees or contractors and Affiliate shall be fully responsible for them and indemnify the Company against any claims made by or on behalf of any such employee or contractor.
IV. INTELLECTUAL PROPERTY RIGHTS
4.1. The Company is and shall be, the sole and exclusive owner of all right, title, and interest throughout the world in and to all of the products and services it produces, and any marketing collateral in association with such products and services that may be provided to Affiliate in furtherance of Affiliate performing Services, including all patents, copyrights, trademarks, trade secrets, and other intellectual property rights (collectively “Intellectual Property Rights”) therein.
4.2. Company hereby grants Affiliate a non-exclusive, limited license to display Company’s trade names and logos as required for (a) the performance of the Services and (b) Affiliate’s marketing and sales efforts to effectively drive traffic to Company products and promote revenue for Company and Affiliate. Affiliate shall comply with any usage guidelines provided to Affiliate in advance by Company. This clause shall not restrict the Company’s ability to update any usage guideline, provided that Affiliate shall only comply with those usage guidelines provided to it in advance.
V. COMMISSION PAYMENTS & REVENUE SHARING
5.1. In consideration of Affiliate’s performance and execution of the Services under this Agreement, the Company shall pay to Affiliate a commission in the amount of ten percent (10%) of the Net Sales Revenue of any and all Holistic Caring enrollments of Affiliate’s Clients (the “Earned Commission Payment”), except as provided in section 5.3 and Schedule 1. “Net Sales Revenue” means the aggregate amount of cash actually collected by Company from enrollments, but excluding any value added, sales and/or other taxes and/or tariff duties levied on Clients in respect of their purchase of the Company products and services. Affiliate shall be eligible for the Earned Commission Payment upon initial enrollment but after Client payment as well as for any additional services purchased by the Client for up to three hundred and sixty-five (365) days after the initial Client enrollment.
For Affiliates who would like to more aggressively market the Company’s programs, we have developed a tiered commission schedule that offers more robust payments with volume. Every 12 months, the Affiliate will be able to work for the higher levels of the tier.
- 1 – 100 sales (any program) = 10% commission
- 101 – 500 sales (any program) = 20% commission
- 501 + (any program) = 30% commission
Payments achieved in the higher levels will be retroactively paid back to 1 for any Affiliate that hits each level. 10% level payouts will be paid as the routine commission, and higher levels will be paid through bonus payments as Affiliate numbers rise.
Affiliate status will reset back to 1 on each anniversary of participation in the program. Affiliates will always have 12 months to earn higher level tiers in the schedule.
Affiliate joins the program on 3/1/21, earning 10% until sale # 101 on 10/1/21. Affiliate will earn a bonus calculation equal to an extra 10% commission on sales 1-100, and sales 101+ will be paid at 20% commission until the anniversary renewal on 3/1/22.
This keeps incentives aligned and programs solvent as Affiliates seek new business.
5.2. Earned Commission Payments shall be made only after income has been received by the Company. Earned Commission Payments shall be made within thirty (30) days following the end of each month.
5.3. The Company by itself or through its licensees or sublicensees shall use diligent efforts to make all Company services commercially available. Notwithstanding the foregoing, the Company retains the right to cease the marketing, sale, offering, licensing, sublicensing, or use of any services, at any time, for any reason or no reason, in its sole discretion (the “Cancelled Services”). Upon any such decision by the Company to stop the marketing, sale, offering, licensing, sublicensing, or use of the Cancelled Services, all Earned Commission Payments and/or Client Renewal Commission Payment arising out of the Cancelled Services shall end. Affiliate shall still be entitled to receive any Earned Commission Payment and/or Client Renewal Commission Payment arising out of any Net Sales Revenue from any Cancelled Services.
VI. EXPENSES & RECORDS
6.1. The Company shall not pay for any travel or other costs or expenses incurred by Affiliate in connection with the performance of the Services.
6.2 During the term hereof and for a period of three (3) years thereafter, (a) Company will maintain customary financial and related records, together with supporting and underlying documentation (collectively, “Records”), that enable Affiliate to readily identify sales of the Holistic Caring enrollments to Affiliate Members, and (b) Affiliate and its respective representatives will have the right to audit, examine and make copies of or extract from the Records, all of which will be made electronically available and/or physically available during normal business hours at Company’s address at 5210 Balboa Ave., #F, San Diego, CA 92117. In the event an audit reveals a discrepancy, Company shall promptly correct (if applicable). Should Affiliate’s audit further establish that any such discrepancy was caused by fraud or material non-compliance on the part of Company, Company shall promptly reimburse Affiliate for all costs relating to such audit. Such reimbursement shall only be recoverable when the Affiliate establishes that fraud or material non-compliance on part of the Company was shown to exist, and that any such fraud or material non-compliance was the actual and proximate cause of the discrepancy. Stated alternatively, should an audit reveal an insignificant, nominal, or de minimus deficiency, the Affiliate shall not be entitled to recover any fees or costs associated with the audit.
7.1. Each Party will use any confidential, proprietary, and/or nonpublic information (“Confidential Information”) of the other Party or its affiliates solely for the purpose of and only to the extent necessary for performing under the Agreement, will disclose such Confidential Information only to its subcontractors and agents (for each of whose acts or omissions with respect to such Confidential Information the receiving Party will be liable) and employees, in each case with a need to know the same for such purposes, and will use at least the same degree of care in protecting the confidentiality of such Confidential Information as it uses in protecting its own information of a similar type, but in no event less than a reasonable standard of care.
7.2. The restrictions set forth in Section 7 shall not apply to the extent that any Confidential Information (a) has been rightfully received by the receiving Party from a third party or public source without confidentiality limitations; (b) was known to the receiving Party, without confidentiality limitations, prior to its first receipt by the receiving Party from the disclosing Party; (c) is or becomes known publicly through no fault of the receiving Party; (d) is independently developed by the receiving Party without use of the Confidential Information.
7.3. Breach of this Section 7 will cause irreparable harm. Either Party may seek injunctive relief in any action to enforce this Section 7 and the other Party hereby waives the claim or defense that the suing Party has an adequate remedy at law. The provisions of this Section shall continue during the Term and for a period of two (2) years thereafter, however any obligation of confidentiality with respect to any information that qualifies as a trade secret under the requirements of any applicable law will survive as long as that information is classified as such.
7.4 Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The receiving Party agrees to provide written notice of any such order to an authorized officer of the disclosing Party within five (5) calendar days of receiving such order, but in any event sufficiently in advance of making any disclosure to permit the disclosing Party to contest the order or seek confidentiality protections, as determined in the disclosing Party’s sole discretion.
VIII. REPRESENTATIONS AND WARRANTIES
8.1. Affiliate represents and warrants to the Company that:
(a) Affiliate has the right to enter into this Agreement, to grant the rights granted herein, and to perform fully all of Affiliate’s obligations in this Agreement;
(b) Affiliate’s entering into this Agreement with the Company and Affiliate’s performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which Affiliate is subject;
(c) Affiliate has the required skill, experience, and qualifications to perform the Services, Affiliate shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services; and
(d) Affiliate shall perform the Services in compliance with all applicable federal, state, and local laws and regulations.
8.2. The Company hereby represents and warrants to Affiliate that:
(a) it has the technological capability to track Client’s directed to its service to credit Affiliate (Affiliate Members);
(b) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
(c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action; and
(d) all products and services are sold and provided to Affiliate Members in compliance with all applicable federal, state and local laws, rules and regulation and do not and will not violate or infringe upon the intellectual property right or any other right whatsoever of any person, firm, corporation, or other entity.
IX. LIMITATION OF LIABILITY
9.1. In no event shall either party hereto be liable for any special, indirect, incidental, consequential or punitive damages (including, without limitation, damages for any loss of data, profit, goodwill, anticipated savings, revenue or business), whether based on contract, tort or other legal theory, in connection with this Agreement.
10.1. In the event of a termination of this Agreement for any reason, the Company shall pay Affiliate any and amounts then due and payable up to and including the date of such termination and will then cease all payments.
10.2. Affiliate or the Company may terminate this Agreement, effective immediately upon written notice to the other party to this Agreement, if the other party breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the other party does not cure such breach within 15 calendar days after receipt of written notice of such breach.
10.3. Upon expiration or termination of this Agreement for any reason, or at any other time upon the Company’s written request, Affiliate shall promptly:
(a) deliver to the Company all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information, and any materials that may have been provided to Affiliate in furtherance of this Agreement;
(b) permanently erase all of the Confidential Information from Affiliate’s computer systems, except that to the extent that computer back-up procedures create copies of the Confidential Information, Affiliate may retain such copies in its archival or back-up computer storage for the period that Affiliate normally archives backed-up computer records, and these computer copies are subject to all restrictions and obligations contained in this Agreement.; and
(c) certify in writing to the Company that Affiliate has complied with the requirements of this clause.
10.4. Upon expiration or termination of this Agreement for any reason, or at any other time upon the Affiliate’s written request, Company shall promptly:
(a) deliver to the Affiliate all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information, and any materials that may have been provided to Company in furtherance of this Agreement;
(b) permanently erase all of the Confidential Information from Company’s computer systems, except that to the extent that computer back-up procedures create copies of the Confidential Information, Company may retain such copies in its archival or back-up computer storage for the period that Company normally archives backed-up computer records, and these computer copies are subject to all restrictions and obligations contained in this Agreement.; and
(c) certify in writing to the Company that Company has complied with the requirements of this clause.
10.5. The terms and conditions of this Section 10 and Section 3, Section 4, Sections 5, Section 6, Section 7, Section 8, and Section 12 shall survive the expiration or termination of this Agreement.
11.1 Affiliate shall not assign any rights, or delegate or subcontract any obligations, under this Agreement. If the Affiliate agreement ends, there are no further payments to be made, and there are no terms for successors under this agreement.
12.1. Affiliate shall not export, directly or indirectly, any technical data acquired from the Company, or any products utilizing any such data, to any country in violation of any applicable export laws or regulations.
12.2. All notices, requests, consents, approvals, waivers, demands, and other communications required or permitted to be given or made under this Agreement shall be in writing and shall be deemed delivered to the Parties (a) on the date of personal delivery against a written receipt, or (b) on the date sent by confirmed telephonic facsimile transmission, or (c) on the first business day following the date of delivery to a nationally recognized overnight courier service, or (d) or the third business day following the date of deposit in the United States Mail, postage prepaid, by certified mail, in each case addressed as follows, or to such other address, person or entity as any party may designate by notice to the other in accordance herewith:
If to Emack Enterprises, LLC, dba Holistic Caring :
5210 Balboa Ave., #F, San Diego, CA 92117
Attn.: Elisabeth Mack
12.3. This Agreement, together with any other documents incorporated herein by reference, and related exhibits and schedules, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
12.4. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto, and any of the terms thereof may be waived, only by a written document signed by each Party to this Agreement or, in the case of waiver, by the Party or Parties waiving compliance.
12.5. This Agreement and all related documents including all schedules attached hereto, are governed by, and construed in accordance with, the laws of the State of California, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
12.6. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.7. This Agreement may be executed in multiple counterparts and by facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument.
Affiliate may, at its sole discretion, promote Company’s services to Affiliate Members at its own expense.
For clarity, Affiliate is under no obligation to perform any minimum level of sales or performance.
Affiliate shall be responsible for coordinating with Company to verify Affiliate Members and utilize a web-based link provided by Company for tracking of commissions.