Business Power Tools®
Affiliate / Referral Partnership Agreement
This Business Power Tools Referral Partner Program Agreement (“Agreement”) contains the complete terms and conditions that apply to any individual’s or entity’s participation in the Business Power Tools Referral Partner (Affiliate) Program (“Program”). The Agreement is a legal contract between JIAN Tools for Sales, Inc. (dba Business Power Tools) a California Corporation, and the party or parties making application to the Program (“Affiliate” or “Sales Agent”).
By clicking the “Yes, I Accept the Terms of this Agreement” button, you represent that you have read and understand the terms and conditions of this Agreement and agree to be bound by them. If the party making application to the Program is a business entity, you further represent that you are authorized to bind the entity to the terms of this Agreement.
This agreement shall become effective upon the “Approval” of Business Power Tools. Notice of approval or non-approval shall be provided via email after review of the application by Business Power Tools.
Business Power Tools Services
Business Power Tools provides services that are designed primarily for use by small businesses and described generally as follows:
- Internet-based business coaching and mentoring delivered via its website at www.BusinessPowerTools.com
- Internet-based training programs delivered via its website at www.BusinessPowerTools.com
- Internet-based small business consulting services that provide subscribers with access to a staff of consultants through one or more of its proprietary websites.
Collectively, the above-described services and applications are referred to as “Business Power Tools Services”.
(a) “Confidential Information” means the confidential and/or proprietary information of Business Power Tools or Sales Agent (whether such information is or is not marked or identified as confidential or proprietary), including software (in object and source code form), inventions (whether or not patentable), trade secrets, ideas, know-how, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information, marketing and financial plans and data. “Confidential Information” does not include information that either party can show through documentary evidence: (a) is or becomes publicly known through no fault, act or omission of the other party; (b) is known by or in the possession of a either party prior to its receipt from the other party; or (c) is lawfully obtained from a third party who rightfully possesses the information (without confidentiality or proprietary restriction) and who did not receive it, directly or indirectly, from either party.
(b) “Documentation” means the standard end user documentation for Business Power Tools Services, as modified from time to time by Business Power Tools in its sole discretion.
(c) “End User” means a subscriber to a service provided by Business Power Tools.
(d) “Intellectual Property Rights” means all present and future copyrights, trademark rights, service mark rights, trade secret rights, patent rights, moral rights, and other intellectual property and proprietary rights recognized in any jurisdiction.
(h) “Subscription” means a single retail-ready Business Power Tools Service or bundle of Business Power Tools Services as determined by Business Power Tools in its sole discretion. Subscriptions will be delivered to Sales Agent’s Customers as a web-enabled service over the Internet to be received on the End User’s computer. Subscriptions may be delivered as a monthly or annual subscription to access intellectual property or consulting services or alternately as a subscription to a scheduled series of events.
(j) “Term” shall have the meaning set forth in Section 8.
(k) “Territory” means worldwide, except to the extent limited by U.S. export laws and the applicable import and export laws of foreign jurisdictions, as described in Section 12.
- Appointment & Order-Processing
(a) Appointment. Subject to the terms and conditions set forth herein, Business Power Tools hereby appoints Sales Agent as its independent, authorized, non-exclusive Agent for the solicitation of Subscriptions in the Territory during the Term, and Sales Agent hereby accepts such appointment.
(b) Order Processing. Business Power Tools will be responsible for processing every subscription, and will provide procedures for handling the submission of subscriptions electronically over the Internet, by phone, or on paper. Those procedures include order forms, payment processing, shipping, cancellations, returns and related customer service. Business Power Tools rules, operating procedures and policies regarding customer subscriptions and accounts apply to all subscriptions. We reserve the right to reject any subscription for any reason, including any order that does not comply with Business Power Tools rules, operating procedures and policies or that violates applicable law.
(d) Reporting of Sales. Statements of referral sales activity will be provided to Sales Agent on a monthly basis within 10 business days after the end of each calendar month in which Sales Agent is credited with a referral. All statements after 30 days shall be deemed correct unless Sales Agent provides notice of any error prior to that date. Business Power Tools shall not be responsible for any errors Sales Agent or Sales Agent’s customers make which result in any loss of any tracking information contained in the special link. Business Power Tools does not have any obligation or liability to pay referral fees for purchases made from which cookies are not reasonably traceable by Business Power Tools and for which no Coupon Code was provided.
(e) Business Power Tools Policy Applies to All Orders. Every customer who buys a product through this program is deemed to be a customer of Business Power Tools. Sales Agent does not have the authority to make or accept any offer of purchase on Business Power Tools’ behalf. All of Business Power Tools’ policies regarding customer orders, including product availability, pricing and problem resolution, will apply to these customers. Business Power Tools is not responsible for any representations Sales Agent makes which conflict with our policies.
(g) IP Ownership. Subject to the terms and conditions of Section 2(h) below, Business Power Tools shall own all right, title and interest, including all Intellectual Property Rights, in and to the Business Power Tools Services, including Documentation. All rights in and to the Business Power Tools Services not expressly granted to Sales Agent under this Agreement are reserved by Business Power Tools. Sales Agent shall not remove, alter, or obscure any proprietary notices (including copyright notices) of Business Power Tools within the content of the Business Power Tools Services. Sales Agent shall take all reasonable measures to protect the Intellectual Property Rights of Business Power Tools in the Business Power Tools Services including providing assistance and measures as are reasonably requested by Business Power Tools from time to time.
(h) Third Party Agreements. Certain software programs, or portions thereof, which are used by Business Power Tools to deliver the Business Power Tools Services are subject to the terms and conditions of the GNU General Public License, other similar open source license agreements and other third party agreements (collectively, “Third Party Agreements”). Notwithstanding anything in this Agreement, to the extent the terms and conditions of the Third Party Agreement are inconsistent with or contradictory to the terms and conditions of this Agreement, then the terms and conditions of the Third Party Agreements shall prevail and control, only insofar as they apply to any Third Party Software included within the Business Power Tools Services.
- Trademark License
(a) Trademark License. Business Power Tools grants Sales Agent a non-exclusive, non-transferable, non-sublicensable, revocable right to use its icon and such other images for which we grant express permission, solely for the purpose of identifying Sales Agent as a program participant. Sales Agent may not modify the icon or any of Business Power Tools’ images in any way. We reserve all rights in the icon, any other images, our trade names, trademarks and copyrights and all other intellectual property rights. We may revoke Sales Agent license at any time by giving Sales Agent written notice. Sales Agent may not use such icon and other images in such a way that would harm Business Power Tools’ image. Upon cancellation or termination of this Agreement, Sales Agent agrees to cease all use of such icon and other images.
- Responsibility for Affiliate Site
Sales Agent will be solely responsible for the development, operation and maintenance of its sales materials and website and for all materials that appear on Sales Agent’s website. Sales Agent will be solely responsible for the accuracy and appropriateness of materials posted on Sales Agent’s website (including, among other things, all product related materials), ensuring that materials posted on Sales Agent site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights), and ensuring that materials posted on Sales Agent’s website or in its other sales materials are not libelous or otherwise illegal.
Business Power Tools disclaims all liability for these matters. Further, Sales Agent will indemnify, defend and hold Business Power Tools, its licensees, successors and assigns, and each of its and their officers, directors, agents and employees harmless from and against any and all liabilities including, without limitation, reasonable attorneys’ fees, arising out of any claims, lawsuits or judgments, whether threatened or actual, fixed or contingent, arising out of the breach by Sales Agent of any representation, warranty or covenant of Sales Agent under this Agreement; provided, however, that Sales Agent is notified promptly in writing and is given authority and complete information required for the defense of same.
Sales Agent represents that its sales materials and website do not and will not:
- Promote violence
- Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Promote unlawful activities
- Promote the use of bulk e-mail or “Spam”
- Contain content that is threatening, defamatory, fraudulent, obscene or harassing
- Violate intellectual property rights
- Support by Business Power Tools
(a) Electronic Support. Business Power Tools shall provide electronic support for issues relating to the content or fulfillment including complete Documentation of Business Power Tools Services to Sales Agent’s Customers. Such support shall consist exclusively of access to Documentation and frequently asked questions (“FAQs”), a searchable knowledge base, forums, and the opportunity to provide feedback. Any such web site(s) shall be in English. Business Power Tools agrees that the systems and networks supporting the Business Power Tools Services shall be available to Sales Agent’s Customers on a twenty four (24) hour by seven (7) day basis, subject, however, to regularly scheduled maintenance of the system.
(b) Telephone Support. Business Power Tools provides telephone support for resolution of technical issues that cannot be resolved through electronic communication. Support representatives are available during Business Power Tools’ normal business hours, in accordance with terms that shall be defined and explained on the website where the services are sold.
(c) Web Site Service Interruption. Business Power Tools will use all commercially reasonable efforts to keep its Web sites operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. Sales Agent agrees not to hold Business Power Tools liable for any of the consequences of such interruptions.
(d) Contact Person. Both Sales Agent and Business Power Tools agree to appoint a technology and product point person with whom the other party can communicate whenever necessary and appropriate.
- Marketing, Promotions & Pricing
(a) Marketing. Business Power Tools will provide Sales Agent with access to marketing and promotional materials that Business Power Tools shall determine appropriate from time to time. Sales Agent agrees to follow Business Power Tools’ guidelines for use of the marketing materials, as such guidelines shall be communicated via the Business Power Tools “Affiliate Site” at: https://www.businesspowertools.com/contact-us/ Sales Agent shall be registered on the Affiliate Site as an Affiliate, which will allow Sales Agent to download marketing materials, including web banners that contain reference to the electronic tracking code designed to track referrals from Sales Agent.
(b) Pricing. Business Power Tools will follow Business Power Tools’ pricing policies to determine the price of all subscriptions and products sold on the Business Power Tools web site. Product prices may vary from time to time, including price increases and special discounts offered by us on products that may already be listed by Sales Agent. Business Power Tools will price its services as either monthly or annual subscriptions or alternately as a subscription to a scheduled series of events. Sales Agent may not specify product prices in Sales Agent’s descriptions, unless such specification has been authorized in writing by Business Power Tools, with the understanding that any such authorization shall be for a limited period of time. Product prices change are subject to change without notice and Business Power Tools cannot guarantee product pricing. Retail prices as of the date of this Agreement are set forth on Exhibit A.
(c) Promotions; Free Trial Subscriptions. Business Power Tools shall have the right, in its sole discretion, from time to time, to offer “product promotions” which may be undertaken with special terms, bundling, and/or pricing. The tracking mechanisms for identification of a customer as being referred by Sales Agent shall be applied to free trial subscriptions, and upon conversion to a paying customer, Sales Agent shall receive credit for the transaction.
(d) Discounted Pricing. Sales Agent has authority to offer discounted pricing to its customers through the use of “Coupon Codes” that Sales Agent shall request from Business Power Tools. Each Coupon Code shall provide the agreed upon discount to the retail subscription price, so long as the discount does not reduce the price to an amount lower than the Wholesale price for that subscription. Wholesale prices as of the date of this Agreement are set forth on Exhibit A. Unless Sales Agent and Business Power Tools have reached a specific agreement to the contrary, each Coupon Code shall be persistent – meaning that the discount will apply to renewal periods.
Sales Agent will be entitled to receive a commission on the Net Revenue (as defined below) resulting from any Paid Subscriptions (as defined below) referred to Business Power Tools using Sales Agent’s Affiliate ID or a Coupon Code assigned to Sales Agent. Sales Agent will also be entitled to receive a commission on renewals of said Subscriptions for subsequent periods, so long as this Agreement remains in effect. For purposes of this Agreement, “Net Revenue” means the total revenue received on an order or subscription renewal less government filing fees, third party fees paid by Business Power Tools, up sells to other services and any discounts. For purposes of this Agreement, “Paid Subscriptions” means any order on which payment has been received by Business Power Tools and processed, less the cost of returns and charge backs Business Power Tools incurs on any of your referred Paid Subscriptions. You will be entitled to receive a commission equal to the difference between the Discounted Subscription Price paid by the End User and the Wholesale Price as described on Exhibit A.
Commissions will be paid to Sales Agent on a monthly basis, with commission checks being mailed in the second week of the calendar month following the calendar month in which the Paid Orders were received. Any returns or charge backs will be similarly deducted from Sales Agent’s revenue share. Amounts less than $25.00 will be held until the calendar quarter in which the referral fee due exceeds $25.00, or until this agreement is canceled.
Business Power Tools will NOT pay commissions on any transactions that are generated through the violation (or perceived violation) of this Agreement.
- Term & Termination:
(a) Term. Sales Agent may only receive referral fee payments for orders that are properly placed during the term of this agreement. This term shall commence on the date that both Sales Agent and Business Power Tools sign this Agreement (“Effective Date”) and shall end when canceled or terminated by either party as provided below. Unless otherwise canceled or terminated, the agreement will be for one (1) year and renewed quarterly. Referral fees earned through the date of cancellation or termination of this agreement will remain payable only if the products are not returned or canceled from their orders. Payment of the final referral fee payment to Sales Agent may be withheld for a reasonable time in order to ensure that the correct amount is paid.
(b) Cancellation of This Agreement. Either party may choose to cancel or terminate this agreement at any time and for any reason by written notice of cancellation or termination to the other.
(c) Effect of Termination; Survival. Upon termination or expiration of this Agreement, Sales Agent shall have no right or license to use the Business Power Tools trademarks, copyrights, etc. in any manner. Business Power Tools shall have no obligation to pay Participant any fees or charges, including Referral Fees, for services or products purchased after the expiration or termination of this Agreement for any reason. All provisions of this Agreement which by their nature are intended to service the expiration or termination of this Agreement shall survive and remain in full force and effect. In addition to the foregoing, both parties agree that they shall not, following termination of this Agreement, act in any way to damage the reputation or goodwill of the other party.
- Representations & Warranties
(a) Business Power Tools Warranties. Business Power Tools warrants and represents to Sales Agent that (i) Business Power Tools has full power and capacity to make and carry out its obligations under this Agreement, (ii) its execution of this Agreement will not violate or conflict with any contract or other agreement to which Business Power Tools is a party to or is otherwise bound by and (iii) does not violate or conflict with any applicable law.
(b) Sales Agent Warranties. Sales Agent warrants and represents to Business Power Tools that (i) Sales Agent has full power and capacity to make and carry out its obligations under this Agreement, (ii) its execution of this Agreement will not violate or conflict with any contract or other agreement to which Sales Agent is a party to or is otherwise bound by and (iii) does not violate or conflict with any applicable law.
(d) DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY OR OTHERWISE, BUSINESS POWER TOOLS SHALL IN NO EVENT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHER LEGAL, CONTRACTUAL OR EQUITABLE THEORY FOR: (i)ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii)DAMAGES FOR LOST PROFITS OR LOST DATA; OR (iii)COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
(e) Third Party Software. SALES AGENT acknowledges that Business Power Tools does not give any warranties (and expressly disclaims any and all warranties), express or implied, grant any license or right or give a covenant not to sue, or grant any other rights, including Intellectual Property Rights with respect to any Third Party Software included within the Business Power Tools Services. Notwithstanding anything to the contrary in this Agreement, this Agreement does not and shall not be interpreted or construed to include any representation or warranty that the Third Party Software, or the use thereof, whether alone or in combination with other hardware, software, apparatuses, or methods, is or will be free from infringement of any Intellectual Property Rights or other rights of third parties. Business Power Tools disclaims any and all liability arising from the use of such Third Party Software, including claims of infringement of third party Intellectual Property Rights or other rights arising out of or relating to such Third Party Software. SALES AGENT assumes all risk and liability arising from the use, copying and distribution of such Third-Party Software.
Both SALES AGENT and Business Power Tools shall defend, indemnify and hold the other party, its officers, directors, agents and employees harmless against any and all claims, suits, proceedings, damages, judgments and expenses (including reasonable attorneys’ fees) or settlement thereof in connection with or arising from any third party claim based upon:
(a) any SALES AGENT Customer’s use or distribution of the Subscription not in strict accordance with this Agreement;
(b) any warranties or representations made by the other party which may differ from those otherwise provided by either SALES AGENT or Business Power Tools; or
(c) injuries or damage to persons or property caused or claimed to have been caused by the negligent acts, errors or omissions of either party’s agents while in the course of performing services under this Agreement.
Either party may, at its option, join in the defense or settlement of any such claim with counsel of its choice, at its own expense.
Both SALES AGENT and Business Power Tools shall protect the Confidential Information from unauthorized dissemination and shall use the same degree of care that each party uses to protect its own like information, but in no event less than a reasonable degree of care. Neither SALES AGENT nor Business Power Tools shall disclose to third parties the Confidential Information without the prior written consent of the other party. Each party shall use the Confidential Information only for purposes of performing its obligations or exercising its rights under this Agreement. Notwithstanding the foregoing, either party may use or disclose the Confidential Information to the extent they may be legally compelled to do so, provided, however, prior to any such compelled disclosure, they shall notify the other party and fully cooperates with the other party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. The parties each agree that any breach of this Section 11 would cause irreparable harm to the other party for which monetary damages would not be adequate and, therefore, each party agrees that, in the event of a breach of this Section 11, the other party shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
- Compliance with Laws
Both parties will comply with all applicable international, national, regional, and local laws and regulations with regard to its marketing, sales, distribution and other activities under this Agreement, including any applicable import and export laws and regulations in the Territory, and the U.S. Foreign Corrupt Practices Act, which prevents unlawful payments to third parties. Each party will obtain, at its own expense, all necessary permits, licenses, registrations, and approvals needed in connection with the importation, marketing, sale, and distribution of the Business Power Tools Services into and within the Territory. Both parties agree that they will not export or re-export the Product Units in any form in violation of the export or import laws of the United States or any foreign jurisdiction. Each party will defend, indemnify, and hold harmless the other party from and against any violation of such laws or regulations by that party or any of its agents, officers, directors, or employees.
- Governing Law
This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Any dispute regarding this Agreement shall be subject to the jurisdiction of the state courts in and for Santa Barbara County, California, U.S.A. (or, if there is federal jurisdiction, the United States District Court for the Southern District of California), and the parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Any notice required or permitted to be given under this Agreement if delivered (i) by hand and shall be effective on the date of delivery, (ii) by registered or certified mail, postage prepaid, return receipt requested, (iii) by overnight courier with proof of delivery, (iv) by email with confirming letter mailed under the conditions described in (ii) or (iii) above, and shall be effective upon receipt, or (v) by fax with confirming letter mailed under the conditions described in (ii) or (iii) above, and shall be effective upon receipt.
Business Power Tools, PO Box 50424, Santa Barbara, CA 93150
and all notices to Affiliate are deliverable at the address provided in the Affiliate Program Application.
Except in the event of a sale of all or substantially all of the assets of either party, this Agreement may not be assigned, in whole or in part, by either party without the prior written consent of the other party. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
- Force Majeure
Any delay in the performance of any duties or obligations of either party (except the payment of money) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, act of terrorism, alien invasion, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
- Independent Contractors
The relationship of Business Power Tools and SALES AGENT established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
- Publicity & Press Releases
Neither SALES AGENT nor Business Power Tools shall be permitted to use the name of the other party in publicity releases, advertising, or similar activities without the prior written consent of the other party.
This Agreement and amendments may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed a single instrument.
This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior communications, understandings, and agreements, written or oral. This Agreement may be modified only by a written agreement signed by both parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision specified in this Agreement shall be invalid under any applicable law, the invalid provision, or portion thereof, shall be struck and the remainder, if any, shall be deemed enforceable to the extent permitted under applicable law, and the remaining provisions of this Agreement shall be given effect in accordance with their terms. Nothing in this Agreement is intended or will be construed to give any person (other than the parties hereto) any legal or equitable right, remedy or claim under this Agreement or any provision hereof. The captions or headings of the Sections of this Agreement are for reference only and are not to be construed in any way as part of this Agreement.
- Signature & Execution
This Agreement is a “Click Through” agreement, meaning that it shall be considered executed when the Affiliate Applicant clicks the “Yes, I Accept the Terms of this Agreement” button and Business Power Tools delivers an electronic notice of acceptance of the application to Affiliate Applicant.
Listing of Products & Prices
At the date of this agreement, the Business Power Tools Services authorized to be marketed by Sales Agent are as follows:
- Subscriptions to online business “dashboard.”
- Retail Price per https://www.businesspowertools.com/subscription-plans/
- Discount Associated with Optional Coupon Codes as provided by Business Power Tools
Affiliate should log in to the Affiliate site and select Request a Coupon Code from the menu choices.
Recruiting of Sub-Affiliates / Agents
Sales Agent is authorized to recruit Sub Agents who will market the Business Power Tools Services to End Users and share in the compensation earned by Sales Agent in amounts determined by negotiation between Sales Agent and said Sub Agents.
Business Power Tools will cooperate in good faith with Sales Agent to provide an appropriate method for tracking sales of “Sub Agents” who are recruited by Sales Agent. Sub Agents will be assigned their own unique Affiliate ID and Coupon Codes. The allocation of Commission between Sales Agent and Sub Agent shall be determined by Sales Agent and communicated in writing to Business Power Tools.
In the event that two or Business Power Tools Sales Agents attempt to refer the same Sub Agent, Business Power Tools will make a determination, in its sole discretion, as to the assignment of the referred Sub Agent to one or the other primary Sales Agent.