AFFILIATE AGREEMENT
This Affiliate Agreement (hereinafter referred to as the “Agreement”) is made this ______ day of
________________________, 20_______ by and between Trucker’s Affiliate Program, Inc.
(hereinafter referred to as the “Company”) and
___________________________ (hereinafter referred to as “Affiliate”) (hereinafter collectively
referred to as the “Parties”).
Recitals
The Parties desire for the Affiliate to provide sales, marketing and advertising services
(hereinafter referred to as the “Services”) on behalf of the Company and certain third party
companies (hereinafter referred to as a “Partner” or “Partners”) in return for the payment of
commissions as set forth in this Agreement and Exhibits A and B, attached to and being a part of
this Agreement and incorporated herein by reference.
Agreements
In consideration of the mutual covenants set forth in this Agreement, Company and
Affiliate hereby agree as follows.
1.
Engagement of Services
Affiliate agrees to render Services to Company in connection with the marketing,
advertising and selling of Company (and Partner) goods and services to the public as follows:
a) Affiliate shall adhere to all Company policies concerning the marketing, advertising,
selling, fulfillment and documentation of the Services and all sales of Company’s
products and services to the public.
b) Affiliate shall only use designated marketing materials provided by Company or a
Partner to market, offer for sale, sell or otherwise advertise the Services, however,
Affiliate may use their own or independent marketing materials to market or advertise
the Services as long as those marketing materials are reviewed and approved by the
Company prior to their use by Affiliate.
c) Affiliate shall be eligible to participate in Company-sponsored sales strategies and
creative marketing programs, including sales programs and incentives. Company
reserves the right to modify the commission structure or assign associated costs in
exchange for broker’s voluntary participation in present or future Company marketing or
affinity programs, at Company’s sole discretion.
d) Affiliate shall perform the Services and/or make himself available at Company’s offices
or at such other place as reasonably requested by Company during the term of this
Agreement.
e) Affiliate warrants that: (i) the Services will be performed in a professional and
workmanlike manner and that none of such Services or any part of this Agreement is or
will be inconsistent with any obligation Affiliate may have to others; (ii) all work under
this Agreement shall be Affiliate’s original work and none of the Services or inventions
or any development, use, production, distribution or exploitation thereof will infringe,
misappropriate or violate any intellectual property or other right of any person or entity
(including, without limitation, Affiliate); and, (iii) Affiliate has the full right to allow it
to provide the Company with the assignments and rights provided for herein.
f) Affiliate acknowledges and agrees that as part of its Services, it will be marketing and
selling the products of third parties (hereinafter referred to as the “Partners”). who have
a contractual relationship with the Company for the sale of that Partner’s products and
services (hereinafter referred to as the “Partners’ Products and Services”). In some
instances, Services performed pursuant to this Agreement will involve the sale of the
Partner’s Products and Services and Affiliate agrees and understands that payment of
commissions for Partner’s Products and Services will be made directly from a Partner to
the Affiliate, as described in Paragraph 2(B) below. These Services are listed on Exhibit
B, “Commissions Paid By Partners,” attached hereto, and include but are not limited to,
the following Services: Factoring, Authority Formation and Electronic Log Devices.
Affiliates agree that those commissions denoted on Exhibit B will be paid directly from
the Partner to the Affiliate and not from the Company and that Company will have no
obligation whatsoever to pay commissions to Affiliates for the Partners’ Products and
Services. The Parties agree that the Affiliate may sign a contract(s) directly with any of
the Company’s Partners for the sale of that Partner’s Products and Services and that
such contract(s) will provide for the payment of commissions directly from the Partner
to the Affiliate, as long as that contract is not meant to nor acts to deny commissions,
sales or monies to the Company.
g) In the course and scope of advertising and marketing the Services, the Affiliate may
market the Services on his/her own social media channels and platforms, if written
approval is given in advance by Company.
h) In the course and scope of marketing fuel cards for the Company and/or any of the
Partners, the Affiliate is prohibited from using the trade names of the fuel station, or any
derivative thereof, in its print or video advertising and marketing of Services for the
Company or its Partners. The Affiliate is able to orally inform a potential customer of
the participation of a fuel station in the fuel card transaction(s) but may not make such a
claim in printed or video marketing or advertising.
i) When marketing, advertising or selling Services of one or more of the Company’s
Partners, the Affiliate shall adhere to all of that Partner’s policies concerning the listing,
marketing, selling, fulfillment and documentation of all sales of Partner’s products and
services.
j) The Affiliate agrees that in performing any Services under this Agreement, the Affiliate
will not endeavor to bypass the payment of Commissions to the Company by attempting
or doing business with any Partners directly, to the exclusion of the Company.
Should the Affiliate do any business with any Partner to the exclusion of the Company
during the term of this Agreement, this Agreement will be void and the Affiliate will
forfeit any and all Commissions generated by such prohibited business, and such
Commissions will be instead due and owing to the Company.
The Affiliate hereby agrees to indemnify and immediately pay the Company any and all
Commissions generated by their attempting to or doing any business with a Partner to
the exclusion of the Company during the term of this Agreement.
2.
Affiliate Commissions
A.
Commissions Paid By The Company
In exchange for the Services set forth above, Affiliate shall earn a commission from the
Company for all sales completed in accordance with the schedule set forth in Exhibit A, attached
hereto and made a part of this Agreement and incorporated herein by reference. No other
amounts will be due and payable to Affiliate by Company.
a) Affiliate must provide Company with documentary evidence of any and all of its
Services and/or its sale of Company’s (and/or Partner’s) products and services, so that
Company (and Partners) can properly track such sales and pay Affiliate commissions in
accordance with the terms of this Agreement and Exhibit A.
b) The Affiliate agrees and acknowledges that in performing Services for the Company,
resulting in a commission shown on Exhibit A, that the Company will be receiving
payment from the appropriate Partner(s), and that out of that payment, the Company will
pay Affiliate the appropriate commission. In the event that Partner defaults on their
Agreement with the Company, The Company is under no obligation to pay the Affiliate.
Affiliate will only get paid for commissions that have been paid to the Company by the
Partner.
c) All commissions from Exhibit A are to be paid to Affiliate by Company thirty (30) days
after the respective Partner has paid Company for such Services, as long as the Partner
has paid the Company. The Company shall have no duty to pay the Affiliate for a
commission on Exhibit A until such time as the Partner has paid the Company for such
Services.
d) Commissions will only be paid if the account is “Commissionable”. In order to be
commissionable, the account must be in good standing, meaning all their invoices /
money owed to the Partner are current and there are no material issues with the account.
If the account is not current and in good standing with the Partner, there is no obligation
to pay commissions until the account is back in good standing.
e) Commissions will only be paid on monies actually received by Company from the
Affiliate’s customers and/or the Partners. Company reserves the right to modify or
deduct all collections or legal expenses incurred in trying to collect or recover monies
from Affiliate’s customers.
f) In order to ensure the smooth payment of commissions from Company to the Affiliate in
accordance with the terms of this Agreement, the Company will set up payment to
Affiliate through an ACH direct deposit.
g) In order to receive a commission from a insurance referral, the Affiliate must be a
licensed property & casualty insurance agent. No commissions will be paid for
insurance referrals if Affiliate is not properly and legally licensed.
h) The Parties agree that each Party is an independent contractor and are not in an
employment relationship, as further described in Paragraph 7 below. Company will pay
commissions to Affiliate through use of a 1099 Tax Form and Affiliate will be solely
responsible for payment of all Federal and State taxes on commissions paid to the
Affiliate by the Company.
3.
Term and Termination
The term of this Agreement shall commence on the last date written below (the
“Commencement Date”) and shall continue for a period of one (1) year. Either party may
terminate the Agreement at any time, with or without cause, upon thirty (30) days notice to the
other party. If the one year term expires, without a Party terminating the Agreement with notice,
this Agreement shall automatically renew for another one (1) year term and thereafter, this
Agreement shall automatically renew each year for a one (1) year term unless terminated by one
or both of the Parties.
Notwithstanding the foregoing, Company may terminate this Agreement for “cause” at
any time with notice. For purposes of this Agreement, “cause” shall include, but not be limited
to, a breach of this Agreement, willful misconduct, gross negligence and/or any acts that the
Company deem to be not in the best interests of Company. If termination of this Agreement is
made for cause, no notice period is required.
The covenants set forth in Sections 4, 5 and 6 shall survive expiration or termination of
this Agreement. Company may communicate such obligations to any other (or potential) client or
employer of Affiliate. Once the contract is terminated, Company will be absolved of any
obligations, including commissions, to the Affiliate.
4.
Affiliate Training and Sales Quota
The Parties hereby agree that satisfactory completion of Affiliate’s duties requires a
certain minimum level of continuing training, to instruct and inform the Affiliate of the proper
sales techniques, the Company’s and Partner’s offers, details of the products for sale, marketing
concepts and more. Accordingly, the Affiliate hereby agrees to attend at least four (4) webinar
training sessions every month for the length of the Term. Failure to attend these minimum
required webinar training sessions will subject the Affiliate to termination of the Affiliate’s
Affiliate Contract, at Company’s sole discretion.
The Parties further agree that Affiliate’s continuing performance of the Services and sales
of the Company’s and Partners’ Products and Services is essential for the continued success of
the Affiliate and the Company. Accordingly, the Affiliate hereby agrees that, after sixty (60)
days of Affiliate performing the Services, Affiliate will refer at least five (5) new customer or
clients to the Company and/or its Partners per month. Failure to refer the minimum clients or
customers within the allotted time will subject the Affiliate to termination of the Affiliate’s
Affiliate Contract, at Company’s sole discretion.
5.
Marketing and Training Materials and Rights
The Parties understand and agree that the Company is the sole owner of certain marketing
and training materials that the Company uses to market and advertise its products and services
and Partners’ Products and Services and to train its Affiliates, Partners and other third parties.
These marketing and training materials include, but are not limited to, sales and marketing
strategies, training course materials, training manuals and notebooks, training videos, customer
lists, website and social media publishings, sales and marketing brochures, manuals and
pamphlets and more. The Parties understand and agree that the
The Affiliate agrees and acknowledges that the Company (and/or its Partners) retains sole
and exclusive ownership of any and all marketing and training materials as well as marketing
rights for any of its products and/or the products of its Partners and that Affiliate shall have no
ownership of any of the marketing and training materials and marketing rights for any such
products. By virtue of this Agreement, the Affiliate is being granting a temporary license to
market the Company’s (and Partners’) products, and such license ends upon the end of the Term
and/or the termination of this Agreement by the Company and/or the Affiliate. Upon termination
or expiration of this Agreement, Affiliate agrees to immediately terminate all marketing of
Company’s products and return to the Company any and all marketing material or documents in
Affiliates possession.
The Affiliate is prohibited from replicating any of the Company’s marketing material on
any other forum, website, email or other form of communication, marketing or advertising. The
Affiliate is prohibited from using any of the Company’s marketing materials.
6.
Proprietary Rights and Confidentiality
Affiliate acknowledges and agrees that the Services and all other documents and
information related to the Company’s sales, marketing or advertising, client and customer lists,
marketing strategies, products and proprietary processes and documents (the “Confidential
Information”) all constitute valuable trade secrets and confidential information belonging to the
Company. Affiliate shall keep the Confidential Information in confidence and shall not, at any
time during or after the term of this Agreement, without Company’s prior written consent,
disclose or otherwise make available to anyone, either directly or indirectly, any Confidential
Information, the Company’s trade secrets, the Services provided by Affiliate for the Company
and/or a Partner and all other documents and information related to the Company’s sales, pricing,
strategy, marketing or advertising of the Services.
In addition, any Confidential Information, trade secrets and/or other proprietary
information belonging to the Company and/or its Partners shall remain the sole property of the
Company and/or its respective Partners, and at no time is Affiliate being given ownership of any
of the Confidential Information, trade secrets and/or other proprietary information of the
Company and/or its Partners.
Upon the completion of the Term and/or the termination of this Agreement by either
Party, the Affiliate must immediately return all property of the Company to the Company,
including but not limited to all Confidential, Information, trade secrets and/or other proprietary
information.
7.
Exclusivity
During the Term, the Affiliate hereby agrees to exclusively refer clients, customers and
business to the Company and/or its Partners, and Affiliate specifically agrees that he or she will
not refer any customers, clients or business to any other third party, other than the Company
and/or its Partners, during the Term. Doing so, in violation of the terms of this Agreement, will
subject the Affiliate to termination of the applicable Affiliate Agreement and liability to the
Company and/or its Partners for any damages caused to the Company and/or its Partners by such
violation(s), including but not limited to the loss of revenue caused the Company and/or its
Partners by such violation(s).
8.
Non-Solicitation and Non-Competition
As additional protection for Confidential Information, and in consideration of the
agreements provided for in this Agreement, Affiliate agrees that during the term of this
Agreement and upon termination of this Agreement, for any reason, and for two years thereafter,
Affiliate will not (i) directly or actively encourage or solicit any employee, affiliate agent or
representative of Company to leave Company for any reason and will not employ any employee,
agent or representative of the Company; and will not (ii) engage in any activity that is
competitive with the Company’s business with any clients or customers of the Company
obtained by the Company before or during the terms of this Agreement. “Client and Customers
of the Company” are hereby defined to include any client and customer that has ever paid the
Company for services; any of the Company’s current or past customers and clients; any of the
Company’s current or former Partners and/or any of the Company’s current or former Affiliates.
At no point during the course of this agreement and for a period of three (3) years following the
termination of this Agreement, shall Affiliate enter into any commercial contracts or partnership
with any of Company’s Partners. Affiliate shall not directly or indirectly refer business to any
Partner’s without the express written consent of Company. Default of this provision will result in
commissions being immediately terminated and all obligations under this Agreement becoming
null and void. Company reserves the right to charge Affiliate up to $50,000 in conversion fees
per employee, if Affiliate solicits and secures the employment of any of Company’s employees,
Partners or other Affiliates.
9.
Relationship of the Parties
Notwithstanding any provision hereof, for all purposes of this Agreement each Party, the
Company and the Affiliate, shall be and act as an independent contractor and not as partner, joint
venturer, employee nor agent of the other and shall not bind nor attempt to bind the other to any
contract. Affiliate is an independent contractor and is solely responsible for all taxes,
withholdings, and other statutory or contractual obligations of any sort, including, but not limited
to, Workers’ Compensation Insurance; and Affiliate agrees to defend, indemnify and hold
Company harmless from any and all claims, damages, liability, attorneys’ fees and expenses on
account of (i) an alleged failure by Affiliate to satisfy any such obligations or any other
obligation (under this Agreement or otherwise) or (ii) any other action or inaction of Affiliate.
Moreover, except as expressly provided for in this Agreement, Affiliate shall not be entitled to
nor receive any benefit normally provided to Company’s employees such as, but not limited to,
vacation pay, retirement, health care or sick leave.
5.
Non-Assignment
This Agreement and the services contemplated hereunder are personal to Affiliate and
Affiliate shall not have the right or ability to assign, transfer, or subcontract any obligations
under this Agreement without the written consent of Company. Any attempt to do so shall be
void.
6.
Notice
All notices under this Agreement shall be in writing, and shall be deemed given when
personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to
the address of the party to be noticed as set forth herein or such other address as such party last
provided to the other by written notice.
7.
Enforcement
Any breach of Sections 5 or 6 will cause irreparable harm to Company for which
damages would not be an adequate remedy, and, therefore, Company will be entitled to
injunctive relief with respect thereto in addition to any other remedies.
8.
Waiver
The failure of either party to enforce its rights under this Agreement at any time for any
period shall not be construed as a waiver of such rights.
9.
Entire Agreement; Modifications
This Agreement represents the entire agreement between the parties and supersedes any
prior agreements or understandings between the parties regarding any relationship between them.
There are no prior written or oral understandings or agreements between the parties not expressly
contained herein or in any agreements referenced in the exhibits attached hereto and made part
hereof for all purposes. No changes or modifications or waivers to this Agreement will be
effective unless in writing and signed by both parties.
10.
Severability
In the event that any provision of this Agreement shall be determined to be illegal or
unenforceable, that provision will be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and enforceable.
11.
Force Majeure
Company will not be liable for, or will be considered to be in breach of or default under
this Agreement on account of, any delay or failure to perform as required by this Agreement as
a result of any causes or conditions that are beyond Company’s control and that Company is
unable to overcome through the exercise of commercially reasonable diligence.
12.
Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the
State of Georgia without regard to the conflicts of laws provisions thereof.
13.
Attorneys’ Fees
In any action or proceeding to enforce rights under this Agreement, the prevailing party
will be entitled to recover costs and attorneys’ fees.
14.
Headings
Headings herein are for convenience of reference only and shall in no way affect
interpretation of the Agreement.
Signature Page Follows
Agreed to this ______ day of ________________, 20____.
BY: Trucker’s Affiliate Program, Inc. (“Company”)
Justin Klieber
Signature
BY:
Signature
Title
Address
Print Name
(“Affiliate”)
Print Name
EXHIBIT A
AFFILIATE COMMISSIONS – TO BE PAID BY COMPANY
The Company shall pay Affiliate Commissions for certain of its Services pursuant to
Paragraph 2(A) of this Agreement, in order for an account to be commissionable, Affiliate must
not be in default of this Agreement and the Account must be in Good Standing with the Partner.
The following is the commission program:
Fuel Cards $0.02 per gallon purchased through a fuel card from a Partner for the life of the
business relationship.
Insurance: Affiliate must be a licensed P&C Insurance Agent in the State that they are referring
business. Affiliate will earn 15% of the “Insurance Broker Commission”.
Insurance Broker Commission is defined as the amount of money the Insurance
Broker earns from writing the insurance policy. If the referred client defaults on
their Insurance agreement, Affiliate may be charged back for their earned
commissions. Company reserves the right to make insurance commission
payments to the Affiliate on a quarterly basis. Commission will only be paid if the
Affiliate is the first person to introduce the Client to the Insurance Company.
Equipment Finance 1% of the total amount financed
Factoring: Affiliate will earn 10% of the fees earned by the Partner for the life of the deal. The
account must be in Good Standing and not have any negative reserve or uncollected recourse
loads.
Company shall pay the prior month’s commissions by the 20th day of the following month.
Company reserves the right to make Insurance Commission payments on a quarterly basis if
Company deems this necessary at their sole discretion. The Parties further agree that, pursuant to
Paragraph 2(a)(c) above, no commissions shall be paid by Company to Affiliate until and unless
the Company is first paid the monies from which that commission is derived.