LIFE ASSURANCE COMPANY
OF AMERICA -- WEBSITE AFFILIATE AGREEMENT
Last updated: April 7, 2021.
This agreement (the “Agreement) is made between Life Assurance Company of America (the “Company”), and the Affiliate (each individually, a “Party”, and collectively, the “Parties”) for participation in the Company’s affiliate program. If Affiliate does not want to participate in the affiliate program, please disregard the following agreement.
WHEREAS, Affiliate wishes to include certain materials promoting Company, and to include a link to Company’s website on Affiliate’s website, Affiliate’s social media sites, and in Affiliate’s email communications to its customers and/or leads;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Promotional Materials.
Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website, Affiliate social media sites, and in Affiliate email communications to its customers and/or leads (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website, Affiliate’s social media sites, and in Affiliate’s email communications to its customers and/or leads prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, Affiliate’s social media sites, and in Affiliate’s email communications to its customers and/or leads, as specified by Company.
2. Use of Promotional Materials.
The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
a. Affiliate may not use any graphic, textual or other materials to promote Company’s website or products other than the Promotional Materials, unless Company agrees to such other materials in writing (via email) prior to their display.
b. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products available thereon), and for linking to Company’s website.
c. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent (via email) from Company for such alteration of modification.
d. The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.
Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
4. Intellectual Property.
Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.
5. Relationship of Parties.
This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
a. In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) in the amount of a percentage of product sold to a user that accesses Company’s website through a link on Affiliate’s website, Affiliate’s social media sites, and in Affiliate’s email communications to its customers and/or leads. The commission percentage for products sold by Affiliate shall be determined at the time Affiliate is approved as an affiliate and Company’s records shall control. This percentage is subject to change by the Company upon 60 days’ prior notice to the Affiliate via email. Notification to Affiliate of any change in commission percentage will be given by Company at the email address on hand for the Affiliate. Commission will be based on purchases made by a user for any new and recurring purchases for the life of the registered user, less returns and cancellations of products. In this case, the products are life insurance and annuity products that are subject to a 10-day free look period and could be cancelled or returned via chargeback notwithstanding payment of all premium at inception, so all such cancellations or returns for any reason shall be deducted from Affiliate’s monthly Commission and if there is an insufficient Commission to cover such cancellations and returns, shall either be deducted from future monthly Commission or be immediately due upon 60 days’ notice by the Company via email.
b. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records via an Affiliate portal provided by the Company’s affiliate program manager, Post Affiliate Pro. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 14 days of discovering such discrepancy.
c. Company shall pay all Commissions monthly on or around the 30th day of the following month. However, Commissions for the first two months shall be withheld as a holdback fund in the event of cancellations and returns, including chargebacks. After the first two months, the first month of Commissions shall be paid and the third month of Commission shall be withheld, so that there will always be a rolling holdback fund of two months of Commissions. These dates are subject to change upon 60 days’ prior notice via email. If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than 100.00 USD, then such accrued and payable balance shall be held over to the following pay period, and paid together with the Commissions due for that pay period. Payment is made via the payment method selected by Affiliate, including via direct deposit, check, or Affiliate PayPal account.
d. Sales are credited to the first Affiliate who directed the client to the Company’s website.
e. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
7. Affiliate’s Representations and Warranties.
Affiliate represents and warrants the following:
a. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
b. Affiliate’s website does not contain any materials that are:
i. Sexually explicit, obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent, including any violent video game images; or
iv. Solicitous of any unlawful behavior
c. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
d. Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 2 above. However, if Affiliate uses the Promotional Materials in face-to-face or telephone call transactions with its customers, Affiliate and its employees will be in full compliance with Illinois insurance laws, if applicable, regarding the sale of Company’s products to any person.
e. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
f. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website, Affiliate’s social media sites, and in Affiliate’s email communications to its customers and/or leads that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website, Affiliate’s social media sites, in Affiliate’s email communications to its customers and/or leads, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
g. Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) or texts in any way mentioning or referencing Company or Company’s website. Affiliate is in full compliance with all local, state and/or federal laws regarding on-line, email, or text communications; privacy; and/or data security.
Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
a. This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.
b. Either Party shall have the right to terminate this Agreement at any time and for any reason, with or without cause. The terminating Party must give notice via email to the other Party at least 30 days prior to the intended date of termination.
Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
12. Limitation of Liability.
Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement. Notwithstanding anything herein to the contrary, the Company’s maximum liability for any and all breaches relating to or arising out of this Agreement shall not exceed the total amount of Commissions paid to Affiliate in the month preceding any alleged breach or damages. The Company shall not be responsible for failure or delay of performance if caused by an act of nature, hostility, or sabotage; an electrical, internet, or telecommunication outage; government restrictions; or other event outside the reasonable control of the Company. The Company will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, the Company may cancel this Agreement upon notice via email to Affiliate.
By accessing, viewing, and/or using the Promotional Materials and/or Affiliate portal provided to Affiliate by the Company’s affiliate program manager, Post Affiliate Pro, Affiliate is agreeing to be bound by this Agreement. The Company reserves the right, in its sole and absolute discretion, to change, modify, add or remove provisions in this Agreement at any time without notice. We will post the revised Agreement on the affiliate signup tab of the Company’s website and the changes will be effective upon such posting. The Affiliate’s continued use of the Promotional Materials and/or Affiliate portal provided to Affiliate by the Company’s affiliate program manager, Post Affiliate Pro, following any modification constitutes Affiliate’s agreement to and compliance with the revised Agreement.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
16. Entire Agreement.
This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. Affiliate agrees and represents that it has not relied on any oral or written representations made by the Company or anyone else acting on its behalf, except as expressly stated in this Agreement and further expressly disavows any implied covenant of good faith and fair dealing, which is hereby waived.
17. Applicable Law/Forum.
The laws of the State of Illinois shall be controlling and any dispute relating to or arising out of this Agreement shall be governed by the laws of the State of Illinois. Choice of law rules shall not apply to any dispute relating to or arising out of this Agreement. The Circuit Court of Du Page County, Illinois shall be the exclusive venue for any dispute relating to or arising out of this Agreement and the Parties waive their right to challenge venue in the Circuit Court of Du Page County, Illinois on any grounds. The Parties agree to waive any service of process requirements by either a sheriff or duly licensed process server and, in the alternative, consent to service of process of any action to enforce this Agreement by email notice to either Party, with a copy of any such action to be mailed via regular mail to the last known address of the Party. In any action to enforce the provisions of this Agreement, the Company shall be entitled to recover, in addition to any legal or equitable relief, its reasonable attorneys’ fees, court costs, and other litigation expenses. Affiliate waives its right to a trial by jury and waives its right to seek relief on a class action or joint action basis.
The Company’s failure to enforce any right or provision of this Agreement shall not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the Company.