This Master Agreement for Perform[cb] Agency Services (the "Agreement") is by and between you and your company (the “Merchant”), and Perform[cb] LLC, a Colorado limited liability company ("Perform[cb] Agency"). This Agreement shall be effective on the date that an Insertion Order, as defined below, is executed pursuant to this Agreement has been signed by both parties as reflected on the signature page thereto (the “Effective Date”). Merchant and Perform[cb] Agency are each referred to herein as a “Party” and collectively as the “Parties.”
Pursuant to the terms and conditions set forth herein and in any Insertion Order, the Merchant desires to retain the services of Perform[cb] Agency to consult and/or assist the Merchant in the management and operation of its affiliate marketing program, and Perform[cb] Agency desires to provide such services to the Merchant.
1. Select Definitions.
1.1. “Action” means an act or event by a third party (usually, a consumer) upon which payment hereunder is based or determined and is being tracked in an affiliate tracking platform, such as a sale, install, or lead.
1.2. “Affiliate” means any third-party publisher or influencer managed by Agency who generates Actions for Merchant through Affiliate’s advertising efforts and is compensated on a CPA basis.
1.3. “Affliate Program” means Merchant’s use of Affiliates as set forth in an Insertion Order.
1.4. “CPA” means a cost per Action payment model.
1.5. “CPA Commissions” means the portion of the CPA Spend or CPA Revenue owed by Merchant to Agency as set forth in an Insertion Order.
1.6. “CPA Revenue” shall be the total revenue generated by Affiliates for Merchant on a CPA basis during a given calendar month.
1.7. “CPA Spend” means the total amount paid each calendar month to Affiliates for Merchant's account during such month—including amounts paid directly by Merchant and amounts paid by Perform[cb] Agency on behalf of Merchant—for advertising that is priced on a CPA basis.
1.8. “Insertion Order” means a document signed by Merchant, and accepted by Perform[cb] Agency, that incorporates this Agreement and designates the Services ordered by Merchant and to be performed by Perform[cb] Agency. The Parties may execute separate Insertion Orders from time to time.
1.9. “Media Spend” is defined as any spend during each calendar month other than CPA Spend. Media Spend includes but is not limited to, publisher integration, premium placement fees, CPM (cost per thousand impressions) and CPC (cost per click) placements. Media Spend will always be preauthorized by Merchant in writing (including by email).
1.10. “Media Spend Commissions” means the commission, calculated based on the amount of the Media Spend as set forth in an Insertion Order, owed by Merchant to Agency.
1.11. “Monthly Minimum” means the amount set forth in an Insertion Order.
1.12. “Services” means the agency services to be performed by Perform[cb] Agency for Merchant as outlined in an Insertion Order.
2. Scope. Pursuant to all of the terms and conditions set forth herein, Merchant hereby engages Perform[cb] Agency to perform the Services. Additional Services may be added to this Agreement by the Parties through additional Exhibits (labeled in order as Exhibit B, C and so forth), which upon execution by both Parties, shall be attached to and considered part of this Agreement.
3. Limited Exclusivity. Merchant agrees that, during the term of this Agreement, Perform[cb] Agency will be Merchant’s exclusive agency for the Affiliate Program and will manage all Affiliate relationships thereunder; provided, however, that nothing herein shall prevent Merchant’s participation, at its election, in communicating with and/or managing Affiliates. If, during the Term of this Agreement, Merchant seeks to assume sole management of a particular Affiliate, Merchant agrees that it will either (a) continue to pay to Perform[cb] all CPA Commissions for the Affiliate as if Perform[cb] were still managing the Affiliate, or, (b) pay to Perform[cb] an “Affiliate Termination Fee” equal to the amount of the CPA Commissions earned by Perform[cb] in association with the Affiliate in the twelve (12) months prior to Merchant’s assumption of management of the Affiliate. Merchant understands and agrees that the CPA Commissions owed to Perform[cb] under the preceding sentence are intended to compensate Perform[cb] for its efforts in growing the profitability of particular Affiliates for Merchant.
4. Fees. During the term of this Agreement, Merchant shall pay Perform[cb] Agency on a monthly basis as follows:
4.1. Monthly Fees. Each calendar month, Merchant shall pay Perform[cb] Agency “Monthly Fees” consisting of all of the following: (i) the greater of the CPA Commissions or the Monthly Minimum; and (ii) the Media Spend Commissions.
4.2. Monthly Minimum. For clarity, if the sum of the CPA Commissions is less than the Monthly Minimum, then Merchant shall pay the Monthly Minimum. If CPA Commissions are paid directly to Perform[cb] Agency upon being generated, then for months where the CPA Commissions are less than the Monthly Minimum, Merchant shall make an additional payment to Perform[cb] Agency equal to the difference between the Monthly Minimum and the CPA Commissions. When the CPA Commissions exceed the Monthly Minimum for a given month, the Monthly Minimum amount does not apply for such month. Media Spend Commissions do not count towards or offset the Monthly Minimum. The Monthly Minimum shall be prorated for any partial month.
4.3. Chargebacks. Perform[cb] Agency shall not earn CPA Commissions on reversals or chargebacks that are processed by Merchant no later than ten (10) days after the end of the month in which the CPA Commissions were generated and timely submitted to Perform[cb] via the dispute procedures in Section 6.3; however, if the CPA Commissions for such reversals or chargebacks have already been invoiced, Perform[cb] Agency shall issue Merchant a credit for such CPA Commissions on its invoice for the next Monthly Fees.
5. Reimbursable Expenses.
5.1. Expenses. Monthly Fees do not include, and Merchant agrees to reimburse Perform[cb] Agency for, all out-of-pocket costs incurred by Perform[cb] Agency in rendering Services hereunder, including, without limitation, any CPA Spend and Media Spend for Merchant's account that is paid by Perform[cb] Agency on behalf of Merchant, and host fees, paid listing or paid inclusion fees, advertising fees, network fees, tracking platform fees, or the creation of ancillary products such as advertising collateral, Kiosks for trade shows, or ancillary digital services such as archiving of data, travel or conference expenses (collectively, “Reimbursable Expenses”).
5.2. Preauthorization Required. With the exception of CPA Spend, all Reimbursable Expenses will be preauthorized in writing by Merchant, with email constituting an acceptable form of approval. Upon request by Perform[cb] Agency, Merchant shall pay CPA Spend and Media Spend directly to the Affiliates and media companies providing such services or prepay such amounts to Perform[cb] Agency.
5.3. Payment. Reimbursable Expenses will be invoiced to and payable by Merchant in conjunction with the Monthly Fees. For clarity, Reimbursable Expenses are not included within, and are payable in addition to, the Monthly Fees. For example, if Merchant owes a $5,000 Monthly Minimum during a given month, $2,000 in Reimbursable Expenses (including Media Spend), and $500 in Media Spend Commissions, then Merchant shall owe $7,500 for the monthly period.
6.1. Invoicing. Perform[cb] Agency will invoice Merchant by email each month for the Monthly Fees and any Reimbursable Expenses. Perform[cb] Agency will calculate the CPA Spend or CPA Revenue (as applicable based on Merchant’s payment model as set forth in the Insertion Order) using data from tracking services for Merchant's Affiliate Program and other sources. Merchant shall provide Perform[cb] Agency with access to such tracking services and any additional information requested by Perform[cb] Agency from time to time as needed to calculate the CPA Spend or CPA Revenue and Media Spend. If required, and upon request, Merchant shall provide Perform[cb] Agency with the monthly gross CPA Revenue generated from Merchant's Affiliate Program (including reasonable supporting details) no later than five (5) days after the completion of such month.
6.2. Payment. The Monthly Fees and Reimbursable Expenses due under Sections 4 and 5 above, as reflected on Perform[cb] Agency's invoice, shall be paid on the 20th day of the month following the month covered by the invoice.
6.3 Disputes. Merchant shall submit any and all claims and disputes regarding an invoice and the Services and/or Monthly Fees covered under such invoice in writing to Perform[cb] Agency within seven (7) days after issuance of such invoice, time being of the essence. Claims and disputes not timely submitted to Perform[cb] Agency in accordance with this provision are waived and all charges are final. Merchant shall submit all evidence in support of its dispute, and Merchant agrees that, without such proof in support of the dispute, Merchant shall be required to pay Perform[cb] Agency in full for all Services performed under the Agreement. Merchant acknowledges and agrees that Perform[cb] Agency shall not be liable for any instances of fraud on the part of end-user consumers. Merchant shall timely pay any amounts not in dispute, including the Monthly Minimum and any Reimbursable Expenses, by the regular payment due date. All disputed commission amounts must be resolved and paid no more than forty-five (45) days following the month in which they occurred.
6.4. Late Payments. Merchant shall pay to Perform[cb] Agency interest on any past due payments at the rate of 1.5% per month, compounded monthly, or if less, the highest rate permitted under applicable law, and all costs of collection, including reasonable attorney's fees and expenses.
7. Authority and Representation.
7.1. Publisher Agreements. Merchant authorizes Perform[cb] Agency, as Merchant's agent, to enter into agreements with Affiliates, other publishers and media providers, and networks (collectively, the "Publisher Agreements") for the purpose of providing Services hereunder. Merchant agrees to be bound by the Publisher Agreements entered into by Perform[cb] Agency with respect to the Services provided through such Publisher Agreements, including, without limitation, paying for any CPA Spend, Media Spend and indemnity obligations with respect to Merchant's ads, creative, products and services.
7.2. Perform[cb] Tracking Platform. Merchant understands and agrees that Perform[cb] Agency may require, as part of any Publisher Agreement, that the Affiliate enroll with and have its Actions tracked through Perform[cb]’s proprietary tracking platform.
7.3. License. For the term of this Agreement, Merchant hereby grants to Perform[cb] Agency and the third-party networks, affiliates and publishers enlisted by Perform[cb] Agency on Merchant’s behalf pursuant to this Agreement, a non-exclusive, royalty-free, worldwide license to (a) use, perform and display all creative or other advertising materials provided by Merchant hereunder, and (b) use all associated Merchant intellectual property in connection therewith. Title to and ownership of all intellectual property rights of Merchant shall remain with Merchant or its third-party licensors.
8. Confidentiality. Each Party shall keep the other Party’s Confidential Information (defined below) secure using at least the same degree of care that it uses to protect its own Confidential Information, and agrees to not disclose or use such other Party's Confidential Information except solely to the extent reasonably necessary to perform its obligations, exercise its rights under this Agreement, or as required by applicable law. “Confidential Information” means and includes all information of a Party and its business that is not freely available to the public; however, Confidential Information of a Party ("Disclosing Party") does not include information that (i) was/is available in the public domain through no breach by the other Party ("Receiving Party") hereunder; (ii) was/is acquired by the Receiving Party from a third party that is not under a confidentiality obligation with the Disclosing Party; (iii) was known to the Receiving Party prior to its receipt from the Disclosing Party; or (iv) is independently developed by the Receiving Party without the use of Confidential Information of Disclosing Party. A breach by either party of any of the provisions of this Section 8 could result in irreparable harm to the other party and money damages will not be a sufficient remedy. Accordingly, in the event of a breach of the obligations under this Section 8, the Disclosing Party shall be entitled to appropriate equitable relief, including injunctive relief and specific performance (without the posting of any bond and without proof of actual damages), in addition to any other remedy, including claims for damages, that it might otherwise have.
9. Term of Agreement; Termination and Survival.
9.1. Term; Renewal. This Agreement shall have an initial term commencing upon the Effective Date and ending twelve (12) months thereafter. Thereafter, the Agreement shall automatically renew for subsequent twelve (12) month terms, subject to the right of either Party to terminate at the end of a term by notifying the other Party in writing that it does not want to renew at least thirty (30) days prior to the expiration of the then current term.
9.2. Termination for Cause. Either Party may terminate this Agreement if the other Party breaches any obligations hereunder and fails to cure such breach within ten (10) days after receipt of written notice from the non-breaching Party describing the breach; provided, however, no cure period shall apply and termination will be effective immediately upon such notice if continuing performance during the cure period would require the non-breaching Party to violate any applicable law, regulation, or third-party right.
9.3. Termination Without Cause. Merchant may also terminate this Agreement, without cause or reason, upon payment of a termination charge to Perform[cb] equal to the following (the “Termination Charge”): Termination Charge = 75% x (A) x (B), where A is the average Monthly Fees paid to Perform[cb], taken from the most recent three (3) months of service and B is the number of months (including any fraction of a month) remaining in the term of this Agreement. For example, if there are 4 full months and 20 days left in the remaining term, B shall be 4.67 (4 plus 20/30).
9.4. Effect of Termination; Survival. Termination or expiration of this Agreement for any reason does not waive the Merchant’s obligation to pay in full all Monthly Fees earned and Reimbursable Expenses incurred prior to the date of termination, including the Termination Charge, if any. Upon termination or expiration of this Agreement, the Merchant shall pay to Perform[cb] Agency any outstanding Monthly Fees and Reimbursable Expenses, including the Termination Charge, within 10 days of the date of termination. In addition to Merchant’s payment obligations, the provisions set forth in Sections 8 through 20 of this Agreement shall survive the termination or expiration of this Agreement.
9.5. Migration Fee. If Merchant desires Perform[cb] Agency to handle the migration of the Affiliate Program to a new platform, and such migration occurs within sixty (60) days before or after expiration or termination of this Agreement, Merchant shall pay Perform[cb] Agency a fee of $10,000 (the “Migration Fee”) to compensate Perform[cb] Agency for the time spent on migration. Perform[cb] Agency will invoice Merchant by email for the Migration Fee following Merchant’s request for such migration Services, and Merchant shall pay such invoice within twenty (20) days after receipt.
10.1. By Merchant. Merchant agrees to defend, indemnify and hold harmless Perform[cb] Agency and its managers, directors, officers, shareholders, employees, affiliates, representatives and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees, even if incident to any appeals) (collectively, “Losses”) incurred as a result of any claim, judgment, or proceeding relating to or arising out of: (a) Merchant’s breach of this Agreement, (b) the content of any ads, creative, or other information provided by Merchant hereunder, (c) Merchant’s products or services, or (d) the Publisher Agreements, but only with respect to Services provided by Perform[cb] Agency hereunder through such Publisher Agreements.
10.2. By Perform[cb] Agency. Perform[cb] Agency agrees to defend, indemnify and hold harmless Merchant and its managers, directors, officers, shareholders, employees, affiliates, representatives and agents from and against any Losses incurred as a result of any claim, judgment, or proceeding relating to or arising out of: (a) any breach of this Agreement by Perform[cb] Agency, (b) the content of any ads or creative provided by Perform[cb] Agency hereunder, or (c) any claim that Perform[cb] Agency’s Services violate the proprietary rights of any third party.
10.3. Procedure. If any action is brought against either Party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other Party hereunder ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware, except that failure to provide such notice shall not excuse the Indemnifying Party’s indemnification obligations under this Section 10 unless such failure materially prejudices the Indemnifying Party. The Indemnified Party shall permit the Indemnifying Party to assume control over the defense of such claim, with counsel chosen by the Indemnifying Party that is reasonably acceptable to the Indemnified Party, provided however, that the Indemnified Party shall control the defense of any such claim that, in the reasonable opinion of such Indemnified Party, could have a material and adverse effect on the business, operations, assets or prospects of such Indemnified Party, and the reasonable costs and expenses thereof shall be included as part of the indemnification obligations of the Indemnifying Party hereunder. The Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
11. Disclaimers; Limitation of Liability. THE SERVICES PROVIDED BY PERFORM[CB] AGENCY AND ANY AFFILIATE OR PUBLISHER HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY ADVERTISING. WITHOUT LIMITING THE FOREGOING, PERFORM[CB] AGENCY DOES NOT WARRANT OR GUARANTEE THE SUCCESS OF ANY ADVERTISING, THE NUMBER OR QUALITY OF ACTIONS OR LEADS GENERATED THROUGH THE AFFILIATE PROGRAM OR ANY MEDIA SPEND, OR THE AMOUNT OF ACTIONS OR REVENUE TO BE DERIVED BY MERCHANT FROM THE ADVERTISING. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY ADVERTISING, PERFORM[CB] AGENCY’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE, AND TO THE EXTENT THE SAME IS WITHIN PERFORM[CB] AGENCY’S ABILITY OR CONTROL. PERFORM[CB] AGENCY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT, LOSS OF PROFITS OR REVENUE OR GOODWILL, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY EXCEED IN THE AGGREGATE THE TOTAL AMOUNTS OF MONTHLY FEES PAID BY MERCHANT HEREUNDER FOR THE TWELVE (12) MONTH PERIOD TO THE DATE SUCH CLAIM AROSE. NO ACTION UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.
12. Data Protection Addendum; International Compliance. The Parties do not anticipate any exchange or processing of consumer personal information between Merchant and Perform[cb]; however, out of an abundance of caution and desire to comply with all applicable law, the Parties have read and agree to comply with the Data Protection Agreement, available at https://support.performcb.com/support/solutions/articles/4000153889-data-protection-addendum,
which is incorporated herein by reference. Before approving any third party to process, access or use consumer data obtained or transferred through the Services, Merchant shall present and secure the written agreement to the Data Protection Addendum from said third party. Merchant represents and warrants that its consumer data collection practices are performed in a manner that obtains the necessary knowing and frequent consent from consumers and that all consumer data is stored using industry standard or better security protocols. If Merchant is either located outside the United States or offering or distributing (or potentially distributing) an offer outside the United States, Merchant represents and warrants that (i) Merchant is familiar with the particular laws, regulations and industry customs in those countries in which Merchant is located and/or distributing the ad, (ii) Merchant has previous experience advertising its offers and products in such countries, and (iii) Merchant will comply with all laws, regulations and industry customs applicable to the operation of its business, its marketing practices, and the collection and/or transfer of consumer data by Merchant in such countries. To be clear, Merchant is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Merchant is located.
13. Force Majeure. Other than obligations to pay money, neither Party will be liable to the other Party by reason of any failure or delay in the performance of its obligations hereunder on account of fire, flood, storms, earthquake, war, Act of God, governmental action, terrorism, or any other cause which is beyond its reasonable control.
14. Construction of Terms. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.
15. Governing Law; Jurisdiction.
15.1. Governing Law. This Agreement and any disputes or issues arising out of, relating to or in connection with, this Agreement shall be governed by, construed and enforced in accordance with the internal laws of the State of Colorado without regard to its provisions concerning choice of laws, choice of forum or any principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction.
15.2. Arbitration. At the election of either Party, any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association. The location of the arbitration shall be Denver, Colorado, but the arbitrator shall be entitled to conduct proceedings remotely, by phone, or video conference, where appropriate, in order to minimize the burden upon the Parties. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either Party in any state or federal court having competent jurisdiction thereof. If either Party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail, said Party will pay all of the costs and expenses (including without limitation, court costs, arbitrators’ fees and expenses and reasonable attorneys’ fees) incurred by the other Party in defending such action. The arbitrators will not be empowered to award punitive damages. The consent of the Parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each Party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding.
15.3. Forum for Judicial Proceedings. Subject to and without waiving the arbitration agreement in Section 15.2, with respect to any judicial action brought by the Parties in relation to this Agreement (including a petition for remedies in aid of arbitration), the Parties hereto consent and submit to the exclusive jurisdiction of the federal or state courts located in Denver, Colorado.
16. Independent Contractors. Except as expressly provided under Section 7.1, nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the Parties, and neither Party nor its agents have any authority of any kind to bind the other Party in any respect whatsoever, and the relationship of the Parties is, and at all times shall continue to be, that of independent contractors.
17. Assignment. Neither Party shall make an assignment of this Agreement or any interest herein without the prior written consent of the other Party, which consent shall not be unreasonably withheld. This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective legal representatives, successors and permitted assigns.
18. Reference. Perform[cb] Agency shall have the right to reference Merchant and the general nature of the services provided hereunder in marketing materials.
19. Recordkeeping. Merchant shall keep accurate books and records directly relating to the CPA Spend, CPA Revenue, and Media Spend in accordance with generally accepted accounting principles. All such books and records shall be maintained by Merchant throughout the term and for one year thereafter. If electronic tracking is incomplete for any reason, Merchant agrees to provide all relevant records to Perform[cb] to enable Perform[cb] to calculate CPA Spend, CPA Revenue, and/or Media Spend as necessary to invoice Merchant for the Monthly Fees.
20. Complete Agreement; Amendment. This Agreement constitutes the complete agreement and sets forth the entire understanding, agreement and obligation of the Parties as to the subject matter hereof. This Agreement supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral. In the event that Perform[cb] Agency is required to agree to additional terms when using Merchant’s website, mobile application, or tracking platform for purposes of performing the Services or calculating CPA Spend or CPA Revenue, the parties hereby acknowledge and agree that such agreement is inconsequential and in no way binding and that it is a result of a technical requirement that cannot be altered; therefore, any such terms are to be disregarded and deemed non effective and shall be explicitly superseded by this Agreement. This Agreement may be amended by the Parties hereto at any time by execution of an instrument in writing signed on behalf of each of the Parties hereto.