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eFulfillment Service Affiliate Agreement

Effective Date: August 10, 2023

This Affiliate Agreement (“Agreement”) has been adopted by eFulfillment Service, Inc. (“EFS”), a Michigan corporation, to inform you, the affiliate (“Affiliate”), of your rights and duties when participating in the EFS affiliate program (“Affiliate Program”). Your execution of this Agreement or participation in the Affiliate Program constitutes your manifestation of assent to and intent to be bound by the terms and conditions of this Agreement.

YOU UNDERSTAND AND AGREE THAT YOU HAVE A DUTY TO READ THIS AGREEMENT. BY EXECUTING THIS AGREEMENT OR PARTICIPATING IN THE EFS AFFILIATE PROGRAM, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS OF THIS AGREEMENT.

1. Definitions.

“Affiliate” is defined as any individual or business entity that has executed this Agreement and is authorized to participate in the Affiliate Program under the terms of this Agreement.
“Advertising Materials” is defined as pay-per-click advertisements, display advertisements, landing pages, web pages, newsletters, email blasts, hypertext links, or other content used to advertise the availability of EFS’s services.
"Customer" means any person or entity who successfully purchases a Product or Service from EFS.
“Lead” is defined as an individual or business entity that contacts EFS through efforts that are directly attributable to Affiliate.
“Referral Fee” is defined as the amount paid by EFS to Affiliate for Customers, which is specified in the attached Exhibit A.
“User” is defined as a potential lead, including, but not limited to, users of third-party websites.

2. Warranties, representations, and eligibility. Affiliate warrants and agree that he or she has the right and legal capacity to enter into this agreement, that Affiliate is a human individual age eighteen (18) or above, and that Affiliate is not prohibited from entering into this Agreement by any preexisting agreement with a third party. If Affiliate is participating in this Affiliate Program on behalf of a third party, Affiliate warrants that Affiliate is an actual and authorized agent of that third party and has the authority and capacity to bind that third party to the terms and conditions of this Agreement. If Affiliate is a current client of EFS, Affiliate understands and agrees that, in order to participate in this Affiliate Program, Affiliate must maintain a good credit standing with EFS and Affiliate’s account must not be in arrears. Affiliate agrees to provide EFS with accurate, current, and complete contact information and to update that contact information if and when it changes.

3. Participation in Affiliate Program. EFS will pay Affiliate a Referral Fee for all Customers. The Referral Fee paid by EFS is outlined in Exhibit A below and may be amended, modified, replaced, or suspended from time to time. EFS reserves the right to amend, modify, replace, or suspend the Referral Fee paid to Affiliate at any time and within its sole and absolute discretion. EFS will approve Leads within its sole and absolute discretion and consistent with its established policies for accepting or rejecting Customers. By participating in the Affiliate Program, the Affiliate warrants and agrees that it will not circumvent, tamper with, modify, or compromise the technological tracking and protection measures implemented by EFS in furtherance of the Affiliate Program, including, but not limited to, the unauthorized modification of the number of Customers calculated by EFS. Affiliate’s failure to strictly comply with the terms and conditions of this Agreement may result in the termination of this Agreement and the forfeiture of any Referral Fees owed to Affiliate pursuant to this Agreement.

4. Approval of Advertising Materials. The affiliate may advertise the services of EFS in compliance with the terms of this Agreement. Affiliate is expressly prohibited from advertising the services of EFS in association with:

Websites or other services that collect personal or personally identifiable information from a User without his or her express consent;
Websites or other services that contain or display obscene, sexually explicit, illegal, pornographic, racist, offensive, or derogatory content;
Websites or other services that promote bodily harm to or harassment of third parties;
Websites or other services that violate the rights of third parties, including intellectual property or other personal or proprietary rights;
Websites or other services that violate any applicable law, statute, treaty, regulation, or ordinance, whether local, state, provincial, national, or international; and
Websites or other services that contain any other objectionable content to be defined within EFS’s sole and absolute discretion.

The affiliate may use Advertising Materials to truthfully and accurately advertise the availability of EFS’s services consistent with the terms of this Agreement. Affiliate agrees to comply with all applicable advertising laws, regulations, ordinances, statutes, or treaties, whether local, state, provincial, national, or international, including, but not limited to, the CAN-SPAM Act, Part 255 of the FTC false advertising regulations, and state false advertising law. EFS reserves the right to terminate this Agreement and cancel Affiliate’s participation in the Affiliate Program for Affiliate’s failure to comply with this paragraph.

5. Payments. EFS will calculate the amount of revenue generated from Customers originated by the Affiliate and pay the Affiliate for their referrals on a quarterly basis. Within ten (10) days of the end of each month, EFS will calculate all revenue, with the exception of shipping revenue, for Clients generated by Affiliate. EFS will then remit payment via ACH deposit for US Affiliates to the account provided by Affiliate and stored it within the records of EFS. The Affiliate understands and agrees that he or she has an ongoing duty to update its contact and bank information if and when it changes and, in the event, any Referral Fee is returned to EFS due to incorrect account information, EFS will not resend or reissue the returned Referral Fee to Affiliate. For international Affiliates, payments will be submitted via PayPal as ACH is not available. Affiliate will provide the PayPal email address payment will be sent to. As with ACH deposit, Affiliate understands that he or she has an ongoing duty to update their PayPal email address.

6. Trademarks and Copyrighted Works. Affiliate acknowledges and agrees that any and all trademarks, trade names, design marks, or logos displayed on the EFS website or marketing materials, including but not limited to the EFULFILLMENT SERVICE mark, are common law or registered trademarks owned by or licensed to EFS. Affiliate is expressly prohibited from using the trademarks of EFS to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of Affiliate’s goods or services. Affiliate is further prohibited from using the trademarks of EFS in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. The affiliate may make a nominative fair use of the trademarks of EFS consistent with trademark law while participating in the Affiliate Program. Affiliate is also prohibited from using the copyrighted content of EFS, including, but not limited to, EFS’s logos, copy, and website content.

7. Term and Termination. Each party may terminate this Agreement at any time and without cause. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within five (5) calendar days of written notice from the non-breaching party that specifies the breach. EFS may terminate this Agreement if, at any time, Affiliate (i) breaches any term or condition of this Agreement; (ii) becomes insolvent or files an assignment for the benefit of creditors; (iii) is the subject of an insolvency proceeding, including, but not limited to, an involuntary bankruptcy; (iv) violates the rights of third parties, including, but not limited to, intellectual or other personal or proprietary rights; or (iv) voluntarily files a petition for bankruptcy. Termination of this Agreement hereunder will not limit either party from pursuing any other remedies available to it, including injunctive relief. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement will survive termination or expiration hereof and will continue in full force and effect.

8. Competitive Services. Affiliate recognizes and agrees that EFS’ business is worldwide in scope and that its reasonable competitive business interests extend across the world. Affiliate agrees that during the term of this Agreement, it will not promote or sell (either for its own account or as agent or representative for another) any service competitive to the services of EFS and will not become involved as a partner, shareholder, officer, director, employee, principal, consultant or in any other way, either directly or indirectly, in any corporation or other entity which promotes, sells, or manufactures any competitive product anywhere in the world. Affiliate agrees that the subject matter, geographic area, and duration of this paragraph are reasonable and necessary for the protection of EFS, and Affiliate expressly waives any claim that this non-competition clause is unreasonable.

9. Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE AFFILIATE PROGRAM, ITS USE, AND AFFILIATE’S RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EFS MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. EFS WILL MAKE EVERY REASONABLE EFFORT TO MEET SCHEDULED OR ESTIMATED DELIVERY DATES BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABLITY FOR ITS FAILURE TO MEET SAID DATES. NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, COSTS, OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. OTHER THAN AS SET FORTH HEREIN, EACH PARTY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS EFS HAS PAID TO AFFILIATE.

10. Indemnification. Affiliate assumes full and complete responsibility and liability for its participation in the Affiliate Program and will indemnify and hold EFS, its directors, officers, employees, independent contractors, and agents harmless from and against all demands, claims, or liability arising out of or relating to Affiliate’s Advertising Materials or Affiliate’s participation in the Affiliate Program. Affiliate warrants that its Advertising Materials will be truthful, and accurate, and will comply with all local, state, federal, and international laws concerning the advertisement and sale of goods or services. Affiliate understands and agrees that it will indemnify, defend, and hold harmless EFS, its officers, directors, employees, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) claim by any third party that any Advertising Materials infringe a third party’s copyright, trademark, patent, trade secret, or other intellectual property rights; (ii) claim by any third party that any Advertising Materials violate the rights of a third party, are defamatory or obscene, or violate any ordinance, law, regulation, or other judicial or administrative action; or (iii) breach by Affiliate of any representation or warranty set forth in this Agreement. A third party means any entity other than the parties to this Agreement and their respective directors, officers, employees, and agents. If any action is or will be brought against EFS with respect to any allegation for which indemnity may be sought, Affiliate will provide reasonable cooperation to EFS, at Affiliate’s expense, to defend against or settle any such claim. Affiliate’s obligation to defend EFS under the terms of this Agreement will not provide Affiliate with the ability to control EFS’s defense, and EFS reserves the right to control its defense and select its counsel.

11. Assignment. The affiliate may not assign, in whole or in part, any rights, obligations, or duties created by or under this Agreement. EFS may assign its rights, obligations, or duties under this Agreement at any time upon written notice to Affiliate, including in a sale or transfer of all or substantially all of EFS’s assets, in a sale or transfer of EFS’s accounts, or in a merger of EFS with another company. Should EFS assign its rights, obligations, or duties under this Agreement, EFS’s rights, obligations, or duties under this Agreement will be binding on and shall inure to the benefit of, its successor or assign.

12. Survival. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, and if the rights or obligations of either party under this Agreement will not be materially and adversely affected, (i) said provision will be fully severable; (ii) this Agreement will be construed and enforced as if said provision had never comprised a part of this Agreement; (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the severance of any provision; and (iv) there will be added a legal, valid, and enforceable provision as similar in terms to said provision as may be possible in lieu of said provision.

13. Choice of Laws. This Agreement will be governed by and interpreted in accordance with the laws of the State of Michigan. EFS and Affiliate’s sole and exclusive forum and remedy at law for any disputes arising out of or related to this Agreement, including the interpretation thereof, shall be binding arbitration. Arbitration under this Agreement will be held in Traverse City, Michigan and will be conducted by a single arbitrator, who shall be randomly selected from the American Arbitration Association National Roster of Arbitrators. The arbitrator shall decide any and all claims in accordance with the laws and legal principals of the State of Michigan and the American Arbitration Association’s most recently effective commercial arbitration rules and shall have the authority to award costs and attorneys’ fees. The losing party will be required to pay the prevailing party’s attorneys’ fees. EFS and Affiliate agree that the determination or award of any such arbitrator or arbitration proceeding may be entered as a judgment in any court sitting within the State of Michigan that has jurisdiction over the subject matter of the dispute. EFS and Affiliate understand and agree that the parties will be required to be present within the State of Michigan in order to perform their obligations under the terms of this Agreement. EFS and Affiliate hereby submit to the exclusive personal and subject matter jurisdiction of any such arbitrator or arbitration proceeding.

14. Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, must be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

15. Relationship of the Parties. Nothing in this Agreement will be deemed or construed as creating a joint venture, partnership, employment, or fiduciary relationship between the parties. Neither party has any authority of any kind to bind the other party. The relationship of the parties is, and at all times shall continue to be, that of independent contractors.

16. Force Majeure. Except for the payment of monies due hereunder, neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, Internet or other network “brownouts” or failures, power failures, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. To the extent that a force majeure has continued for ten (10) business days, Affiliate or EFS may terminate the Agreement, excluding payment obligations, without penalty.

17. Counterparts. This Agreement may be executed in counterparts, with the same effect as if the parties had signed the same document. Signed counterparts of this Agreement transmitted via email, fax, or electronically are equivalent to a signed original of this Agreement.

18. Integration. This Agreement, including any exhibit(s), addendum (addenda) or rider(s) attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (i) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter, and (ii) all past courses of dealing and industry custom. No amendment or modification of any provision of this Agreement, exhibit, addendum or rider shall be effective unless in writing and signed by a duly authorized representative of each party.

Exhibit A

1) Referral Fee. EFS agrees to pay the Affiliate a Referral Fee in the amount of 5% of all revenue, with the exception of shipping, when a lead of yours becomes a client. This is paid out on a quarterly basis for one year.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date signed by EFS.

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August 10, 2023 1:43 pm EDT

eFulfillment Service Affiliate Agreement Uploaded by Affiliate Department - [email protected] IP 71.83.3.122

September 6, 2023 11:03 am EDT

Angela Davenport - [email protected] added by Affiliate Department - [email protected] as a CC'd Recipient Ip: 71.83.3.122

September 6, 2023 11:26 am EDT

Angela Davenport - [email protected] added by Affiliate Department - [email protected] as a CC'd Recipient Ip: 2601:6c1:c000:cf50:cdc0:c8e0:ed80:9b44