This agreement (the “Agreement”), subject to the terms below, gives registered affiliates (“Affiliate(s)”) an opportunity to receive commission for successfully referring users to subscribe to the Company’s Services, as described in the Company’s Terms of Service.
The following terms shall have the following meaning:
“Company” means Melio Payments Inc.
“Consideration” means a One-time $200 fee per Converted Lead, based on a CPA (Cost per Action) fee model.
“Converted Lead” means a Lead who has provided his/her/its contact details to Company, successfully registered to become a customer of Company, and initiated and completed the first payment, of at least $200.00 USD, using Company’s “Melio Pay” service, and such payment was not charged back or refunded.
“Lead” means a person or entity whose been directed to Company’s website by Affiliate through Affiliate’s customized link provided by Company to Affiliate.
“Reconciliation Date” means the 13th of each month, for the Converted Leads of the preceding month.
2. Ownership of Proprietary Materials
Company may, at its sole discretion, provide Affiliate with advertising/marketing, creative materials, or other proprietary or Confidential Information (as defined below), regardless of whether such materials are copyrighted, trademarked, constitute trade secret or are otherwise proprietary information of Company (collectively “Proprietary Materials”), for the purpose of promoting Company’s products or services. Affiliate shall only be permitted to use any such Proprietary Materials, solely as required to perform is obligations hereunder and as instructed by Company. Affiliate shall not publish any Proprietary Material on its website, platforms and any other media, without the prior approval of Company. All rights, title and interest including but not limited to intellectual property rights, in and to the Proprietary Materials shall be and remain the sole and exclusive property of Company and Affiliate is not granted any license with respect thereto.
3. Authorities and Responsibilities of Company
4. Authorities and Responsibilities of Affiliate
4.1. Affiliate shall refer its clients and other third parties to Company’s website or to custom built pages on its website, as directed by Company.
4.2. Affiliate will use any Proprietary Materials provided to it by Company solely in accordance with Company’s instructions.
4.3. In publishing and promoting Company’s solution and performing its obligations hereunder, Affiliate will not infringe the rights of a third party or infringe any applicable law.
4.4. Promoting Company’s solution through a sub-affiliate network is permitted. However, Affiliate must be completely transparent with regards to where traffic from Affiliate’s sub-affiliates originated. Sub-affiliate networks must ensure that all sub-affiliates promoting the Company’s solution adhere to the Company’s terms and conditions. This includes restrictions on advertising through: (i) toolbars; (ii) browser extensions; (iii) ad networks such as Facebook, Google, YouTube, Twitter, LinkedIn, Quora, Taboola and Outbrain; and (iv) any paid placements such as pay-per-click campaigns (subsections (i) through (iv), the “Restricted Networks”). Promoting the Company’s solution organically or through personal profiles on Restricted Networks is permitted. Failure to comply with this Section 4.4 may result in denial of payment for a Converted Lead made through a sub-affiliate network, in the Company’s absolute and sole discretion.
5.1. Company shall pay Affiliate the Consideration on a monthly basis for Converted Leads in accordance with this Agreement. Payment Reconciliation Date shall be as set forth in this Agreement.
5.2. Affiliate shall bear and is responsible for all taxes, levies and charges associated with and imposed on the Affiliate in connection with this Agreement.
6. Term and Termination
Each party may terminate this Agreement for convenience upon three (3) business days’ prior written notice (including via email) to the other party. In case of termination the Company will initiate payout of the Converted Leads. This Section 6 will survive termination of this Agreement.
7. No Warranties
COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY ARRANGEMENTS CONTEMPLATED BY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY CLAIMS ARISING FROM THE RELATIONSHIP BETWEEN THE CONVERTED LEAD AND THE COMPANY, ANY LOAN OR CREDIT LINE AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY DEFAULT THEREOF, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, MERCHANTABILITY, LEGALITY OR NON-INFRINGEMENT.
Affiliate will defend, indemnify, and hold Company and its directors, officers, employees, representatives and agents, harmless from and against any and all liabilities, losses, damages, and costs, including reasonable attorney’s fees, resulting from, arising out of, or in any way connected with (a) any breach by Affiliate of any warranty, representation, or agreement contained in this Agreement; (b) the performance of Affiliate’s duties and obligations under this Agreement; and (c) any claim or demand by a Converted Lead relating to actions taken by Affiliate.
9. Limitation of Liability
NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGE OR LOSS OF ANY KIND, OR FOR LOSS OF BUSINESS, PROFITS, REVENUE, CONTRACTS OR ANTICIPATED SAVINGS, OR ARISING FROM LOSS, DAMAGE OR CORRUPTION OF ANY DATA. IN ANY EVENT AND UNDER ANY CIRCUMSTANCES, THE PARTY’S AGGREGATE AND TOTAL LIABILITY OF COMPANY TO AFFILIATE ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL PAYMENTS MADE BY COMPANY TO AFFILIATE UNDER THIS AGREEMENT OVER THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
10.1. The parties acknowledge that in the course of fulfilling their obligations under this Agreement, the parties may have access to certain confidential information of each other (“Confidential Information”), which may include but is not limited to: (1) the methods, business partners, and affiliates used by the parties to perform their obligations pursuant to this Agreement; and (2) the parties’ business plans and marketing plans and materials, financial information; (3) Proprietary Materials (with respect to Confidential Information of Company); and (4) all such other information that is the exclusive property of the parties and which, if disclosed, could cause harm to either party.
10.2. Confidential Information does not include any information that a receiving party possessed before receiving it from the disclosing party, information published or available to the general public otherwise than through a breach of this Agreement, information obtained by either party from a third-party having a valid right to disclose it to the receiving party without any restrictions, or information which was independently developed by the receiving party, without use of or reliance on Confidential Information of the disclosing party.
10.3. Each party, on its own behalf and on behalf of its customers hereby represents and warrants that it shall not, for any reason or under any circumstance at any time, directly or indirectly use, convert, apply, appropriate, employ, alter, transform, assign, put into operation or otherwise use any of the Confidential Information, in whole or in part, for any purposes whatsoever, other than as expressly permitted herein. Each party acknowledges any such action taken by it or its customers is in contravention to this Agreement and is strictly prohibited.
10.4. Each party acknowledges that the provisions of this Section 10 are essential to their Agreement, that they would not enter into this Agreement if it did not include this Section 10, and that damages sustained by either as a result of a breach of this Section 10 cannot be adequately remedied by damages. Each party therefore agrees, notwithstanding any other provision of this Agreement, and in addition to any other remedy either may have under this Agreement or at law, shall be entitled to seek injunctive and other equitable relief to prevent or curtail any breach Section 10 of this Agreement.
10.5. The parties agree to keep the terms and existence of this Agreement, and all other Confidential Information as defined in 10.1, strictly confidential, and shall not reveal Confidential Information to any other person or entity, except: (a) as required by law or order of the court or the other government authority; (b) as is reasonably necessary to be disclosed to the parties’ accountants, consultants, tax advisors, investors, potential investors, attorneys, employees, representatives, bankers, or bondholders; (c) as is reasonably necessary to the defense or enforcement of any action to which the terms of this Agreement may apply; or (d) in response to a valid subpoena or as otherwise compelled by a court of competent jurisdiction or governmental agency. If a party receives an informal request, discovery request or subpoena for the disclosure of Confidential Information then it must first notify the other party and provide it ample time to seek a protective order or other relief before the disclosing party produces Confidential Information.
11. Melio retains the right to review the Consideration payable pursuant to this Agreement to an Affiliate for possible fraud or abuse, including the opening of false Company accounts, where such fraud or abuse may be on the part of the Lead or on the Affiliate’s part. Without derogating from the foregoing, Melio in its sole discretion shall withhold the payment of any outstanding fee to the Affiliate should Melio considers Affiliate’s or a Lead’s activity as fraudulent or abusive. For the avoidance of doubt, Consideration shall not be payable with respect to any Clients (as defined in Company’s Terms of Service) added by Accountants that are referred to Company by an Affiliate, or with respect to Clients that an Accountant otherwise adds to such Accountant’s Company Account, and such Clients shall not be considered Converted Leads.
The Company may change the terms of this Agreement from time to time. The Company will provide the Affiliates notice of such changes to the email address provided by the Affiliates. The continued engagement of an Affiliate after the effective date of the amended Agreement constitutes consent to the amended terms of the Agreement. In any event, if an Affiliate does not consent to the amended Agreement, Company may initiate payout of the Converted Leads and terminate this Agreement.
Any notices relating to this agreement will be made in writing and may be sent by fax, email or by registered mail or courier to the address mentioned in the IO, or such other address as shall have been furnished by the parties. Any notice required under this Agreement shall be deemed given: (i) upon receipt, when delivered personally; (ii) by e-mail, within 24 hours after having been sent; and (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, if sent by standard first class (or local equivalent) mail.
14. Parties Relationship
Nothing in this agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties.
15.1. The construction, validity and performance of this Agreement will be governed by the laws of New York. The competent courts in New York, NY will have exclusive jurisdiction in any matter arising from or related to this agreement. This, however, shall not prevent the parties from bringing any action in the court of any other jurisdiction for injunctive or similar relief.
15.2. Either party’s failure to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of such party’s right to subsequently enforce such provision or any other provision of this Agreement.
15.3. Either party may not assign or transfer this Agreement or any rights under this Agreement without the other party’s prior written consent; except that the Company may assign its rights under this Agreement (i) in connection with any dissolution, merger, consolidation, or other reorganization of or affecting the Company, whether or not the Company is the surviving corporate entity, or any sale or transfer by one or more transactions, of stock possessing more than fifty percent (50%) of the total combined voting power of the Company; or (ii) to any subsidiary or other affiliate of the Company.
15.4. Whenever possible, each provision of this agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this agreement or any of its provisions.