THIS AFFILIATE AGREEMENT (the “Agreement”) provides the terms and conditions of the relationship between Apex Training Tools For Trading. formed in the State of Texas at 2028 E Ben White Blvd. STE 240-9873, Austin, TX 78741, (the “Company,” “we,” “us,” or “our”) and Referrer, (“Affiliate,” “you” or “your”) in order to participate in the Apex Trader Funding Affiliate Program (the “Program”), to refer traffic to the Company's website.
WHEREAS, the Company is the sole owner and operator of the internet site known as ApexInvesting.com (the “Site”); and
WHEREAS, the Company has created a Program that enables Affiliates to refer internet traffic to the Site from the website(s) or advertising networks of others in exchange for agreed consideration; and
WHEREAS, you are the sole owner of the website, social network account, a personal referrer, Affiliate (the “Affiliate Site”); and
WHEREAS, you desire to participate in the Program, as evidenced by your application, which application the Company may approve or disapprove, in its sole discretion.
THEREFORE, in consideration of the mutual promises herein, the Parties agree as follows:
1 DEFINITIONS.
Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
(a) “Completed Transaction” means the goods or services of the Company ordered by a Customer have been delivered, the return period has expired, and Fifteen (15) days have elapsed since the goods or services were paid for in full. This includes monthly plans and resets.
(b) “Customer” means any person or party who purchases goods or services on the Site after connecting to the Site from the Affiliate Site.
(c) “Links” mean the banner, buttons, coding, or another manner in which a Customer is referred by one site to the Site for the purpose of promoting the sale of goods or services on the Site. The Links are prepared so as to track Customers who are directed from the Affiliate Site to the Site and make a purchase, which results in a Completed Transaction.
(d) “Net Sale Price” means the total received in US Dollars (after conversion from non-US currency to US Dollars, if necessary) from the Customer less (i) any tax collected by the Company for or on behalf of any governmental or taxing authority (such as a sales tax or VAT), (ii) shipping and handling charges, (iii) restocking fees, (iv) credit card or other charges attributable to the payment method used by the Customer, (v) currency conversion fees, or (vi) discounts, credit, or allowances granted by the Company in its sole and absolute discretion.
2 AFFILIATE SITES AND CONTENT.
You have sole and exclusive responsibility and liability for the development, operation, maintenance, and all materials and content that appear on the Affiliate Site. You shall operate and maintain the Affiliate Site in accordance with all applicable laws, rules, and regulations. You shall make no false or misleading statements in any of your advertising. You shall not spam any email or site with advertising.
In consideration of the Fees, you agree to place one or more of the Links on the Affiliate Site, social media, etc., in accordance with the terms and conditions of this Agreement.
We reserve the right to monitor the Affiliate Site to determine if you are in compliance with this Agreement.
The Company is not responsible to pay any Fees in the event you do not use the Links provided to you by the Company without modification OR you do not properly install those Links, meaning the traffic will not be properly tracked to reflect a Customer came from the Affiliate Site.
3 COMPENSATION FOR YOUR REFERRED TRAFFIC.
Subject to your proper installation and use of the Links, you will be compensated based upon the Net Sale Price from Completed Transactions. Your compensation (the “Fee”) shall be in accordance with the attached Schedule of Fees.
The Fee will be offset with respect to each Completed Transaction for which (a) the Company issues discounts, credits, or allowances, or (b) there is a chargeback issued against the Company for any payment previously credited to the Company.
The Company reserves the right to refuse an attempted purchase by any person, in the Company's sole and absolute discretion. You shall have no claim to any Fee based on the Company's decision to not complete a transaction with any person who accesses the Site through a Link on the Affiliate Site.
The Fee relative to Completed Transaction shall be payable to you on or before the 15th of the following month. All Fees are payable in U.S. Dollars via PayPal.
Notwithstanding the foregoing, if and to the extent you are required to file or provide certain documentation for tax and other governmental purposes, payment of the Fees may be suspended pending completion of such documentation.
4 FULFILLMENT AND CUSTOMER INFORMATION.
The Company is solely responsible for processing and fulfillment of all orders of goods and services on the Site, which shall be governed by the terms and conditions established by the Company in its sole and absolute discretion. All information about such orders and the Customers are the sole and exclusive property of the Company.
Additionally, you agree the Company may collect, process, and sell certain information about you.
5 LIMITED LICENSE RIGHTS.
You agree to place one or more of the Links on the Affiliate Site. Links may contain logos, trademarks, or service marks (collectively, “Marks”). Pursuant to this Agreement, the Company grants you a limited, non-exclusive, non-transferable, and revocable license to display the Links on the Affiliate Site, and nowhere else, subject to the terms and conditions of this Agreement. You may not use the Links or the Marks for any other purpose absent the express written consent of the Company. You may not change, add to, or delete from the Links or Marks. You may not use the Marks independently of the Links for any purpose without the Company's express written consent; and you may not use or present the Links in any manner that suggests the endorsement of or by any other goods, services, persons, or entities without the express written consent of the Company. In addition, you agree to NOT (a) acquire or attempt to acquire, register or attempt to register, make a claim to or in any way use domain names, trademarks, service marks, keywords, handles, screen names, or other forms of identification incorporating the Marks; or (b) use the Marks in a way that suggests the source of the Affiliate Site is the Company.
All intellectual property rights in and to the Marks, and any goodwill generated by your use of the Marks, shall inure solely to the benefit of the Company.
Upon suspension of this Agreement, the rights granted herein may, in the Company's sole discretion, be suspended. Upon termination of this Agreement, the rights granted in this section shall automatically terminate.
6 REPRESENTATIONS AND WARRANTIES.
You represent and warrant that:
(a) You are legally capable and authorized to enter into this Agreement; and, if you represent an entity, all actions necessary to authorize you to enter into this Agreement have been taken.
(b) You are the sole owner and operator of the Affiliate Site.
(c) The Affiliate Site does not and shall not:
(i) depict anyone less than eighteen (18) years of age;
(ii) contain material subject to 18 USC §2257 (but if it does, you will notify us not less than thirty (30) days in advance of such inclusion and you will comply in all respects therewith);
(iii) contain any information which you know or reasonably should know is false;
(iv) contain or transmit any apps or programs that are or can be installed or downloaded to a Customer’s computer or other devices, without the Customer’s express and knowing consent as to the exact nature, purpose, and function of such apps or programs;
(v) not use the Company's name or the Marks in any form of unsolicited communication, including unsolicited email (spam).
7 DISCLAIMERS.
The Company makes no representations or warranties as to the Site. To the maximum extent of the law, the Company disclaims all representations, warranties, and conditions, express and implied, including the warranties of merchantability, fitness for a particular purpose, title, and non-infringement. The Site is provided “as is.”
8 LIMITATION OF LIABILITY.
IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES INCLUDING, BUT NOT LIMITED TO, THE LOSS OF PROFITS OR BUSINESS OPPORTUNITY, EVEN IF WE HAD BEEN ADVISED OF SUCH POSSIBILITY.
IN NO EVENT SHALL THE LIABILITY OF THE COMPANY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID TO YOU BY THE COMPANY. THIS LIMITATION APPLIES TO ANY LIABILITY ARISING FROM ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES.
For purposes of this section, any reference to “the Company” shall include the Company's affiliates, officers, employees, principals, agents, and contractors.
9 TERM AND TERMINATION.
This Agreement shall commence upon the last signing by a Party and may be terminated by either Party upon written notice, including email to the other. If we terminate this Agreement due to breach by you, no further Fees shall be paid to you and we may seek such other relief, equitable and legal, as may be available. If you terminate, the Fees due and owing to you shall be paid as provided herein through the date of termination. Regardless of who terminates, upon termination, any and all rights and licenses granted by us to you shall immediately cease and you shall immediately stop using and remove the Links and the Marks from the Affiliate Site.
10 RELATIONSHIPS.
(a) You are an independent contractor with respect to the Company. Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee, or employer-employee relationship between you and the Company. You shall not, in any manner or respect, represent, suggest, or convey the impression that you are an employee or agent of the Company, or that the Company has endorsed you and/or the Affiliate site, or that you represent the Company in any manner or capacity. You have no authority to and shall not enter into any agreements or obligations purporting to be binding upon the Company.
(b) As an independent contractor, you are solely and exclusively responsible (i) for all taxes payable with respect to income earned through the Site; (ii) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and you are not covered by or eligible for any insurance from the Company; and (iii) for ensuring that you comply with any Licensing Authority’s rules or practices.
11 CONFIDENTIALITY.
You promise and agree to hold Confidential Information in strict confidence and in trust for the sole benefit of the Company, both during the term of this Agreement and at all times thereafter, and shall not use such Confidential Information for any purpose, whether for consideration, business or personal, other than as may be reasonably necessary for the performance of duties pursuant to this Agreement, without the Company's prior written consent. You shall not disclose any Confidential Information to any person or entity, other than to such of its employees or consultants as may be reasonably necessary for purposes of performing its duties hereunder and have executed agreements of confidentiality no less protective than this Agreement, without the Company's prior written consent. You shall use not less than the same degree of care it uses to protect its own Confidential Information, but in any event not less than a reasonable degree of care. For purposes of clarity, your obligations hereunder include taking all actions necessary to ensure your affiliates, employees, contractors and agents, and any other person or party who obtains Confidential Information from or as a result of provider abide by the terms of this section in their entirety.
Confidential Information does not include information that (a) is or becomes publicly known through lawful means; (b) was rightfully in provider’s possession or part of your general knowledge prior to the effective date of this Agreement; or (c) is disclosed to you without confidential restriction by a third party who rightfully possesses the information (without confidential restriction) and did not learn of it, directly or indirectly, from the Company.
If you are required to disclose Confidential Information by virtue of a lawful court order, subpoena, or similar legal request, you will promptly notify the Company in writing of such requirement and cooperate so that the Company may seek an appropriate protective order. You will not use, copy, publish, distribute, or summarize any Confidential Information, except as necessary to carry out the activities discussed herein.
12 WAIVER.
You expressly and unconditionally waive any and all claims against the Company, regardless of the basis upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances, or conditions:
(a) the Site is partially or totally inoperative or inaccessible;
(b) there are bugs, errors, or inaccuracies on the Site;
(c) a suspension, termination, or other action was taken with respect to your account by the Company, even if such suspension, termination, or other action resulted in a loss of profits to you;
(d) any claim relating to a change in this Agreement by the Company;
(e) withholdings, deductions, or offset in connection with the payment of Fees due to applicable tax or currency control restrictions.
For purposes of this section, any reference to “the Company” shall include the Company's affiliates, officers, employees, principals, agents, and contractors.
No waiver by the Company of any breach by you for any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by the Company in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
You are solely responsible for the security of your Account, and the username and password associated with your Account. You hereby waive and dismiss any claims against us and agree to indemnify, defend and hold us harmless against any unauthorized use of or access to your account by an unauthorized person using your username and password.
You agree that any dispute you raise shall be as an individual only, not as a class, or with or on behalf of anyone else. You expressly waive any right to bring a class or collective action or be a member in a class or collective proceeding. The Company may take any and all actions necessary to dismiss a class or collective actions or claims thereunder.
13 INDEMNIFICATION.
The Company and its affiliates, owners, principals, officers, employees, and agents shall be referred to, collectively, as “the Company Indemnitees.”
You agree to and shall indemnify, defend (with legal counsel reasonably acceptable to the Company Indemnitees) and hold the Company Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties, or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from:
(a) any misrepresentation by, or breach of any covenant or warranty of yours contained in this Agreement or any exhibit, certificate, or other agreement, or instrument furnished or to be furnished by you hereunder;
(b) any non-fulfillment of any agreement by you under this Agreement;
(c) any suit, action, proceeding, claim, or investigation against the Company Indemnitees which arises from or which is based upon or pertaining to your acts or omissions or conduct of business;
(d) failure to comply with the terms of this Agreement by you, your employees, or agents;
(e) failure to comply with applicable law by you, your employees, or agents;
(f) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights, or allegations thereof, to the extent caused by you, your employees, or agents;
(g) failure to pay appropriate taxes for yourself, your employees, or agents (including withholding taxes, if any); or
(h) the Affiliate Site contains or promotes materials that infringe or violate the copyright or other intellectual property rights of any third parties.
If any lawsuit, enforcement action, or any attempt to collect on an alleged liability is filed against the Company Indemnitees, written notice thereof shall be given to you within ten (10) business days after receipt of notice or other dates by which action must be taken; provided, however, that the failure of the Company Indemnitees to give timely notice shall not affect its rights to indemnification hereunder except to the extent that you demonstrate damage caused by such failure. After such notice, you shall be entitled, if so elected, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at your reasonable cost and expense. The Company Indemnitees shall cooperate in all reasonable respects, at your cost and expense, with you and such attorneys in the investigation, trial, and defense of such lawsuit or action, and any appeal arising therefrom. You shall not, without the prior written consent of the Company Indemnitees, effect any settlement of any proceeding in respect of which the Company Indemnitees is/are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceedings only involves a remedy for the payment of money by you, and includes an unconditional release of the Company Indemnitees from all liability on claims that are the subject matter of such proceeding.
If you shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then the Company Indemnitees shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as the Company Indemnitees, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by you upon demand by the Company Indemnitees.
The Company may deduct, offset or withhold your Fees, if the Company, in its sole and absolute discretion, determines you have committed some act that is likely to result in disputes, chargebacks, or damages to the Company, to which the Company would be entitled to indemnification by you.
14 ASSIGNMENT; SUCCESSION.
You may not assign this Agreement. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement is binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the Parties.
This Agreement shall be binding upon the Parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers, employees, and/or agents.
15 CHOICE OF LAW.
This Agreement shall be governed by the laws of the State of Texas, without regard to its conflict of laws, rules, or principles.
16 VENUE.
Affiliate hereby consents to exclusive jurisdiction and venue in Wise County, TX, for all proceedings arising out of this Agreement.
17 DISPUTE RESOLUTION.
To the fullest extent permitted by law, all disputes arising out of and related to this Agreement (“Disputes”) shall be resolved as follows:
(a) Manner of Resolution.
Any dispute(s) shall be settled exclusively by arbitration. The arbitration shall be initiated and conducted pursuant to the arbitration rules of the American Arbitration Association in effect at the time the request for arbitration is made. The arbitration shall be final and binding upon the Parties. Any Party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise, no Party shall initiate or prosecute any lawsuit or administrative action in any way related to any Dispute. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. The Parties shall maintain the confidential nature of the arbitration proceeding and the award, except as may be necessary in connection with a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. Notwithstanding anything herein to the contrary, either Party shall be entitled to seek to obtain any provisional remedy, including injunctive or similar relief, from any court of competent jurisdiction, as may be necessary to protect such Party’s rights and interests.
(b) Equitable Relief.
Each Party acknowledges that (i) a breach or threatened breach by such Party of any of its obligations under this Agreement would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy, and (ii) if a breach or a threatened breach by such Party of any such obligations occurs, the other Party will, in addition to any and all other rights and remedies that may be available to such Party at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from, notwithstanding anything to the contrary contained herein, any court of competent jurisdiction, without any requirement to (1) post a bond or other security, or (2) prove actual damages or that monetary damages will not afford an adequate remedy.
18 WAIVER OF JURY TRIAL.
Each of the Parties knowingly, voluntarily, and irrevocably waives, to the fullest extent permitted by law, all rights to trial by jury in any action, proceeding, or counterclaim (whether based on contract, tort, or otherwise) arising out of or relating to this Agreement, or the actions of any Party in negotiation, administration, performance, or enforcement of this Agreement.
19 REMEDIES.
All rights, remedies, undertakings, obligations, and agreements contained in this Agreement or available at law, in equity, or otherwise, shall be cumulative, and none shall be a limitation of any other remedy, right, undertaking, obligation, or agreement.
This Agreement shall be binding upon the parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers,